Chesapeake Bay Action Plan

Despite all the rhetoric about how important it is to have an unpolluted and healthy Chesapeake Bay, sometimes you just have to wonder if anyone is really taking this Bay cleanup issue seriously. We’ve known for years now that agricultural operations in the Bay states are the number one source of nutrients and sediments to the watershed, yet neither state nor federal regulators have shown any willingness to do any of the things – permitting, compliance mandates and enforcement – that have worked well with so many other polluting industries.

While power plants, paper mills, sewage treatment plants and manufacturing plants have largely been cleaned up through the implementation of regulatory “stick” approaches, the chosen method of ag pollution abatement comprises of a series of unsuccessful, voluntary “carrot” approaches, including manure transport programs and nutrient trading.

After decades of failure, we’re about to reach new depths of futility with a bill, largely written by Maryland’s own Department of Agriculture, which was introduced this legislative session in Maryland by Senator Thomas Middleton. Middleton’s “Ag Certainty” bill will not only make certain that these highly polluting operations continue to pollute with officially sanctioned immunity, but it will also openly undermine the current Bay cleanup plan – the Bay Total Maximum Daily Load (TMDL).

Ag Certainty refers to a program under which agricultural operations that certify that they meet pollution reduction goals or certain pollution-control requirements will be deemed in compliance with existing and/or future water quality regulations and standards. In short, it’s a blanket immunity program designed to offer Big Ag a continuing free ride from mandatory pollution control and enforcement. Even worse, it ties regulator’s hands when it comes to implementing more protective water quality approaches when needed.

MDA and Senator Middleton’s Ag Certainty legislation could give Maryland’s roughly 5,000 farmers 10 years of immunity from any changes in future state regulation in exchange for what they are already supposed to be doing: complying with their existing nutrient management and soil conservation plans so that they don’t foul our public trust waterways.

While getting Ag to commit to current pollution abatement measures might sound like a good idea, locking in 10 more years of paper compliance with secret Nutrient Management Plans (NMPs) is a death sentence for the Bay. The Maryland Department of Agriculture likes to boast that 99 percent of farms in the state have submitted NMPs to the agency and the vast majority of farmers are complying with these plans, yet agriculture still remains the number one source of pollution in the Bay.

If farmers are all truly in compliance with their plans, this can only mean that the NMPs are broken. Plus, thanks to the recent Perdue litigation, we now know that NMPs are subject to manipulation by industry to avoid controlling pollution sources. The bill also expands on Maryland’s improper system of “Ag secrecy” to go along with its newfound certainty. Under existing state law (and the Ag Certainty bill), citizens are not even allowed to see the NMPs with which these farms are purportedly in compliance.

Ag certainty, with its immunity from future pollution abatement measures, also makes a mockery out of the Bay TMDL. Two years ago, EPA finalized this comprehensive “pollution diet” to restore clean water in the Chesapeake Bay and the region’s streams, creeks and rivers. Most importantly, to account for the “dynamic” nature of the Bay watershed and uncertain efficacy of the current plan, EPA built into the TMDL a set of checkpoints that allow for fine-tuning in case standards aren’t being met. Included in this accountability process are two-year milestones that represent key check-in points on the way to having all pollution reduction measures in place by 2025 to restore the Bay and its tidal rivers. Come 2017, the Bay TMDL calls for an even more comprehensive refinement of the plan should there be insufficient pollution reductions. EPA considers these milestones to be “a critical part of an accountability framework agreed upon by EPA and the states to assure progress.”

According to EPA’s TMDL Executive Summary, the Agency even dropped protective federal “backstops” (regulatory safety nets in case water quality was not being met) from the TMDL in exchange for some assurances from the states. For example, Maryland, Delaware and Virginia agreed to consider implementation of mandatory programs for agriculture by the end of this year if pollution reductions fall behind schedule. Not coincidentally, these are now the three states in the Bay Region that are developing Ag Certainty programs that will stop regulators from being able to make any shifts in the way Ag pollution is controlled should the Bay TMDL benchmarks not be reached.

