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Nutrient Pollution

Pollution of Chesapeake Bay by the nutrients nitrogen (mostly as ammonia and nitrate) and phosphate are the cause of Chesapeake Bay’s abysmal water quality, a fact that has been known with certainty for more than a third of a century. The only solution to the problem is to significantly reduce the amounts of nitrogen and phosphorus that now enter the water. Shortly after moving from Texas to Virginia’s Northern Neck, I commented on the Virginia “tributary strategies” (www.naturalresources.virginia.gov) which were dubbed, correctly, by CBF as “Tributary Tragedies.” On 05/03/04 (Tribstrat1.pdf) and 05/04/04 (TribStratNOIRA.pdf) I complained that the proposed allocation of funds did not address agricultural pollution proportionate to its importance. No response was received.

I became aware that then Sec. of Health and Human Resources, Jane H. Woods, the responsible official for the agency (VDH) that oversees the land-application of sewage sludge, claimed that sludge was being “… applied at a rate that does not exceed nutrient requirements for the crops to be grown that year.” In a letter of 09/20/04 I pointed out that she was incorrect, and that phosphorus was being massively over-applied in violation of 12VAC5-585-550.A (WD1.pdf). Her reply of 10/19/04 (Woods1R.pdf) assured me that “… current requirements … are being enforced.” I was not assured, and challenged her assertion on 11/24/04 (WD2.pdf) and asked the Attorney General to respond to my belief that the law is being broken. This generated a flurry of verbiage, including a response from an “Assistant Attorney General Agency Counsel” on 12/13/04 (WD2AGR.pdf) who informed me in effect that the Office of the Attorney General defends the State against the people. Sec. Woods responded again on 12/22/04 (Woods2R.pdf) with gibberish from a scientist at Virginia Tech well known as a promoter of the land-application of sewage sludge, and touting the upcoming revision of nutrient management regulations (see below). Then Sec. of Natural Resources W. Tayloe Murphy responded on 12/23/04 (WDMurphR.pdf) with platitudes. As a result of copying my letter of 11/24/04 to then Governor Mark Warner, Sec. Woods replied (WD2R2.pdf) regarding the importance of “… use of the P index for placing restrictions on applied P.” My public comments on the “P index” follow. Rebecca Hanmer of EPA responded on 01/25/05 (WD2REPA.pdf) with Directive No. 04-3 of the Chesapeake Executive Council (CECD4.pdf).

Directive 04-3 deserves comment because it proposes six “… solutions for reducing nutrient pollution from animal manure and poultry litter …” (sewage sludge is ignored).

  1. Reduce the nutrient content by adjusting animal diets. This commonly cited strategy is never convincingly quantified and will be insignificant even if it is ever actually implemented. The dietary uptake by animals is inefficient, and only small reductions in pollution are possible, which will in part be offset by growth of the animal husbandry industry. Sewage sludge accounts for about 25% of the nitrogen pollution (Conclusions) and is not addressed. Problems must be addressed at their roots. The massive pollution caused by the land-application of animal waste must be solved by stopping the practice, not by chipping away at its inefficiency. Similarly, the problem of excess algal production in Chesapeake Bay must be solved at its roots by stopping over-fertilization practices. An analogy is a leaking boat. The boat’s problem is not solved by installing a bigger bilge pump, just as Chesapeake Bay’s water quality problem is not solved by increasing the abundance of filter-feeders like oysters and menhaden, desirable as that may be. The leaky boat can only be saved by fixing the leak, just as Chesapeake Bay’s water quality problem can only be solved at its roots by reducing nitrate and phosphate pollution.
  2. Use manure and poultry litter as fertilizer. That is the problem, not the solution, even when the highly inefficient “fertilizer” is applied “… on state and federal lands …”
  3. Demonstrate the use of manure as an energy source. Manure is already incinerated. Why is demonstration necessary? Stop talking about it and mandate it at the same time as wastewater plants are upgraded to lower nutrient discharge rates. Nothing will spur rapid development of the best waste-to-energy technologies, not necessarily simple incineration, than mandating that it be done. Using the animal waste as an energy source simultaneously reduces greenhouse gas emissions and our dependence on foreign oil and gas.
  4. Coordinate transport and relocation programs. Moving pollution from one place to another within the watershed does not reduce pollution.
  5. Apply the latest scientific understanding. “Generally accepted” science as proposed by agronomists, who focus on maximizing farm productivity and ignore the societal costs of pollution, will not reduce pollution.
  6. Develop specific actions to achieve these objectives. Directive 98-4 (directive #4 in 1998 –www.chesapeakebay.net) espoused similar objectives. Not a single atom of nitrogen or phosphorus pollution has been prevented from polluting Chesapeake Bay by the verbiage emanating from the Chesapeake Executive Council, which is just one more ineffective bureaucracy with no authority, wasting the taxpayer’s money.

