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Phosphorus in the Chesapeake:An Overview on Nutrient Pollution in the Chesapeake Bay and Efforts to Limit Phosphorus Runoff in the Watershed

Kathleen DaleyNeil Saunders

1 May 2015

Copyright 2015 G2 Associates, Inc., Great Falls, Virginia, All Rights Reserved. G2 Associates hereby authorizes you to copy this document for non-commercial uses within your organization only. In consideration of this authorization, you agree that any copy of these documents that you make shall retain all copyright and other proprietary notices contained herein. V. Maryland Phosphorus Regulations1. IntroductionThe Environmental Protection Agency estimates that Maryland is responsible for twenty percent of the total phosphorus in the Bay watershed, third behind Virginia (43%) and Pennsylvania (24%). Of that amount, more than half of Marylands phosphorus pollution comes from agriculture. This is especially significant, considering that agricultural land comprises less than thirty percent of the Bay drainage basin.[endnoteRef:-1]Animal manure, in particular, has led to excessive phosphorus levels entering the watershed along the Eastern Shore, where poultry farming is prevalent. It is estimated that Maryland produces enough poultry litter every year to fill M&T Bank Stadium twice.[endnoteRef:0] Proper oversight of its agricultural production, therefore, is vital to Maryland to sustain its local economy while also achieving Bay pollution reductions. [-1: Chapter V Endnotes Howard R. Ernst, Chesapeake Bay Blues: Science, Politics, and the Struggle to Save the Bay, (Lanham: Rowman & Littlefield Publishers, 2003).] [0: Maryland Clean Agriculture, 2014, www.marylandcleanagriculture.org/wp-content/uploads/PMTinfographic020215.pdf. ]

2. History of Maryland Phosphorus RegulationsThe Maryland Department of Agriculture (MDA) is responsible for regulating agriculture in the state. Through the use of fines, penalties, and enforcement actions, the MDA ensures compliance with the states regulations and policies. Over the years, the MDA has established a number of regulations and programs to address water pollution in the Bay. While the earliest efforts employed a series of voluntary guidelines, today Maryland primarily uses a mandatory approach to nutrient management.Marylands first efforts to address nutrient management generally date back to the 1980s. These efforts, however, amounted only to voluntary best management practices guidelines. Attempts by state legislators to implement mandatory regulations failed in the early 1990s. State Senator Gerald Winegard sought to introduce legislation that would have required best management practices to be implemented by the year 2001. This approach was defeated in succession in the 1992, 1993, and 1994 legislative sessions.[endnoteRef:1] In 1997, however, an environmental crisis sparked public outcry for a political solution. [1: Ernst, 2003.]

In the summer and fall of 1997, an estimated 10,000 to 20,000 fish kills were observed in the Pocomoke River, Kings Creek, and Chicamicomico River along Marylands Eastern Shore.[endnoteRef:2] Additional fish were found with lesions and ulcers on their bodies.[endnoteRef:3] Subsequent scientific analysis determined that increased levels of the toxic microbe Pfiesteria piscicida were believed to be a contributing cause. In the areas surrounding the fish kills, unusually high river flows the previous year resulted in high nutrient levels and low dissolved oxygen levels, which also were believed to have been a cause of the fish kills, primarily menhaden, a fish known to feed on algae in the Bay. Although the Pfiesteria microbe exists throughout the Bay region, scientific research suggests that increased nutrient levels cause the microbe to turn toxic and kill fish, as well as presenting a danger to humans.[endnoteRef:4] [2: Karl Blankenship, Scientists closing in on causes of pfiesteria outbreaks, Bay Journal, October 1, 1997, http://www.bayjournal.com/article/scientists_closing_in_on_causes_of_pfiesteria_outbreaks. ] [3: Maryland Department of Natural Resources, Special Report of the Technical Advisory Committee on Harmful Algal Outbreaks in Maryland: Causes and Significance of Menhaden Lesions, February 12, 1999, http://www.dnr.maryland.gov/bay/cblife/algae/dino/pfiesteria/98_lesion.pdf. ] [4: Burkholder, Joann, Keeping Pfiesteria in Check, The Baltimore Sun, March 1, 1999, http://articles.baltimoresun.com/1999-03-01/news/9903010242_1_pfiesteria-joann-burkholder-runoff-control-plans. ]