MDA and Middleton’s Bill expressly exempts Ag operations from compliance with any changes in state or local laws necessary to meet the TMDL or the state Watershed Implementation Plans. So now Maryland, and other Bay states, are going from “mandatory” to “immunity” and those two-year checkpoints and 2017 re-visitation are rendered meaningless when it comes to the watershed’s biggest industrial source of pollution.

With Ag Certainty, we’ve just thrown a “critical” part of the TMDL out the window; the only real “certainty” that remains is that we’ll all be sitting down in 2025 again and try to come up with the next, great plan to clean up the Bay.

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A decision is expected soon in the highly publicized federal lawsuit Waterkeepers Alliance, Inc., vs. Alan and Kristen Hudson Farm and Perdue Farms, Inc. The outcome is anyone’s guess, but already testimony from the trial has made clear that Maryland’s effort to oversee and enforce nutrient management plans needs more muscle.

Nutrient management plans are developed to guide farmers in their fertilizer use and manure management to prevent water pollution. State officials say the plans are crucial to restoring Maryland’s waters. Yet testimony in this case shows how readily the process of developing and reviewing these required plans can go awry.

In the following excerpt, a lawyer for the Waterkeepers questions Mr. Hudson, the poultry grower, about his Comprehensive Nutrient Management Plan (CNMP), a plan he had developed during the lawsuit and paid for with public dollars.

Q:  In early February of 2012, in fact, February 15th of 2012, (the consultant who wrote the plan) sent you an updated [C]NMP, correct?

A:  Probably, yes.

Q:  But you told him that you needed to send it to your lawyers for comment, correct?

A:  Yes.

Q:  And then you got — you received information back (from the lawyer) – you called (the consultant), or he called you, and you had a phone conversation where you relayed the information on the changes that you wanted in the CNMP, correct?

A:  Probably.

Q:  And one of the changes you wanted removed was the notation that (the consultant) had made that in 2011 too much phosphorus had been applied on to some of your fields, correct?

A:  It could have been.

Q:  And another change that you asked him to make is (the consultant) had recommended what are known as vegetative environmental buffers, correct?

A:  He could have.

Q:  Well, those are the rows of trees that are planted in front of the fans to block emissions, correct?

A:  That’s what was in the plan.

Q:  That was in the plan. And you told him to take that out too?

A:  Yes.

Q:  There was also a pipe, a — that was going to be put in Ditch 3, correct?

A:  Yes.

Q:  And the purpose of the pipe in Ditch 3 was so that you could cover over Ditch 3 and plant vegetative buffers, so that the blow out of the fans would blow on to dirt in this area and not into the ditch, correct?

A:  That’s what was in the plan.

Q:  You told him to take that out?

A:  Yes.

Q:  (The consultant) also had a reference to dust from the poultry houses coming out. And you told him to take that out as well, didn’t you?

A:  Yes.

So, the farmer’s lawyer suggests the plan writer remove any mention that the poultry operation might pollute; the plan writer-paid with public money-alters his professional recommendations to satisfy this wish, and the farmer, whom it would seem from his testimony doesn’t want a plan to stop pollution, signs one that obfuscates his farm’s pollution sources.

Where does such a plan provide a public benefit in exchange for that public money?

Will the state officials catch it?

During the trial, officials of Maryland Department of Environment (MDE), the agency overseeing this CNMP, testified they visited the farm to verify basic facts like the number of chicken houses and had overlooked potential pollution routes, such as a pipe draining the production area. They said they had not been aware that measures to prevent pollution had been removed from the plan.

But one case can’t tell the tale for all farms, so to get a broader understanding consider this. The Maryland Department of Agriculture (MDA) and the MDE oversee the development and implementation of approximately 5,500 nutrient management plans, with MDA responsible for all but approximately 500 plans, the Comprehensive Nutrient Management Plans, which are written for farms that raise animals and which MDE oversees. Farmers are required to update their plans every three years and to file annual implementation reports detailing nutrient use. MDA checks to see the reports are filed, and in 2011 audited 450 farms to check on compliance.

The audits found 30 percent of farms had some problem: 20 percent had outdated plans; five percent revealed improper timing of nutrient applications, were incomplete, or backed by poor records; and five percent revealed an over application of nitrogen or phosphorus.