It is clear that the Economy Protection Agency (EPA) has no intention of seriously addressing the most egregious source of agricultural pollution of Chesapeake Bay, namely the land-application of animal waste (poultry litter, manure and municipal sewage sludge.) EPA’s position on sewage sludge, protective of the Economy (profits of the land-application and waste disposal industries and cost-savings for a very few farmers) and not the Environment is well documented in the International Journal of Occupational and Environmental Health, 2005, v. 11, p. 415-427 and at (www.sludgefacts.org.)

My first, and only, TAC experience
As a result of my opposition to the land-application of municipal sewage sludge because of uncertainties about the industrial chemicals, pharmaceuticals, personal care products (PPCPs) and pathogens it contains, I became interested in the nitrate and phosphate pollution caused by the land-application of all forms of animal waste. I served on a Technical Advisory Committee (TAC) to the VA Department of Conservation and Recreation (DCR) on nutrient management regulations purported to reduce phosphorus pollution. On recognizing the magnitude of pollution caused by the land-application of animal waste, a series of letters to committees, CBF and EPA were written.

The TAC, dominated by land-application interests and purposefully “stacked” by the State, met four times. My sense was that DCR staff initially wanted to do something meaningful to restrict phosphorus pollution, but by the last meeting they had been reined in by superiors, although this is just an impression. A letter during the meetings (08/02/04) (TAC1Perk.pdf) and one after the final meeting (09/15/04) (TAC2Perk.pdf) were critical of the public review process and of the tentative position that DCR espoused at the final meeting. Then Sec. of Natural Resources, W. Tayloe Murphy responded on 10/07/04 with platitudes (TACMurphR.pdf).

My public comments, submitted on 06/13/05, (TM3pubcom.pdf) were excerpted rather than publishing them in their entirety, and addressed by DCR in the 72 page Form TH-03 “Final Agency Background Document” regarding 4VAC5-15, on 11/02/05 (www.dcr.virginia.gov/docs). Here is the “meat” of the responses to the seven questions I posed:

  1. Why is the straightforward, common sense Soil Test P method not being mandated? “In developing the regulations, the agency attempted to balance economic costs to the industry while improving water quality benefits.”
    The common sense “Soil Test P” method involves analyzing the soil for phosphorus and then applying only as much phosphorus as is needed to grow the crop. If it were mandated, as 12VAC5-585-550.A demands, the land-application of animal waste would be greatly curtailed and that is why the State will not adopt the practice, in violation of the law.
  2. Why is land-application to be permitted at up to 1.5 times crop removal rates? See #1. The regulations are formulated so as to minimize restrictions on land-application.
  3. Why is the cumbersome and complex Phosphorus Index, poorly grounded in modern peer-reviewed science, and capable of being manipulated to yield a minimum result, being advocated? “…dairy, poultry, swine, and biosolids sectors have all voiced a strong desire to have an option to use the phosphorus index.” No wonder, because it is far more permissive than the “soil test P” method.
  4. Why is a distinction made between inorganic and organic forms of P and why is the language with regard to organic P permissive? See #1 and 3#.
  5. Why is 12VAC5-585-550.A being violated and P being ignored? “DCR will appraise VDH of the concern.” Pass the buck.
  6. Why are nutrient management plans not mandated for the land-application of manure and poultry litter, which constitute most of the N pollution? DCR “… does not have the authority to require nutrient management plans on all lands that receive manure or poultry litter.” But DCR is responsible for non-point source pollution in Virginia. Pass the buck.
  7. Why are the N recommendations for soybeans not zero, as they are for red clover? “… intentionally excluded so as not (to) be in conflict with Biosolids Use Regulations.” A very telling statement admitting that the State favors disposal by land application over water quality concerns! “… there is scientific evidence [not cited] that the plants will preferentially uptake available nitrogen in the soil before the fixation of atmospheric nitrogen occurs.” Farmers do not purchase nitrogen fertilizer to grow legumes. Permitting land-application to soybeans is merely an excuse to continue disposal by land-application and guarantees massive nitrate and phosphate pollution.

