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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

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VI. Proposed Phosphorus Management Tool (PMT) Regulations1.Introduction One of the most significant issues in Maryland today concerning the Bay clean-up is the current state of its proposed phosphorus management regulations. For several years, Maryland has debated whether to update the Phosphorus Site Index with a new model, known as the Phosphorus Management Tool (PMT). The PMT, designed by the University of Maryland, better reflects the most recent scientific research in phosphorus and more accurately measures phosphorus levels in soil and the risk of phosphorus loss to nearby surface waters- one of the criticisms of the Phosphorus Site Index (PSI) model is that, because it is an average of three types of phosphorus measurements, it often underestimates the risk of phosphorus loss, thereby resulting in over-application of animal fertilizers. The Phosphorus Management Tool, on the other hand, includes additional types of phosphorus loss measurements to provide a more accurate measurement of application needs. By implementing the Phosphorous Management Tool, Maryland will concurrently implement regulations to restrict the amount of animal fertilizer used by farmers to prevent over-application of phosphorus. The agricultural community, who argue that these regulations would be too economically burdensome to local farmers, has long challenged this proposal. Environmentalists in favor of the regulations counter that these regulations are vital to reducing phosphorus levels in the Bay and surrounding tributaries.

2. State of Marylands Proposed Phosphorus RegulationsMuch has occurred recently since work on this paper began. In December 2014, then-Governor Martin OMalley submitted the new PMT regulations to be published in the Maryland Register following the release of a ten-year economic study conducted by Salisbury University to evaluate the costs and benefits of implementation. Just before a Final Notice of Action was to be published and the regulations officially implemented, however, newly elected Governor Larry Hogan ordered a halt to the Department of Agricultures implementation of the new regulations.[endnoteRef:-1] [-1: Chapter VI Endnotes Josh Bollinger, PMT Among Regulations Pulled By Hogan, My Eastern Shore MD, January 22, 2015, http://www.myeasternshoremd.com/news/queen_annes_county/article_a4fc5e6d-0c36-5e69-95bb-5c010c574225.html. ]

Frustrated by yet another delay in adopting these regulations, Senator Pinsky, who is also vice-chairman of the Senate Committee on Education, Health, and Environmental Affairs, sponsored a bill, SB 257, to pass the same Phosphorus Management Tool regulations as a piece of legislation during the new legislative session. SB 257 aimed to legislate the Phosphorus Management Tool regulations as they were written when proposed by OMalley. The difference was merely procedural: instead of an administrative regulation, they would become a law. Indeed, this became central to the debate held during the senate committee hearing on February 24, 2015. Although both sides agreed in principle that the PMT would be better incorporated as a regulation, which offers greater flexibility to make amendments after implementation begins, than as a law, proponents of the bill believed there had already been too much delay in adopting the regulations, and argued that legislation was necessary.Ostensibly as a direct response to the bill, Governor Hogan released an amended set of regulations that he proposed in place of the Pinsky-sponsored bill less than twenty-four hours before the senate committee hearing on SB 257, and without consultation with Senator Pinsky. Although similar, SB 257 and the Hogan-proposed regulations contain substantial differences. Governor Hogans initial version of the regulations differed from SB 257 in four ways. One, his version would delay implementation by one year. Thus, instead of beginning implementation in 2015 and gradually