The Race to Save Chesapeake Bay

State legislatures are unwilling to pass laws to protect one of the most important ecosystems in the country

 

On a brilliant fall day, Stan Pennington and Eric Hines ride out in a government Jeep, surveying the rolling hills of Carroll County, Maryland, but they come to a stop when the pastoral scene takes an ugly turn.

Pennington, who grew up in the area and has worked with local farmers for more than 30 years, maneuvers the vehicle to the edge of a field that looks like something from an 18th-century landscape painting. With sun shining through the October leaves, a herd of cattle grazes along a sloped pasture. It might look idyllic, but to the technicians who work for the Carroll County Soil Conservation District, something is wrong.

“The cows are in the stream,” Pennington says, gesturing toward three black bulls standing in the water, swishing their tails.

There is no fence to keep the cows in the pasture, he explains, to protect the stream from manure and sediment the animals drag into the water on their hooves.

A few cows in a small stream might not seem alarming. But manure contains pollutants that travel from farmland into local waterways and finally into the Chesapeake Bay. According to the Environmental Protection Agency, waste from livestock and poultry accounts for about half of the pollutants in the bay, one of the nation’s most environmentally threatened bodies of water.

Pennington and Hines are two agents on the front line of a campaign to keep agricultural runoff out of the bay. The effort they are involved in covers five states and the District of Columbia, is constrained by a lack of funds and limited regulatory power, and is in a desperate race to meet two deadlines. One imposed by the federal government, another measured by the gradual death of an estuary.

Over five months and many dozens of interviews, a picture emerged of the challenges confronting conservation districts that are the last line of defense between farmland runoff and the Chesapeake Bay.

For decades, the Chesapeake’s fragile ecosystem has struggled to cope with elevated nitrogen and phosphorous levels that threaten water quality, fisheries, and aquatic ecosystems across its 64,000 square miles of watershed. Since 1983, states within the region have tried, and failed, to meet a series of pollution reduction goals to make the bay healthy.

In 2010, after 27 years of missed deadlines, the EPA launched an unprecedented regulatory effort that capped pollution levels on a state-by-state basis.

The federal agency established a “Total Maximum Daily Load” (TMDL) for pollution and compelled Maryland, Pennsylvania, Virginia, New York, West Virginia, Delaware and the District of Columbia to draw up plans to reduce runoff from agriculture, industry, and urban areas.

The most recent assessment of progress, from December 2013, found that more than 70 percent of the Chesapeake Bay and its rivers and streams still fall short of federal water quality goals.

Agriculture is the leading contributor to dramatically elevated levels of nitrogen and phosphorous in the Chesapeake. With 8.5 million acres of farmland within the bay’s watershed, finding a formula to reduce agricultural runoff will make or break this latest bid to restore its health.

At the forefront of the campaign are approximately 1,000 technicians, like Hines and Pennington, who work at conservation districts spread across the watershed. In the clean-up effort, these local jurisdictions are intended to help farmers voluntarily adopt conservation practices, such as fencing cattle out of streams, installing storage sheds for manure, and planting winter crops that trap excess nitrogen and phosphorous.

Their role is critical. With deadlines to reduce runoff looming in 2017 and 2025, states have opted not to overhaul their approach to agricultural regulation, and instead have placed the burden for promotion, implementation, and monitoring of conservation practices squarely on the shoulders of 122 conservation districts across the watershed.

Over five months, I interviewed dozens of current and former conservation district employees, state and federal officials, and farming industry advocates. They described the many challenges confronting the conservation districts that are the last line of defense between farmland runoff and Chesapeake Bay.

Workers are constrained by meager budgets and are beset by paperwork that keeps them at their cubicles instead of out in the field. Even more critically, most rules that impact conservation practices across the watershed are voluntary, so the only government employees regularly visiting farms have very limited enforcement authority.

In other words, meeting the EPA’s historic pollution reduction goals depends on the persuasive power of people like Stan Pennington, who must convince tens of thousands of farmers to implement practices that may not benefit their yield—and to cover at least part of the cost out-of-pocket. How the conservation districts shoulder this burden may determine the fate of the entire Chesapeake Bay restoration effort.

