States in the Chesapeake Bay watershed are in various stages of considering a program that gives farms nearly a decade of amnesty from new environmental regulations in exchange for their promise to install best management practices.
The programs, known as agricultural certainty, give the farmers an assurance that future rules won't alter their business practices, which they must plan out several years in advance. In exchange, they commit to putting in water-quality practices that are recommended — such as cover crops and grass waterways — but not currently mandatory.
Virginia has been developing its agricultural certainty program for two years. Maryland is in the process of creating a program, and Pennsylvania and Delaware are both considering one. The Chesapeake Bay Commission and the Chesapeake Bay Foundation have been heavily involved in crafting the legislation in Maryland and Virginia.
"The idea (behind agricultural certainty) is to articulate very clear expectations of what a clean water farm would be like, and then provide certainty as a reward," said Ann Swanson, executive director of the Bay Commission, an advisory panel made up of legislators from Maryland, Virginia and Pennsylvania. "It rewards the cream of the crop. And for those who might be interested in becoming the cream of the crop, it shows a way to get there,"
To participate in the program, in both Maryland and Virginia, farmers will have to file nutrient management plans every year and assure the state they are being fully implemented. They will also need to file a soil and water plan. Every three years, a verifier will inspect the farm to make sure it is following all of the requirements. If it's not, the state can remove the farm from the program. A stakeholder group will audit the program and make sure it's working properly. By the end of the program, farmers have to be in compliance with any state or local law that has passed during their certainty period.
Maryland and Virginia's programs differ in key ways. (See Proposed Agriculture Certainty Programs on opposite page.) Virginia's term is nine years; Maryland's is 10. In Virginia, the Department of Conservation and Recreation will certify the farms; in Maryland, the Department of Agriculture will do it. In Virginia, legislators passed a piece of enabling legislation to create the program and then spent more than a year crafting the details, a process that is ongoing. But in Maryland, legislators put in a bill with the program's parameters already in place, and did so in a three-month period.
Agriculture officials like the certainty program because it encourages, rather than forces, farms to implement practices that scientists say promote water quality. They argue the practices will be put in place more quickly, because farmers are working in advance of whatever laws might be coming down the pike.
"We believe any time we can help a farmer and accelerate the cleanup, it's worth the effort," said Earl "Buddy" Hance, Maryland's agriculture secretary. "There's no shell game going on here. We are clearly, clearly trying to make sure agriculture carries its own weight. It is a delay in implementation, it is not a get-out-of-jail-free card for the rest of your life."
The Chesapeake Bay Foundation joined the commission in the drafting process in both states, in large part because they wanted to make sure the bill was as protective of water quality as it could be, said Kim Coble, the foundation's vice president of environmental quality and restoration.
Coble did not get everything she wanted in Virginia. Her staff pushed for a five-year program. It got nine. But on the balance, she said, they liked the plan.
Agriculture has been one of the most vexing pollution sources. It is exempt from many pollution regulations that govern other industries. The EPA regulates concentrated animal feeding operations, called CAFOs, but it has limited jurisdiction over crop farms and activities that are not part of a CAFO permit.
"We are looking to get nutrient reductions from agriculture — a lot of nutrient reductions from agriculture — and unfortunately, we don't have the same regulatory structure. So what we're left with are farms where we have no mechanism to force them to have nutrient reductions. Yes, they need a nutrient management plan, and it needs to be implemented, but we have very little certainty to make sure that is happening," Coble said. "This incentivizes a farmer to put in nutrient reductions sooner than he would otherwise. And we get on-farm verification from third-party certifiers that it was done."
But some environmentalists are outraged about giving farmers amnesty from potential future regulations.
"I just object to the concept. The special treatment that agriculture has gotten, I think, is indefensible," said Bob Gallagher, an attorney who founded the West and Rhode Riverkeeper organization in Anne Arundel County.