phasing-in the PMT, with full PMT implementation by 2021, full implementation would not be achieved by 2022. This move was viewed as necessary to provide farmers with enough time to prepare for changes to how they apply fertilizers to their farmlands. Second, an immediate ban would be imposed on those farmlands that contain a Fertility Index Value of 500 or over. The other tiers in the regulations are 150 or over; between 150 and 300; and between 300 and 450. For reference, scientists consider a healthy Fertility Index Value to be between 50 and 100. Third, the Department of Agriculture will collect soil test phosphorus data every six years from all farms requiring a nutrient management plan to monitor trends and help identify potential areas needing additional manure. Finally, and most significantly, this version contained language that would allow the transition from the Phosphorus Site Index model to the Phosphorus Management Tool to be delayed if market conditions for the additional manure were not favorable to farmers. This loophole effectively takes away the teeth from the regulations.0. Latest Version of the PMT RegulationsOn March 18th, both sides announced a compromise, allowing the Phosphorus Management Tool to be implemented through a new version of administrative regulations. The latest version of the regulations, which will be published on April 3rd for a mandatory review and comment period, tightens language that would allow for delays in the transition schedule from the Phosphorus Site Index model to the Phosphorus Management Tool model. These regulations would still permit a delay [i]f the results of [an evaluation of the marketability of additional animal manure] indicate insufficient capacity to support the additional volume of animal manure expected to be created when operations are required to determine phosphorus applications under the Phosphorus Management Tool.[endnoteRef:0] Such results would allow a one year delay in implementation.[endnoteRef:1] In other words, any potential delay in the transition period would be capped at the year 2023. Barring any setbacks in adoption of the regulations, implementation is set to begin in June 2015. [0: http://mda.maryland.gov/Documents/ProposedPMTRegs4.3.15Register.pdf] [1: http://mda.maryland.gov/Documents/ProposedPMTRegs4.3.15Register.pdfReferencesAndreen, William L. Water Quality Today- Has the Clean Water Act Been a Success? Alabama Law Review 538 (2003-2004). http://www.law.ua.edu/pubs/lrarticles/Volume%2055/Issue%203/Andreen.pdf. Beveridge & Diamond, P.C. EPA Announces Federal Strategy for Chesapeake Bay and Related Settlement Agreement in Fowler v. EPA. May 14, 2010. http://www.bdlaw.com/news-874.html. Blankenship, Karl. Long Term Improvements of Phosphorus Reduction in Chesapeake Bay Fading Away. Bay Journal. February 1, 2015. http://www.bayjournal.com/article/water_quality_monitoring_shows_some_long_term_improvements_fading_away.Blankenship, Karl. 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_outbreaksBollinger, Josh. PMT Among Regulations Pulled by Hogan. My Eastern Shore MD, January 22, 2015. http://www.myeasternshoremd.com/news/queen_annes_county/article_a4fc5e6d-0c36-5e69-95bb-5c010c574225.html.Boynton, Walter. Impact of P on Water Quality. Presented at The State of the Science on Phosphorus, Wye Mills, Maryland, January 30, 2015.Buda, Anthony. The Role of Hydrology in Connecting Agricultural Phosphorus Sources to Surface Water. Presented at The State of the Science on Phosphorus, Wye Mills, Maryland, January 30, 2015.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.Catma, Serka and Alan R. Collins. Phosphorus Imbalances in the Chesapeake Bay: Can Forestland and Manure Processing Facilities be the Answers? Agricultural and Resource Economics Review 40 (2011): 116. Chesapeake Bay Foundation (CBF). Nitrogen and Phosphorus. Accessed 2014. http://www.cbf.org/about-the-bay/issues/dead-zones/nitrogen-phosphorus.CBF. Settlement Agreement. May 5, 2010. http://www.cbf.org/Document.Doc?id=512. CBF. State of the Bay. Last modified 2014. http://www.cbf.org/about-the-bay/state-of-the-bay-report-2014. Chesapeake Bay Program, (CBP). 