 

Carrots, not sticks

Back in Carroll County, Stan Pennington drives over to the R.A. Bell & Sons Farm, where he finds Ryan Bell and his son moving bales of hay. “Ryan married into this dairy farm, from another dairy farm down the road,” Pennington explains. The two men have known each other a long time. The Bells have installed a number of voluntary conservation practices with Pennington’s help, including a manure storage lagoon.

Although Pennington grew up around farmers, these days he assists them mostly at a computer. He looks like a man who straddles two worlds. He’s barrel-chested and mustachioed, with sensible khaki work pants and short-sleeve button-down shirts. His boots are muddy.

When visiting a farm, Pennington depends on a playbook of arguments to persuade farmers to implement practices that benefit their farms and the environment simultaneously. He explains that when cows excrete on land, some of the nutrients present in the manure sink into the ground where they are trapped by the soil, lessening the impact to streams. Fencing cattle out of streams can also protect cows from waterborne diseases.

If the farmer expresses interest, Pennington can offer to cover up to 87.5 percent of the cost through a government grant. “It’s better to do something voluntarily than be forced to do it because of a regulation,” he tells the farmer.

Reluctance and skepticism are common. Although farmers can qualify for financial assistance to carry out conservation practices, they usually end up covering some of the cost. They also front the entire sum, receiving reimbursement only after the conservation measures are in place. Farmers who rent land often have trouble persuading owners to approve.

Sometimes Pennington is stonewalled. He recalls one particularly adamant farmer who told him that, “Nobody’s gonna make me fence my cattle out of the stream.”

In the face of resistance, there is little that conservation district technicians can do. They have almost no regulatory authority in most cases, and even entering a farmer’s property requires permission. They only visit farmers over regulatory matters in response to citizen complaints about runoff. Even then, they try to resolve problems without beginning a formal enforcement action.

“There’s no mechanism to levy a fine, and we don’t want that,” Pennington says. “We are a helping agency that provides the carrot.”

Most bay states have a handful of regulations on the books that compel farmers to employ certain conservation practices as baseline measures—ostensibly the “sticks.” But requirements and enforcement actions vary widely, and lie mostly in the hands of state regulatory agencies.

Meeting the EPA’s historic pollution reduction goals depends not on using laws and regulations but the power of persuasion.

In January 2014, Maryland, for example, began requiring that farmers keep their animals out of streams. The state already instructs farmers to complete nutrient management plans, but formal state environmental inspections occur just once every 10 years.

In Virginia, only certain farms must produce plans, leaving the majority outside the regulatory process. Throughout the watershed, a handful of farms are regulated as CAFOs (Concentrated Animal Feeding Operations), industrial-scale cattle lots, and hog and chicken barns whose waste streams are too big not to regulate.

Even when the rules apply, conservation district workers are reluctant to report infractions to regulators, not least because they believe it would sour relationships with the community and make it even more difficult to persuade farmers to adopt voluntary practices.

“If we referred a farmer to the Maryland Department of Environment for a fine, we would not be invited back,” Pennington said.

 

New Deal, new problems

If the conservation districts’ role in water quality improvement seems ad hoc and curiously assembled, it is because the districts evolved into a function never envisioned when they were created.

After a sustained period of drought eroded and blew away much of the soil of the Great Plains in the mid-1930s, the Roosevelt administration championed the establishment of local jurisdictions that would provide technical assistance to farmers, helping them increase crop yield and prevent the loss of topsoil.

By 2013, more than 3,000 conservation districts were operating across the country, organized largely by county, with some districts covering multiple counties. Although the districts have a long history of aiding farmers and combating erosion, their focus on water quality is relatively new.

Conservation districts predate the EPA by more than three decades. Their practices, some antithetical to protecting water bodies, have evolved over the years in response to new science and new laws. For decades, for example, farmers were encouraged to “bank phosphorous” into their fields, spreading excess manure into the ground. In the 1990s, all of that changed.

