THE ‘ESSENTIAL EIGHT’ CHANGES

The Maryland Department of Agriculture (MDA) has recently proposed changes to the state’s regulations that govern the use of fertilizers, including millions of pounds of manure, on farm fields.  These “Proposed Changes to Maryland’s Nutrient Management Regulations” (dated May 2012 and published in the Maryland Register on June 29, 2012) contain changes on the timing, amount, location and management of all fertilizers—animal manures and sewage sludge (“biosolids”)—by agriculture. Agriculture continues to be the largest source of pollution to the Chesapeake Bay, with manure contributing approximately half of the pollution that comes from Maryland farms.

MDA’s proposed changes to these regulations include provisions that are good for our rivers, streams and the Bay.  And they come at a critical time in our efforts to restore the Bay.  Among the regulatory changes are valuable, commonsense and timely measures.   These include restricting the use of manure and sludge in farm fields in the winter; requiring the planting of cover crops; and preventing livestock from defecating in streams.

However, while MDA’s proposal does include progressive elements, it falls short of both what is possible and what is necessary.

The undersigned organizations have concluded that changes to the MDA proposal are essential if Maryland is to meet its commitments to pollution reduction and Bay restoration.  With Maryland firmly engaged in the implementation of its Chesapeake Bay Watershed Implementation Plan, the time is now for Maryland to take significant and bold action to better manage and reduce farm pollution.  

During the upcoming regulatory review process, we urge state officials not only to retain the valuable revisions already included in the MDA proposal but also to adopt the following ‘Essential Eight’ changes:  

CHANGE #1:  Shift the date of compliance from 2016 to 2014 for the winter ban on land application of fertilizers.

The MDA proposal correctly seeks to ban the land application of manure and biosolids during the winter.  This prohibition of winter application is the most significant change of the proposal and the most important from a pollution reduction and water quality improvement perspective.  However, the MDA proposal does not require compliance until 2016.  We advocate for a two-year compliance schedule, making the ban effective in 2014.  As site-specific constraints may make meeting the 2014 deadline not possible for an individual farm, MDA should include a provision to allow for limited, farm-specific exceptions.

CHANGE #2:  Define “winter” as beginning November 1 statewide. 

The proposal currently splits the definition of winter geographically:  winter starts on November 1 for counties East of the Chesapeake Bay andon November 16 for counties west of the Chesapeake Bay.  The November 1 date recognizes that cover crops planted beyond the fall (October 31) do not sufficiently reduce nitrogen pollution. Prominent scientists advising MDA and the Governor noted in a January 30, 2012 memo that the November 1 date is “based on current and emerging scientific understanding.” Science needs to be the driver and, therefore, this provision needs correction.

CHANGE #3:  Require the incorporation of manure and biosolids into the soil by the end of “the working day” and no later than 24 hours after application. 

A 48-hour deadline for incorporating field-applied fertilizer into the soil, as proposed by MDA, allows for considerable risk of pollution run off due to storm events. Here, too, prominent scientists advising MDA and the Governor have provided their input, stating “the risk of a significant rainfall event that would result in nutrient losses to surface or groundwater increases with time.”

CHANGE #4:  Establish setbacks from streams, rivers and other waterways (e.g., drainage ditches) that parallel setbacks established in the MDE CAFO/MAFO permit and MDE biosolids regulations.

Maryland Department of the Environment (MDE) permits for farms with high numbers of animals (called CAFOs or MAFOs) and the MDE biosolids regulations establish wider setbacks (e.g., such as a 100-foot setback from streams located in the Critical Areas) as well as more setbacks (e.g., from additional  waterways such as farm ditches). The MDA proposal limits its setback standards to fewer waterways (they apply only to perennial and intermittent streams) and often provides for narrower setbacks.  We advocate for changes to the MDA proposal that would eliminate these inconsistencies so as to provide increased water quality protections whenever applying manure or biosolids near waterways.

CHANGE #5:  Require the planting of cover crops by November 1 and specify that they be winter cereal grains.

The MDA proposal appropriately adds a requirement for the use of cover crops after the land application of manure or biosolids in the fall. However, it allows for the planting of the crops up until November 5 or November 15, depending on geography (see Change #2).  As noted earlier, a planting on November 15 is too late for effective nutrient uptake, which is the objective of planting the cover crop. In addition, to maximize the reduction of nitrogen pollution, the cover crop needs to be a winter cereal grain.

CHANGE #6:  Delete the nutrient application setback loophole (Provision II.B.7).

The revisions proposed by MDA contain an unprecedented loophole to the nutrient application setback standards. They allow MDA to unilaterally amend the setback standards whenever it determines an “alternative” that is “equally protective of water quality” exists. There are no checks and balances on the actions of MDA. Removal of this “alternative” provision to the setback standards is critical to maintain the integrity and intent of the setback requirements.

CHANGE #7:Tighten the restrictions on field storage of manure.

Existing regulation of CAFOs and MAFOs contains more environmentally sensitive restrictions on the field storage of manure.  There are tighter limits on the length of time the manure can remain in the field, for example.  MDA needs to revisit the restrictions in the proposal and alter them so they are as protective of water quality—or even more protective—than the existing CAFO and MAFO standards for manure storage.

CHANGE #8:  Prohibit the application of manure and biosolids on farm fields containing excess phosphorus.

The MDA proposal does not address this problem.  While there is documentation establishing many farm fields with an over-abundance of phosphorus, MDA’s proposal allows for continued application of phosphorus-rich fertilizers such as manure to these fields.  The time has come to halt this environmentally unsound practice. 

As with any set of regulations, the effectiveness of the MDA proposal and the ‘Essential Eight’ is dependent on public support through adequate transparency; ongoing monitoring for compliance; and consistent enforcement upon detection of violations.  For the MDA proposal and the ‘Essential Eight’ to contribute substantially to the reductions Maryland seeks to achieve in its Watershed Implementation Plan, MDA will need to administer these revised regulations with a new commitment to transparency, monitoring, and enforcement.

In conclusion, we urge state officials not only to maintain the new, more restrictive provisions of the revised regulations but also to work to further strengthen them as we have suggested. Well-managed farmland is a desired land use in the Bay watershed. This regulatory proposal, with the Essential Eight changes incorporated, will help assure both better management of Maryland’s farmland and reductions in pollution, while helping “to achieve consistency in how all sources of nutrients are managed,” a stated goal of MDA’s proposal. Understanding farmers’ concerns with potential costs that can result from some of the proposed changes, we urge farmers to access the millions of dollars Maryland provides for better manure management (in some cases as much as 87.5% of the cost) and to collaborate with us to ensure ongoing federal and state funding assistance.  We remain committed to working with MDA, the Governor, and the agricultural community to achieve environmentally and economically healthy waters and farms.