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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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 Bob Gallagher)

A group of legislators, following a script conceived by the public relations machine of Perdue and the Maryland Farm Bureau, have joined in Perdue’s unprecedented effort to derail an environmental lawsuit that has singular importance for the Chesapeake Bay watershed. The effort is unprecedented in the extent to which Perdue and its enablers are attempting to use the media and the political process to win a case that they have as yet been unable to win in court. Here is the story.

The Waterkeeper Alliance, working with the Assateague Coastkeeper, filed suit against Perdue and one of its contract chickens growers. The suit alleges that Perdue and the contractor, Hudson Farm, polluted the Pocomoke River with chicken waste in violation of the Clean Water Act (CWA).

Waterkeeper Alliance is a community supported organization that operates on a tight budget. It has thousands of supporters in Maryland. It makes extensive use of volunteers and public interest lawyers who work without charge. In this case, it is represented by the student lawyers of the University of Maryland School of Law’s highly regarded Environmental Law Clinic. The Alliance has worked with the Clinic in other cases to stop pollution of our rivers, to protect public health and to protect marine-related jobs and economic activity.

Represented by one of the biggest law firms in Baltimore, Perdue asked the court to dismiss the case as flawed at its inception. The distinguished senior judge hearing the case denied the motion. Perdue’s lawyers then unleashed a blizzard of paperwork on WKA and its lawyers apparently hoping to wear them down in the legal “discovery” process. That didn’t work either. It just made the young law students want to work harder.

Next Perdue filed a motion for summary judgment. That means judgment without a trial. They filed with the court thousands of pages of documents and transcripts of testimony of expert and other witnesses. The judge ruled that all they managed to prove was that the case was sufficiently complicated that it could only be decided after a trial.

From the beginning of the case, Perdue has been very uncomfortable with the idea that this case will be decided by an impartial, independent judge applying the rule of law. Recently, Perdue’s preference for trying the case in the court of public opinion became apparent. It launched a slick website called SAVEFARMFAMILIES. The website was created for Perdue by Levick Strategic Communications. Levick specializes in “crisis” and “high stakes” communications. Its website invites potential clients to hire it to “drive the narrative.” Levick has planted articles, spinning the facts to match Perdue’s objectives, in media across the Eastern Shore, rural Maryland and elsewhere.

On March 14, 2012, the Appropriations Committee of the Maryland House of Delegates held a hearing on House Bill 1349. The bill appears to be the latest sortie in the Perdue/Farm Bureau strategy. Introduced by an Eastern Shore delegate with the zeal of a carnival barker, the bill would punish the University of Maryland for the Law Clinic’s participation in the case by requiring the University to reimburse Hudson’s legal expenses, even if the Court finds Hudson guilty of violating pollution laws.

The delegate’s opening gambit in support of the bill was screening a video portraying the case as being about a rich, foreign organization on a subversive campaign to bankrupt family farmers. The video is expensively produced and professionally narrated.

The delegate used the video to incite a handful of other delegates to threaten the Clinic with dire consequences if it does not withdraw from the case. The website and video have created a backlash of public opinion against the Alliance and the Clinic in some segments of the farm community.

One of the reasons that, in a democracy, we entrust resolution of significant disputes to an independent judiciary applying an objective rule of law is that judges are trained and ethically bound to seek the truth and apply the law fairly. The court of public opinion has no such constraints. In the court of public opinion, the person with the most money often wins.

One of the most insidious aspects of the Perdue/Farm Bureau strategy is that it also entices our legislators to make their own judgment on the case based on the “facts” presented by Perdue’s public relations machine. The video, like the website, is a layer cake of deceit – one layer of sticky sweet lies upon another. Many of the lies are apparent from a review of readily available public documents. But, the point of this piece is not to point out each lie. The truth is for the court to determine.

It is apparent from Perdue’s actions that it desperately wants to avoid a court ruling in the case. That might be because a ruling against Perdue could make Perdue responsible not only for its waste from the Hudson farm but from its many other contract growers.

Trial in the case will proceed if the case cannot be settled in mediation. The Law Clinic has made it clear that, even in the face of intense criticism, its fledgling lawyers will continue to meet their ethical responsibility to represent their clients to the best of their ability.

It won’t surprise many readers that a number of the people involved in the effort to stop the Perdue litigation are also behind the effort to delegitimize proposals to reign in sprawl and pollution from septic systems as a “war on rural Maryland.” I suggest that some of those people could learn something about civic duty from the law students.

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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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