Policy
Chesapeake Bay Clean Water Blueprint Upheld in Court
By Neil Saunders
Earlier this month, the Court of Appeals for the Third Circuit upheld the legality of the Chesapeake Bay TMDL, securing the EPA and Bay States’ authority to continue with implementation of the Bay TMDL throughout the Chesapeake Bay watershed. This long awaited decision- oral arguments were held in November 2014- is huge news for the Bay community.
The case involved a challenge to the Bay TMDL from within the agricultural community and the governments of 21 states. At issue in this case was the statutory interpretation of the term “total maximum daily load” as used under the Clean Water Act. A total maximum daily load (or “TMDL”) is a document created whenever a waterbody is classified as “impaired” under the Clean Water Act. The document identifies the amounts of various pollutants that can be safely absorbed by that waterbody. The Bay TMDL, in particular, is one of the most detailed and comprehensive TMDLs that the EPA has written.
The challengers argued that use of the word “total” meant that the EPA could only prescribe a single, total amount of a pollutant that a waterbody could healthily absorb, and that, therefore, the EPA exceeded its authority when it created the Bay TMDL with the level of specificity it contains and the various accountability mechanisms it enforces. The Bay TMDL includes, in addition to totals of pollutants, timelines for compliance, requirements that the Bay States provide reasonable assurances that certain practices will be implemented on time, and “backstop” measures which the EPA will enforce if states do not remain on track. The challengers maintained that the EPA went beyond its authority, and that such authority belongs to the states. The EPA and other environmental organizations supporting the Bay TMDL countered that the EPA’s interpretation is a lawful exercise of its delegated authority.
In its decision the court found in favor of the EPA on all points, relying on a judicial doctrine commonly known as Chevron deference (after the seminal 1972 Supreme Court case Chevron v. Natural Resources Defense Council). That doctrine states that where Congress delegates an agency to implement a law, and Congress’s intent is unclear as to a provision of that law, a court must give deference to the agency’s lawful interpretation, so long as that interpretation is reasonable. In other words, if a statute is ambiguous an agency may apply its own interpretation as long as it is a reasonable one. In this case, the court held that the Clean Water Act does not define the phrase “total maximum daily load,” and that “[e]stablishing a comprehensive, watershed-wide TMDL—complete with allocations among different kinds of sources, a timetable, and reasonable assurance that it will actually be implemented—is reasonable and reflects a legitimate policy choice by the agency in administering a less-than-clear statute.” (Court’s decision pp. 59-60).
The court also addressed broader concerns about this case, namely the balance of power between the Federal and state governments. This case carries significance outside the Bay area because the EPA is likely to begin a similar TMDL process for other large watersheds in the country, such as the Mississippi River. It is because of this that so many state governments intervened in this case to challenge the Bay TMDL. But as the court acknowledged in its conclusion, “Congress made a judgment in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution. The Chesapeake Bay TMDL will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the Bay—to make it once again a part of our “land of living,” Robert Frost, The Gift Outright line 10—a goal our elected representatives have repeatedly endorsed.” (Court’s decision p. 60). This are powerful words coming from a Court of Appeals, and provide an sense of optimism as the Bay States gear up for Phase III of the Bay TMDL in 2017.
This case was an appeal from a 2013 decision in which the lower federal district court initially upheld the legality of the Bay TMDL.
An Update on CBF vs. VA : A Setback to Virginia Water Quality
The Richmond Circuit Court judge who heard the Chesapeake Bay Foundation (CBF) vs. Virginia lawsuit earlier this month has ruled against CBF’s plea to keep livestock out of state streams and rivers. The decision allows large livestock farmers, particularly cattle farmers, to give animals unfettered access to Chesapeake Bay tributaries. Virginia has pledged to institute Best Management Practices (BMPs), including the use of stream buffers and fences on farmlands, to reduce nutrient and sediment loads to the Bay. This ruling, however, impedes the institution of such practices, and threatens water quality in the watershed.
CBF sued the Virginia Department of Environmental Quality and the State Water Control Board over the passing of the Virginia Pollution Abatement Permit- a permit that regulates animal waste management for animal feeding operations. The permit fails to address the need for large livestock farms (i.e. 200-300 cattle) to put into place stream buffers and fencing that would keep livestock out of streams and rivers on these farms. (Please see this post from July 1). Without buffers and fencing, livestock can deposit waste directly into waters, and can erode stream banks, putting excess sediment into the watershed.
