Tuesday 23 April 2019

Marylanders expect transparent government. This transparency is essential across all sectors of government and industry, including agricultural waste management. Without access to this information, local communities and citizens cannot be assured that these operations are not polluting the water that Marylanders rely on for drinking, swimming and fishing.

That’s why Waterkeepers Chesapeake along with Maryland Clean Agriculture Coalition (MCAC) are supporting legislation to address a significant loophole in current law that makes it impossible to obtain access to public records through a Public Information Act request if those records are held by agricultural operations. Maryland’s agriculture industry is afforded a level of secrecy that no other industry in our state enjoys, despite being heavily subsidized. Closing this loophole is critical to advancing transparency in the state, as well as to cleaning up the Chesapeake Bay.

As currently written, Agric. § 8-801.1, a provision of the Maryland Water Quality Improvement Act, requires most farms to follow Nutrient Management Plans (NMPs) and annually submit a plan summary to the Maryland Department of Agriculture (MDA). These plans are not written by the farmers themselves, but with the support of professional planners who are paid for with our public dollars.

Current law requires MDA to “maintain a copy of each summary for 3 years in a manner that protects the identity of the individual for whom the nutrient management plan was prepared.” Although this provision seems to only affect MDA’s disclosure of identifying information, such as the owner’s name and unique plan ID number, from the plan summaries themselves, recent court decisions have dramatically expanded the scope of this exemption. Specifically, although agencies are required to interpret exemptions narrowly, Maryland courts have read this provision as requiring MDA to redact information from any related documents if information in other records (such as publicly funded cost-share documents or pollution-related enforcement records) could potentially create a linkage to a specific plan summary.

Protecting the identities of thousands of nutrient management plan holders poses real obstacles to public oversight and transparency. MDA is tasked with ensuring that these operators comply with their plans and use public resources to do so. Access to information about the operation enables citizens to track public funding of conservation projects, compliance with NMPs to control pollution and the effectiveness of MDA’s oversight program.

In its recent report on Maryland’s Public Information Act, the Office of the Attorney General flags the current provision in the Agriculture Article that “protects the identity of the individual for whom the nutrient management plan was prepared.” The Attorney General notes that this “one-sentence provision was the subject of seven years of litigation arising out of the Department of Agriculture’s response to PIA requests from various environmental organizations.”

The report recommends “that § 8-801.1 of the Agriculture Article be amended to specify what identifying information should be withheld when nutrient management plans are provided in response to a PIA request.”

HB 1221: Protection of Personal Information in NMPs Act will do just that. By specifying what types of “personal information” are protected under NMPs in Maryland, the bill will bring NMPs in line with other information that’s available through Public Information Act requests. The current confusion around the type of personal information protected under NMPs has increased the cost to both the Maryland Department of Agriculture and information seekers alike. By specifying exactly what is protected, it prevents a complex and costly analysis in the case of each Public Information Act request.

Polling data shows that more than three-quarters of respondents supported eliminating the exemption that makes agricultural pollution control plans secret. A 2015 Opinionworks poll found that 77 percent would support legislation to make agricultural pollution control plans available to the public.

NMPs contain vital information for the protection of the Maryland’s local waters and streams. Having access to these plans will ensure the success of Maryland’s water quality standards and the Chesapeake Bay TMDL. Increased government transparency around NMPs also ensures that any related tax dollars are serving their desired function of reducing pollution in our waterways.

Read Waterkeepers Chesapeake's testimony here. Read MCAC’s testimony on HB 1221 here.

— Betsy Nicholas, Executive Director of Waterkeepers Chesapeake, MCAC co-chair

Proposed 90% Cut Ignores Overwhelming Bipartisan Support of Program

(Monday, Febraury 12, 2018) President Trump’s proposed budget for Fiscal Year 2019 essentially eliminates federal funding for the cleanup of the Chesapeake Bay, the largest program to restore a body of water in U.S. history, just as the effort reaches its halfway point. The budget recommends that the U.S. Environmental Protection Agency’s Chesapeake Bay Program budget be slashed from its current allocation of $73 million to just $7.3 million – an exact 90 percent cut to current funding. These funds would only be designated for monitoring and would effectively shutdown all other aspects of the restoration effort. 