The department had to send 1,276 warning notices to farmers who had failed to file their implementation reports on time. By year’s end, 98 percent had submitted their reports, but 53 farmers failed to, and were fined.

I suspect, given the testimony, the 20 percent outdated plans, the slow reports on implementation, and oversight that borders on rubber-stamping, that MDE and MDA cannot ensure the development of effective plans or their enforcement as they are operating now. We need the legislature to fund enough MDA and MDE inspectors, stiffen penalties, and pass laws that will hold plan writers, farmers and growers and agri-businesses accountable for inadequate plans, and ultimately their pollution.

Dr. Tom Jones, President

Assateague Coastal Trust

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By Dave Sligh

First printed at: Advocates for the Clean Water Act (ACWA) blog, http://advocatesforcwa.org/wordpress/ -Please check other ACWA postings

Trial in the federal court case between Waterkeeper Alliance and the owners and operators of a poultry farm on the Delmarva peninsula in Maryland is set to begin on October 9th. This case has been painted, through an extensive and coordinated industry campaign, as a battle between radical environmentalists and beleaguered family farmers. That picture is grossly distorted.

The story is really a simple one. The Hudsons, who own the farm, and Perdue, Inc., which has a major part in operating it, have been accused of discharging pollution from the facility to nearby Franklin Branch and the Pocomoke River downstream and of violating the Clean Water Act and Maryland laws. State water quality officials refused to take action adequate to ensure that public safety and resources were protected, so the Assateague Coastkeeper and Waterkeeper Alliance stepped in.

The really interesting question is: who is behind the dishonest public relations blitz that’s been waged and who does it serve?

Conclusion: the agribusiness industry and it’s loyal adjunct the Farm Bureau.

The Allegations
If you believed the propaganda being spewed forth by Perdue and the farm-industrial complex, you’d think the Hudsons are being persecuted for forgetting to wipe their feet or letting fluffy, white feathers float out onto their pristine farm fields. Really! That’s the kind of chicken@*%$ they’re spreading around the countryside. Their absurd message: water quality advocates hate farmers and seek to torture them and destroy all farms.

If you think I’m exagerating, read the editorial by John Vogel at Farm Progress from April of this year. The title of Mr. Vogel’s piece signals the kind of reasoned and fact-based writing that is to follow: “‘Eco-terrorists’ incite a culture of fear.” He goes on to claim: “The suit alleges that dusty air from the chicken house’s fans and manure from the workers’ feet are polluting a tributary to the Pocomoke River, some seven miles away” and he compares water quality advocates to “crusaders” who used the weapon of fear and “caused countless atrocities over thousands of years.”

Below, from publicly available filings, are just a few of the seemingly sensible assertions upon which Waterkeepers based their claims that the Hudson farm was polluting public waters.  Mr. Vogel apparently missed these, surely through an oversight, for to purposely omit them would have been to intentionally mislead the public and inflame the situation:

• Alan Hudson received $24,591.88 of taxpayer money from the Maryland Agriculture Water Quality Cost Share (MACS) Program to install five “heavy use area” (HUA) pads outside his barns. To receive the funding, Mr. Hudson certified that the pads were required “to solve a water quality problem” at his chicken facility.
• Mr. Hudson certified that the water quality problem cited above was caused by “an agricultural facility area heavily used by animals, vehicles, and equipment leading to water quality degradation of the Pocomoke River.”
• Perdue listed the Hudson Farm as one of its top ten farms of concern due to environmental problems and prospective liability, out of 681 farms it helps operate in the Delmarva region.
• One of the heavy use pads the Hudsons planned to install was never constructed, despite the public funding provided, because the house was too near a drainage ditch that can carry pollution directly to Franklin Branch. Another pad was built at half the expected size, also because the water drainage ditch was too close and likely to be contaminated.
• Maryland Department of the Environment (MDE) inspectors and Perdue employees reported manure on the HUA pads on numerous occasions and the Perdue “Flock Supervisor” repeatedly instructed the Hudsons to clean the pads.
• Stream sampling conducted by MDE and by Waterkeepers (all deemed technically valid by experts from both sides) showed levels of pollutats that far exceeded those allowed under Marlyand law and the Clean Water Act, including levels of dangerous disease-causing bacteria hundreds of times those considered safe for human exposure. Samples taken downstream from the poultry areas showed pollutant levels much higher than those collected upstream of the facility.