The lawsuit, heard on July 9, was dismissed by Judge C.N. Jenkins. While CBF argues that free-roaming livestock can “apply” their waste directly to streams, the judge believes that application of manure can only refer to the spreading of waste by livestock farmers.
Chesapeake Bay Foundation Files Suit Against Virginia
Kudos to the Chesapeake Bay Foundation (CBF) for moving ahead on a major water quality issue in Virginia. This week CBF filed suit against Virginia’s Department of Environment Quality (DEQ) and the State Water Control Board over failure to enforce state regulations for livestock farmers.
One of the management practices Virginia has said it will implement to reduce water pollution in the Chesapeake Bay watershed is making sure all farmers keep their livestock out of streams and rivers through the use of fences and stream buffers. CBF has found that many Virginia livestock farmers are not implementing these management practices. This is thanks to the Virginia Pollution Abatement Permit, approved last year by the DEQ and the Water Control Board for a ten-year period. This permit does not require the state’s largest livestock farms (cattle, pig, poultry) to fence and buffer streams to which the livestock have access.
CBF’s challenge to the DEQ and the State Water Control Board, should it be upheld in court, will improve a flawed permitting process, ensure that Virginia does its part to reduce water pollution, and ultimately improve the health of the Chesapeake Bay.
Fencing off streams and rivers from livestock reduces water quality issues in the tributaries and mainstem of the Chesapeake Bay. When livestock have wading access to bodies of water, they are able to pollute streams and rivers with their waste, adding to the nitrogen and phosphorus runoff that enters the Bay. Livestock also erode stream banks, depositing sediment directly into the water, which makes its way downstream and eventually reaches the Bay.
By allowing farms to give their livestock access to streams and rivers, the DEQ and State Water Control Board are not enforcing the State Water Control Law, which calls for a reduction and prevention of water pollution. Furthermore, by not enforcing regulations that curb nitrogen, phosphorous and sediment runoff from agriculture, Virginia is violating its agreement with the EPA (in the Clean Water Blueprint) to reduce nutrient and sediment pollution entering the Bay from state waters.
The Richmond Circuit Court will hear arguments for this case this Thursday, July 2. Updates to come.
The original press release from CBF can be found here.
2015 Blue Crab Regulations
Last Tuesday, May 26, the Virginia Marine Resources Commission (VMRC) held a public hearing on blue crab management. The issues voted on included dates for the crab management season (July 5, 2015 – July 4, 2016), the commercial crabbing season (March 17 – November 30), and the culling of sponge crabs (female crabs carrying eggs). The Commission voted to restrict the culling of sponge crabs from March 17 to June 15 of this year.
The commission also voted on bushel limits, agreeing to keep in place stricter limits for commercial crabbers that were enforced last summer in response to the extremely low crab population. To review, the VMRC voted in July of 2014 to reduce the harvesting of female and juvenile blue crabs by 10%, effective through July of 2015. These regulations were put into place after the 2013-2014 winter dredge survey found that only 297 million blue crabs were in the Chesapeake. From this number, there were less than 70 million female crabs of spawning age. These population numbers are low for the Chesapeake Bay. In 2012, there were 765 million blue crabs in the Bay. That number was cut by more than half in the two years that followed.
While the Bay’s blue crab population did slightly increase over the past year, to 411 million crabs, the stricter regulations have been kept in place to get crab numbers up to a healthier level, closer to the 765 million-population number of 2012.
Again, as last year, I would like to see the VMRC put harsher regulations in place for the culling of sponge crabs, making it illegal altogether for commercial crabbers to harvest female crabs carrying eggs, not just during a certain time period. In addition I would like to see Virginia restrict winter dredging of blue crabs for harvest. The VMRC agreed to put off a vote on winter dredging until later this fall. The VMRC has voted to restrict this activity over the past couple of years and hopefully will do so again. Winter dredging poses risks to the blue crab population, and is permanently restricted in the neighboring state of Maryland for this reason.
To see the Commission Meeting Summary from last Tuesday, please check out the VMRC link here: http://www.mrc.virginia.gov/Commission_Summaries/cs0515.shtm.
