By Timothy B. Wheeler, The Baltimore Sun
February 2, 2013
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."
"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.
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