Ag Certainty: Making Certain that the Bay Remains Polluted
Despite all the rhetoric about how important it is to have an unpolluted and healthy Chesapeake Bay, sometimes you just have to wonder if anyone is really taking this Bay cleanup issue seriously. We’ve known for years now that agricultural operations in the Bay states are the number one source of nutrients and sediments to the watershed, yet neither state nor federal regulators have shown any willingness to do any of the things – permitting, compliance mandates and enforcement – that have worked well with so many other polluting industries.
While power plants, paper mills, sewage treatment plants and manufacturing plants have largely been cleaned up through the implementation of regulatory “stick” approaches, the chosen method of ag pollution abatement comprises of a series of unsuccessful, voluntary “carrot” approaches, including manure transport programs and nutrient trading.
After decades of failure, we’re about to reach new depths of futility with a bill, largely written by Maryland’s own Department of Agriculture, which was introduced this legislative session in Maryland by Senator Thomas Middleton. Middleton’s “Ag Certainty” bill will not only make certain that these highly polluting operations continue to pollute with officially sanctioned immunity, but it will also openly undermine the current Bay cleanup plan – the Bay Total Maximum Daily Load (TMDL).
Ag Certainty refers to a program under which agricultural operations that certify that they meet pollution reduction goals or certain pollution-control requirements will be deemed in compliance with existing and/or future water quality regulations and standards. In short, it’s a blanket immunity program designed to offer Big Ag a continuing free ride from mandatory pollution control and enforcement. Even worse, it ties regulator’s hands when it comes to implementing more protective water quality approaches when needed.
MDA and Senator Middleton’s Ag Certainty legislation could give Maryland’s roughly 5,000 farmers 10 years of immunity from any changes in future state regulation in exchange for what they are already supposed to be doing: complying with their existing nutrient management and soil conservation plans so that they don’t foul our public trust waterways.
While getting Ag to commit to current pollution abatement measures might sound like a good idea, locking in 10 more years of paper compliance with secret Nutrient Management Plans (NMPs) is a death sentence for the Bay. The Maryland Department of Agriculture likes to boast that 99 percent of farms in the state have submitted NMPs to the agency and the vast majority of farmers are complying with these plans, yet agriculture still remains the number one source of pollution in the Bay.
If farmers are all truly in compliance with their plans, this can only mean that the NMPs are broken. Plus, thanks to the recent Perdue litigation, we now know that NMPs are subject to manipulation by industry to avoid controlling pollution sources. The bill also expands on Maryland’s improper system of “Ag secrecy” to go along with its newfound certainty. Under existing state law (and the Ag Certainty bill), citizens are not even allowed to see the NMPs with which these farms are purportedly in compliance.
Ag certainty, with its immunity from future pollution abatement measures, also makes a mockery out of the Bay TMDL. Two years ago, EPA finalized this comprehensive “pollution diet” to restore clean water in the Chesapeake Bay and the region’s streams, creeks and rivers. Most importantly, to account for the “dynamic” nature of the Bay watershed and uncertain efficacy of the current plan, EPA built into the TMDL a set of checkpoints that allow for fine-tuning in case standards aren’t being met. Included in this accountability process are two-year milestones that represent key check-in points on the way to having all pollution reduction measures in place by 2025 to restore the Bay and its tidal rivers. Come 2017, the Bay TMDL calls for an even more comprehensive refinement of the plan should there be insufficient pollution reductions. EPA considers these milestones to be “a critical part of an accountability framework agreed upon by EPA and the states to assure progress.”
According to EPA’s TMDL Executive Summary, the Agency even dropped protective federal “backstops” (regulatory safety nets in case water quality was not being met) from the TMDL in exchange for some assurances from the states. For example, Maryland, Delaware and Virginia agreed to consider implementation of mandatory programs for agriculture by the end of this year if pollution reductions fall behind schedule. Not coincidentally, these are now the three states in the Bay Region that are developing Ag Certainty programs that will stop regulators from being able to make any shifts in the way Ag pollution is controlled should the Bay TMDL benchmarks not be reached.
MDA and Middleton’s Bill expressly exempts Ag operations from compliance with any changes in state or local laws necessary to meet the TMDL or the state Watershed Implementation Plans. So now Maryland, and other Bay states, are going from “mandatory” to “immunity” and those two-year checkpoints and 2017 re-visitation are rendered meaningless when it comes to the watershed’s biggest industrial source of pollution.
With Ag Certainty, we’ve just thrown a “critical” part of the TMDL out the window; the only real “certainty” that remains is that we’ll all be sitting down in 2025 again and try to come up with the next, great plan to clean up the Bay.