The Clean Water Rule and its Impact on the Chesapeake Bay
On Wednesday the EPA and the Army Corps of Engineers finalized the Clean Water Rule, which includes amendments to the Clean Water Act. The primary focus for this rule is on streams and wetlands that flow into larger bodies of water. While the changes ensure that the EPA is able to regulate the polluting of upstream wetlands and tributaries (which is good news for our nation’s waters), I wonder just how big of an impact this Rule will have locally, specifically on the Chesapeake Bay watershed.
Initially proposed last summer, the purpose of the Clean Water Rule is to provide clarification and greater definition to parts of the Clean Water Act that are hard to understand. While there was a lot of pushback from developers and agricultural interest groups, the Clean Water Rule did not create new permitting requirements, nor did it get rid of any standing exemptions or exclusions.
In fact, the Rule reinforces the protection of upland streams and wetlands, which feed into larger streams, rivers, and estuaries. According to the EPA, “The rule protects waters that are next to rivers and lakes and their tributaries.” The water quality of these larger bodies of water relies on healthy upstream tributaries and wetlands. While the Clean Water Rule does not change pre-existing regulations under the Clean Water Act, it provides clearer definitions, ensuring that certain waters of the U.S. (ie, upland streams and wetlands) are not overlooked, and are held to the same pollution permitting regulations and restrictions as downstream bodies of water.
Looking at the Rule from a local lens, the Clean Water Act amendments will benefit the Chesapeake Bay in areas where industrial pollution is more prevalent. The Rule will likely be able to help the EPA better regulate and protect upland streams and Bay tributaries where point source polluting is taking place. The Bay watershed extends into six states, and the District of Columbia, covering 64,000 square miles. Thousands of streams and acres of wetlands run into the larger rivers that feed directly into the Chesapeake. Ensuring that these streams and wetlands are subject to the same regulations under the Clean Water Act that larger bodies of water face, will ultimately ensure that waters flowing into the Chesapeake Bay are cleaner, making the mainstem of the Bay healthier.
However, the Clean Water Rule keeps in place a number of exemptions for agricultural groups. The Bay’s water quality issues stem from sedimentation and nitrogen and phosphorus runoff. The source contributing the majority of these pollutants is agriculture, whose actors are largely exempt from regulations and restrictions associated with the Clean Water Rule. While the Rule may do some good for our watershed, we will have to see how much an impact it will make in the long-run on improving the health of the mainstem of the Chesapeake Bay. I think the Watershed Implementation Plans, which the EPA has helped the individual watershed states develop, will ultimately have more of an impact on the Bay, if implemented effectively.
Sediment Buildup Behind the Conowingo Dam
On Monday, an article appeared in The Washington Post on the Conowingo Dam in Maryland, and Governor Larry Hogan’s efforts to have the sediment behind the dam dredged. While sediment buildup behind the Dam poses an environmental threat to the Chesapeake Bay, and I think the Dam should be dredged, I don’t think this is the biggest threat to the health of the Bay. I would also like to see Hogan focus on reducing nutrient loads to the Chesapeake, from agricultural and urban/suburban runoff in Maryland. That being said, it’s good to see the current Governor tackling water quality issues for the Chesapeake Bay, and committed to reducing sediment loads to the Bay from the Conowingo Dam.
Located at the Southern end of the Susquehanna River, the Conowingo Dam was constructed in 1929. Since that time, (1929-2012), about 470 million tons of sediment have been transported from the Susquehanna into the Conowingo Reservoir, where 280 million tons of sediment have been trapped by the dam, and 190 million tons have gone on to reach the Chesapeake Bay (USGS, 2014).
Some reports differ on whether the Conowingo Dam has reached storage capacity for sediment. The USGS says yes; a 2010 EPA study said the Dam had not yet reached full capacity, and likely would not for another 15-20 years. However, the EPA stated in this same 2010 report, that, “once the Conowingo Reservoir reaches the sediment trapping capacity, the sediment and nutrient loads delivered to the Chesapeake Bay via the Susquehanna River will equal the load delivered into the reservoir system. Once storage capacity is reached, the nitrogen load will increase by 2%; the phosphorus load will increase by 40%; and the suspended sediment load will increase by at least 150%” (EPA, 2010, T-3).