1983 Chesapeake Bay Agreement. Last modified March 4, 1996. http://www.chesapeakebay.net/content/publications/cbp_12512.pdf. CBP. 1987 Chesapeake Bay Agreement. Accessed 2014. http://www.chesapeakebay.net/content/publications/cbp_12510.pdf.CBP. Agriculture. Accessed 2014. http://www.chesapeakebay.net/issues/agriculture.CBP. Bay Foundation Estimates Economic Benefits of a Restored Chesapeake. Last modified October 6, 2014. http://www.chesapeakebay.net/blog/post/bay_foundation_estimates_economic_benefits_of_a_restored_chesapeake.CBP. Bay Grasses. Accessed 2014. http://www.chesapeakebay.net/issues/issue/bay_grasses#inline.CBP. Bays Underwater Grasses Decline for Third Year. Last modified 2013. http://www.chesapeakebay.net/presscenter/release/bays_underwater_grasses_decline_for_third_year. CBP. Chesapeake Bay Watershed Population. Last modified 2013. http://www.chesapeakebay.net/indicators/indicator/chesapeake_bay_watershed_population.CBP. Development. Accessed 2014. http://www.chesapeakebay.net/issues/issue/development#inline. CBP. Nitrogen Loads and Rive Flow to the Bay. Accessed 2014. http://www.chesapeakebay.net/indicators/indicator/nitrogen_loads_and_river_flow_to_the_bay1.CBP. Oysters. Accessed 2014. http://www.chesapeakebay.net/issues/issue/oysters#inline.CBP. Reducing Phosphorus Pollution. Accessed 2014. http://www.chesapeakebay.net/indicators/indicator/reducing_phosphorus_pollution.Chesapeake Bay Stock Assessment Committee. Chesapeake Bay Blue Crab Advisory Report. 2014. Davis, Michael, D.R. Sloan, Gerald Kidder, and R.D. Jacobs. Poultry Manure as Fertilizer. University of Florida, IFAS Extension. http://edis.ifas.ufl.edu/aa205. Encyclopedia Brittanica. Phosphorus Cycle. Accessed 2015. http://www.britannica.com/EBchecked/topic/457621/phosphorus-cycle. Environmental Protection Agency, (EPA). Chesapeake Bay TMDL Executive Summary. December 29, 2010. http://www.epa.gov/reg3wapd/pdf/pdf_chesbay/FinalBayTMDL/BayTMDLExecutiveSummaryFINAL122910_final.pdf.EPA. Chesapeake Bay TMDL. Section 4: Sources of Nitrogen, Phosphorus, and Sediment to the Chesapeake Bay. 2010: 4-29.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.EPA. Forestry. Last modified October 22, 2012. http://water.epa.gov/polwaste/nps/forestry.cfm.EPA. What is a TMDL? Last modified September 11, 2013. http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/overviewoftmdl.cfm#tmdlrequired. EPA. What is Nonpoint Source Pollution? Last modified August 27, 2012. http://water.epa.gov/polwaste/nps/whatis.cfm. EPA, 5.6 Phosphorus, Accessed 2015, http://water.epa.gov/type/rsl/monitoring/vms56.cfm.Ernst, Howard R. Chesapeake Bay Blues: Science, Politics, and the Struggle to Save the Bay. Lanham: Rowman & Littlefield Publishers, 2003.Fahrenthold, David H. Broken Promises on the Bay. Washington Post, December 27, 2008. http://www.washingtonpost.com/wp-dyn/content/article/2008/12/26/AR2008122601712.html. Frontier Group. An Unsustainable Path: Why Marylands Manure Pollution Rules are Failing to Protect the Chesapeake Bay. 2011. p. 9.Horton, Tom. Growing, Growing, Gone! The Chesapeake Bay and the Myth of Endless Growth. Baltimore: The Abell Foundation, 2008. Maryland Clean Agriculture. 2014. www.marylandcleanagriculture.org/wp-content/uploads/PMTinfographic020215.pdf.Maryland Department of Agriculture. Marylands Agricultural Certainty Program. December, 2014. http://mda.maryland.gov/resource_conservation/counties/AgCertainty.pdf.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/.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.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.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. 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.Maryland Department of Natural Resources. Chesapeake States Look to Grass Beds to Help Blue Crabs. Last modified 2008. http://www.dnr.state.md.us/bay/sav/download/grass_beds_capital.pdf.