Sec. Tayloe Murphy, nearing the end of his appointment, responded (TACMurph3R.pdf) and claimed that the soil test phosphorus method could not “… accommodate the volumes of animal and human waste generated in the watershed …” Coming from a senior administrative official, this is a clar admission that the State favors land application over improving water quality. He ignores the fact that a great deal of the sewage sludge and some poultry litter is from out-of-state or that land-filling is an option. The Phosphorus index is “… used by most states …” for the same reason Virginia adopted it, namely that it does not significantly restrict land application. Virginia is not the only state subject to the will of special interests.

Senators Chichester and Hawkins, and Delegates Callahan, Cox, Lingamfelter and Parrish (and subsequently, Del. Wittman) were charged with identifying funding to improve water quality in Chesapeake Bay. My letter of 11/25/05 (Baycomm.pdf) received no response.

As a result of numerous citizen complaints about the land-application of sewage sludge, a Joint Legislative and Review Committee (JLARC) submitted a report critical of VDH’s management of the “biosolids” program. That report completely ignored the massive pollution of Chesapeake Bay caused by the land-application process, as I pointed out on 03/31/06 (JLARC.pdf). A response from the Secretary of Natural Resources, L. Perston Bryant, Jr. (JLARCR.pdf) contains several inaccuracies, as I pointed out in my reply of 06/12/06 (JLBryant.pdf). On 06/28/06 I was informed by Sec. Bryant that “We are taking the information you have provided under advisement.”

On Feb. 13, 2007, several other citizens and I met with Sec. Bryant and Asst. Sec. Jeff Corbin, formerly with CBF, to inform them of the reasons for our opposition to the land application of municipal sewage sludge. At that time I presented a letter (Bryant0207.pdf), also addressed to the Directors of DEQ and DCR, documenting the folly of this highly polluting practice, that the cost savings by a few farmers are miniscule, and that landfilling would increase wastewater bills for citizens of municipalities less than the cost of a couple bags of junk food per year.

Sec. Bryant responded on 02/28/07 (Bryant0228.pdf) that he, Director Paylor of DEQ and Director Maroon of DCR agreed with my statement “Agricultural fertilization practices are the largest source of nitrogen and phosphorus pollution of Chesapeake Bay.” In his letter he made me aware of a Water Quality Clean-up Plan and requested my input. I responded to him regarding the “Plan” on 03/15/07 (Bryant0315.pdf).

On 09/18/07, I spoke before Secs. Bryant and Tavenner who were convening an “Expert Panel” mandated by the legislature to study sewage sludge (www.deq.virginia.gov/info/biosolidspanel.html) as oversight was transferred from VDH (back) to DEQ because VDH was doing such an incompetent job. I presented all participants with an oral summary of the nutrient pollution caused by land application along with copies of the two Bay Journal articles published in December 2006 and May 2007 (www.BayJournal.org). My presentation had no effect because the 11/08/07 Rappahannock Record (a local newspaper) quoted Sec. Bryant as saying, wrongly, that “Developing a sustainable market for poultry litter helps stimulate the farm economy and also has water quality benefits as well.“ The ”… water quality benefits …” were not identified and those kinds of phrases are blatantly dishonest. Clearly the Kaine Administration, like previous administrations, is more concerned with the profits of a small group of “stakeholders” than they are with improving water quality in Chesapeake Bay.

When the “Technical Advisory Committee” (TAC) was appointed to “study” the land application of sewage sludge in Virginia after oversight was transferred from VDH (and back) to DEQ, I pointed out in an email of 09/19/08, that the State had stacked the deck again. There were 7 members on the committee of 16 who are “pro” land application (Agriculture, Generator, Land Applier and an agronomist), 4 (citizens and medical) who are likely more critical of the land application of sewage sludge, and 5 “neutral?” government representatives, although two of them were from agricultural entities. No academic environmental/estuarine scientists or economists were included. Three of the 4 citizens and medical professionals resigned on 05/18/09 “Rather than carry on as impotent members of a panel with predetermined outcomes …”, citing that the “… TAC is structured in such a way that concerns of Virginia’s citizens and medical doctors have not and will not be addressed …” So much for the myth of unbiased “stakeholder” participation! Their resignation proves how the State pre-determines the outcome of committees purported to provide citizen input and guarantees that the results of committee “deliberations” favor the desired outcome for special interests. The dishonesty of bureaucrats who establish these kinds of committees at the direction of elected/appointed officials is also demonstrated.

A perusal of the draft meeting notes of 06/04/09 from the “Expert Panel” revealed the following proposed language:

9VAC25-32-600. Biosolids characteristics; nutrients; trace elements; organic chemicals.