Maryland responded to the Pfiesteria outbreaks, as they were subsequently referred, with sweeping changes to its approach to nutrient management regulation. In 1997, Governor Parris N. Glendening appointed the Citizens Pfiesteria Piscicida Action Commission to study the outbreaks and make policy recommendations. The commission issued a report that linked Pfiesteria populations and excessive nutrient enrichment. At the same time, agricultural scientists identified high levels of dissolved phosphorus in soil runoff where phosphorus soil tests were excessively high. A year later, the General Assembly passed the Water Quality Improvement Act (WQIA), which, among other things, required mandatory nitrogen- and phosphorus- based nutrient management plans.[endnoteRef:5] [5: Thomas W. Simpson, PhD, Marylands Regulatory Approach to Nutrient Management, (paper presented at the Agricultural Outlook Forum, Arlington, Virginia, February 25, 2000), http://ageconsearch.umn.edu/bitstream/33443/1/fo00si01.pdf. ]

The WQIA and accompanying regulations require all agricultural operations with annual income greater than $2,500 or more than eight animal units (one animal unit is defined as 1,000 pounds of live weight) to implement a nitrogen and phosphorus nutrient management plan. Each nutrient management plan must be completed with the assistance of a certified specialist. The purpose of the nutrient management plan is to require annual soil tests to determine the level of nitrogen and phosphorus loads in the soil, and allow farmers to effectively manage their fertilizer application. The enactment of the WQIA is significant because, as previously mentioned, it marked a sweeping change in policy in Maryland, and it also was the first time that the state sought to address excessive use of phosphorus in fertilizers. Prior to enactment, recommended application of animal manure was largely based on the nitrogen needs of crops, without consideration for phosphorus. This often resulted in excessive application of phosphorus, in which animal manure is rich.[endnoteRef:6] [6: Simpson, Marylands Regulatory Approach. ]

Recently, Maryland has added a new voluntary-based approach with its Agricultural Certainty Program. The program, established under legislation passed in 2013 by the General Assembly and set to take effect in 2015, is a voluntary program that allows farmers who install best management practices a ten-year exemption from new environmental laws and regulations. Installation of best management practices, which must contribute toward TMDL compliance, allows farmers to conduct their businesses in a more predictable regulatory setting without compromising the states efforts to reduce the amount of pollutants entering the Bay. It is important to note, however, that the Agricultural Certainty Program would not apply to certain programs, including the Phosphorus Management Tool. That is, farmers may not receive an exemption from PMT regulation compliance by installing best management practices.[endnoteRef:7] [7: Maryland Department of Agriculture, Marylands Agricultural Certainty Program, December, 2014, http://mda.maryland.gov/resource_conservation/counties/AgCertainty.pdf. ]

In order to enroll in the program, a farmer must meet certain eligibility requirements. First, a farmer must enroll an entire parcel of his land, as identified by the Department of Assessments and Taxation. Second, farm operations must undergo certified verification to ensure that the farmer is in compliance with local, state, and federal environmental regulations, including TMDL compliance. Once approved, an agreement is written outlining operation and maintenance requirements for the ten-year duration. After the ten-year exemption period, farm operations must be in compliance with all current regulations. Another recently proposed regulation in Maryland is the Phosphorus Management Tool. The PMT regulation improves an existing model for measuring phosphorus levels in farm soil, and limits the amount and type of fertilizers that farmers can use on their crops depending on the levels of phosphorus already in the soil. The regulation requires that excess animal manure that cannot be applied to crops must be transported to appropriate waste treatment centers or to other farms that can use the excess manure without going over the phosphorus limits.

