SUSSEX COUNTY, Del. -- While Eastern Shore poultry farmers face tough new restrictions on manure pollution of the Chesapeake Bay, their counterparts upstream in Delaware operate under some of this region's weakest environmental scrutiny.
Delaware's environmental controls are so lax that a U.S. Environmental Protection Agency official is warning that the state must quickly improve on its current "Boy Scout pledge" approach to reducing poultry pollution or the agency will intervene.
The differing approaches by the states are most apparent on the Nanticoke River, which runs through Delaware and Maryland and carries excessive loads of "nutrients" -- nitrogen and phosphorus, prime Chesapeake pollutants.
Almost two-thirds of the Nanticoke's drainage basin is in southern Delaware, mostly Sussex County, the nation's No. 1 poultry producing county.
There, waste from about 200 million chickens a year has been linked to polluted drinking-water wells and to outbreaks of algae harmful to marine life in the bays along Delaware's ocean coast.
On the Nanticoke, which also receives smaller amounts of nutrients from human sewage, nitrogen and phosphorus appear to have increased sharply in recent decades, according to Thomas Jones, a biology professor at Salisbury State University.
Phosphorus particularly seems to be passing from the river into the Chesapeake at levels up to 10 times the average levels in the bay.
Such overloading of nutrients is a major cause of the bay's loss of sea grasses and declines in oxygen. It is also suspected of triggering outbreaks of the toxic microorganism Pfiesteria piscicida, though that has not happened in the Nanticoke.
Outside anti-pollution pact
Delaware, with just 1 percent of the Chesapeake Bay's watershed, was not part of the agreement more than a decade ago among Maryland, Virginia and Pennsylvania to reduce nutrient pollution to the bay by 40 percent.
However, Delaware's 1 percent of the bay's drainage accounts for 2 percent of its nutrients, according to the EPA's Chesapeake Bay Program.
Delaware includes upstream portions of several other Eastern Shore rivers struggling with polluted runoff. These include the Choptank, Chester and Pocomoke. Delaware's share of those watersheds ranges from 6 percent to 17 percent.
With the recent adoption of new poultry-waste controls in Maryland and Virginia and an earlier nutrient-control law in Pennsylvania, Delaware's inattention to the problem has become more glaring.
"When we start looking at all those [bay] rivers with parts of their watersheds in Delaware, and the number of chickens they grow in those areas, it's very significant, it's a concern," said Tom Simpson, the liaison between Maryland's Department of Agriculture and the Chesapeake Bay Program.
Recently, Delaware has been pushed as never before to do something about its poultry-waste problem, though how that will translate into action is still anyone's guess.
"We're going to change. I don't think we have a choice any longer," said Henry C. Johnson III, a poultry farmer on an advisory committee asked by Delaware Gov. Thomas R. Carper to come up with a nutrient-reduction plan for this year's state legislative session.
Delaware is on a court-ordered timetable to set nutrient-reduction goals for its waterways, the result of a settlement between the EPA and environmental groups that sued the agency for not enforcing the Clean Water Act in the state.
But there is no deadline for achieving these goals, as with next year's nutrient-reduction deadline for Maryland on the Chesapeake. And W. Michael McCabe, the EPA's director for the region that includes Delaware and the Chesapeake, concedes, "There are no teeth in how [Delaware] implements and enforces this."
The bulk of the Nanticoke system's navigable water flows through Maryland's Lower Eastern Shore -- past long, scenic stretches of unbroken forest, wooded swamp and big tidal marshes.
Nutrient overload
Nothing indicates to the eye that the river is carrying loads of nutrients -- nitrogen and phosphorus -- well above healthy levels for the bay.
Agriculture, septic systems and sewage-treatment plants are contributors the length of the river, Jones says, but without better control of poultry waste from upstream, Maryland is unlikely to meet its cleanup goals for the river.
Delaware is also motivated by the specter of a Pfiesteria outbreak, but the focus is not on the Nanticoke. Rather, it is on the state's coastal bays -- Indian River, Rehoboth and Little Assawoman, which drain the other side of Sussex County.
