As one of his first acts as Maryland’s Governor, Larry Hogan on January 21 kept a campaign promise to the farm lobby by killing new state regulations meant to reduce poultry manure pollution that is causing “dead zones” in the Chesapeake Bay.
But then, on February 13th, the Hogan administration received a warning letter from the U.S. Environmental Protection Agency. EPA advised state officials that if Maryland dropped its manure limits, it would have to take some kind of alternative action to reduce pollution and meet EPA pollution limits for the Bay.
Worried about backsliding in the state’s EPA-mandated Bay cleanup effort, Democrats in the General Assembly decided to move ahead with their own pollution control legislation, without the governor. Democratic lawmakers sponsored bills (Senate Bill 257 and House Bill 381) that would put into law limits on the dumping of more manure as fertilizer on Eastern Shore farm fields that are already saturated with phosphorus from manure.
In response, Governor Hogan appeared to abruptly reverse course. Late in the afternoon on February 23rd – the day before the hearing on the senate bill to control poultry manure runoff into the Bay – the Republican administration held a press conference to unveil its own version of the poultry regulations.
Hogan told reporters that he had found an “enhanced” approach to reducing poultry pollution in the Bay. He issued what he called compromise rules (technically known as the "Phosphorus Management Tool") that imposed an immediate ban on applying more manure to the most overloaded fields, but gave most poultry operations more time and flexibility.
“We have listened to the agricultural and environmental communities to find a fair and balanced plan for limiting phosphorus,” Hogan said in a press release. “The enhanced Phosphorus Management Tool regulations ...will protect water quality in the Chesapeake Bay while still supporting a vibrant agriculture industry in Maryland.”
The poultry industry – a political powerhouse on the Eastern Shore – cheered the governor.
“The governor’s announcement was a welcome announcement,” said Kurt Fuchs, president of Delmarva Poultry Industry Inc. “Folks are, in a lot of ways, anxious to move past this issue, and anxious to move forward and get back to the business of farming.”
Hogan earned some positive newspaper headlines by his announcement. But journalists were relying entirely on the governor’s word, because the Hogan administration refused to release the text of the regulations during -- and even after --the press conference about the regulations.
Then, the next day, the administration finally posted the text of the rule just before a February 24 committee hearing on the Democratic-sponsored senate bill that would put the original, stronger version of the regulations into law.
The Hogan administration said it hoped its compromise version of the regulations would be good enough, and that Democrats would drop their legislation.
But an examination of the fine print of Hogan’s regulations revealed a big loophole that could mean the manure management rules could be endlessly delayed by industry and never implemented by the state.
The loophole stipulates that moving forward with the pollution control program is “contingent upon” results of future cost and logistical evaluations by the Maryland Department of Agriculture, whose primary job is to promote the state’s agricultural industry, not protect the bay.
These evaluations would determine whether there are adequate alternative uses and markets for poultry manure (besides just spreading it on Eastern Shore fields), and enough money to truck the manure to these alternative locations (such as waste-to-energy incinerators, which have not yet been built.)
If there is not enough money, or the long-troubled and controversial poultry waste incinerator proposal fails to get off the ground, Hogan’s loophole allows the state’s agricultural agency to put an indefinite hold on the limits to dumping more manure on saturated fields that are critical to cleaning up the Chesapeake Bay.
State Senator Paul Pinsky, vice chair of the Senate Education, Health and Environmental Affairs Committee and a sponsor of the legislation, said the loophole language makes the Hogan regulations so flawed he will have to move ahead with his bill, which would make pollution reductions more certain.
“This language says that we don’t agree on the problem or the seriousness of the problem,” Pinsky told Hogan's Maryland Department of Agriculture during the hearing. “Because if it costs another million or two million bucks, or whether the farmer pays or Mr. Purdue pays, or the state adds money -- which I am more than happy to help with in the budget, by the way, because I want to get this problem resolved -- it says to me the disagreement is not over what path we take, but the severity of the problem. And in fact, it’s a cost-benefit analysis, and we’re not going to reduce phosphorus (pollution from manure) if something else gets in the way.”
In a rare show of solidarity, all of the state’s environmental organizations announced their unanimous opposition to the governor’s proposed regulations and their support for Senator Pinsky’s stronger pollution control bill, and similar legislation in the House.
“The (Hogan) regulations include a significant loophole... that makes it unclear if they would ever result in full implementation of this much-needed tool,” said a joint statement by the Maryland Clean Agriculture Coalition and the Chesapeake Bay Foundation. “We adamantly oppose this lack of a clear, enforceable end date for putting the phosphorus management tool into place.”
Which version of the rules will prevail? Hogan’s loophole or Pinksy’s law?
Both the senate and house versions of the bill have not yet faced votes in committee, and would then need approval by the full General Assembly.
The amount of support among state lawmakers is not yet clear. But it is possible that the future health of the Bay will be decided by simple math. Despite recent Republican gains, Democrats still control 64 percent of the seats in the General Assembly. That is more than enough to overcome a possible veto of this important Bay restoration legislation by the governor.
(Photo of poultry houses on Maryland's Eastern Shore by Kathy Phillips)