A. The primary agronomic value of biosolids, the nutrient content, shall be established prior to agricultural use. The applied nitrogen and phosphorous content of biosolids shall be limited to amounts established to support crop growth. Nitrate nitrogen developed as a result of biosolids application shall be controlled in order not to accumulate in groundwater as a pollutant.

I pointed out in an email to William Norris of DEQ on 06/09/09 that the second sentence “The applied nitrogen and phosphorous content of biosolids shall be limited to amounts established to support crop growth.” demands that the “Soil Test P” method be used, and sludge application be limited by that criterion. Failure to enforce the common-sense “Soil test P” method is a blatant, prosecutable violation of law, and proves the State’s focus on agricultural productivity and lack of meaningful intent to improve water quality in Chesapeake Bay.

As for the third sentence (underlined above), nitrogen pollution of groundwater is unavoidable using any fertilization practice. Using data from the 2004 and 2005 “Virginia On-Farm Corn Test Plots,” for each acre on which corn was grown, on average:

  1. Approximately 162 pounds of conventional nitrogen (N) fertilizer were applied to yield an average of 174 bushels of corn grain.
  2. The average “Nitrogen Use Efficiency” (NUE = pounds N harvested with the grain / pounds N applied) for 31 plots was 72% assuming 56 pounds/bushel at 15% moisture and 1.4% N in the dry grain (116/162, where 116 = 174 * 56 * 0.85 * 0.014). Therefore 28% of the applied nitrogen, or 46 pounds (162 – 116), was released to the environment from each acre as potential pollution. Most of the excess nitrogen is pollution because denitrification is not a major process in oxidized soils, and nitrogen retained in the soil for the next crop is balanced by nitrogen from the previous crop.
  3. Accepting that 30% of the nitrogen in lime-stabilized sewage sludge is crop-available the first year (Table 9-1 in the 2005 Virginia Department of Conservation and Recreation’s Nutrient Management Standards and Criteria), 540 pounds of nitrogen is applied (162/0.3) to provide sufficient “Plant Available N,” and the NUE is 21% (116/540) that year. 424 pounds (540 – 116) of nitrogen is released as potential pollution from each acre, causing nine times as much pollution as conventional fertilizer. Because nitrate concentrations are known with certainty to increase in groundwater as the result of conventional chemical fertilization, nitrate concentrations obviously increase much more when sludge (and poultry litter) are used. The third sentence proposed in 9VAC25-32-600A is impossible.

Three of the 4 citizens and medical professionals resigned on 05/18/09 “Rather than carry on as impotent members of a panel with predetermined outcomes …”, citing that the “… TAC is structured in such a way that concerns of Virginia’s citizens and medical doctors have not and will not be addressed …” (reslet.pdf) So much for the myth of unbiased “stakeholder” participation!

I submitted public comments (Lancaster_sludge.pdf) to Va DEQ regarding 2,000 acres being permitted for land application of sewage sludge in Lancaster County Virginia, summarizing the costs to society in nutrient and bacterial pollution, all to save a very few farmers $1,173 per farm. DEQ has held additional meetings regarding local land application and now clearly states that those meetings are meant only to address concerns such as setbacks regarding specific fields, and will not entertain more substantive concerns.

In 2010, DEQ held a public meeting regarding a new permit to dispose of sludge on 507 acres in Northumberland County. At that meeting they only wished to address particulars such as set-backs and were not interested in any other issues, stating that they were merely enforcing legislative mandate. I summarized the pollution that will result from this permit in Public Comments (DEQ_permit_text.pdf), which was published in local newspapers. On 03/22 I appended my summary to a letter to the new Governor, new Secretary of Natural Resources and new acting-Director of DCR (Gov_letter.pdf) asking if they intended to continue the land application policy of previous administrations that “… values the profits of special interests, namely the diary, poultry, swine and biosolids sectors, over Chesapeake Bay water quality.”

Sec. Domenech responded on 06/30/10, outlining the “stakeholder” role in amending regulations on the land application of sewage sludge (Domenech_reply.pdf). He regretted that I “… believe any administration of the Commonwealth would value profits of special interest groups over that of the Chesapeake Bay’s water quality.” I responded (Domenech.pdf) that the “Soil Test Phosphorus” method of determining the rate of land application of sludge provides enough phosphorus for crops and is more protective of water quality than either “nitrogen-based” land application or use of the Phosphorus Index. The only conceivable reason P-based land application is not mandated is to protect profits of the “… diary, poultry, swine and biosolids sectors.” I enclosed the letter of resignation from DEQ’s “Biosolids Technical Advisory Committee” (reslet.pdf) to document how previous administrations “stacked” committees to achieve desired ends.

