O'Malley rushes to propose new pollution rules

Rushing to complete his "green" agenda before he leaves office, Gov. Martin O'Malley moved Friday to impose new regulations on farmers to curb the flow of polluting phosphorus into the Chesapeake Bay.

O'Malley acted on the last day he could start the state's rule-making process and get it done before Gov.-elect Larry Hogan takes office Jan. 21. Hogan opposes the regulations, contending they would hurt farmers.


The proposed rules would limit how much phosphorus-rich fertilizer farmers can apply to their fields. In Maryland, particularly on the Eastern Shore, that means preventing farmers from spreading chicken manure on fields already saturated with the substance.

When rain washes phosphorus out of the fields, it flows into local streams and eventually into the bay. There it acts as a nutrient, promoting blooms of algae that choke off the bay's oxygen supply, resulting in fish-killing "dead zones."


Environmentalists and their supporters in the General Assembly contend that the proposed rules are a long-overdue step needed to protect the bay from further degradation.

"It's taken far too long to address this. If we don't do something about this, we're going to lose the bay," said state Sen. Paul G. Pinsky, the Prince George's County Democrat who co-chairs the legislative committee empowered to review the rules.

Farmers contend that if enacted, the rules would be a staggering blow.

"We think it's too expensive to move forward with," said Valerie T. Connelly, executive director of the Maryland Farm Bureau. "We think there are other processes that are already in place."

Connelly pointed to a study conducted by Salisbury University that estimated the regulations would cost the Eastern Shore's agricultural industry, especially chicken growers and grain farmers, $22 million.

The report, released Nov. 7, was a reason O'Malley's action came at the last minute. The legislature had insisted that an economic-impact study be completed before the state could spend money to implement the rules. The report had been expected earlier in the fall but was held up until after the Nov. 4 election for unexplained reasons.

O'Malley's office released a statement calling animal waste "the most significant phosphorus pollution source harming the Chesapeake Bay and rivers on the Eastern Shore."

"We're moving forward with tools — endorsed by scientists and experts across the state — that will play a key role in restoring the health of the bay," the statement said. "This common-sense action will be phased in slowly over six years to ensure a manageable transition for our agriculture industry."

The long-awaited rules are O'Malley's parting gift to environmentalists, who have been among his staunchest supporters during his eight years in office. He, in turn, has handed them victory after victory in such areas as renewable energy, curbs on stormwater runoff, stricter rules on septic tanks and upgrades to sewage treatment plants.

The proposed rules would require farmers to use a new method of determining whether the phosphorus levels in their fields are excessive. Under the administration's proposal, the restrictions would be phased in over six years starting in 2016.

Farmers with the highest levels of phosphorus in their soils would have to begin cutting back first, but would have longer to comply. Those with high but less extreme levels would be affected later, but have less time to adjust.

The O'Malley administration proposes to increase state subsidies to farmers to help them cover the added costs of buying phosphorus-free chemical fertilizer instead of using manure. The state also would help pay to have their chicken manure trucked away to farms where soil can absorb more phosphorus. The governor's office said the assistance would cost the state $2 million a year.


Environmentalists welcomed the governor's move.

"It's certainly not a done deal that it will actually become the law, but we've got a fighting chance and we're going to be engaged in that fight," said Bob Gallagher, co-chairman of the Maryland Clean Agriculture Coalition and the West/Rhode Riverkeeper.

Gallagher said his group had been pushing for a quicker timetable to impose the restrictions, but decided "it's better to get the weaker rule in place sooner than a stronger rule later."

Friday was the last day to submit rules for inclusion in the Dec. 1 Maryland Register, where they must be published. That triggers a 45-day comment period that would end about a week before Hogan's inauguration.

The governor also delivered the rules Friday to the legislature's Joint Committee on Administrative, Executive and Legislative Review, which has 45 days to review and comment. But its comments are not binding on the administration.

That committee is headed by Pinsky and Del. Samuel I. Rosenberg, a Baltimore Democrat. Both are regarded as staunch backers of bay cleanup programs.

Pinsky said the chairmen have the option of calling a hearing or simply allowing the rules to take effect. He said no decision had been made on whether to call a hearing.

"These have been under discussion for three years. This is not new," he said.

Once the committee review is finished, the rules go back to the Department of Agriculture, which can put the so-called "phosphorus management tool" in the rule book.

Pinsky said that once that's complete, the rules would not be easy for Hogan to undo.

"He can promulgate a new rule. He can initiate new legislation," Pinsky said.

The Hogan transition team did not respond to a request for a comment on O'Malley's action, but the incoming Republican governor has vowed to pull the plug on the rules. He recently predicted that the manure curbs would "basically decimate an entire way of life on the Shore."

Environmentalists say they expect the new governor to enforce the rules on the books.

"If he refuses to enforce the law, I think we're going to have a problem with that," Gallagher said. "That's where the courts come in."

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