3. Marylands Watershed Implementation Plan (WIP) StrategiesMaryland has committed to an accelerated implementation date that exceeds the mandated 60% implementation by 2017 and full implementation by 2025 in the Bay TMDL. The Plan calls for 70% of the final target goals to be achieved by 2017, and for Maryland to achieve full TMDL implementation by 2020.[endnoteRef:8] The Phase II WIP divides its implementation strategies between the five major river basins in Maryland: Eastern Shore; Patuxent; Potomac; Susquehanna; and Western Shore.[endnoteRef:9] The implementation strategies are further subdivided by county and source sector. [8: Maryland Department of the Environment, Maryland Phase I Watershed Implementation Plan- Executive Summary, December, 2010, http://www.mde.state.md.us/programs/Water/TMDL/Documents/www.mde.state.md.us/assets/document/MD_Phase_I_Plan_Exec_Sum_Submitted_Final.pdf, (ES-3).] [9: Maryland Department of the Environment, Maryland Phase II Watershed Implementation Plan for the Chesapeake Bay TMDL- Executive Summary, October 26, 2012, http://www.mde.state.md.us/programs/Water/TMDL/TMDLImplementation/Documents/FINAL_PhaseII_Report_Docs/Final_Documents_PhaseII/Final_Phase_II_WIP_Executive_Summary_102612.pdf, (iv). ]

Maryland employs a number of approaches in its WIP to meet its Interim and Final reduction targets, including developing new technology and approaches; increasing the scope of implementation of existing strategies; and improving regulatory requirements.[endnoteRef:10] Because Maryland projects that most of its strategies for point source reductions will be fully implemented by 2017, the remaining gap filling must occur within nonpoint source sectors,[endnoteRef:11] with agriculture providing the most significance decrease.[endnoteRef:12] Although Marylands strategy for agriculture focuses primarily on nitrogen reductions,[endnoteRef:13] additional strategies do exist for proper management of animal waste and related phosphorus issues and the sound use of crop nutrients and how to apply the latest refinements in agronomic recommendations[endnoteRef:14] [10: Maryland Department of the Environment, 2010, (ES-5). ] [11: Maryland Department of the Environment, 2010, (ES-11).] [12: Maryland Department of the Environment, 2010, (ES-11). ] [13: Maryland Department of the Environment, Maryland Phase II WIP- Appendix A, October, 15, 2012, http://www.mde.state.md.us/programs/Water/TMDL/TMDLImplementation/Documents/FINAL_PhaseII_Report_Docs/Final_Documents_PhaseII/APPENDIX_A_PhIIWIP_2017_Strategies_101512.pdf, (A-34). ] [14: Maryland Department of the Environment, Appendix A, 2012, (A-35).]

Maryland continues to encourage expanded utilization of Best Management Practices (BMPs) among farmers since further load reduction within the agriculture sector should recognize and reflect the diverse nature of where agricultural loadings are originating and how to effectively manage them[endnoteRef:15] That is, achieving nitrogen and phosphorus reductions often requires site-specific management through the use of nutrient management planning and BMP implementation. Of the various BMPs employed in Maryland, the most significant practices include use of cover crops, development of soil conservation and water quality plans, conservation tillage, nutrient management compliance, precision agriculture, and revised P Site Index regulations.[endnoteRef:16] [15: Maryland Department of the Environment, Appendix A, 2012, (A-35).] [16: Maryland Department of the Environment, 2010, (ES 18-25). ]