“By slashing the Chesapeake Bay Program funding, the president is giving polluters a green light to destroy the United States’ largest estuary and its already-imperiled tributaries,” said Betsy Nicholas, Executive Director of Waterkeepers Chesaeake. “The multi-state restoration work of the Bay and our rivers and streams is just beginning to pay dividends in the form of cleaner water and restored habitat. We can’t reverse course.”

A multi-state, federally supported program is the only way to restore the Chesapeake Bay, because the tributaries to the Bay cross state boundaries and provide clean drinking water to millions. In addition, the Bay is the economic engine for the region, providing an estimated one trillion-dollar value in fisheries, shipping, tourism, and other industries.

The president’s proposed budget is a direct attack on our rights to clean water and air. In addition to gutting the Bay Program, it calls for a 34 percent cut to the Environmental Protection Agency, cutting funding for the agency to $5.4 billion — its lowest funding level since 1990. In addition, the president’s infrastructure plan proposes to replace our nation's public highways and bridges with toll roads, cut existing highway funds, sell off our public lands, and gut basic environmental protections that have long protected our water, air, land, and wildlife.

Last year, the president recommended completely eliminating funding for the Chesapeake Bay Program in the Fiscal Year 2018 budget.This was met with resistance from not only the environmental community, but members of Congress.This funding results in millions of dollars in support for projects that are improving communities and protecting local waterways around the watershed. Both the House and the Senate ignored the president’s recommendation, and increased the funding in their respective appropriations bills. We call on our Congressional leaders to do the same this year.

Needs to Consider Risk of Spill to Drinking Water for Six Million

In comments filed, Waterkeepers Chesapeake joined several groups in calling on the Maryland Department of Environment (MDE) to deny a state Nontidal Wetlands Permit for the controversial Potomac pipeline, after learning that MDE purposely exempted environmental review of impacts to the Potomac and Little Tonoloway Creek from this permit process. MDE has misled the public and allowed this project to avoid critical state permit requirements, in spite of potential risks to the Potomac as the source of drinking water for six million people downstream.

At a closed-door meeting in 2016, before the Application for the Potomac Pipeline was filed by Columbia Gas (now TransCanada), MDE and TransCanada agreed the underground crossing of the Potomac River using horizontal directional drilling (HDD) did not require a permit or analysis. As a result, the Nontidal Permit application focused only on a single wetland and six small streams and failed to consider the risks or impacts of drilling under the river.

For months, members of our coalition have been attending public hearings hosted by the MDE to express our concerns about the impact of the Potomac Pipeline and never once did the representatives of MDE tell us that they weren’t considering the impact of drilling under the Potomac.

MDE’s baseless and absurd assumption that there will be no impacts from the use of HDD drilling, ignores the reality of HDD drilling accidents over the past several years have fouled streams, destroyed wetlands and contaminated drinking water supplies. In a recent example, the Federal Energy Regulatory Commission ordered Rover Pipeline LLC to stop drilling under the Tuscarawas River in Ohio, after regulators discovered repeated spills and loss of HDD fluid at the drilling site.

The Potomac provides clean drinking water to over 6 million people in the D.C. metropolitan area downstream of the proposed drilling route under the river. It defies logic that MDE would not require the assessment of the potential impact to the Potomac River of an accident, which could result from this drilling.

In addition, our comments noted that MDE is required to consider economic value of the Pipeline in meeting a demonstrated public need in Maryland generally and the residents of Washington County specifically. However, the Application did not provide nor did MDE insist on such an analysis. In fact, Maryland receives no benefit but bears all the risk of streams polluted by construction sediment and the Potomac River. In fact, any benefits from the Potomac Pipeline solely accrue to producers of fracked gas in Pennsylvania and possibly the users of gas in West Virginia.