“And there is was, the Chesapeake a magical place where the fish wear precious shells!”
-James Michener (1907-1997) American Author & Pulitzer Prize Winner (1948)
Summary: The beauty and bounty of the Chesapeake Bay watershed has never been more at risk. After decades of ineffective, voluntary efforts, and despite powerful opponents, six states and the District of Columbia are working under the direction of the EPA to achieve mandated pollution limits. It is hopeful that the Chesapeake Bay States have started to ban lawn fertilizers containing phosphorus. But, an even bigger challenge remainsregulation of chicken litter dumped into the Bay by the Delmarva Peninsula’s poultry industry.
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By Judith Needham
People who love the Maryland Eastern Shore talk with pride about the bounty of the water Maryland blue crabs , oysters, and Chesapeake Bay rockfish. But during the past three decades conversations about this region’s precious water resource frequently include new topics: oyster restoration, blue crab decline, rockfish limits, and, most recently, total maximum daily loads (TMDLs). To reduce toxic runoff into the Chesapeake Bay and its tidal tributaries, Bay States and the District of Columbia must ban phosphorus in lawn fertilizers and manage the transport and use of poultry manure.
Just as Chesapeake Bay seafood is admired, Eastern shore gardens are famous for displays of endemic grasses of all sizes, shapes, and colors. But, garden beds are usually surrounded by lawns, ordinary turf grass maintained by regular fertilizer applicationsplant food containing nitrogen, phosphorus, and potassium. When large quantities of excess phosphorus, the middle number on the lawn fertilizer bag, flow from lawns into the water, it accelerates the rate of algae growth creating toxic algae blooms which foul water, kill fish, and leave a putrid mess.
Researchers at the University of Maryland Center for Environmental Science recently released the 2014 Chesapeake Bay Report Card. The Bay’s grade is a “C,” unchanged since 2012 when the 2011 “D+” was upgraded to a “C.” The lack of progress is discouraging. It is sad to see humans continue to overuse, disrespect, and gradually degrade a once magnificent ecosystem. Because grassy areas have become Maryland’s biggest “crop,” lawn management really matters to Bay health. Homeowners can help by limiting polluting runoff from their property.
The Bay was at its best in John Smith’s 1600s, but since then humans deforested the land, fished indiscriminately, farmed intensively, and the population grew. In the 1960s, a group of Baltimore businessmen who enjoyed weekends on “the shore” and valued sailing, hunting, and fishing asked local legislators to help stop the degradation. Government officials were uninterested; as a result, the Chesapeake Bay Foundation (CBF) was established with its “Save The Bay” slogan and grass roots strategies.
In the early 1980s, Maryland, Virginia, and Pennsylvania voluntarily decided to collaborate on problems facing the Bay through the Chesapeake Bay Commission (CBC). But as the Bay’s Report Card shows, unenforceable policy agreements don’t work. In 2010, following years of missed deadlines, the Environmental Protection Agency (EPA) jumped into the morass by exercising its power under the Clean Water Act. EPA established an accountability framework and state water pollution limits (TMDLs) for nitrogen, phosphorus, and sediment. The TMDLs apply to six states and the District of Columbia. By definition a TMDL is the maximum amount of pollution that a body of water can receive and still meet federal water quality standards. The amount of daily pollution allowed is allocated among the sources of pollutionfor example, residential lawns, agriculture, cities, businessesall interests must limit pollution.
Scientists estimate that approximately 8% of phosphorus pollution entering the Bay is traceable to urban and suburban fertilizer runoff, while 50% is linked to agriculture. Although the connection between fertilizer and Bay health is well known, it was not until 2010 that the Chesapeake Bay watershed states took action to limit fertilizer pollution. EPA’s involvement provides state legislators with political cover from business interests concerned with short-term profits, rather than long-term quality of life.
Opposition to fertilizer laws come from synthetic and organic fertilizer manufacturers. Synthetic fertilizer interests argue that a healthy lawn retains phosphorus and that most people don’t fertilize enough to achieve a healthy lawn. Organic fertilizer businesses fear being legislated out of existence because while it is easy to remove phosphorus from synthetic fertilizer, it is impossible to remove all phosphorus from organic fertilizer. But, the strongest opposition comes from commercial agriculture. Agribusinesspoultry and row cropsfights all measures that add environmental cost to the bottom line.
In 2011, Maryland legislators passed the Fertilizer Use Act. As of October 2013, lawn fertilizer containing phosphorus is banned unless a soil test indicates lack of phosphorus, a lawn is being established, or organic fertilizer is being applied under defined conditions. The Chesapeake Bay Commission estimates that these new restrictions will achieve 20% of the phosphorus reduction Maryland needs to meet its phosphorus TMDL.
Virginia enacted a similar fertilizer law, but, in addition, requires golf course management plans. A Pennsylvania ban is working its way through the state political process with pressure from the US-Canadian International Joint Commission (Great Lakes). New York acted in 2010, while Delaware, the District of Columbia, and West Virginia have yet to pass legislation. Unfortunately, Maryland, Virginia, and New York all handled opposition from commercial agricultural interests by exempting agriculture.
At the same time that the Chesapeake Bay States work to implement the EPA’s TMDL requirements, agribusiness and home builders worry about the EPA setting TMDLs in the Mississippi River watershed. The American Farm Bureau Federation filed a federal lawsuit challenging EPA’s authority to implement TMDLs for the Chesapeake Bay. In September 2013, District Court Judge Sylvia Rambo ruled in favor of the EPA (and the Bay), a ruling currently being appealed to the Third Circuit Court of Appeals by the plaintiff joined by the National Association of Home Builders and twenty-one non-Bay states. Despite this legal maneuvering, the six Bay States and the District of Columbia continue to achieve milestones toward the EPA’s TMDL targets.
Bay State legislators should be congratulated for enacting no-phosphorus lawn fertilizer laws. The next step is to effectively regulate the phosphorus and nitrogen dumped into the Bay by the Delmarva Peninsula poultry industry. In Maryland, proposed phosphorus management regulations were caught in a political battle between outgoing Governor O’Malley (D) and newly inaugurated Governor Larry Hogan (R). The regulations were to take effect on February 2, 2015; however, Governor Hogan stopped implementation and, instead, proposes a less stringent plan of his own design. We hope EPA support continues and Bay State politicians forsake personal gain and act for the benefit of the region to improve the Bay’s Report Card.
Judith Needham is a businesswoman, investor, attorney, and philanthropist. Thirty-six years after graduating from Albany Law School, she earned an LL.M. in Environmental Law summa cum laude from Vermont Law School (2014) and is a candidate for an LL.M. in Animal Law at Lewis and Clark Law School (2015). She lives on the Tred Avon River in Easton, Maryland with her husband, Warren Kilmer, and Daisy, her beloved canis lupus familiaris .
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