Governor Hogan Moves Ahead with Phosphorus Regulations in Maryland

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After taking down former Governor Martin O’Malley’s proposed phosphorus management regulations this past January, current Maryland Governor Larry Hogan has moved ahead with revised regulations. While the most recent regulations will lead to less phosphorus runoff to the Chesapeake Bay, Hogan’s revisions push back implementation of phosphorus management on Maryland farms, and delay the much-needed cleanup of the Bay.

Hogan’s regulations will put into place the Phosphorus Management Tool (PMT), replacing the current Phosphorus Site Index for many of Maryland’s agricultural fields. The regulation will divide Maryland farmland into three tiers, based on the phosphorus fertility index value (P FIV) (phosphorus levels found in the soil). The highest tier (Tier C) will include farmlands with a P FIV of 450 or greater. These farms with the highest levels of phosphorus in the soil will be the first to begin implementation of the PMT. This means that farmers will have to measure and monitor soil phosphorus levels and apply amounts of manure fertilizer dependent on preexisting phosphorus levels. Farms with a P FIV of 400 or greater will likely have to stop using chicken manure (heavy in phosphorus) all together until the P FIV significantly decreases.
The second tier (Tier B) includes farms with an average P FIV of 300 and greater, but less than 450. The third tier (Tier A) includes farms with an average P FIV of 150 and greater, but less than 300.

The biggest difference between O’Malley’s proposed PMT, and the PMT regulations that Hogan has revised and reissued is timing. Hogan allows the farmers a little more leeway with implementation of the PMT. Farms with a P FIV of 400 or greater, while they must transition to the PMT sooner, are allowed the longest time to reach full implementation. These farms will face the greatest cuts, but will have the greatest amount of time to comply. In addition, the regulation will not begin to take effect until later than O’Malley’s original proposed PMT. Now, the PMT will not be fully implemented until 2022, across all three tiers.

It is good news that Hogan’s office has decided to implement the PMT, and was able to reach a compromise between Hogan’s own proposed regulations, and lawmakers who endorsed O’Malley’s former proposed regulations. However, full implementation of the PMT is still a long way off. Transition from the current Phosphorus Site Index for farms with the highest levels of phosphorus in their soils (tier C) does not begin until 2018; tiers B and A do not begin transition until 2019 and 2020, respectively. While Maryland is not the only state contributing to phosphorus pollution in the Chesapeake Bay watershed, their chicken feeding operations, and the tons of chicken manure used as fertilizer on state croplands means that Maryland contributes a significant amount to phosphorus loads in the Chesapeake Bay. (10% of the phosphorus in the Bay is estimated to come from the Eastern Shore alone, where many of these chicken farming operations take place). I would argue that for the Bay, every little bit helps, and it’s never too soon to begin implementing regulations that will improve water quality in the estuary. Bay health is overall still pretty poor – the Chesapeake scored a D+ on the Chesapeake Bay Foundation’s most current report card- while populations of blue crabs, underwater grasses, and oysters are still at extremely low levels. Changes need to be made now to improve conditions in the Bay in the years to come.

To read the revised regulations for yourself, please visit the Maryland Department of Agriculture. The Baltimore Sun and The Washington Post have also published stories in recent days, if you would like to read more about this issue.

Maryland Senate Hearings on Phosphorus Regulations

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The following is an account from my colleague, Neil Saunders, on the recent Maryland Senate hearings on phosphorus management, which he attended on February 24, in Annapolis. The hearing addressed the recent phosphorus management regulations proposed by former Governor Martin O’Malley, and reversed by newly inaugurated Governor Larry Hogan.

Listening to testimony provided in the Senate committee hearing on the proposed Phosphorus Management Tool bill, one theme that continued to be raised is that of unintended consequences. Proponents of the bill, Senator Pinsky who sponsored the bill and the environmental and scientific community, argued that not taking action necessary to address the problem of excessive phosphorus pollution entering the Chesapeake Bay watershed would have the unintended consequences of continuing to degrade the Bay’s poor water quality. Opponents of the bill, Secretary Bartenfelder and concerned partners of agriculture, countered that passage of the overly restrictive legislation would have the unintended consequences of mismanaging the state’s efforts to reduce nutrient pollution within the agricultural community. They do not oppose the PMT outright, but instead advocate for implementation of the PMT through flexible administrative regulations. Given the history of water quality policy around the Chesapeake Bay, it is clear that one side isn’t as sincere as they want to appear.