So, to summarize the supposedly outrageous charges: The Hudsons and Perdue said there were pollution problems at the farm, the State of Maryland gave them public money to fix those problems, the solutions were only partly installed and not well maintained, and the stream was polluted as a result.

Power and Irresponsibility
One reality is that nobody wants families to be forced to stop farming. A second widely-understood reality is that the single greatest force driving farm families away from their traditional lives is the ever-growing domination of food production by huge companies like Perdue, Inc.

Those families who are trying to cling to their land and their heritage too often have to become “integrated” into the systems created and run by these mammoth corporations, because the farmers can see no other way to stay on their farms. People like the Hudsons aren’t factory farmers. They are farmers who’ve become cogs in Perdue’s industrial food machine.

The court will decide whether the Hudsons and Perdue violated the Clean Water Act and Maryland law but the assertions made by Waterkeeper and the Assateague Coastkeeper are anything but vicious or farfetched.  In fact, the exact kinds of pollution problems asserted here are identified on farms across the country every day.  The scale of operations in today’s dominant form of “farming” makes such problems inevitable. Way too many animals, producing too much manure, in much too small a space.

Even with this fact of life though, farmers are usually willing to make changes and eliminate problems when they can, and they get praised for doing so – even by those heartless environmentalists that Perdue, the Farm Bureau, and some politicians rage against. Further, not only do taxpayers help pay for improvements on thousands of farms every year, non-profit environmental groups chip in too. Members of the Waterkeeper Alliance from around the Chesapeake Bay watershed, and all around the U.S., help fund pollution improvements on farms and in communities and they provide planning and volunteer labor in many cases. They even work directly with farmers who choose to do the right thing.

This case involving the Hudsons would not be the public spectacle it has become if only the Hudsons had been named in the Waterkeepers’ original notice of intent to file suit. Perdue would not have raced to the aid of the Hudsons, hired expensive advertising firms, and rallied big money sources to finance this campaign, if the corporation had not also been named as a violator in the Waterkeeper complaint. (See Bob Gallagher’s article to learn about “Perdue’s PR Campaign of Deceit.”)

Perdue and the rest of the giants of industrial agriculture are afraid. Their vehement, nearly hysterical, attacks in this case, leveled at citizens insisting on clean water and conformance with the laws, proves they’re scared. They cannot admit that neither the Hudsons nor any other contract grower who works for an industrial food factory should be left holding the bag and the expense of dealing with the animal wastes their operations produce.

They are frantic, because they could finally face the responsibility that has been theirs all along. Both owners and operators of discharging facilities are legally bound to prevent or clean up their pollution. Below is a small sampling of the evidence Waterkeeper Alliance presents to prove that Perdue is the dominant force in operating the poultry facilities on the Hudsons’ property:

• “Growers,” such as the Hudsons, are required to sign an agreement provided by Perdue if they want to raise birds for them. Perdue can end the agreement without notice or reason.
• Perdue owns the birds they send to the Hudsons and sets all of the conditions under which the birds are raised. The Hudsons are not allowed to deviate from the instructions Perdue gives them.
• The Hudsons have to use the feed, drugs, fuels, disinfectants and other supplies Perdue tells them to use.  Perdue furnishes many of these items and arranges for the veterinary care of the birds.
• Perdue has the unrestricted right to enter the Hudson’s property and inspect the flock and the facilities. During some months, Perdue officials have been on-site as often as every other day.
• When Perdue officials are on the Hudsons’ farm, they can and often do, take direct actions to maintain and operate the facility and look after the birds. They install equipment, adjust gages and controls, cull birds from the flocks and perform many other tasks.
• When Perdue officials aren’t directly performing tasks at the Hudson’s farm, they provide the family with extensive and detailed notes on actions they want taken. The Hudson’s are expected to carry out these instructions.
• Perdue controls visitor access to the Hudsons’ poultry production facilities.