A “Deputy Secretary of Natural Resources” responded on 09/11/10 (Domenech2.pdf), advocating “… that it is indeed possible to land apply these materials at rates that exceed the agronomic demand of the current crop for phosphorus without environmental harm, if specific guidelines are followed.” The statement is nonsense, but as long as agronomists continue to support the Phosphorus Index, rather than the common sense dictum “Get the right nutrients in the right amount at the right time in the right place.” (2002, Ambio 31:159-168), Virginia will continue to promote cheap waste disposal rather than improved water quality.

As a participant in the advisory committee on agricultural pollution as part of the TMDL process, representing the Virginia Watermen’s Association, I advocated a complete ban on the land application of animal waste by 2025, EPA’s “final” deadline, and imposing “Phosphorus-based” land application by the interim deadline of 2017. The only reason not to impose “P-based” land application (no more than 120 pounds of P per acre if the soil contains no P and no additional P if the soil tests > 55 ppm using the Mehlich 1 procedure) is to protect the profits of special interests. P-based regulation of the land application of animal waste would not affect crop yields and would reduce both N and P pollution.

My response to Virginia’s “Chesapeake Bay TMDL Phase I Watershed Implementation Plan” (WIP_comments.pdf) focused on the inadequacy of the document, especially with regard to agricultural pollution. There is too much “sop it up” strategy and not enough action to keep the nutrients out of the Bay in the first place. The five “priority practices” advocated by the State are inadequate to reduce pollution sufficiently to meet EPA’s goals. The proposal for “… nutrient management plans, written by certified planners, to cover 95 percent of available cropland, specialty crops and hay with implementation to be completed by 2020.” is preposterous. Think of the bureaucracy. Virginia does not enforce existing laws (9VAC25-32-600), how would it ever enforce nutrient management plans on 3.5 million of acres of farmland? The proposal to expand the nutrient credit exchange program beyond the wastewater sector, where it seems to have been a success, to other sectors is an open invitation for massive loopholes, fraud and more bureaucracy. The WIP needs to concentrate on improving agricultural fertilization efficiency and it falls far short of that goal.

The Virginia DEQ and the Water Board proposed regulation changes for the land application of biosolids “after transfer from the Virginia Department of Health” whose oversight was deemed incompetent. My comments (Public_comments.pdf) dated April 28, 2011, pointed out the illegality of using the word “biosolids” in regulations when sewage sludge is the only term used in the Clean Water Act and in the Code of Virginia enacted by the Virginia General Assembly. But most important, Section 405 (a) of the Clean Water Act dictates “… in the case where the disposal of sewage sludge …would result in any pollutant from such sewage sludge entering the navigable waters, such disposal is prohibited ….” (my emphasis). Any nutrient that is not sequestered in the harvested crop either accumulates in the soil or pollutes the environment by processes such as infiltration, runoff, volatilization, etc. There exist no other possibilities. The huge amounts of N and P disposed by the land application of animal waste are not all sequestered in the crop or retained in the soil, and therefore pollution is certain. Section 405 (d) of the Clean Water Act further requires “…establishing numerical limitations for each such pollutant …” Numerical limits have been established in DCR’s Virginia Nutrient Management Standards and Criteria, Revised 2005 (“Standards”) and these “numerical limitations” must be imposed to adhere to Federal law. Disposal at P at higher rates than specified in “Standards”, as is allowed by the Phosphorus Index, by the recently revised Poultry Regulations, and by the proposed regulations is a blatant violation of the Clean Water Act. P-based land application, using the “numerical limits” in “Standards,” is the only legal option for land application of any animal waste. The comments were also sent to EPA (Jackson2.pdf), pointing out the illegality of Phosphorus application in excess of legal “numerical limits.”

Virginia’s Phase II Implementation Plan
The “Plan” is merely reworked verbiage that attempts to shield agriculture, the largest polluter of the Bay, from regulation. An excerpted version of my formal comments was published in the October 2012 “Bay Journal” Forum. In my cover letter to VA Sec. Natural Resources Domenech, copied to Mr. Shawn Garvin at EPA, I stated:

“As a scientist, I find the plan (Phase_II_comments.pdf) completely inadequate and little more than reworked verbiage. It does not “Establish a clear path to meeting, as expeditiously as practicable, water quality and environmental restoration goals for the Chesapeake Bay” as stated in President Obama’s Executive Order issued 05/12/09. It is clear that the agricultural lobby has succeeded in diverting blame for inefficient fertilization practices to other pollution sectors. This is understandable (but unacceptable) in a political system dominated by moneyed interests. Whether or not EPA will require a robust, science-based implementation plan that will conform to President Obama’s edict and result in significant improvements in water quality, instead of this administrative/bureaucratic wish list, remains to be seen.”