On February 24th, the Maryland Senate Committee on Education, Health, and Environmental Affairs heard testimony on a proposed bill to put into law the same PMT regulations that were stopped at the last minute by newly elected Governor Hogan. The bill, Senate Bill 257, was sponsored by Senator Pinsky to address the excessive phosphorus levels in the Chesapeake Bay watershed, which has for decades contributed to the degradation of the Bay’s water quality. Specifically, the bill would update the method by which soil is measured for phosphorus and restrict the amount of animal manure, which is rich in the nutrient, that may be applied to farmlands where phosphorus levels are too high.

Under Maryland law, farmers must comply with a nutrient management plan to manage the application of nitrogen and phosphorus to their fields to prevent pollution to the Bay. The purpose of the nutrient management plan is to account for the nutrient needs of the crops as well as the risk of excessive nutrient runoff that can reach surface waters and ultimately pollute the Bay watershed. Currently, the Maryland Department of Agriculture relies on a model called the Phosphorus Site Index (PSI) to measure phosphorus levels and guides the department in making recommendations as to proper application rates. Senate Bill 257 would replace the PSI with a revised model for measuring phosphorus levels known as the Phosphorus Management Tool (PMT). The PMT, developed by the University of Maryland, more accurately identifies areas where there is high potential for phosphorus loss to nearby surface waters. The PSI, which was first developed in 2000 and revised in 2005, has been criticized by scientists to under-measure the risk of phosphorus loss, resulting in over-application of animal manure. The PMT would be implemented gradually over six years, with those fields with the highest phosphorus levels given the most time to be in compliance.

Senator Pinsky sponsored the bill after Governor Hogan recently blocked the PMT regulations from taking effect last month as part of outgoing Governor Martin O’Malley’s last moves before leaving office. Governor Hogan has since released his own proposed regulations immediately prior to the senate committee hearing; the debate is now whether the PMT should be adopted as regulations or passed as a piece of legislation. During testimony over the bill, Senator Pinsky acknowledged that adopting the PMT as an administrative regulation provides advantages in allowing flexibility to make minor changes in the future, but expressed serious concern that the Governor’s proposed regulations would ever be implemented and were not an attempt to delay implementation and save political face. Under Maryland law, the regulations proposed by the Governor cannot take effect until June 8th at the earliest. The previous regulations would have taken effect during the first week of February.

Senator Pinsky’s concerns do hold merit. For one, the environmental and scientific communities have advocated for years for new regulations to address excessive phosphorus caused by over application of animal manure. Several individuals from organizations such as the University of Maryland, Chesapeake Bay Foundation, Chesapeake Bay Commission, U.S. Ecological Survey, and Environmental Integrity Project joined the Senator before the Senate committee to express support for the bill. The consensus among them was that this bill is long overdue and fundamental to addressing phosphorus pollution from agriculture. Despite huge efforts under the EPA TMDL program, parts of the Bay watershed are still impaired and others, including the Lower Eastern Shore where chicken farming is heavily concentrated, are worsening.

Opponents to the bill included newly-appointed MDA Secretary Bartenfelder and members of the agricultural community. These individuals also expressed their concern for phosphorus management, but strongly advocated for the committee to vote down the legislation and allow the MDA to implement the revised regulations proposed by Governor Hogan. The complexity of phosphorus management, they contend, warrants greater study. The reality is, however, that this issue has been debated and studied for years. According to Senator Pinsky, these PMT regulations have been proposed and pull back four times prior to proposal of the current bill. The agricultural community has been well aware that changes must be made in how animal manure is used as fertilizer but has long argued that it is too costly or unfair to farmers. To argue that now, after opposing similar PMT regulations for so long, that the proper course of action is to go with the more flexible regulation route, leaves too open the possibility that such regulations will never be imposed. When questioned on this possibility, the Secretary gave his word that they would. The real question is, what has this Hogan-appointed secretary done in his short time in office besides already pull back the same regulations once.