Perdue is correct about one message presented in its public relations campaign against reasonable environmental enforcement. The Hudsons should not bear the cost of a lawsuit and possible penalties alone – Perdue should pay to clean up its messes in direct proportion to the profits it shares with the Hudsons.

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Posted By Gerald W. Winegrad, Walter Boynton, Thomas R. Fisher, Bernie Fowler, Parris N. Glendening and Tom Horton

After 28 years of formal efforts to restore the Chesapeake Bay, the single most successful efforts have been in curbing bay-choking nutrient pollutants from sewerage treatment plants, so-called “point sources” from pipes. Maryland has been a leader in these efforts with passage of the Flush Tax in 2004 and its extension in 2012. This will assure that 69 of the largest Maryland plants will be removing both phosphorus and nitrogen to very low levels, approaching the limits of technology. These efforts are paid for by most Marylanders by fees on water and sewer bills.

Maryland is expected to meet strict nutrient reduction targets under the EPA-imposed bay pollution diet (known as the TMDL) by 2017. The state will accomplish much of that effort through these improvements to wastewater plants. Unfortunately, by 2020, the amount of nutrient pollutants will rise again and continue to rise as population increases and more wastewater flows to these plants. This is after the expenditure of more than $1.4 billion on these upgrades.

To significantly reduce nutrient pollution and meet the EPA deadlines, Maryland (and all bay states) have to do much more to reduce the flow of pollutants from nonpoint source runoff, primarily from agriculture and developed urban areas. The substantial fish kills in Baltimore area creeks and rivers reported in the past weeks by The Sun are linked to such nutrient pollution.

These nonpoint sources contribute around 80 percent of the nutrients and all of the human-caused sediment destroying the bay’s water quality and living resources. The addition of chicken manure and fertilizer to row crops on the Eastern Shore exacerbates the problem, as many creeks and rivers on the shore are seriously degraded by nutrient and sediment pollutants, the vast majority of which come from farm lands.

The Senior Scientists and Policymakers for the Bay, of which we are all members, found that the voluntary, collaborative approach under the bay program has not worked, and current efforts have been insufficient and are failing. The group found the main barriers to restoration were these nonpoint sources: agricultural pollution and the pollution from new and previously developed areas.

Agriculture is the greatest source of nutrients and sediment pollution to the bay and the most cost-effective pollution source from which to achieve reductions. We write to re-affirm the critical need to better address nonpoint pollution and to abandon the current, mostly voluntary, efforts to curb farm pollution.

The O’Malley Administration has a major opportunity to assert leadership in addressing these farm pollution sources coming from more than a million tons of untreated farm animal manure and millions of pounds of chemical fertilizers applied to farmlands. The pending nutrient management regulations from Maryland’s Department of Agriculture are long overdue, and as proposed, they fall well short of what is needed and supported by sound science.

We stand behind theBay Scientists group’s unanimous conclusion that all raw, untreated farm animal manure be handled the same as treated human sludge when placed on farm fields.  The Maryland Department of Environment has strictly regulated human sludge since 1985. Why should the land application of untreated animal waste be treated differently than the treated sewage sludge from advanced wastewater treatment plants that destroy pathogens and remove all or a high percentage of contaminants? (Here is a copy of the letter sent to Governor in December 2012 on this subject)

Specifically, the proposed regulations from MDA should mirror the MDE requirements for human biosolids and should:

•Prohibit winter application of manure and all nutrients from November 1 through March 1. This requirement should be met beginning on October 1, 2013 and not be postponed until 2016 as proposed by MDA. The prohibition should be from November 1 statewide and not be allowed to slip to November 16 for all western shore farms as proposed by MDA. This two-week period is critical to prevent much more nutrient pollution.

•Require all manure and biosolids to be incorporated into the soil by the end of each working day. Allowing a 48-hour deadline, as proposed by MDA, would allow for the release of much more nutrients.

•Prohibit the application of manure and other phosphorus-containing nutrients to agricultural land where the soils are already phosphorus saturated (as is the case in a large fraction of Maryland’s Eastern Shore farmland). The MDA proposed regulations do not change the weak current requirements on this.

•Require the planting of a winter cereal grain cover crop by October 31 when manure or biosolids are applied earlier, which the proposed regulations do not require.

