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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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 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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(Posted by Gerald Winegrad)

In his continuing efforts to undermine Chesapeake Bay restoration, Congressman Bob Goodlatte (R-Va.) has introduced HR 4153 along with Rep. Tim Holden (D-Penn.). The legislation is another attempt to prevent the EPA from implementing the long-awaited, court-ordered Chesapeake Bay restoration plan known as the Chesapeake TMDL (total maximum daily load). The pollution diet under the TMDL was necessitated by the Bay states’ repeated failures over decades to meet agreed upon reductions for nutrient and sediment pollutants so as to clean-up the 90% of the Bay that is so polluted that the Clean Water Act is violated.

As Doug Siglin, the Chesapeake Bay Foundation’s Congressional affairs guru said in a statement,

“Congressman Goodlatte’s bill would undermine the pollution limits currently in place, derail clean-up efforts, and undercut the federal government’s role in making sure that all Americans have access to clean, swimmable, fishable waters. The federal government has a key role to play in the restoration of local rivers, streams, and the Chesapeake Bay, and we urge all members of Congress to steer well clear of this damaging legislation.”

Reps. Goodlatte and Holden appear to be handmaidens of the farm lobby as the legislation raises some of the very issues the American Farm Bureau and national lobbying arms of the grain and poultry industries have used to try and block Bay restoration plans in their federal law suit.

In February 2011, Rep. Goodlatte succeeded in attaching an amendment to the must-pass FY2011 continuing resolution to fund the federal agencies that would have prevented the EPA from implementing the Bay pollution diet under the TMDL. Our Senior Scientists and Policymakers for the Bay interceded and prepared and sent a letter to Congress on behalf of 60 Bay leader signatories opposing this outrageous effort. (See previous post: Goodlatte Amendment Is a Travesty for the Bay.)

These leaders include two former Governors, a former U.S. Senator, a former Congressman, current and former State Senators, a current County Council member, two former secretaries of Natural Resources from Virginia and Maryland, a former Secretary of the Maryland Department of Environment, top senior Bay scientists and conservation leaders. These signatories include Democrats and Republicans.

The amendment was rejected in the Senate and did not become law. (See previous post: Congressman Goodlatte and You.)

Now, we must fight yet another attempt to destroy ongoing efforts to once and for all clean-up the Bay and meet federal Clean Water Act requirements. We need to let Congress know that it is well past the time to face up to the reality of the need for ramped-up efforts to restore this great estuary.

If you disagree with this harmful legislation, tell Rep. Goodlatte how you feel by leaving him a message on his Facebook page, or
sending him a Tweet, to @repgoodlatte.

Let him know how you feel.

Gerald Winegrad is a former Maryland state senator and chairman of Senior Scientists and Policymakers for the Bay.

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(Posted by Roy Hoagland.)

When farmers talk, legislators listen. And when a farmer talks in support of new farming regulations, legislators really listen.

Two Maryland farmers recently told a committee of their state legislators that they wanted to see stricter and better controls on farms. In particular, they supported new proposals that included halting the spreading of manure on farm fields during the winter.

These two farmers are traditional farmers in every sense of the word: They graze their cows. They harvest their eggs from chicken coops. One of their farms dates from the 1700s.

This new breed of traditional farmers is a far cry from the corporate agribusinesses that support the American Farm Bureau Federation and lobby legislators. And they are speaking out for better management of farms and a better environment.

But when a farmer is not clothed in the garb of the organized farm lobby like the Farm Bureau, legislators can be dismissive. That is what one legislator sought to do when these two farmers spoke. They were not “feeding the nation” like other farmers, the legislator said. Yet these two farmers raise poultry and beef, eggs and vegetables, providing commercially available food for the public and restaurants.

They are part of the new breed of traditional farmers that is growing in America. A breed that argues for farming as we know it: farming that has a tie to the land and the community it inhabits, farming that looks to profitable outcomes as well as a healthier environment.

Let’s hope more of their voices are heard more often. And let’s hope legislators really listen.

Roy A. Hoagland, the principal/owner of HOPE Impacts, partners with nonprofits, foundations, and government agencies on Chesapeake Bay restoration matters. An environmental attorney, he is a former vice president for policy and advocacy with the Chesapeake Bay Foundation.

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