Another concern is that the Hogan regulations, while fundamentally similar to the previous PMT regulations, include changes that may have significant substantive consequences. First, the Hogan regulations would alter the schedule of implementation and provide an initial two-year period wherein the PSI model would remain in effect so that farmers may study the effects that the PMT model will have on their farmlands and prepare for whatever added costs they will face going forward. After the two-year period, a five-year phase in period will begin, with full PMT implementation by 2022, and not 2021 under the proposed bill. Second, the regulations would impose an immediate ban on phosphorus application to fields that have a P FIV (Phosphorus Fertility Index Value) of only over 500. While this is ultimately a good thing for reducing potential phosphorus loss, for reference the optimal FIV level is between 50 and 100. Finally, and potentially most significantly, is the inclusion of language that conditions restrictions on animal manure application to the ability to market the manure and provide adequate alternate uses. The agricultural community has long advocated that this problem is too costly and too detrimental to farmers to fix through additional regulations.

The reality is that phosphorus loss caused by excessive animal manure application is an issue that will continue to worsen if not addressed. The state of Maryland has delayed taking action through administrative regulation for too long. Passing legislation will finally provide the incentives to address this issue. Advances in technology exist to turn unused animal manure into alternative energies, but, as mentioned during the senate committee hearing, require certainty in legislation to justify investments in these technologies. Also, the bill provides adequate phased-in implementation to make the transition easier for those farmers most affected by these changes, and Senator Pinsky affirmed during the hearing that he is ready to make additions to the budget to support the additional costs of the bill.

Instead of arguing about unintended consequences, we should be arguing about the intended consequences of a cleaner Bay.

Bad News for the Bay

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Yesterday newly inaugurated Governor of Maryland, Larry Hogan, decided to reverse regulation on phosphorus management that former Governor Martin O’Malley proposed late last year. The regulation was aimed at reducing agricultural runoff and phosphorus pollution in the Chesapeake Bay from farming operations that use chicken litter as fertilizer. The Phosphorus Management Tool, part of the proposed regulation which was set to be published tomorrow, January 23, was developed by scientists to enforce new standards on farmers in the region. The Phosphorus Management Tool, when implemented, was supposed to be used for Maryland farmers to determine how much fertilizer their croplands need, prevent the over-application of chicken litter, and in turn, prevent excessive levels of phosphorus runoff into the Bay and its tributaries.

While chicken litter is a useful and easily available form of fertilizer in the region (due to the high number of chicken feeding operations in the state), litter is often over-applied to croplands. Rain and snowmelt carry the excess nutrients in the soil, high in phosphorus, to the Chesapeake Bay. Phosphorus pollution contributes to hypoxia, or dead zones within the Bay, making it difficult for aquatic organisms to live and reproduce in affected regions of the estuary. In worst-case scenarios, dead zones can result in fish kills and act as biological stressors for shellfish species. Phosphorus pollution can also contribute to algal blooms, which block sunlight to underwater grasses, an important source of food and habitat for species in the watershed, especially the Chesapeake blue crab – a species that has had an incredible population decline in recent years due to habitat loss, overfishing, and water quality issues.

Governor Hogan cited economic reasons for overturning the proposed phosphorus regulation, claiming the economic burden for regional farmers would be too great were farmers forced to comply with new management tools. However, the Maryland Department of Agriculture had proposed subsidy programs for manure transport, which would have reduced this burden. There is also a large economic loss which needs to be considered for the Chesapeake region when cleanup programs are not implemented. Other groups, such as Chesapeake watermen, and recreational business, for example, suffer from a polluted Bay. The Chesapeake Bay Foundation has estimated that watershed states stand to gain $20 billion should the Bay reach cleanup goals proposed for 2025. The new phosphorus regulation could have helped Maryland and other Bay states reach these ecological and economic goals. Reversing the regulation reverses this progress.

Furthermore, Maryland has an obligation to reduce pollution into the Chesapeake Bay, as part of its Watershed Implementation Plan, an agreement and plan of action Maryland entered into with the EPA, to restore the health of the Bay. Targeting phosphorus pollution from agricultural runoff would show that Maryland’s leaders were aware of their contribution to the Bay nutrient load, and committed to improving water quality in the estuary.

