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Farmland and Rural Building Lots face new threats from EPA

The latest announcement from Maryland Governor O’Malley over his proposed ban on septic systems is just scratching the surface of threats to the value of farms and rural real estate.

After doing my research for this post, I feel like I have stepped into a fresh cow pie … literally!  Having spent much of my childhood working and playing on the family farm, that is something not unusual for me.

There is more depth to this issue than meets the eye.

America’s rural and agricultural land has been under pressure for years by the Environmental Protection Agency (EPA) to play an increasingly larger role in saving our waterways.

Using the Clean Water Act (1972) and the Chesapeake Bay as justification for laying down the law for excessive nitrogen and phosphorus runoff into the bay’s tributaries, the agency recently tightened the screws even more just sixty days ago with the introduction of its Total Maximum Daily Load (TMDL) program.

Affectionately know as the Pollution Diet, the EPA has calculated what they consider “acceptable” levels of nitrogen, phosphates and sediment that can enter the waterways and tributaries in the 64,000 square mile watershed region encompassing Virginia, West Virginia, Maryland, Pennsylvania and New York.

I had considered titling this post the EPA’s Nitrogen Bomb on Farmland; however in doing my research I came across a very educational 2001 article in Discover Magazine entitled The Nitrogen Bomb.  This piece provides a historical perspective on how synthetic nitrogen came to be in Europe in the late 1800’s as a fertilizer to save the continent from the prospects of mass starvation.  It goes on to explain how this product has grown from a life saver to one that when used excessively has become a major pollutant to our waterways.

With that stated, I am not aware of any fair and reasonable person who is not in favor of cleaning up the Chesapeake Bay and other waterways across the nation. The reality is, however, that the business of agriculture and the use of rural lands should not be pushed to comply with such radical changes to the detriment of their ability to conform at the cost of their livelihood and investment.  Such changes require time, diligence and the cooperation of all stakeholders.

Carrying this matter further are the serious questions raised by many in and outside of the agricultural community as to whether the EPA actually has the legal authority to exercise these mandates.

Of equal concern is the validity of the calculations used to establish the TMDL program.  A fellow writer for, Farrell Keough, authored an excellent piece on this topic in December 2010 entitled The Devil’s in the Details.

It is not only he who has expressed concerns.  Just last month the American Farm Bureau (AFB) along with the Pennsylvania Farm Bureau filed a lawsuit against the EPA on the grounds stated above.

These bureau’s and others are also very concerned that the bay region is being used as a launch pad to take this TMDL effort nationwide to protect the Mississippi River watershed and other areas … before facts are truly established and stakeholder cooperation is achieved.

As AFB President Bob Stallman put it, “this diet threatens to starve agriculture out” of the region.  He also is quoted as saying that it is important to note that: “Like all Americans, farmers want a clean Chesapeake Bay.  They are already working throughout the Chesapeake Bay region and across the nation to implement real, on-the-ground conservation measures, to improve water.”

While all this is going on, Maryland’s Governor Martin O’Malley announced last week that in the state’s effort to do it’s part, he is beckoning the call of the Chesapeake Bay Foundation to call on the Maryland Department of Environment to ban the use of private septic systems (referred to by the state as Onsite Sewage Disposal Systems or OSDS) for any subdivision greater than 4 lots.   The claim here is that the average OSDS discharges as much as 32 pounds of excessive nitrogen and phosphates into the ground water each year, which eventually ends up polluting the Bay.

For the last few years the state has offered septic tank users the ability to trade in their old ones for a new BAT (Best Available Technology) model fully paid for and installed by the government.   These BATs are installed with a costly electronic devise that deals with these pollutants.  I am not aware of how actively the program has been promoted and what level of success it has experienced.  Furthermore, I was not able to find any studies that validated the claim that the 420,000 systems in Maryland dump the claimed 5 million pounds of these pollutants in the bay each year.

Many question whether O’Malley and his team at MDE and the Maryland Department of Planning under guise of a new chapter of Smart Growth program, called PlanMaryland, is using this OSDS issue as a means of stepping up its vision to rid the state of private septic systems altogether.

In the words of Frederick County Farm Bureau President Tom Browning, he simply asks that with all the studies and numbers thrown around “What is truth?”

Fellow member and past bureau president Chuck Fry said that as much as the government says they want to help agriculture, the costs of one regulation on top of the other and the theft of our property rights is like saying to farmers “watch my right hand wiggle, while I rob your wallet with my left hand!”

One can only imagine how all of this commotion will impact the value of farmland and other rural real estate.  As with any looming governmental action, the market tends to hesitate and err on the side of extreme caution … which does not bode well for land sale prices in the near future.  One thing for sure is that the value of farmland and agricultural preservation easement dollars are sure to drop as the development potential of rural lands erode away.

The author: Rocky Mackintosh, President, MacRo, Ltd., a Land and Commercial Real Estate firm based in Frederick, Maryland. He also writes for and

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5 Responses to “ Farmland and Rural Building Lots face new threats from EPA ”

  1. Jack Leishear says:

    This whole idea of septic systems polluting the Ches. Bay has disturbed me for a long time. First, each septic system is surrounded by from one to four wells ( in a subdivision) that are only required to be at least 100 feet away. You mean to tell me that those septics are polluting the Bay as far as 100 miles away, but are not polluting the wells 100+ feet away? Does that make sense? Whereby if records are checked, most municipal sewarage systems are dumping raw sewerage into the local waterways at some time during the year, esp. during heavy rain storms. Most muni sewarage systems do not comply with accepted emission standards, which is why many are seeking funds to upgrade their systems to comply. Is there any evidence that country people on septic systems are any less healthy than city people on public water/ sewer? Better wake up folks, there is more to this than meets the eye.

  2. Jack, perfectly brilliant response! This is serious stuff, my friend … check out the proposed bill released today!

  3. Jack Lynch says:

    Let’s not get too hyperbolic on septic and wells, the septics are placed to flow towards streams and away from wells, just as most of the rainfall either runs off or moves through the ground to streams.

    The septic numbers are in little dispuite among planners such as AA County in its WIP Phase II model, which shows about 40K septic systems, most older and failing – they seek to connect about half to existing wastewater treatments, then hope the overall mitigation will reduce to about 8 lbs Nitrogen per system – find the details at Wash COG:

  4. [...] in February of this year, this prediction became reality as we discussed in Farmland and Rural Building Lots face new threats from EPA. O’Malley revealed at that time his vision to ban septic systems throughout much of the state as [...]

  5. [...] These bans are also putting significant pressure on the ability of farms to remain profitable.  It is not impossible that agriculture could be “starved out” of Maryland altogether. [...]

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