"It's no benefit to farmers to over-apply nutrients," she said. Spreading fertilizer that's not needed simply takes money out of growers' pockets, she added. "I think most farmers are in compliance and are good stewards."

Activists point out that testimony during the Waterkeeper trial indicated that Hudson operated without a valid nutrient management plan for several years and did not keep required records of how much fertilizer he used.

The state agriculture department "could have easily verified that he didn't have [a plan] by checking their files, but they didn't bother," said Edwards.

The state doesn't make farmers file plans every year, but does require annual reports attesting that they have current plans and follow them. Hudson testified he filed those reports, even though he hadn't updated his plan.

The state's agriculture secretary, Earl F. "Buddy" Hance, who attended the trial to support the Hudsons, insisted that the majority of farmers do what they're supposed to.

The agriculture secretary defended his department's oversight of the nutrient management program, saying he has a staff of eight to check on 5,700 farms, down one position in an agency that's seen its staffing shrink 12 percent to 15 percent in the past five or six years.

"Some farmers think some of this stuff is just a big hassle," Hance acknowledged. But he said he believed most farmers realize why they need to track their fertilizer use, adding that the Hudson case may heighten awareness of the importance.

"We'd like to see 100 percent compliance, just like everyone else," Hance concluded. "But we at least take some comfort in the fact that the most outstanding issues we do find are paperwork and not issues that have a direct impact on water quality."

But state inspections of most farms to date have been limited to checking a farmer's paperwork. Royden Powell III, assistant agriculture secretary, said inspectors don't normally review the farm itself looking for runoff problems, but will do so in future years as new rules take effect.

In the case of poultry farms, stricter oversight is already supposed to be in place. Regulations imposed three years ago, just before the Hudson lawsuit was filed, require large livestock and poultry farms to apply for permits from the Maryland Department of the Environment, just as a factory or any other industry would.

The growers must also submit "comprehensive nutrient management plans," which not only limit how much fertilizer they can use but spell out steps to be taken to minimize runoff.

Statewide, 608 farms have filed notices in the past three years with the state agency that they intend to apply for permits for their large-scale livestock operations.

But a shortage of consultants qualified to prepare the farms' more comprehensive nutrient management plans has delayed the process. As of November, regulators have finished reviewing just 274. Those without permits still must pledge to comply with state regulations and follow recommended conservation practices.

Horacio Tablada, the environment department's land programs manager, said he has six people to oversee large-scale animal operations. Since the regulatory program began in December 2009, his staff has inspected 585 farms, he said, some more than once.

So far, Tablada said, his staff has focused on seeing that all chicken farms that should have a permit have applied for one. Violators initially got warnings, but in the past year the department has begun issuing violation notices and fining farmers. The agency cited 13 farms and took additional action in one case, he said. It also collected $8,350 in penalties from two farms found out of compliance.

"Now we're ... increasing the level of enforcement, as the program becomes more mature and people become more aware of it," Tablada said. "In the beginning people can argue, 'I didn't know.' I don't think many can argue that now."

But Tablada said he wasn't that familiar with the Waterkeeper lawsuit or the contention that farmer Alan Hudson had altered his plan. His agency relies on the consultants who write the plans, he said, and those professionals certify that their work meets federal standards.

"If it's something obvious, we're going to correct that," he said.

Environmental activists contend the Waterkeeper case shows the state needs more inspectors to ensure farms are complying with water pollution laws. They say it also indicates the state needs to scrutinize the pollution-prevention plans themselves to ensure they're not being manipulated.

The state recently adopted new regulations for farmers aimed at reducing polluted runoff by limiting how and when they can spread fertilizer on their fields, and requiring them to keep their livestock away from water. The new rules, which are to be phased in over several years, will require more comprehensive inspection of farms, state agriculture officials say.

Gov. Martin O'Malley, in his budget request for the coming year, did not ask for funds to hire additional farm inspectors. Powell said the number of staff visiting farms from the agriculture department has been increased by shifting employees' duties.

tim.wheeler@baltsun.com

  • Text NEWS to 70701 to get Baltimore Sun local news text alerts