Letters from two citizen organizations
Two citizen organizations wrote letters to Virginia’s Secretary of Natural Resources protesting the disposal of municipal sewage sludge by land application in the Virginia tidewater. The letter from the Tidewater Oyster Gardeners Association (TOGA) and the responses are posted at www.oystergardener.org. The letter from the Northumberland Association for Progressive Stewardship (NAPS) and the response is posted at www.napsva.org. Both letters were copied to EPA, who passed the buck to Virginia.

Virginia tidewater (Bay Act) counties, where oysters are “gardened” by many citizens, have thousands of miles of shoreline. It is absolutely certain that pathogens and nutrients from sludge disposed cheaply by land application in the guise of “free fertilizer” can contaminate navigable waters either directly by runoff or via vectors such as gulls.

TOGA pointed out that the headwaters of every stream and river in the Virginia coastal plain are formally impaired by EPA because of fecal coliform concentrations sufficiently high to ban the harvesting of shellfish. Why are pathogens in Class B sewage sludge (and in poultry litter) being disposed in watersheds already formally impaired because of high pathogen concentrations?

Mr. Robert T. Bennett, Acting Division Director of the Department of Conservation and Recreation, responded that ”…site restrictions for the application of Class B biosolids are imposed…to reduce pathogen levels below detectable limits.” This is not true. He also fails to understand that chemical fertilizers provide more nutrients for the crop and cause less pollution than does sewage sludge – see http://dx.doi.org/10.1016/j.marpolbul.2012.07.003.

Mr. David K. Paylor, Director of Virginia’s Department of Environmental Quality, never addressed the issue of disposing of pathogens near tidal water, where seagulls routinely “follow the plow.” He responded that sludge disposal “… was the subject of extensive discussion by the Biosolids Expert Panel convened pursuant to House Resolution 694 …” and “… all these discussions led to the same conclusion that it is indeed possible to apply these materials without environmental harm.” Three members resigned during this process, stating “We have independently concluded that DEQ’s Biosolids Technical Advisory Committee (“TAC”) is structured in such a way that concerns of Virginia’s citizens and medical doctors have not and will not be addressed…” (reslet.jpg) Virginia ensures that panels and committees are dominated by “stakeholders” who represent the special interests desired by legislators, in this case the agricultural, trucking and wastewater treatment sectors. Improving Bay water quality is not Virginia’s paramount concern, despite the wishes of its citizens. The assertion that sludge can be disposed by land application “without environmental harm” is not supported by science.

NAPS asked three questions, none of which were satisfactorily answered.

1) Why are permits for land application being granted for ten years? All the legal requirements for soil analyses and nutrient management plans are based on a three-year cycle. Ten years without oversight is a “blank check” and clearly not the intent of the legislature.

2) Why do regulations not require that chemical nitrogen (N) application for three years following sludge disposal be reduced because N from the sludge remains in the soil? The Nitrogen Use Efficiency (NUE), or the percentage of applied nitrogen removed from the field in the first harvested crop, is 30% for sludge. The NUE for conventional chemical fertilizer is about 65%. The NUE for sludge is increased to 55% over three years following disposal if chemical fertilizer application is reduced. Why is reduction in chemical fertilization not required?

3) How does DCR justify the astronomical cap on phosphorus (P) of 458 ppm when the recommendations in Virginia’s Nutrient Management Standards and Criteria cap P application at 127 ppm? It is widely accepted that “… if the [soil] test is below 30 ppm we would expect a profitable increase if we add P. However, if the soil test is above 30 ppm, no yield response is expected.” Current permissive application rates guarantee pollution. If land application were “P-based,” supplying sufficient P for crop growth, more acreage would be needed and additional N fertilizer would need to be applied. This restriction is not acceptable to the special interests who control the regulatory process through elected officials, and who continue to squander a non-renewable resource (P) and pollute to ensure cheap waste disposal.