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.Maryland Division of State Documents. Maryland Register 41. December 1, 2014. http://www.dsd.state.md.us/MDRegister/4124.pdf. Maryland Division of State Documents. Research Guide for Maryland Regulations. 1992. http://www.lawlib.state.md.us/researchtools/guides/comarresearch.pdf. Maryland General Assembly. The Legislative Process: How a Bill Becomes Law. Accessed 2014. http://msa.maryland.gov/msa/mdmanual/07leg/html/proc.html.Maryland Statewide. Agricultural Phase II Watershed Implementation Plan. February 24, 2015.http://mda.maryland.gov/resource_conservation/WIPCountyDocs/statewide150206.pdf.McGrath, Josh. Agricultural BMP to Address Phosphorus. Presented at The State of the Science on Phosphorus, Wye Mills, Maryland, January 30, 2015.Minnesota Department of Agriculture. Conservation Tillage, Accessed 2015. http://www.mda.state.mn.us/protecting/conservation/practices/constillage.aspx.Moore, P.A., Jr., T.C. Daniel, A.N. Sharpley, and C.W. Wood. Poultry Manure Management. Agricultural Research Service, USDA. http://www.ars.usda.gov/is/np/agbyproducts/agbychap3.pdf.Murphy, Rebecca R., W. Michael Kemp, and William P. Ball. Long Term Trends in Chesapeake Bay Seasonal Hypoxia, Stratification, and Nutrient Loading. Coastal and Estuarine Research Federation 34. (2011): 1293. National Research Council. Achieving Nutrient and Sediment Reduction Goals in the Chesapeake Bay. Washington, D.C.: The National Academies Press, 2011.Natural Resources Conservation Service. Model Simulation of Soil Loss, Nutrient Loss, and Change in Soil Organic Carbon Associated with Crop Production. 2006.Newell, R.I.E. Ecological changes in Chesapeake Bay: are they the results of overharvesting the American oyster, Crassostrea virginica? In: Understanding the Estuary: Advances in Chesapeake Bay Research, edited by M. Lynch and E.C. Krome, 536-546. Solomons: Chesapeake Research Consortium, 1988. Public Broadcasting System. Whos Responsible for that Manure? Accessed 2015. http://www.pbs.org/wgbh/pages/frontline/poisonedwaters/themes/chicken.html. Robisch, Kyle W. Getting to the (Non)Point: Private Governance as a Solution Nonpoint Source Pollution. Vanderbilt Law Review 67 (2014) http://www.vanderbiltlawreview.org/content/articles/2014/03/5-Robisch_67_Vand_L_Rev_539.pdf.Sharpley, Andrew. The Role of Phosphorus Management in the Green Pastures and Blue Waters Paradox. Presented at The State of the Science on Phosphorus, Wye Mills, Maryland, January 30, 2015. Simpson, Thomas W, 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.Skewes, Peter, John Albrecht and Jim Camberato. Reducing the Nutrient Load from Poultry Manure.https://www.clemson.edu/extension/livestock/camm/camm_files/poultry/pch3a_00.pdf.Smith, Douglas R. Balance and Legacy Phosphorus. Presented at The State of the Science on Phosphorus, Wye Mills, Maryland, January 30, 2015. U.S. Global Change Research Program. Projected Change in Heavy Precipitation Events. Accessed 2015. http://www.globalchange.gov/browse/multimedia/projected-change-heavy-precipitation-events. Virginia Institute of Marine Science, (VIMS). About SAV. Accessed 2014. http://web.vims.edu/bio/sav/AboutSAV.html.VIMS. Chesapeake Bay Stock Assessment Committee Blue Crab Advisory Report 2002. Last modified June 27, 2002. http://www.fisheries.vims.edu/bcar/. Virginia Law. 9VAC25-260-10. Designation of Uses. Accessed 2015. http://law.lis.virginia.gov/admincode/title9/agency25/chapter260/section10/.Virginia Places. Blue Crabs in Virginia. Accessed 2014. http://www.virginiaplaces.org/natural/crabs.html.Western Plant Health Association. Plant Nutrients-Phosphorus. Accessed 2015. http://www.cfaitc.org/factsheets/pdf/Phosphorus.pdf. Appendix A GlossaryList of terms, abbreviations CBW- Chesapeake Bay WatershedCWA- Clean Water ActPMT- Phosphorus Management ToolSAV- Submerged Aquatic Vegetation TMDL- Total Maximum Daily LoadsWIP- Watershed Implementation PlanWQS- Water Quality StandardsList of agenciesCBF- Chesapeake Bay FoundationCBP- Chesapeake Bay ProgramEPA- Environmental Protection AgencyGAO- General Accounting OfficeUSDA- U.S. Department of AgricultureVIMS- Virginia Institute of Marine Science ]