I am not sure what will become of this regulation going forward, but I am hopeful that the issue will continue to be brought up, and will eventually lead to the implementation of the Phosphorus Management Tool or a similar management strategy in the near future. I believe this tool is crucial to reducing phosphorus loads to the Bay, improving water quality, raising population numbers for at-risk aquatic organisms in the watershed, and raising standards of living for individuals who rely on the Bay for their livelihoods.

Please see DelmarvaNow for more information on Hogan’s action:

Proposed Phosphorus Regulations in Maryland

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Maryland Governor Martin O’Malley has proposed new regulations aimed at reducing phosphorus loads to the Chesapeake Bay.  The regulation would put into place a new Phosphorus Management Tool, which farmers will use to measure phosphorus levels in their soil, and determine how much fertilizer they can put down on their croplands.  Agricultural runoff from the over application of phosphorus-laden fertilizers, including chicken litter, is a major pollutant in the Chesapeake Bay watershed.  The new proposed regulation will work to ensure that agricultural lands in Maryland do not have more applied fertilizer than is needed for crop production, and will ultimately help improve the state of the Chesapeake Bay.  My colleagues and I have written a letter, posted below, in support of the this proposed regulation and will be sending it to the Maryland Department of Agriculture.  (The regulation is currently open to comments from the public until the end of the year.)  We are also working on a booklet on the regulation and issue of phosphorus pollution in the Bay, and will update on that in the near future.

December 22, 2014

Mr. Buddy Hance
Maryland Department of Agriculture
50 Harry S. Truman Parkway
Annapolis, MD 21401

Dear Mr. Hance:

The purpose of this letter is to support the Department of Agriculture’s implementation of the new Phosphorus Management Tool (PMT) regulation recently proposed by Governor O’Malley. An average of 21.1 million pounds of phosphorus reach the Chesapeake Bay watershed each year, well above the EPA’s “healthy” level of 12.5 million pounds.[1]

Although past efforts to curb nutrient pollution to the Bay have been somewhat effective, by almost any measure, the Chesapeake Bay is still not a healthy body of water. And phosphorus loads from agriculture remain one of the leading sources of pollution to the Chesapeake Bay. In Maryland, phosphorus loads from agriculture accounted for almost 49% of the state’s total phosphorus loads of 3.3 million pounds in 2010.[2]

The new PMT regulation, which specifically targets the use of phosphorus-rich fertilizers and manures on farmlands, is an important step toward cleaning the Chesapeake Bay. This regulation will replace an existing model for measuring phosphorus levels in farm soil with an improved model developed by the University of Maryland.

More significantly, the new regulation will reduce the amount of phosphorus from farmlands entering the Chesapeake Bay by requiring farmers to reduce the application of excess phosphorus to their fields. Currently, farmers use fertilizers and animal manure, both rich in phosphorus, to fertilize their croplands. The regulation will limit the amount of manure that can be applied to farmlands with high phosphorus levels, and in its place require farmers to rely on inorganic fertilizers which do not contain phosphorus. Any remaining unused animal manure will be transported to other farmlands that can utilize the manure under the new restrictions or to nearby manure treatment facilities.

The regulation’s six-year phase-in approach properly addresses concerns among farmers and the agriculture industry that implementation of the regulation would be too economically burdensome. First, the regulation will offer farmers most affected by the regulation the greatest latitude by providing the six-year window to come into compliance with the new restrictions. Second, the state intends to provide incentives and program support of $79 million over the six-year program, which would more than offset its costs, estimated at $22.5 million.[3]

The proposed PMT regulation is part of Maryland’s plan to meet the state’s commitments under the EPA’s Chesapeake Bay Total Maximum Daily Load (Bay TMDL). The Bay TMDL is a regulatory framework issued in December 2010, which is designed to clean up the Chesapeake Bay, with participation from all the states in the Bay watershed.

The Chesapeake Bay is the largest and most productive estuary in the United States. Its economic value is estimated to be over $1 trillion, and a recent Chesapeake Bay Foundation report estimates an additional $4.6 billion of annual economic benefit to Maryland as a result of meeting the TMDL Bay restoration goals.[4] State initiatives, such as the Phosphorus Management Tool regulation, are an important and necessary step toward meeting Maryland’s commitment to restore the health of the Chesapeake.

