As large-scale poultry farmers are required to do, Alan Hudson of Berlin filed a plan last year with Maryland environmental regulators spelling out how he intended to prevent manure from his flocks from fouling the Chesapeake Bay.
Hudson had hired a consultant to write the plan, but before submitting it he made the consultant remove recommendations that he take steps to prevent manure blown out of his chicken houses by ventilation fans from reaching a drainage ditch, according to court documents and testimony in a recent trial. He also had a statement deleted about how he had put too much fertilizer on some fields the previous year.
Hudson's revisions came to light during a trial that cleared the Eastern Shore farmer and poultry producer Perdue of allegations that they fouled the Pocomoke River. While environmentalists have not appealed the decision, they say the case demonstrates problems with how Maryland oversees farm pollution and the failings of a system that relies on plans created by the farmers themselves.
"The trial has helped expose … what a lot of us had suspected all along," said Assateague Coastkeeper Kathy Phillips, who helped bring the lawsuit, "that the nutrient management program in the state looks great on paper, but it's not really implemented."
Maryland law requires all but the smallest farms to follow "nutrient management" plans limiting how much chemical fertilizer and manure they place on their fields. Medium- and large-scale livestock and poultry farms like Hudson's must also follow conservation plans that spell out how they will prevent their animals' waste from washing or blowing into drainage ditches and streams.
Agriculture is the largest single source of nutrient pollution fouling the Chesapeake Bay, according to the Environmental Protection Agency. Fertilizer and manure runoff from farms is a major contributor to the algae blooms and fish-suffocating "dead zone" that form every summer in the bay.
According to the Maryland Department of Agriculture, nearly 100 percent of the 5,433 farms required to prepare nutrient management plans had done so by the end of June. But many plans are not up to date or complete, and some are not being followed.
The department launched enforcement actions against five farmers and fined one $350 for not having a plan in the year ended June 30. It also fined 43 farmers $10,700 for late or missing annual reports.
Over the same time, the department conducted on-farm audits of roughly 10 percent of the farms. Major violations of the state nutrient management regulations were found at one out of every three farms visited by state agriculture specialists, according to the department's report. Even after follow-up visits, more than a quarter of the farms checked still were not in compliance with state laws and regulations.
The majority of violations were for expired plans. One in 12 farms checked, however, was found to be applying too much fertilizer to crops, raising the likelihood that some would wash off into ditches and streams. That was twice the rate of farms applying too much fertilizer two years earlier. The department issued 189 warnings and fined six farmers a total of $1,100 for failing to promptly fix problems with their plans.
Overall, the compliance rate found among farms whose plans were audited has ranged between 60 percent and 70 percent during the past three years.
Farm bureau leaders contend that farmers are doing their part to clean up the bay.
Asked during the trial why he removed pollution-control recommendations from his plan, Hudson testified: "I didn't think we needed them." His lawyer, George F. Ritchie IV, declined to discuss his client's reasons, citing attorney-client privilege. Hudson, who said after the verdict that he just wanted to put the legal ordeal behind him and his family, could not be reached to comment further.
The Waterkeeper Alliance, the plaintiff in the lawsuit, alleged that Hudson's chicken operation fouled the ditch in the way the consultant suggested it could. Lawyers for Perdue, for whom Hudson raised the birds, argued successfully that any pollution in the ditches had to be from Hudson's cows, which were not required to be kept away from the ditches.
State environmental officials say they're still reviewing the Hudson farm's plan and checking with federal agriculture officials to see if the document was prepared properly.
"What's wrong here is the entire system," said Scott Edwards of Food & Water Watch, former legal director for the Waterkeeper Alliance, the New York-based group that pursued the Hudson case. "They can have Alan Hudson rewrite his [plan], but what about all the other [plans]?"
Edwards said the plans are vital because they are "literally the only way to regulate farm pollution."
"That's the document that dictates whether a farm is going to pollute or not and how much pollution is going to come off it," Edwards said. "So they have to be constructed carefully, they have to be exact and valid."
The plans are supposed to be written either by University of Maryland specialists, government-certified consultants or by the farmers themselves if they've been trained and certified by the state. The state checks them, but no one checks the state; most of the plans are not available for the public to see. State law bars the disclosure of any identifiable farm's plan, though any documents filed by large-scale poultry or livestock farms to get federal permits are public documents.
Patricia Langenfelder, president of the Maryland Farm Bureau, said most farmers are complying with the law. Of those found to be spreading too much fertilizer, she said, "If you turn that around, that's 92 percent that are following the rules."