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MD - A Win For The Chesapeake Bay

The Chesapeake Legal Alliance recently won a notable victory for the Assateague Coastal Trust in a successful challenge to the Maryland Department of Environmental Protection’s issuance of a state NPDES general permit for wastewater discharges that failed to control ammonia emissions from animal feeding operations polluting the waters of the Chesapeake Bay.

The March 11 decision demonstrates how citizens’ organizations and their counsel can compel attention to pollution problems long uncontrolled because of technical complexity, governmental mismanagement, and political protection from regulation for favored economic interests like farming. The State appealed the trial court’s decision on April 12, but the litigation will continue to focus the Department’s attention on serious unaddressed pollution of the Bay.

Maryland’s NPDES general permit for animal feeding operations that authorizes discharges of pollutants to the Bay and requires owners or operators to implement specified best management practices to reduce odors and ammonia deposition. However, the permit did not provide limitations on the discharge of gaseous ammonia from concentrated animal feeding operations (CAFOs) including from poultry house exhaust fans and manure sheds. Maryland has 550 poultry operations producing 300 million birds and over 400 million pounds of manure each year.

Judge Burrell of the Circuit Court of Montgomery County, Maryland, ruled that the State’s expansion of the federal Clean Water Act’s definition of pollutant to include “gaseous” substances covered ammonia and that this pollutant is emitted to the Bay through the use of exhaust fans. Ammonia contains nitrogen, a nutrient that promotes algal growth and oxygen depletion in waterways. The Court cited “concrete and measurable” evidence of deposition of emitted ammonia at various distances from the source and remanded the permit to the Department to mandate effluent limitations for ammonia and other water quality based effluent imitations.

Best management practices such as grass, hedges, tree buffers and hay bales near exhaust fans can substantially reduce deposition in waterways as well as neighborhood nuisances, and are affordable to the farmers with substantial subsidies from the State.

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