EPA (Jeffrey Lape) admits (Lape.pdf) that “…animal manure and poultry litter contribute about half the agricultural nutrient load to the Chesapeake Bay.” Why does EPA allow cheap disposal by land application to continue? If the ”… disposal of sewage sludge … would result in any pollutant from such sewage sludge entering the navigable waters …” then the Clean Water Act is being violated. Fields close to the water that have been either ditched or tiled to lower the water table unquestionably permit direct discharge to navigable waters.

Virginia administrations are obviously more concerned with protecting the profits of a very few farmers and other special interests by sanctioning cheap waste disposal, rather than on improving Bay water quality. They will not admit this fact to the public, but instead disguise their true intentions behind flowery verbiage like “The Chesapeake Bay is truly a national treasure and an ecological wonder,” the first sentence in Virginia’s Draft Phase 1 Watershed Implementation Plan. Given this situation, why doesn’t EPA step in and impose some “Adult Supervision”?

EPA has not imposed “Adult Supervision” to date and so the “Adult-In-Chief” should intervene. President Obama’s Executive Order of 05/12/09 to “ to protect and restore the Chesapeake Bay and its tributary waters ….” has not resulted in any meaningful widespread action by the agricultural sector, the largest polluter. Nothing would reduce nutrient pollution more, at less cost, than to ban the land application of animal waste outright or mandate that application be “P-based.” The waste can be used as biofuel, reducing our dependence on fossil fuel, creating jobs and improving environmental/human health to the benefit of the economy. The economic value of a healthy Chesapeake Bay to society far exceeds the value to the few special interests that profit from existing policies of cheap animal waste disposal.

Menhaden in Chesapeake Bay
The Atlantic States Marine Fisheries Commission (ASMFC) has been considering increasing the cap on menhaden harvesting for many years. They admit in their “2012 Update” that they do not have the scientific data to support changes in the regulations. They do not know with any certainty the abundance of the fish offshore, as I pointed out in my public comments (ToASMFC.pdf). Worse, their data from coastal settings like Chesapeake Bay are flawed because they do not know if menhaden stocks are being controlled by fishing pressure or by the abysmal water quality that has destroyed “nurseries” like sea grass meadows that once supported a food web beneficial to the entire ecosystem. The recreational fishing lobby asserts that more menhaden would mean more predatory fish for anglers to catch. No data support this assertion. This is just one more example where a selfishly focused misinformed (recreational fishing) lobby fails to address the reason for abysmal water quality that affects the entire ecosystem. Instead, they deflect blame from where it belongs, on inefficient agricultural fertilization practices, to a tiny industry whose elimination would not improve Bay water quality.

A local citizen organization (Northumberland Association for Progressive Stewardship – www.napsva.org) submitted detailed comments on the Draft ASMFC Five Year Strategic Plan. We urged that Atlantic coastal fisheries be managed at a harvest rate no greater than that at which the stocks can be replaced naturally and therefore be sustainable, in accordance with a quotation from Theodore Roosevelt on the cover of the Plan.

“The nation behaves well if it treats the natural resources as assets which it must turn over to the next generation increased and not impaired in value.”

We also stressed that analysis by credentialed academic and government experts be the sole basis for decision-making. The ASMFC News Release of February 6, 2014, stated that over 4,500 comments were received.

The final version of the Plan was identical to the draft. Nothing was changed. What is the point of an organization that purports to represent the interests of the people soliciting comments and then ignoring them? ASMFC is composed of a legislator, a Governor’s appointee and an administrator (ultimately a political appointee) from each state. Aside from ASMFC clarifying their pubic comment policy, the Commission’s makeup must be changed so that each “Governor’s Appointee” is a credentialed scientist. Not only would this action provide sound information on which decisions would be based, it would dilute the political makeup of this Commission and, hopefully, make it responsible to the public.

Oysters are not a “water-based solution” to Bay pollution
Most people know that when Europeans first arrived, oysters could filter a Bay-sized volume of water in a few days. Today, given the few oysters that remain, it takes a year. Pre-Colonial oyster populations can never be “restored.” Given today’s acreage in heavily fertilized fields and lawns, massive urbanization and an increasing population, we can never return to pre-Colonial conditions. It is impossible to restore the North American grassland prairies, just as it is impossible to restore the Bay ecosystem. Improve, yes, but not restore. Do oysters constitute a “water based solution” that can significantly improve Bay water quality?