“People were putting 10 to 15 tons of poultry litter on an acre, and the universities were saying that’s okay, put it in the bank … Over the last 20 years, we have gone from putting 10-15 tons to now, where we don’t put more than 1.5 tons per acre on high phosphorus soils,” said Lynne Hoot, who runs the Maryland Association of Soil Conservation Districts.

On the ground, changes in agricultural practices have frustrated some farmers and challenged conservation district technicians. Michael Sigrist, who worked at conservation districts on the Eastern Shore of Maryland for 30 years before retiring in 2008, recalled that after years of draining wetlands to make way for fields, the conventional wisdom on the environmental impact of drainage shifted.

When an older farmer discovered that the conservation district could no longer help drain his land without a government-issued assessment, the man was incredulous. “What are you saying to me?” he told Sigrist. “I felt like tucking my tail between my legs,” Sigrist said. “I worked with that man from beginning to end.”

Although improving water quality is now included in the mandates of the conservation districts (in Virginia, their names have been changed to reflect the new prerogative, to Soil and Water Conservation Districts), many of the technicians—who have deep roots in the farming community through family and friends—still describe their primary responsibilities in terms of agricultural assistance.

“I’m biased toward agriculture, but most soil conservation districts are, too,” said Hoot, who in addition to her work with the Maryland conservation district association is a lobbyist for grain farmers. “I see the soil conservation districts as the environmental arm of agriculture,” Hoot said.

This agricultural bias leads some to question the objectivity of workers who have to weigh the needs of the farming communities against the demands of the Chesapeake Bay clean-up effort. “Soil conservation districts understand the ramifications of water quality in the bay. They are torn,” Sigrist said. “They have a hard time.”

The EPA has also recognized the potential for clashes between the traditions of conservation districts and the bay restoration goals. In 2011, the agency contacted Pennsylvania officials about the relationship between conservation district employees and farmers.

Chesapeake 1Steve Taglang of the Pennsylvania Department of Environmental Protection said EPA officials were concerned that district employees were ignoring complaints about agriculture.

“It’s a fine line that the conservation districts walk as far as helping implement the programs,” Taglang said. “It’s tough to be a regulator on one day and [provide] technical assistance on the other.”

This isn’t how government regulation is supposed to work. The bay restoration program is dependent on conservation districts when it comes to agriculture because of gaps between state and federal authority.

State legislatures have failed to pass laws that would provide a regulatory framework to manage pollution from farms. And the EPA has limited authority to regulate agricultural runoff because the Clean Water Act addresses “nonpoint source” pollutants, like those coming from farms and storm water runoff, largely through voluntary measures.

From 2001 to 2007, Rebecca Hanmer directed the Chesapeake Bay Program, a federal-state partnership managed by the EPA. She is familiar with the problems created by fragmented authority.

“Total Maximum Daily Load regulations do not require implementation plans to be developed or approved by the EPA,” Hanmer said. “At the end of the day, the states are in charge of implementing.”

Despite the flexibility states have to meet the Total Maximum Daily Load, the EPA regulation is bitterly contested by farming interests. Within weeks of the EPA finalizing the TMDL in 2010, the Pennsylvania Farm Bureau together with the American Farm Bureau filed a lawsuit arguing that the federal agency was intruding into states rights. In September 2013, a U.S. District Court judge upheld the EPA’s Chesapeake cleanup plan. The Farm Bureau has begun the process of appealing.

State legislatures, caught between federal regulators and farming interests, are unwilling to pass legislation that would antagonize the farming community, settling instead for a regulatory system with few regulations, which presents its own set of problems.

For example, because conservation practices designed specifically to improve water quality have been around since the 1990s (after the Clean Water Act was amended in 1987 to include nonpoint source pollution), many farmers have already signed on. Those yet to come on board are increasingly unlikely to do so because they fear that the bay conservation mission will draw them into a lengthy and potentially costly bureaucratic process.

Even when farmers do sign up for conservation practices, questions remain about how long and how effectively the practices are maintained, given the limited farm inspections and the relationship between farmers and conservation district staff.

