Chesapeake Bay Action Plan

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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Thousands of tons of raw animal manure is put on Maryland farm fields each year from tens of millions of chickens and hundreds of thousands of pigs, cows, and other farm animals. Under pressure to reduce this significant source of Bay pollutants, the Maryland Department of Agriculture proposed soft new nutrient management regulations to deal with this problem last October but withdrew them under pressure from the farm and environmental community. These regulations were to better manage the farm application of manure, human sludge, and other fertilizers but were greatly weakened to meet the objections of the ag lobby.

After eight months of negotiations and efforts to strengthen the regulations as we have advocated in our Bay Action Plan [Nutrient Management Letter to Governor-Bay Cabinet], new regulations were proposed and published in the Maryland Register on June 29. These regs are still much too weak and fall well short of the Senior Scientists and Policymakers for the Bay science-based positions. Representatives of our group had discussed our positions in detail with the Bay Cabinet at a meeting last September. We have continued to advocate these common sense positions and members of our group sent detailed letter to the Governor and published an Op-ed in the Baltimore Sun ]NMR Sun OpEd No more half-measures June 18 2012 detailing the need for better management of animal manure and other nutrients.

Essentially, our recommendations center on the belief that that all animal manure—and all biosolids—should be regulated the same as human sludge from advanced wastewater treatment plants is regulated under MDE regs when these nutrient-containing materials are applied to farm land. Working with all major Maryland environmental groups, our recomemndations were fine tuned and those of other groups were combined in a JOINT STATEMENT calling for the adoption of the proposed regulations with 8 ESSENTIAL CHANGES. These changes address the shortcomings in the proposed manure regulations. The 8 Essential Changes in the proposed regs would do a lot to reduce nutrients that are choking the Bay–more than almost any other proposed or current law or regulation. NMR ENVIRO STATEMENT W Sign ons July 3 2012

WHAT CAN YOU DO?

The conservation community needs your help in working to gain the changes we have long supported. Remember the serious diseased fish and human infections in 1997 linked to excess nutrients from manure and other farm activities? Here’s help you can help in our uphill battle to improve the regulations:

1. SEND IN AN EMAILED LTR OF SUPPORT TO THE AELR COMMITTEE.

The Joint Committee on Administrative, Executive, and Legislative Review held a legislative hearing on July 10 at which the Maryland Farm Bureau and rural legislators attacked the proposed regulations. Conservation groups testified in support of the adoption of the proposed regulations with the 8 Essential Changes. Please send a letter supporting the adoption of the proposed regulations with the 8 ESSENTIAL CHANGES. you should email it to the AELR Committee Chairs: Senator Paul Pinsky via Ian Ullman, <IUllman@senate.state.md.us> and Delegate Anne Healey at: anne.healey@house.state.md.us  Address the email to: Joint Committee on Administrative, Executive and Legislative Review, c/o Department of Legislative Services, Legislative Services Building, 90 State Circle, Annapolis, MD 21401 and send copies to the two Legislative Services staff members, Mr. Isaacson: evan.isaacson@mlis.state.md.ud and Ms. Razulis at: marie.razulis@mlis.state.md.us asking that your email ltr be delivered to all AELR Committee members.

2. ATTEND AND SPEAK AT A REGIONAL MDA HEARING ON THE REGS.

Our group of Senior Scientists and Policymakers is working with others in the conservation community to assure a good turnout and to present a unified stand at the MDA hearings on the regs. You can present your support for adoption of the regulations as in the Joint Statement and of the 8 ESSENTIAL CHANGES and add your own personal insights and try to have others attend the meetings in Easton and Prince Frederick. The meetings run from 7:00 p.m. to 9:00 p.m.

Eastern Shore

Monday, July 23, 2012

Talbot Community Center

10028 Ocean Gateway

Easton, MD 21601

Southern Maryland

Wednesday, July 25, 2012

Calvert County Fairgrounds

140 Calvert Fair Drive

Prince Frederick, MD 20610

3. SEND IN AN EMAILED OR FAX’D LTR OF SUPPORT TO MDA.

Written comments may be sent to Jo Mercer, Ed.D., Program Manager, MDA’s Nutrient Management Program, Maryland Department of Agriculture, 50 Harry S. Truman Parkway, Annapolis, MD 21401, or email: jo.mercer@maryland.gov, or fax to (410) 841-5950. Comments will be accepted through August 13, 2012. Urge adoption of the proposed nutrient management regulations with the 8 ESSENTIAL CHANGES.

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(Posted by Dawn Stoltzfus.)

On Tuesday, February 21, 2012, members of the Senior Scientists & Policymakers for the Chesapeake Bay made their case for reducing pollution from agriculture at a hearing before the Maryland Senate Education, Health, and Environmental Affairs Committee. Former Maryland Gov. Parris Glendening provided a strong statement (PDF) in support of SB 594 (co-sponsored by Senators Paul Pinsky and Brian Frosh):

SB 594 would mandate better management of the hundreds of thousands of tons of raw chicken, pig, and cattle manure that is put on farm land. SB 594 would require the same regulations required of treated human sludge, a position shared by our Senior Scientists and Policymakers for the Bay of which I am a member. The bill is a reasonable approach to protecting the bay’s waters and our groundwater.

Dr. Bill Dennison, another member of our group, testified in person. Read his testimony here (PDF). Dr. Lynton Land, a scientist with expertise in soil science now living in Virginia, also submitted written testimony, available here (PDF). 

Members of the farming community and environmental organizations also testified in favor of the bill (PDF), and we saw the usual opposition from the Farm Bureau and poultry industry. We’ll keep you updated on the fate of both of these bills throughout Maryland’s 2012 General Assembly session.

