States in the Chesapeake Bay watershed are in various stages of considering a program that gives farms nearly a decade of amnesty from new environmental regulations in exchange for their promise to install best management practices now.
The programs, known as agricultural certainty, give the farmers an assurance that future rules won't alter their business practices, which they must plan in advance. In exchange, the farmers commit to put in recommended, but not currently mandatory, water-quality practices such as cover crops and grass waterways.
Virginia has been developing its agricultural certainty program for two years. Maryland approved a program in the recent General Assembly, and Pennsylvania and Delaware are both considering one. The Chesapeake Bay Commission and the Chesapeake Bay Foundation have been heavily involved in crafting the legislation in Maryland and Virginia.
"The idea (behind agricultural certainty) is to articulate very clear expectations of what a clean water farm would be like, and then provide certainty as a reward," said Ann Swanson, executive director of the Bay Commission, an advisory panel made up of legislators from Maryland, Virginia and Pennsylvania. "It rewards the cream of the crop. And for those who might be interested in becoming the cream of the crop, it shows a way to get there,"
To participate in the program, in both Maryland and Virginia, farmers will have to file nutrient management plans every year and assure the state they are being fully implemented. They will also need to file a soil and water plan. Every three years, a verifier will inspect the farm to make sure it is following all of the requirements. If it's not, the state can remove the farm from the program. A stakeholder group will audit the program and make sure it's working properly. By the end of the program, farmers have to be in compliance with any state or local law that has passed during their certainty period.
Maryland and Virginia's programs differ in key ways. Virginia's term is nine years; Maryland's is 10. In Virginia, the Department of Conservation and Recreation will certify the farms; in Maryland, the Department of Agriculture will do it. In Virginia, legislators passed a piece of enabling legislation to create the program and then spent more than a year crafting the details, a process that is ongoing. But in Maryland, legislators approved a bill with the program's parameters already in place, and did so in a three-month period.
Agriculture officials like the certainty program because it encourages, rather than forces, farms to implement practices that scientists say promote water quality. They argue the practices will be put in place more quickly, because farmers are working in advance of whatever laws might be coming.
"We believe any time we can help a farmer and accelerate the cleanup, it's worth the effort," said Earl "Buddy" Hance, Maryland's agriculture secretary. "There's no shell game going on here. We are clearly, clearly trying to make sure agriculture carries its own weight. It is a delay in implementation; it is not a get-out-of-jail-free card for the rest of your life."
The Chesapeake Bay Foundation joined the commission in the drafting process in both states, in large part because they wanted to make sure the bill was as protective of water quality as it could be, said Kim Coble, the foundation's vice president of environmental quality and restoration.
Coble did not get everything she wanted in Virginia. Her staff pushed for a five-year program. It got nine. But on the balance, she said, they liked the plan.
Agriculture has been one of the most vexing pollution sources. It is exempt from many pollution regulations that govern other industries. The EPA regulates concentrated animal feeding operations, called CAFOs, but it has limited jurisdiction over crop farms and activities that are not part of a CAFO permit.
"We are looking to get nutrient reductions from agriculture — a lot of nutrient reductions from agriculture — and unfortunately, we don't have the same regulatory structure. So what we're left with are farms where we have no mechanism to force them to have nutrient reductions. Yes, they need a nutrient management plan, and it needs to be implemented, but we have very little certainty to make sure that is happening," Coble said. "This incentivizes a farmer to put in nutrient reductions sooner than he would otherwise. And we get on-farm verification from third-party certifiers that it was done."
But some environmentalists are outraged about giving farmers amnesty from potential future regulations.
"I just object to the concept. The special treatment that agriculture has gotten, I think, is indefensible," said Bob Gallagher, an attorney who founded the West and Rhode Riverkeeper organization in Anne Arundel County.
No environmental groups organized against Virginia's plan, perhaps because the process of developing it continues, and because the Department of Conservation and Recreation is overseeing it, as opposed to the Department of Agriculture, whose mission is to promote farms.
Virginia's plan will lay out specific practices, such as riparian buffers, livestock fencing and soil conservation. Those practices will vary based on whether the farmer has crops, hay or pastureland. The Virginia plan is "very prescriptive," said Jack Frye, Virginia Director of the Chesapeake Bay Commission. And the farmers wanted it that way. Maryland’s program is less prescriptive. It requires broader nutrient management plans and yearly reporting and an inspection every three years.
Maryland, environmentalists contended the 10-year time frame is too long and that it was designed that way to get farmers out of new regulations that could come after 2017. That's the year the EPA will check to make sure the states are on track with their reductions for the Baywide pollution diet, or TMDL, and make any midcourse corrections.
— Distributed by Bay Journal News Service.