To bridge the divide between the technical assistance and regulatory roles, one conservation district in Pennsylvania is trying something new. The Lancaster County Conservation District has hired an “Agricultural Compliance Coordinator,” who responds to complaints about farms.

Since 2011, Kevin Seibert has been the “bad cop” in the office. His role frees up other conservation district employees to be “friends of the farmer,” but when Kevin Seibert comes to visit, farmers know they are being inspected.

Every year, Seibert checks out approximately 50 complaints from citizens about manure runoff from farms. About half of those complaints turn out to be violations of the law.

It’s a modest effort when measured against the 40,000 farms within the Chesapeake Bay watershed in Pennsylvania. State officials have conducted an additional 798 inspections over the past two years, of which 350 resulted in fines or violations.

“By and large, most conservation districts do not have the ability [to enforce regulations], nor do they wish to have that ability,” said Mark Dubin, the Agricultural Technical Coordinator for the Chesapeake Bay Program. “It depends on the staff, the viewpoint of the conservation district board, and their ability to handle different levels of responsibility. The state is always the ultimate authority on enforcement and how it is handled.”

At times, the effort might be described as pushing runoff uphill. Bill Matuszeski, who directed the Chesapeake Bay Program from 1991-2001, says conservation districts have been given a task they are ill suited to perform. In the past few years since the EPA imposed the maximum daily load goals, only the easiest solutions have been undertaken. “It has cost money, but not any real pain,” Matuszeski said.

“If you’re going clean up the Chesapeake, you have to tell people to do stuff—regulation, or pay the government money to do stuff—taxes,” Matuszeski said. “It has to be one or the other.” “The downside of the whole TMDL issue is that it pushes states into a defensive position and they want to oppose it,” Matuszeski said.

Meager funding seems to ensure that one program’s gain is another’s loss.

There are some signs that telling people to do stuff or spending money produces results. In Maryland, where it was announced that farmers would be required to keep livestock out of streams in 2014, conservation district employees said that new fences were put in place in the months before the regulation went into effect.

In Virginia, officials announced in 2012 that the state would begin covering 100 percent of the costs for installing fences around streams on farmland. Chris Van Vlack, a technician at the Loudoun County Soil and Water Conservation District, said that 100 percent reimbursement for stream fencing has led to a greater number of farmers signing up for the program.

Yet meager funding seems to ensure that one program’s gain is another’s loss. “The money is going faster but we have helped fewer people,” Van Vlack said. “Cover crops get more bang for the buck. They are more efficient [at reducing pollution] but we didn’t do any cover crops this year because all the money went to stream exclusion.”

Conservation districts have managed with limited funding for years, but the new demands of the restoration effort have underscored the lack of resources.

“Conservation districts are underfunded for cost share and for operational dollars,” said Kendall Tyree, executive director of the Virginia Association of Soil and Water Conservation Districts. “Across the board, everything is underfunded.”

The net result has been that conservation districts across the watershed are being asked to “do more with less,” spending less time in the field and more time on the administrative aspects of the program. “Twenty-nine years ago, when I came to the county, 70 percent of the time you were in the field,” Pennington said. “Now with an increased paperwork load, it’s 70 percent of the time here.”

Ultimately, a solution may require changing a lot more than how much funding conservation districts receive. State legislatures will have to pass laws and write regulations. At the federal level, the EPA will need more muscle. Otherwise, conservation district technicians will be left with little more than their power of persuasion in their campaign to save one of the most fragile and economically important ecosystems in the country.

 

Being neighborly

Back in Carroll County, Stan Pennington checks his watch. During his drive he’s seen acres of fences he’s helped install and huge fields of cover crops that have been planted as a result of his work.

On the way back to the office, he finds more cows in the stream. It’s late October and the farmer has just two more months before the new regulation kicks in. In theory, if not practice, the Maryland Department of Environment could come by to issue a fine.

“That guy’s my neighbor,” he says. “I think I’ll drive over there one of these evenings after work and give him a head’s up.”


Alison Fairbrother is a contributing editor to The Washington Spectator.