Pfiesteria has been confirmed in some of the inland bays, and though it has not become toxic, a variety of red tides, brown tides and other algae blooms harmful to marine life have occurred. Such outbreaks have the potential to devastate seaside tourism, an industry that trails only poultry and chemicals in importance to Delaware.
As with the bay, the suspected culprit is nutrient runoff.
"All of these, including Pfiesteria, are related to excesses of nutrients," says Kent S. Price, a marine ecologist with the University of Delaware.
Delaware's coastal bays are receiving so many more nutrients than they can naturally absorb that Price estimates it would take a 10-fold reduction to restore them to a level comparable to Chincoteague Bay's.
High nitrogen levels
Nitrogen, which easily soaks into the ground, has also increased in Sussex's residential drinking-water wells to an average of 25 to 30 times natural levels. An estimated fifth of all wells there equal or exceed federal safety levels for drinking water -- 50 times natural levels of nitrate.
Phosphorus is the most controversial target of Maryland's new poultry regulations. Because soil in poultry areas is so loaded with it, spreading more manure on crops -- the accepted disposal method -- might be impossible for years in some fields.
In Sussex, studies show, about two-thirds of farm soil is saturated with phosphorus and most of the rest has as much as crops need. When the soil is saturated, phosphorus begins to run off, polluting waterways.
A draft study by the University of Delaware estimates that soil draining to the inland bays is accumulating excess phosphorus at the rate of 4 million pounds each year, "leaking" about 128,000 pounds a year into the inland bays.
Price says nutrient buildup in soil and wells on the less-studied Nanticoke side of Sussex is similar.
Aggravating the problem is Delaware's traditional abhorrence of regulating agriculture.
When Carper, a Democrat, became governor, he replaced his secretary of natural resources and environmental control, Toby Clark, who had upset farmers by pushing modest reductions in polluted farm runoff and protection of nontidal wetlands. Clark recalls that Carper "wanted less controversy with environmental programs."
His replacement, former congressional aide Christophe A. G. Tulou, made scarcely a ripple in the farm community during the past five years and did not change his principal home from Washington.
'A game of chicken'
Carper's major response to mounting pressure to deal with poultry waste has been to appoint an advisory committee to suggest legislation. But with nine of its 10 members chicken farmers or connected to agribusiness, few people expect much.
"So far, what they've proposed has been what I'd call the Boy Scout pledge approach, which has not been effective in the past," says the EPA's McCabe.
McCabe says his agency will act if Delaware doesn't pass meaningful legislation this year. But he concedes that the agency prefers that the state manage its poultry-waste problems.
"What's going on is basically a game of chicken between the state and the feds," says John L. Martin, formerly an environmental waste-management expert at the University of Delaware. He adds, "There's less denial of the problems from agriculture now than when I came in 1993. In Delaware, that amounts to progress."
Delaware is "a different culture than Maryland," says William Matuszeski, director of the Chesapeake Bay Program and former Delawarean.
"In Maryland, the Western Shore cares about Chesapeake Bay and will legislate solutions on the Eastern Shore. In Delaware, upstate [with 80 percent of the population] sees itself as part of the Washington-New York corridor. It doesn't flex its political muscle downstate, and agriculture, which is well-represented politically downstate, has pretty much had its way."
Programs are 'doable'
Others think Delaware will eventually get on a par with Maryland -- in its own way.
"Farmers are violently opposed to any approach like Maryland's, but I really feel a lot of programs, like changing poultry feed [to reduce nutrients in waste] and converting [waste] to energy, are doable," said Kevin Donnelly of Delaware's Department of Natural Resources and Environmental Control. "We'll get there, but it'll take us a few years."
And Kenneth Bounds, president of DelMarVa Poultry Industry Inc., the trade group representing poultry processors in Maryland and Delaware, believes "Delaware's approach may prove the best" -- noting that if Maryland's regulations escalate, the poultry industry could leave.
EPA's McCabe acknowledged that "in Delaware, the agricultural interests can block just about anything they don't want."
But, he said, "We are prepared to act. You don't want Delaware becoming a safe haven for companies that don't comply with environmental cleanups when other states are."