The Conowingo Reservoir holds nutrients and sediment from the Susquehanna River, a tributary of the Chesapeake Bay known for its high loads of nitrogen, phosphorus, and sediment. The Susquehanna carries runoff to the Bay from agricultural fields, and urban and suburban regions in the upper half of the Chesapeake Bay watershed, from parts of New York, Pennsylvania, and Maryland. This river delivers half of the Bay’s freshwater, and contributes 40% of the nitrogen, 20% of phosphorus, and a significant amount of sediment to the Chesapeake (CBF, 2006). Should the Conowingo Reservoir reach full capacity, even more nitrogen, phosphorus and sediment will reach the mainstem of the Chesapeake Bay from the Susquehanna.
The most significant concern in regards to the Conowingo Dam, is the buildup of sediment. Major storm events cause sediment backed up behind the Dam to overflow directly into the Chesapeake Bay. When the Conowingo Reservoir is at full capacity, this risk of overflow increases. Sediment is an issue for the Bay, when excess loads delivered to the Bay block out sunlight for underwater grasses, which they need to survive. Sediment can also cover oyster beds, suffocating mature and juvenile oysters. Sedimentation can lead to poor water quality, impacting other fish and shellfish species in the estuary.
To reduce the risk of sediment and nutrient overflow from the Conowingo Dam, Governor Hogan is calling for dredging of sediment behind the dam, and wants the dam’s operating company, Exelon Corp., to pay for this estimated $250 million project. Exelon is fighting back, citing studies from the Maryland Department of the Environment and the Army Corps of Engineers that state nutrients are far more harmful to the Bay than sediment. Exelon is also arguing that the sediment from the Dam is only harmful to small sections of the Bay, and contributes a very small percentage of sediment to the estuary, (the Post article says less than 5%).
I agree that nutrients from agricultural practices, and urban and suburban runoff pose a larger threat to the Bay as a whole, and Hogan should focus more energy on reducing nutrient loads from these sectors. However, if the Conowingo Reservoir is indeed at full capacity, the Bay, even a small portion of it, cannot risk a 150% increase of sediment load, which is likely to happen with a large storm event. (For example sediment scour, or removal of sediment from behind the Dam, reached millions of tons for major storm events in the past. Tropical Storm Agnes in 1972 resulted in 13.5 million tons of sediment scour. A more recent major storm event, Tropical Storm Lee in 2011, resulted in 3.5 million tons of sediment scour). An increase in sediment load this large is sure to cause water quality issues in the upper reaches of the Bay, and harm fish and shellfish species in this region.
Governor Hogan Moves Ahead with Phosphorus Regulations in Maryland
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
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.
Proposed Phosphorus Regulations in Maryland
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
Secretary
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
[1] http://www.chesapeakebay.net/indicators/indicator/phosphorus_loads_and_river_flow_to_the_bay
[2] http://www.mde.state.md.us/programs/Water/TMDL/TMDLImplementation/Documents/FINAL_PhaseII_Report_Docs/Final_Documents_PhaseII/Final_Phase_II_WIP_MAIN_REPORT_102612.pdf
[3] http://www.dsd.state.md.us/MDRegister/4124.pdf (page 1433)
Virginia Watermen Propose Changes to Blue Crab Management in Chesapeake Bay
In Virginia there is a Blue Crab Industry Panel, a group of 15 commercial watermen, that provides input on crabbing and relevant regulations to the Virginia Marine Resources Commission (VMRC). Given the current depleted state of crabs in the Chesapeake, this panel of watermen is calling on the VMRC to impose stronger regulations on the culling of blue crabs, then the agency passed earlier this summer.
The VMRC cut limits for the culling of blue crabs by 10% in June, and instituted these changes for all commercial crabbers. The Virginia Blue Crab Industry Panel wants the VMRC to impose individual harvest limits for crabbers, rather than enforce regulations based on seasons or daily catches. In addition, the panel calls on the VMRC to put forward more scientific information on natural threats to crabs and recreational crab harvests. The panel wants the agency to institute a more efficient reporting system to increase accountability for crab harvests, and calls for an economic analysis looking at the costs and benefits of current regulations, and any that may be enacted in the near future.
According to a press release issued by the Virginia Blue Crab Industry Panel, these recommendations mirror management plans that allowed rockfish to return to sustainable levels in the Bay, and focuses on long-term solutions to the crab population problem, rather than short-term “Band-Aid fixes.”
The press release can be found at Vacrabbers.com, and their full proposal here: Virginia Blue Crab Industry Panel Priority Recommendations
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