Neil Saunders                                                            Kathleen Daley

Environmental Analyst                                    Environmental Analyst



[3] (page 1433)


Bay Dead Zones

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Dead zones and algal blooms tend to be especially bad in the Bay over the summer months. Dead zones are areas where excess nutrients in the water- nitrogen and phosphorus runoff from human activity- create oxygen depleted underwater areas, where fish and other aquatic organisms find it difficult to survive. Algal blooms occur in waters with excess nutrients. The blooms block sunlight to submerged aquatic vegetation. Underwater grasses cannot grow and survive in these conditions, and cannot provide food or shelter for a number of reliant species.

Scientists predicted in June that there would be an above-average dead zone in the Chesapeake Bay this summer. There is good and bad news on that front. In July, the Bay’s dead zone was the smallest recorded in 30 years, according to the Capital Gazette. Hurricane Arthur and cooler than average temperatures in July were likely the main factors. However, it is predicted that this trend will not last through August. Warmer temperatures, and the spread of algal blooms already spotted in the Bay and its tributaries will lead to more serious conditions later this summer.

Related News:

-Researchers at William and Mary, and the Virginia Institute of Marine Science (VIMS), are working on an algae biofuel initiative, which harvests algae as fuel, and takes up excess algae and nutrients in the water that create dead zones and harmful blooms. There is an interesting article in the Biomass Magazine, which goes into more detail on this project.

The Chesapeake Bay Program recently published a photo essay that documents how researchers at the University of Maryland Center for Environmental Science (UMCES) record dead zones in the Bay. UMCES uses a research vessel to go out to the deepest parts of the Bay and perform a number of tests, including the measurement of dissolved oxygen levels.

More on 2014 Farm Bill

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Last week I posted a link to the 2014 Farm Bill, as passed by the House of Representatives. Yesterday, the bill was passed by the Senate. The 2014 Farm Bill makes several changes, including cuts in subsidies for farmers, cuts to federal food stamps, and major changes to funding for the Chesapeake Bay Watershed Initiative (CBWI). Congress created the CBWI five years under the previous Farm Bill to fund conservation initiatives for farmers and landowners in the Chesapeake watershed. Funding allows landowners to work with the Department of Agriculture and the Natural Resources Conservation Service to set up stream buffers, restore wetlands, and implement other conservation practices. These measures reduce nutrient (nitrogen and phosphorus) runoff to the Bay, which is the number one problem facing the Chesapeake.

The bill passed yesterday will create a Regional Conservation Partnership Program, of which the CBWI will be a part. The Regional Conservation Partnership Program lumps together four conservation programs, including the Chesapeake Bay and Great Lakes regional programs with the Cooperative Conservation Partnership Initiative and the Agricultural Water Enhancement Program. The Chesapeake Bay Program released a document breaking down the funding for the Regional Conservation Partnership Program, which can be found here: (Chesapeake Bay Program).

Essentially, the new partnership program will force projects within the program to compete with one another for funding. As the Chesapeake Bay Program states, funding is awarded based on a “competitive, merit-based process.” But what criteria are used to merit funding and what happens to the programs that do not receive federal grants?

A press release from Virginia Senator Tim Kaine paints the new Farm Bill as a positive change for Virginia farmers and conservation of the Chesapeake. He claims the bill “ensures robust support for Chesapeake Bay restoration…” (Kaine Press Release).

A story from the Allegheny Front, a radio program from Pittsburgh, PA, gives a different side. Their January 31 story reports that the Regional Conservation Partnership Program will cut billions of dollars to conservation projects, and reduce the number of acres included in these projects. More specific to the Chesapeake watershed, competition could cause projects in the Bay area to lose out to other regions. A loss of money will mean fewer farmers and landowners will have the funds or the incentive to implement conservation practices on their lands, and the heath of the Bay will suffer. (Allegheny Front).

EPA Awards Grants to Research Solutions to Nutrient Pollution

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EPA Awards Grants to Research Solutions to Nutrient Pollution

Today the EPA announced that it would be granting $9 million to 3 universities and the Water Environment Research Foundation to research solutions to nutrient pollution. Stormwater runoff, which has been in the news frequently in the past few weeks (at least in the Chesapeake Bay watershed regions) will be a major focus. One of the schools awarded funds is Pennsylvania State University. Their research will concentrate on Pennsylvania waters and the Chesapeake basin.