To get the deal, farmers would first have to reduce pollution from their land more quickly than is now required – an important point, supporters say, since farm runoff is the largest contributor to the bay's water quality woes. The proposal has the backing of farmers, Gov. Martin O'Malley and the Chesapeake Bay Foundation, the region's largest environmental group.
They also question the secrecy written into the legislation, under which the public wouldn't be allowed to know which farmers have been granted a deferral from new cleanup requirements — or what they've done to earn it.
The proposal was approved this week by the Maryland Senate and is now before the House of Delegates.
Supporters say the "agricultural certainty" bill arose from discussions about how to accelerate cleanup efforts while also giving farmers who volunteer to do more some reassurance about what will be expected of them.
"We just keep getting hit with regulation after regulation after regulation," said the bill's chief sponsor, Sen. Thomas M. Middleton, a Charles County Democrat and a farmer himself.
"This is a way of the state saying, 'You've done everything that's required,'" said Patricia Langenfelder, president of the Maryland Farm Bureau.
Under the bill, a farm seeking a 10-year reprieve from new rules would have to be independently inspected and certified as in compliance with all existing state and federal laws and regulations. It also would have to show it's taken additional steps to keep soil and fertilizer from washing off into nearby streams, conservation measures which though recommended are not now required on all farms.
To maintain the reprieve, the farm would have to be checked every three years. If any new rules or requirements are adopted during that time, the farm would have to comply with them as soon as the decade is up.
"It's not a free pass – it just gives you some breathing room," said Langenfelder.
Minnesota has such a program for its farmers, and Virginia is in the process of finalizing one there, according to Royden Powell, assistant Maryland agriculture secretary. Maryland got a $600,000 grant from the U.S. Department of Agriculture to draft the legislation.
But critics say they're still not comfortable with the measure, contending that the threshold for farmers to qualify for a regulatory reprieve remains fuzzy to them. Their concerns are magnified, they say, by flaws in current oversight of pollution laws. They note that state inspectors found major violations of regulations governing fertilizer storage and application at one out of every three farms checked last year.
"Building a new voluntary program on a house of cards I think is dangerous," said Tommy Landers of Environment Maryland, who said his unease is magnified by the strict confidentiality in the bill.
"With power plants, with developments, with all sorts of other polluters," he said, "you can pretty much have access to public records. "Let's at least make farmers in this program let us see what they're doing."
Langenfelder said farmers feel very strongly they don't think it's anybody else's business.
"If the MDA is satisfied, or whoever is overseer of this program," she said, "then that should be enough."
Alison Prost, Maryland executive director for the bay foundation, said she's pushed to make the state disclose more information about farms in the program, even if it can't be linked to any given farm. She attributes the opposition of other environmental groups to their "mistrust" of farmers. The foundation has espoused cooperation with farmers for years.
Ann Swanson, executive director of the Chesapeake Bay Commission and a veteran of the 30-year bay restoration effort, said she's excited about the bill's potential to get farmers to reduce polluted runoff from their fields, something that's not now regulated in most cases under federal or state law.
"It's forcing us to march forward into an area that was vague and to make it more clear," she said. But, she said, "it is incumbent on us to be sure that only those farmers that are model farmers are engaged in it."
Thomas W. Simpson, who heads a nonprofit group working with farmers to voluntarily improve their conservation practices, said it's not clear even to him just what more farmers would have to do to get out of dealing with new regulations for a decade.
He added that he's concerned the reprieve could complicate or even delay achieving all bay restoration goals by the 2025, the current deadline.
The U.S. Environmental Protection Agency has endorsed "agricultural certainty" in principle. But states still must meet federal cleanup goals on time, said Nick DiPasquale, director of the EPA's Chesapeake Bay office.
"One way or another, they're going to have to achieve their overall reductions," DiPasquale said.
Russell B. Brinsfield, a farm pollution expert with the University of Maryland and a farmer himself, said he wished the program would make more information about farmers' efforts public.
"There's parts of it I don't like that I wish could've been stronger as a scientist," he said. "On the other hand, anything we can do that encourages farmers to go beyond what they are doing I think is a good thing."
The bill's prospects in the House are uncertain. Del. Maggie McIntosh, who heads the Environmental Matters Committee, said she's heard from both supporters and opponents and has some concerns of her own.
"We're just going to have to look very carefully at the bill," the Baltimore Democrat said Tuesday, "and see if there are areas we can clarify and conform — and make it a better bill that everyone can be comfortable with."