No environmental groups organized against Virginia's plan, perhaps because the process of developing it continues, and because the Department of Conservation and Recreation is overseeing it, as opposed to the Department of Agriculture, whose mission is to promote farms. Virginia's Department of Conservation and Recreation regulates erosion, sediment, stormwater permits and the nutrient management program; its Department of Environmental Quality regulates the point sources, such as sewage-treatment plants. In Maryland, the Department of the Environment regulates stormwater and point-sources, including CAFOs. The Department of Agriculture governs compliance on crop farms.
Virginia's plan will lay out specific practices, such as riparian buffers, livestock fencing and soil conservation. Those practices will vary based on whether the farmer has crops, hay or pastureland. The Virginia plan is "very prescriptive," said Jack Frye, Virginia Director of the Chesapeake Bay Commission. And the farmers wanted it that way.
"It was the Farm Bureau and others who wanted that specificity. They wanted farmers to know what they had to do," said Frye, who spent 30 years with the Department of Conservation and Recreation before his retirement in 2011. "The things that are being asked are not so extreme. They're accepted agronomic practices. They're not outside of the realm of what progressive farmers are doing anyway."
Frye added that the Bay Program will conduct computer model runs to get the best information possible about which agricultural management practices are most effective.
In Maryland, environmental activists packed a senate hearing room to voice their feelings about the bill. Swanson and Alison Prost of the Chesapeake Bay Foundation sat next to representatives of the state's farm bureau and soil conservation districts, speaking in favor of the legislation. Opposing the bill were representatives from more than 20 environmental groups, including the Maryland Chapter of the Sierra Club and the Maryland League of Conservation Voters.
The senators, who are accustomed to a unified environmental voice, were confused. Their concerns seemed to be allayed when Hance stressed that the farms would have to be in compliance with any new regulations by the end of their certainty period. Helping make the case, too, was Robert Summers, secretary of the Maryland Department of the Environment.
"This law contains specific provisions for enforcing state laws and the Clean Water Act," Summers said. "Nothing here pre-empts federal requirements. Nothing about certainty will impede environmental regulations."
But environmentalists were concerned about more than just favoritism for the agricultural sector. They contended the 10-year time frame is too long and that it was designed that way to get farmers out of new regulations that could come after 2017. That's the year the EPA will be checking to make sure the states are on track with their reductions for the Baywide pollution diet, or TMDL, and making any midcourse corrections. Most experts agree that meeting existing agricultural goals will be challenging, and many farmers are concerned that the agricultural community will be asked to do even more to meet Baywide nutrient reduction goals.
Ridgeway Hall, a longtime environmental lawyer who began his career at the EPA when the agency was just established, told the senators that no other regulatory program received a 10-year shield. Most permitted activities have five-year lives, and can be modified before renewals.
"The bill has been rushed," Hall said. "With further refinement, there's a lot of improvement that could be made."
The concept of agricultural certainty came to Maryland quickly. It has its roots in the 2010 Chesapeake Clean Water and Ecosystem Restoration Act introduced in Congress by U.S. Sen. Ben Cardin. The bill sought to re-authorize the state-
federal Bay Program partnership and keep the Chesapeake Bay restoration on track. To appease farmers, policy makers added some carrots. One was nutrient trading; the other was a "safe harbor" provision for farms.
The Cardin bill failed, but legislators in several Chesapeake states decided they liked both trading and the safe harbor concept.
When Maryland Gov. Martin O'Malley learned of Virginia's program at a Chesapeake Executive Council meeting two years ago, he asked Hance why his state didn't have one. To the governor, the plan sounded like a good way to help both farmers and the environment. At that point, Hance brought together stakeholders to discuss the bill — which included many of the groups who now oppose it. Members of those groups say Hance had left them with the impression late last year that no bill would be introduced in the 2013 session because so many details still needed to be worked out.
But Maryland Sen. Thomas "Mac" Middleton, a Southern Maryland farmer, was hearing from constituents that they would like a bill. He began working on one. Hance eventually became involved in the process, and Middleton sought the advice of Swanson and the commission, which he had served on. Eventually, Swanson and the commission offered more than 60 amendments. Those amendments included the participation of the Maryland Department of Environment and language that made sure farmers fully implemented their nutrient management and soil conservation plans. At the Bay Foundation, staff devoted much time to reviewing and commenting on the bill.
