Maryland agriculture officials said Tuesday they are looking to relax a four-year-old regulation aimed at reducing farm runoff pollution into the Chesapeake Bay after farmers and some municipal sewage agencies complained about the costs of complying.

The regulation, which took effect July 1, affects mainly dairy farmers and municipal wastewater agencies that generate treated sewage sludge, also known as biosolids.

The 2012 rule forbids spreading manure or biosolids after Nov. 1 for the Eastern Shore and Nov. 16 for farms west of the Chesapeake. It also requires that the nutrient-rich material be incorporated into the soil when spread on fields so that it won’t run off with rainfall or snow melt.

The rule essentially requires farms and sewage facilities to build or expand storage facilities to hold their manure or sludge through winter until it can be applied in spring. Many of the state’s 431 dairy farms already have done so, but some complained to the department earlier this spring that they could not meet the deadline, which triggered today’s emergency meeting.

Though adopted in 2012, the effective date of the regulation was delayed until now to give affected farmers and wastewater treatment agencies time to build or expand winter storage facilities. Small farms and sewage facilities were given even longer, until 2020, to comply with the wintertime field application ban.

On Tuesday, state officials briefed the Maryland Department of Agriculture’s nutrient management advisory committee on the changes they’re considering. The panel was set up more than 20 years ago to help the MDA develop and refine regulations and other efforts to reduce nutrient pollution.

State agriculture officials said they intend to keep the 2020 deadline for small farms and sewage facilities. But for those larger operations that say they’re unable to stop spreading this winter, officials said they would ease the rule and simply require them to comply as soon as possible.

Officials said they also are considering easing the rule in other ways:

  • Shortening the duration of the winter spreading ban, by moving the starting date to Dec. 15 for farms on both sides of the Bay Bridge;
  • Dropping the requirement that manure and biosolids must be incorporated or worked into the soil when applied in spring or fall, and
  • Eliminating a ban on emergency spreading, so that farmers or waste agencies may spread material under extenuating circumstances, such as if a manure storage lagoon is overflowing.

Officials did say they’re considering adding one new precaution against nutrient pollution – requiring a 100-foot setback during spreading from streams and drainage ditches.

Dwight Dotterer, chief of MDA’s nutrient management program, said it made sense to give farmers more time to spread manure in late fall, noting that in Minnesota and Wisconsin, where the ground usually freezes earlier than in Maryland, winter manure spreading is banned on Dec. 1.  Maryland would freeze later, thus justifying the later date, he said.

He also said it seemed fairer to treat farmers on both sides of the Bay the same.

Even when spreading is allowed in fall or spring, Dotterer noted, farmers are supposed to wait if the ground is frozen until it thaws.

Dotterer said MDA wants to drop the requirement for incorporating manure or sludge because it conflicts with the no-till farming practices that the state has encouraged and that many farmers now use. As for the emergency spreading prohibition, Dotterer said, the department “just feels like that’s a mistake. I am not quite sure how we can do that, not allow any emergency spreading.”

The nutrient management advisory panel includes farmers, industry representatives, and state legislators with many farms in their districts. The only environmental advocacy group represented on the panel is the Chesapeake Bay Foundation. Its Maryland executive director, Alison Prost, said she would like to see the science behind the Dec. 15 date to make sure the Bay would not be harmed by a delay, but otherwise did not object to the changes.

The committee also heard from representatives of the biosolids industry, who contend that they should not have been included in the regulations in the first place. Biosolids are highly treated, they argued, and represent a much smaller amount of the waste spread on farm fields in Maryland than manure. When properly treated, the EPA considers land application of sewage sludge to be an environmentally acceptable way of dealing with it.

“We are not here asking to be exempt,” said Pamela Kasemeyer, an attorney for Synagro, a large biosolids company that takes care of treated sewage sludge from many municipal wastewater treatment plants, “but I think there are substantial differences between biosolids and manure management.”