•Establish buffers as exist for sludge applications to protect streams and rivers from runoff, including a 100- foot buffer in the critical area. The proposed MDA changes only require a maximum 35-foot buffer, with significant exceptions, and the proposed changes do not cover ditches and other water bodies covered under the MDE regulations for sludge applications.

Finally, it is critical that MDE be given joint authority with MDA for adequate monitoring and enforcement of the provisions of the nutrient management regulations. Current farming practices are not being properly monitored, and laws are not properly enforced.

The requirements for human sludge have assured that only 25 percent of treated sewage sludge is applied to Maryland agricultural land. Nearly 90 percent of farm animal manure is deposited on farm fields. Sensibly regulating farm pollutants as noted above would reduce nitrogen pollution by more than removing all 425,000 septic systems in Maryland and would remove much more of the polluting phosphorus.

Unlike the Flush Tax, these changes might not cost the taxpayer a dime unless farm operatorsapply for the many grants available to them. For example, the Maryland Agricultural Cost Share Program has provided about $140 million in taxpayer funded grants to farmers, including up to 87.5 percent of the cost of manure handling structures as well as subsidies to transport manure off the farm where it is produced. (here is a letter from farmers expressing support for stronger regulations)

If the O’Malley administration does not stand up to the opposition from the agriculture lobby and the major chicken conglomerates that have successfully blocked the necessary changes to farm practices, efforts to restore the bay could be doomed. Maryland has been and must again assert leadership and properly regulate farm pollutants, particularly from manure. We can turn around the decline of the Chesapeake Bay estuary, but not with half-measures.

Gerald W. Winegrad and Bernie Fowler are former members of the Maryland Senate. Parris Glendening is a former Maryland governor. Walter Boynton is an ecologist with the University of Maryland’s Chesapeake Biological Laboratory. Thomas Fisher is a professor at the University of Maryland Center for Environmental Science. Tom Horton is an author and former Sun reporter. The views expressed are their own and not necessarily those of the organizations with which they are affiliated.

This post was published on June 18, 2012 in the Baltimore Sun:

www.baltimoresun.com/news/opinion/oped/bs-ed-manure-regulations-20120617,0,1876551.story

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(Posted by Gerald Winegrad)
 
The Maryland Department of Agriculture announced the development of weakened proposed regulations that are well short of the positions advocated by the Senior Scientists and Policymakers for the Bay to address the pollution from millions of tons of chicken and other farm animal manure that is poisoning ground and surface waters.  Some key elements of the proposals don’t even go into effect until 2016, allowing four more years to do just some of what has been required for land application of treated human sludge since 1985!

The reports from the University of Maryland scientists appointed by the Administration were kept from us and the public until just before the announcement of the proposals for regulations. These scientists recommended much more than was incorporated into the regulations and noted that the EPA’s Bay Program found that farm animal manure is responsible for 24 percent of the phosphorus (this is more than all the municipal WWTPs and industrial dischargers) and 15 percent of the nitrogen flowing to and choking the Bay. This does not include the atmospheric contribution of nitrogen from the volatilization of manure and fertilizer, and subsequent atmospheric deposition of the nitrates estimated at 7% of total bay nitrogen. Septic tanks Baywide are somewhere around 3 percent of the nitrogen, near zero of the phosphorus and for Maryland it’s 6 percent of the nitrogen and near zero of the phosphorous.

Please see our letter to the Governor’s Bay Cabinet urging action on new regulations. The new regulations ignore our science-based recommendations to conform chicken manure and other animal waste and nutrients placed on farm fields with the 1985 requirements for treated human sludge including:  prohibition on winter application after November 1, better buffer requirements including a 100′ buffer in the Critical Area, and a prohibition on the application of manure and other nutrients with phosphorus when the soils are already super-saturated with phosphorus. Also rejected was a requirement that there be adequate monitoring and enforcement of the Nutrient Management Regulations, which is currently lacking.

Please see The Sun article on the cozy relationship between Governor O’Malley and Perdue’s General Counsel and the Food and Water watch release on this issue.

It’s hard to win when you are playing against a stacked deck.

Also see the letter from two full-time working farmers on the need for better nutrient management regulations and in support of our positions.

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