In the absence of oysters, algae and other small organisms die or are eaten, settle out of the water and are deposited as organic material in the bottom sediment. Between about a third and half of the sedimented organic material is buried, effectively removing it from the marine ecosystem. Microbes decompose the remaining organic material, consuming dissolved oxygen and releasing ammonia and phosphate back to the water column to nourish more algal growth. In the case of nitrogen (N) an additional process takes place, denitrification, where nitrate (NO3-) is converted to diatomic nitrogen gas (N2) and removed from the marine ecosystem. Denitrification takes place everywhere there is anoxic sediment, or sediment rich in organic material that contains no dissolved diatomic oxygen gas (O2). How do oysters alter this widespread process? Oysters filter algae and other particles out of the water, extract nutrition from a small part of it, and discard the remainder as pseudofeces, or relatively large particles that settle quickly. Filtration makes the water clearer, allowing light to penetrate more deeply, and encourage the growth of seagrass. The pseudofeces particles that settle out of the water contain more organic material than typical sediment, and because the organic material is very reactive, all the processes of microbial decomposition increase, including ammonia release and denitrification. Denitrification has proven to be difficult and contentious to quantify. Most scientists would agree with a statement by one author that the N removed by harvesting oysters “…is about 2/3 of the amount estimated to be removed annually as a consequence of the oysters’ normal feeding and deposition processes.”

Harvesting oysters and removing them and the N they contain from the marine ecosystem is the most common “solution to pollution” involving oysters, using them to “sop up” the pollution. A recent study proposed that oysters can significantly improve water quality in the Potomac River. They cannot, and this conclusion is very important to management practices intending to reduce the loading of Bay waters with the nutrients N and phosphorus. A 1946 publication states that in the Potomac River “…in the late 1800’s it [the oyster harvest] averaged approximately 1,600,000 bushels.” Given 300 market-sized oysters per bushel, 480 million oysters were harvested annually for a few years. One million market-sized (3 inch or 76 mm) oysters contain at most 150 kilograms of N, with sub-equal amounts in the shell and dry tissue. Even if we could harvest 480 million oysters again, only 72,000 kg of N would be removed from the marine ecosystem (150 kilograms N per million oysters * 480 million oysters). Today, the Potomac River receives about 30 million kilograms of N each year. The maximum oyster harvest ever recorded could only remove 0.2% of today’s N load (72,000 / 30,000,000). If we take into account denitrification and N buried in sediment, about the same amount of N is removed from the ecosystem as by harvesting oysters. However, if oyster shells are returned to the water to serve as a substrate for more oyster strike, as they should, N in the shell is not removed from the marine ecosystem. No matter how the numbers are tweaked, removing oysters and their contained N from the marine ecosystem, coupled with denitrification, is too tiny to be meaningful. “Nutrient trading” schemes involving oysters and intended to improve water quality are delusional.

The more oysters in Chesapeake Bay the better. They create habitat for other organisms and make great meals. Diploid (fertile) animals, but not the triploid or sterile animals being used in aquaculture, can reproduce and increase populations if harvests are carefully managed. But “sopping up” nitrogen pollution by harvesting oysters cannot measurably improve water quality. Despite all the money that has been spent reducing nutrient discharge from wastewater facilities, Chesapeake Bay water quality has not improved, and more oysters won’t improve water quality either. The only meaningful action that will improve Bay water quality is significantly improving crop fertilization efficiency.

Virginia’s Draft Chesapeake Bay Milestones
Comments were solicited in 2014 for Virginia’s Draft “Chesapeake Bay Milestones”. My comments (Milestones.pdf) address exactly the same issues as were addressed in my comments to Virginia’s Phase II Implementation Plan (Phase II comments.pdf), which could have been re-submitted without change. Presumably these most recent comments will be re-ignored by both Virginia and EPA in order not to enrage agricultural interests and the power they exert on the political and regulatory process. How long must this charade continue?

Bottom Line
Nothing can be done to reduce the amount of nitrogen pollution that takes place from the land application of animal waste when between only 30% and 60% of the applied nitrogen is available to the next crop compared to roughly 75% being available from single-application chemical fertilization. A ban on the disposal practice is the only way to eliminate the nitrogen pollution. In the case of phosphorus, there is no scientific justification for not limiting application “… to amounts established to support crop growth.” as unenforced Virginia law requires. According to the Mid-Atlantic Nutrient Management Handbook (p. 164) “… the critical level for soil test P … is around 30 ppm for Mid-Atlantic soils. If the test is below 30 ppm we would expect a profitable increase if we add P. However, if the soil test is above 30 ppm, no yield response is expected.” The Phosphorus Index allows land application to soils that contain as much as 525 ppm P (Table 2) and is a dishonest pseudo-scientific scam purposely enacted so as not to restrict special interests from disposing of their phosphorus-rich animal waste by land application.