The town administrator for Berlin also suggested that the Eastern Shore community inadvertently became ensnared in a regulation that was never meant for it. Close to both the Chesapeake and Atlantic coastal bays, the Worcester County town spray-irrigates its treated wastewater on forest land, rather than discharge it into waters already suffering from too many nutrients. . The town invested $25 million in the operation, and it needs to be able to spray all year, said town administrator Laura Allen. Otherwise, it would have to charge its customers between $2 and $3 million more to build storage.

“We were required to spray, and now we’re being told we can’t spray, and that’s a problem for us,” Allen said. “We have done what’s been asked of us, we have done what’s been required of us. Now we ask for help to continue to protect the Chesapeake and coastal bays.”

Agriculture officials and the panel seemed in agreement that Berlin and other communities in similar circumstances should get a break from the rule, providing that the Maryland Department of the Environment has no issue with it.

The only objection voiced at the meeting to the changes came from the audience. Jeffrey H. Horstman, executive director of the Midshore Riverkeeper Conservancy, said that the rule had been compromised enough. In 2012, he said, environmentally oriented lawmakers introduced the manure restrictions as legislation, and the department and farmers pushed instead for regulation to increase flexibility. Then, he said, the farmers received four more years to comply.

“I’m not sure if this is a compromise, a rollback, or a (reneging) on the deal,” Horstman said. “A unilateral rollback of this regulation would be detrimental. And a lot of people have gone out and met these regulations. So, don’t (renege) on the deal. I know it’s not all about making it easy for farmers. It’s also about protecting our environment.”

Horstman’s comments drew a retort from Del. Charles Otto, a Republican who represents Somerset and Worcester counties and serves on the advisory panel.
“I’m glad someone was able to make a deal,” Otto said, “because we didn’t have any cards dealt in 2012. We were presented with it.” He credited the Republican administration of Gov. Larry Hogan with giving the panel a role in shaping policy. Hogan ran on a promise to give farmers and other regulated entities a “seat at the table” on rules and policies affecting them.

Sen. Thomas “Mac” Middleton, a Charles County Democrat who’s also a farmer and member of the Chesapeake Bay Commission, asked agriculture officials if the state faces any consequences with the Environmental Protection Agency if the regulation is rolled back.  Under the Bay “pollution diet” that EPA imposed in 2010, each state in the watershed was required to submit a list of measures it is taking to reduce nutrient and sediment pollution by the required amounts.

Alisha Mulkey, the MDA’s coordinator for the state’s “watershed implementation plan,” said the state has not yet received any credit for farmers incorporating manure since the regulation just took effect. The state will have to come up with something else to fill the breach.

Hans Schmidt, an assistant MDA secretary, said the department staff expects to give its recommendations to Agriculture Secretary Joseph Bartenfelder in about two weeks. Schmidt said he wasn’t sure what form the changes would take, whether they would proceed through emergency regulations or another pathway, but he said the recommendation to the secretary would likely include what staff presented to the advisory committee

Also unknown Tuesday was how many dairy farmers have not developed the necessary storage. Of the 431 dairy farms now in business, 58 have built storage facilities since 2012, and 14 are underway. In most other cases, officials said, farmers likely have storage, though it might not be adequate.

Government funding is available to cover either up to 87 percent of the cost for manure storage. But even so, with facilities costing from $100,000 to about $500,000, the investment may be too steep for some, as dairy farmers struggle with low milk prices.  Poultry farmers are largely unaffected by the rule, as they already were forbidden to spread manure on frozen ground and could stockpile the dry litter without needing lagoons or other contained storage.

Diane Flickinger, a Frederick County dairy farmer, said the changes under consideration would help farmers who do not have enough storage.  Financial assistance to develop storage was limited before, and changes in federal funding have made it even tighter, according to agriculture officials.

“I’m really excited,” Flickinger said. “It just gives a little more time.”