If You Care about the Chesapeake Bay, Here's What You Need to Know about Maryland's Clean Water Act Permit for Agricultural Pollution

by Evan Isaacson

The many thousands of people in the Mid-Atlantic region who care deeply about restoring the Chesapeake Bay tend to be pretty knowledgeable about the causes of the Bay's woes and even some of the key policy solutions for restoring it to health. These concerned citizens may even be familiar with the term "TMDL," a legal concept within the Clean Water Act that is probably completely foreign to most of the rest of the country. But what even the most committed Bay advocates may not be aware of is that a TMDL (short for "Total Maximum Daily Load") is merely a plan, not an enforceable document, and certainly not a self-activating solution to the Bay's problems.

The key to giving effect to the Bay TMDL and the entire Chesapeake restoration framework lies in the mechanics of the Clean Water Act. Quite simply, the TMDL sets an overall pollution cap, and then Clean Water Act permits translate that cap into enforceable pollution limits for each individual permit holder. Clean Water Act permits must be consistent with any TMDL in effect in order to ensure water quality is brought up to the standards. This simple legal structure is absolutely essential for the proper functioning of the Bay cleanup, which is why it's critically important for anyone who cares about the Chesapeake Bay to understand the opportunity that is now at hand.

Maryland recently proposed to reissue the Clean Water Act permit for concentrated animal feeding operations (CAFOs) for another five-year term. This permit is an example of what is called a "general permit." Whereas many factories and sewage plants have an individual permit to set pollution limits and other terms and conditions for facility operation, states that implement the Clean Water Act often use general permits to cover hundreds or thousands of facilities within a single industry. This is the first reason that Maryland's upcoming CAFO permit renewal is a big deal. Just one permit will regulate hundreds of industrial-scale animal feeding operations that discharge massive amounts of pollution.

The second reason this permit renewal is critical for the restoration of the Chesapeake is timing. The permit will take effect in early 2020. Because the permits are effective for five years (and generally longer because the state rarely renews them promptly), this CAFO permit will be in effect until 2025 – the final year in which states are supposed to have all projects, programs, policies, and permits in place to reach their final pollution reduction targets for the Chesapeake cleanup effort. Whatever Maryland's Department of the Environment comes up with for this permit is what Marylanders – or anyone else that wants to see a restored Chesapeake Bay – have to live with for the remainder of the Bay TMDL.

A third reason why the CAFO permit is important for anyone who cares about the Chesapeake Bay is because so much pollution flows through this one permit, making it an incredible opportunity to reduce pollution. One in every five pounds of phosphorus pollution flowing into the Chesapeake Bay comes from manure, and an even larger share of pollution flowing into Bay tributaries on the Delmarva Peninsula (which spans Delaware, Maryland, and Virginia) comes from manure – almost all of which is from poultry.

The current CAFO permit in Maryland has simply not done enough to reduce pollution. The vast majority of CAFOs in Maryland are located in the nine counties of Maryland's Eastern Shore, with a good majority of them in just four counties. Water quality monitoring and Chesapeake Bay modelling data show that pollution has decreased on the Eastern Shore far less than elsewhere in Maryland and that this region is nowhere close to reaching its Bay restoration goals.

Of course, restoring the Bay is only part of the motivation for developing an effective CAFO permit. Another major concern is the impact of CAFO pollution on drinking water. Nearly everyone on Maryland's Eastern Shore gets their drinking water from groundwater supplies, including shallow wells and deeper aquifers. But due to over-application of poultry manure and chemical fertilizers on cropland, as well as inadequate manure handling and transport practices, much of the groundwater in this region has excessive levels of nitrate pollution, which poses serious health risks to the local population. According to the EPA, only Delaware has a greater percentage of state land with elevated levels of nitrate pollution in groundwater used to supply drinking water, while monitoring conducted by many individual drinking water utilities in the region documents high nitrate levels.

The CAFO permit is not the only tool to deal with nutrient pollution from agriculture. Other state programs and policies also provide important solutions, such as helping farmers ensure they are only applying as much manure as their crops need or subsidizing agricultural pollution reduction projects like cover crops, conservation tillage methods, and buffers and fences to keep pollution out of streams. But since so great a share of the nutrients that end up polluting the Chesapeake Bay, its tributaries, and groundwater supplies come from CAFOs, it only makes sense to deal with the manure problem at the source by ensuring that the permit these CAFOs need to operate is suitably protective of water quality and surrounding communities. It is important to remember that receiving a Clean Water Act permit is a privilege, not an entitlement, and the permits must be designed to meet water quality standards.

If you want to help the Chesapeake Bay and improve the safety of drinking water for Marylanders, you have an opportunity to submit public comments to the Maryland Department of the Environment. Let the agency know you want a better Clean Water Act permit for CAFOs in Maryland.



© 2016 The Center for Progressive Reform