The Chesapeake Bay Foundation (CBF) filed a lawsuit against the Maryland Department of the Environment (MDE) contesting the legality of the wastewater discharge permit it issued for Lakeside at Trappe. ShoreRivers also is challenging the discharge permit.
The permit, which MDE approved in December, allows the proposed 2,500 home and commercial development in Talbot County to use spray irrigation over farm fields to dispose of treated wastewater, CBF said in a press release.
Under the permit the development can spray up to 540,000 gallons of treated wastewater per day over the fields. The treated wastewater must contain no more than 3 mg/L of nitrogen and 0.3 mg/L of phosphorus on average before being applied to the fields.
While this is the standard for wastewater plants disposing of treated wastewater, the current assumption for wastewater disposed onto fields — as is proposed in this project — is no net pollutants once it leaves the field, according to CBF. Nitrogen and phosphorus from treated wastewater can fuel harmful algal blooms in local rivers, streams, and the Chesapeake Bay that create oxygen-deprived dead zones inhospitable to marine life.
In a press release, CBF outlined two primary concerns related to this method of wastewater disposal.
The first is that the department did not fully account for the connection between groundwater and surface water. Multiple studies have shown that even under the best conditions, nutrient pollutants applied to agricultural land can reach nearby streams through shallow aquifers under farm fields.
However, MDE asserted, without sufficient evidence, that the nitrogen and phosphorus in the wastewater will be taken up by crops in the spray field, according to CBF. MDE contends that this will effectively result in “zero net discharge” of pollutants to local waterways, which may enable the development and MDE to bypass requirements to reduce pollutants under the Chesapeake Clean Water Blueprint, also known as the Chesapeake Bay Total Maximum Daily Load.
Neither the department, nor the developer has effectively proven that this plan to dispose wastewater won’t increase pollutants entering the Bay.
The second issue is that MDE did not publish the nutrient management plan for the project during the public comment period. The plan is intended to demonstrate how the proposed development would use specific crops to take up nutrients in the wastewater being sprayed on the field to prevent them from entering nearby waterways.
Instead, MDE accepted the plan after the public comment period was closed and deemed it “satisfactory” without providing the public with an opportunity to weigh in on it, CBF said in a press release.
The development is being built near Miles Creek and the Choptank River. The Lower Choptank River is already impaired by sediments, nutrient pollutants, and fecal coliform in its tidal portions.
“The department’s approval of this wastewater permit sets a risky new precedent enabling large developments to use spray irrigation to bypass Bay pollution reduction requirements,” Alan Girard, CBF’s Maryland Eastern Shore director, said. “We already know legacy pollutants such as fertilizer, manure, and chemicals can seep from the ground via groundwater and flow into nearby streams and creeks. However, by claiming the Bay TMDL that obligates Maryland to reduce pollution is not applicable to wastewater treatment plants that use spray irrigation, the department has basically ignored that fact.
“This appears to circumvent established state policy to manage water quality. The state must account for pollution from septic systems that discharge to groundwater, but by obtaining a state groundwater discharge permit to spray irrigate instead, developers will be able to ignore these limits,” Girard said. “We are deeply disturbed that the department will not close this loophole that allows the state to disregard Bay restoration requirements.
“MDE must also follow its own public notice regulations, which it did not do in this case. While the department did eventually make the nutrient management plan for this project available, it did not do so when the formal public comment period was open as required by law,” he said. “This is unfair to those who could be affected by the pollution that this project could generate, and we are asking the court to recognize this fact. There are substantive issues with the plan and its application here which could have been addressed through the public notice and comment process.”Petition for Judicial Review 2-1-21