4. Progress Made in Agriculture Of the 3.3 million pounds of phosphorus entering the Chesapeake watershed annually in 2010, 1.64 million pounds came from agriculture. The Bay TMDL presently sets the Final Target for agriculture-sourced phosphorus at 1.451 million pounds. Encouragingly, Maryland has made significant progress in its overall phosphorus load reductions. Between 2007 and 2013, Maryland reduced 530,000 pounds of phosphorus from the watershed, which is nearly 147,000 pounds ahead of schedule to meet the 2017 and 2025 goals, according to Maryland Department of the Environment progress data.[endnoteRef:17] [17: Maryland Department of the Environment, Maryland Achieved 2012-2013 Pollution Reduction Targets for Bay Restoration, June 26, 2014, http://news.maryland.gov/mde/2014/06/26/maryland-achieved-2012-2013-pollution-reduction-targets-for-bay-restoration/. ]

Information obtained from Marylands biennial milestones confirms many of these figures. Of the twelve BMPs that Maryland implements annually, seven (Conservation Tillage, Cover Crops, Cropland Irrigation Management, Dairy Manure Corporation, Manure Transport, Nutrient Management, Poultry Litter Incorporation) have already exceeded the 2015 milestones, and an additional two (Decision Agriculture and Soil Conservation and Water Quality Plans) reached 67% and 90% of the milestones, respectively.[endnoteRef:18] [18: Maryland Statewide, Agricultural Phase II Watershed Implementation Plan, February 24, 2015, http://mda.maryland.gov/resource_conservation/WIPCountyDocs/statewide150206.pdf. ]

The following chart shows Marylands targeted reduction goals for phosphorus within the agriculture source sector under the Phase II WIP.[endnoteRef:19] Data are provided for each major river basin and collectively for the entire watershed. [19: Maryland Department of the Environment, Maryland Phase II WIP- Appendix B, October 15, 2012, http://www.mde.state.md.us/programs/Water/TMDL/TMDLImplementation/Documents/FINAL_PhaseII_Report_Docs/Final_Documents_PhaseII/APPENDIX_B_PhIIWIP_Strategy_Results_101512.pdf. ]

Geographic Region2010Annual Loads (millions of lbs/yr)2017 Interim Target Loads (millions of lbs/yr)Amount of Reduction from 2010 (millions of lbs/yr)Percentage Reduction from 2010-20172025 Final Target Loads (millions of lbs/yr)2025 Final Strategy Loads (millions of lbs/yr)Percentage Reduction from 2010-2025

Eastern Shore0.9400.7230.21723.1%0.8440.68527.1%

Patuxent River Basin0.0760.0630.01418.0%0.0640.05923.1%

Potomac River Basin0.5130.4430.06913.6%0.4560.43215.6%

Susquehanna River Basin0.0460.0390.00716.1%0.0350.03720.0%

Western Shore0.0650.0550.00914.6%0.0520.05318.0%

Chesapeake Watershed1.6401.323.31819.4%1.4511.26622.8%

(This chart was formatted by the authors using information obtained in the MD WIP II)Despite Marylands successes, however, several shortcomings threaten to undo some of these results. Most notably, Maryland has yet to implement the PMT regulations included in the Phase II WIP. The EPA identified this as one of Marylands shortfalls in its evaluation of the states 2012-2013 milestone progress.[endnoteRef:20] This will undoubtedly affect future model projections of statewide reduction loads. (The PMT is addressed in more detail in the next chapter). [20: EPA, EPAs Evaluation of Marylands 2012-2013 Milestone Progress and 2014-2015 Milestone Commitments to Reduce Nitrogen, Phosphorus, and Sediment, Accessed 2015, http://www.epa.gov/reg3wapd/tmdl/2014Evaluations/factsheet_MD.pdf.]