Middleton called three stakeholder meetings with the environmental community, but they could not come to terms. Like Gallagher, many hated the concept. Like Hall, many felt the legislation was rushed. And many did not believe the Maryland Department of Agriculture would enforce the program strictly. The department only inspects about 10 percent of the state's farms each year, and a recent Baltimore Sun investigation found that 40 percent of those checked in 2012 had violations. A quarter of those still had violations when inspectors made a follow-up visit. Environmental groups also do not like the fact that the certainty documents will not be made public.
A week before a key vote on the bill, 20 groups, including the Sierra Club, the Pew Charitable Trusts and the League of Conservation Voters, put out a press release, calling the bill "bad policy," "bad law," and a "free pass" for farms.
Some environmental advocates privately wonder what's next if a contested bill like this one passed so easily. But Hance disagreed that the program is a gift; farmers asked for it, but they may have gotten more than they bargained for. The requirements are so stringent that, Hance said, he's not sure he'd put the 700 acres he farms in the program.
"Would I do it? I don't know," Hance said. "But I'm not as concerned about 2017 as some others are."
Proposed Agriculture Certainty Programs
Maryland and Virginia are developing programs that would provide farmers with a decade of protection from new environmental regulations in exchange for the farmers installing practices that protect water quality and addressing all water quality concerns on their farms. These programs are called "agricultural certainty programs." Virginia has already passed enabling legislation and is completing regulations. The Maryland General Assembly is considering a bill. Here is a comparison of the two states' programs at the time the Bay Journal went to press:
- Passed enabling legislation and received public comment on draft regulations.
- Passed the bill with extensive input from the Chesapeake Bay Foundation and the Chesapeake Bay Commission and no real opposition from environmental groups.
- Requires farmers to be in compliance with any load allocation required by a local waterway total maximum daily load, the Virginia Bay TMDL Watershed Implementation Plan and any state water quality requirements for nutrients and sediment and to be in compliance with all existing state laws.
- Requires farmers to have a nutrient management plan, soil conservation plan and sufficient best management practices to meet the Bay TMDL.
- Requires the local soil and water conservation district to verify that practices are implemented. The Department of Conservation and Recreation issues the certification for the farm. The Virginia Department of Agriculture has no direct involvement.
- Requires periodic inspections will occur no less than every three years but no more than once a year if everything is in compliance. Soil/water conservation district personnel will conduct inspections.
- Term of certification is nine years.
- The Virginia Department of Conservation and Recreation can revoke certification if a farm is out of compliance.
- Requires all or part of the farm operation can be submitted for certification by the owner or operator.
- Aspects of the program are public, but personal and proprietary information is protected.
- The General Assembly was debating a bill at press time.
- The Chesapeake Bay Foundation and the Chesapeake Bay Commission worked to make the legislation stronger and more protective of water quality than the original bill written by Sen. Thomas "Mac" Middleton, a Charles County farmer, with extensive contributions from Maryland Agricultural Secretary Earl "Buddy" Hance, also a farmer.
- The bill faces extensive opposition from more than 20 environmental groups.
- Requires farmers to have a fully implemented, current nutrient management plan and a fully implemented, current soil and water conservation plan that address all nitrogen, sediment and phosphorus reductions to meet the Chesapeake Total Maximum Daily Load, and "other water quality requirements," which are unspecified.
- Requires the Maryland Department of Agriculture to develop a training program and certify the personnel who evaluate the farm. The Department of the Environment assists in establishing the program.
- Requires farmers to submit nutrient management plan records, soil analysis records and other reports to the MDA every year, with an inspection at least once every three years.
- Term of certification is 10 years.
- The MDA can revoke certification if a farm is out of compliance and can permanently revoke certification of verifiers.
- Requires that whole farm operation be included.
- Aspects of the program are public, but the farmer's identity is protected.