Listen to a recording of the hearing, provided by the Maryland General Assembly.

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(Posted by Dawn Stoltzfus.)

Today, standing in front of the M&T Bank Stadium in Baltimore, to represent the enormous amount of chicken litter produced each year in Maryland (a pile twice as high as the stadium!), Environment Maryland released a new report detailing the problems with Maryland’s current manure regulations and, in particular, with too much phosphorus in our soil and our waterways, including the Chesapeake Bay.

Among the findings in An Unsustainable Path: Why Maryland’s Manure Pollution Rules Are Failing to Protect the Chesapeake Bay are:

• Large-scale chicken growing on Maryland’s Eastern Shore generates high volumes of manure that contain more phosphorus than can be used by local crops. Soil test data show that more than 60 percent of soil samples from four Maryland counties had more phosphorus than crops need.
• Maryland’s current rules allow farmers to spread manure on fields where phosphorus is likely to run off and pollute the bay, and they appear not to be solving the problem. In at least one major chicken-producing region, water quality has not improved since Maryland adopted its current rules. In the Choptank River, phosphorus levels have risen by an average of 1.9 percent per year from 2000 to 2008.

The report is particularly timely as Maryland considers updates to its rules on how and when manure and sewage sludge (or biosolids) are spread on the land. In a recent letter, the Senior Scientists & Policymakers for the Bay urged Governor O’Malley to issue rules that treat manure in much the same way as sewage sludge.

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(Posted by Scott Edwards.)

Next year will mark the 40th anniversary of the Clean Water Act. In the four decades since this seminal water protection legislation was passed, there has been tremendous headway in controlling many of the worst sources of industrial toxics in our nation’s waterways, particularly from those end-of-the-pipe “point sources.” Unfortunately, though, there’s one industrial point source that continues to evade any meaningful CWA regulation — Concentrated Animal Feeding Operations, or CAFOs.  Now, after many years of failing to implement effective CWA provisions to clean up this highly polluting industry, the Environmental Protection Agency is engaging in an information gathering process to consider how best to regulate the country’s tens of thousands of industrial animal farms. Sadly, all indications are that EPA is still not taking its mission seriously when it comes to CAFOs.

In 2008, EPA issued its latest CWA rule for CAFOs, requiring permits for any facility that discharged or “proposed to discharge” pollutants to our waterways. The problem with the rule was that it never really defined what “proposed to discharge” meant.  Some EPA regional offices thought that CAFO operators would have to walk in and tell agency officials that they proposed to discharge pollutants, which was never going to happen. More progressive regional offices, and eventually EPA headquarters in guidance documents, took the position that “propose to discharge” meant that if you operated and maintained a facility in a way that would likely lead to discharges — roofs resulting in water runoff, ditches that drained off farms, etc. —  then you “proposed to discharge.”

Foreseeably, EPA’s “proposed to discharge” standard resulted in litigation. Environmentalists challenged the rule because the “propose to discharge” standard was too vague and left too many polluting CAFOs out of the permitting requirements; industry challenged it because they thought that only CAFOs with documented discharges should be forced to get permits. Where the environmental petitioners eventually settled their claims in exchange for the guidance referenced above and a robust CAFO industry information gathering under section 308 of the CWA, industry challengers continued to court and, in a 5th Circuit ruling last year, got the “propose to discharge” standard thrown out.  So today we’re once again left with a CAFO rule that has little meaning and even less potential to clean up this inherently dirty industry.

EPA got itself, and us, into this mess because it didn’t have the political courage to do what needed to be done in the first place. After its 2003 CAFO rule was remanded by the 1st Circuit, the court invited EPA to adopt an industry-wide “presumption of discharge” of pollutants from CAFOs. A presumption standard would have been easily supported by the well-documented reality that CAFOs are having devastating impacts on our bays, rivers, lakes and drinking water supplies.  Study after study shows that where there are CAFOs, there are water quality problems — the Chesapeake Bay is testament to that undeniable fact.

Instead, in its 2008 CAFO rule resurrection, EPA tried to walk a very wobbly tightrope with their “propose to discharge” approach, until the 5th Circuit pushed them off.

The answer to the 5th Circuit ruling is obvious; EPA needs to do what it should have done years ago and adopt the presumption standard. EPA claims that they don’t have enough information about the industry on hand to adopt a presumption, but that simply doesn’t make sense. In fact, while the 5th Circuit was gutting EPA’s 2008 rule, the Michigan courts were upholding that state’s “presumption of discharge” standard based on a review of the very same impact data that EPA could have, and still can, rely on to support its own presumption.

Yet, giving EPA the benefit of the doubt and accepting that it needs to build the record to support a presumption approach to CAFOs, the currently proposed 308 rule doesn’t go anywhere near far enough.  Under the settlement agreement, EPA was supposed to collect all kinds of information about these operations including their manure handling details, land application acreage, nutrient management plan materials and a host of other information.  The settlement agreement lists 14 types of information that EPA should be seeking in its 308 process.

Instead, EPA has proposed a rule that only seeks the most basic of information — they’ve abandoned their commitment to find out how much manure is generated by these facilities, the identity of the integrators, and most of the manure handling information. If EPA’s position is that it truly doesn’t have enough data to support a presumption of discharge, then the proposed 308 rule does nothing to remedy that lack of information.

EPA is running out of chances to do the right thing when it comes to the biggest point source polluters in the country. Our federal and state regulators have been dancing around this industry for the past 40 years and its time for the dance to end. EPA can begin by implementing a comprehensive information gathering process that fully supports the adoption of a presumption standard for a not-too-distant future CAFO rule that ensures that every CAFO in the country is carefully and properly permitted.  Perhaps then we’ll see some changes in water quality around the country, including the Bay.

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