Additional shortcomings exist in those parts of the state where agricultural activities are largest. According to the Chesapeake Bay Foundations 2014 State of the Bay Report,[endnoteRef:21] phosphorus loads increased compared to 2012 levels. Taking a closer look at progress made at the county level in Maryland, it is apparent that several counties, particularly those along the Eastern Shore, are falling short of their targeted efforts to implement certain best management practices that present an opportunity to reduce phosphorus loads. County annual reports, submitted as part of the statewide Watershed Implementation Plan (WIP), provide a glimpse at how well (or poorly) each county is performing towards statewide TMDL compliance. Dorchester County, for example, falls well short of its 2015 milestone target for acreage utilizing enhanced nutrient management Best Management Practices. Similar to nutrient management planning, the enhanced nutrient management BMP specifically aims to identify where nitrogen application is excessive, to reduce nitrogen use, and therefore also reduce phosphorus application. The 2013/2014 report shows enhanced nutrient management implementation on 579.3 acres/year out of a 2015 target of 7647.83 acres/year, or only eight percent.[endnoteRef:22] The remaining counties along the Eastern Shore report similar progress (or lack thereof) for enhanced nutrient management: Somerset County reports 275.2 acres/year out of a 2015 target of 4068.19 acres/year, or seven percent[endnoteRef:23]; Wicomico County reports 828.3 acres/year out of a 2015 target of 7,389.45 acres/year, or eleven percent[endnoteRef:24]; Worchester County reports 351.7 acres/year out of a 2015 target of 8433.94 acres/year, or four percent[endnoteRef:25]; Talbot County reports 373.3 acres/year out of a 2015 target of 16,389.54 acres/year, or two percent[endnoteRef:26]; Caroline County reports 1,363.4 acres/year out of a 2015 target of 21,238.32 acres/year, or six percent[endnoteRef:27]; Queens Anne County reports 1,523.6 acres/year out of a 2015 target of 18,062.38 acres/year, or eight percent[endnoteRef:28]; Kent County reports 1,670.4 acres/year out of a 2015 target of 8,341.42 acres/year, or twenty percent[endnoteRef:29]; and Cecil County reports 4,232.8 acres/year out of a 2015 target of 6,977.66 acres/year, or sixty-one percent.[endnoteRef:30] This information is represented in the chart below: [21: http://www.cbf.org/document.doc?id=2289] [22: http://mda.maryland.gov/resource_conservation/WIPCountyDocs/dorchester150206.pdf] [23: http://mda.maryland.gov/resource_conservation/WIPCountyDocs/somerset150206.pdf] [24: http://mda.maryland.gov/resource_conservation/WIPCountyDocs/wicomico150206.pdf] [25: http://mda.maryland.gov/resource_conservation/WIPCountyDocs/worcester150206.pdf] [26: http://mda.maryland.gov/resource_conservation/WIPCountyDocs/talbot150206.pdf] [27: http://mda.maryland.gov/resource_conservation/WIPCountyDocs/caroline150206.pdf] [28: http://mda.maryland.gov/resource_conservation/WIPCountyDocs/queenannes150206.pdf] [29: http://mda.maryland.gov/resource_conservation/WIPCountyDocs/kent150206.pdf] [30: http://mda.maryland.gov/resource_conservation/WIPCountyDocs/cecil150206.pdf]

Counties on the Eastern Shore7/1/13-6/30/14 Progress (acres/year)2015 Milestone (acres/year)Percentage (%)

Caroline1,363.40 21,238.326%

Cecil4,232.806,977.6661%

Dorchester579.307647.838%

Kent1,670.408,341.4220%

Queens Anne1,523.6018,062.388%

Talbot373.3016,389.542%

Somerset275.204,068.197%

Wicomico828.307,389.4511%

Worchester 351.708,433.944%

To the credit of these counties, all are either well on their way or substantially ahead of pace to meet milestone targets for other major Best Management Practices, including cover crop, conservation tillage, and ordinary nutrient management. But the reports also show that little or no progress has been made thus far in other smaller-scale Best Management Practices, such as alternative crops, forest and vegetative buffers, poultry litter heavy use concrete pads, and others. The fact that phosphorus loads have increased recently shows that more needs to be done in those areas that will significantly reduce phosphorus loads entering the Bay watershed.