Chesapeake Bay Action Plan

(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 Gerald Winegrad)

Maryland’s 2012 General Assembly Session is now more than halfway over, and while elected officials are currently focused on the state’s budget, several pieces of important Chesapeake Bay legislation that would help clean up our waters await committee votes.

Today the Executive Council of the Senior Scientists and Policymakers for the Bay delivered this letter to key legislators in support of the following legislation that is in line with our 25-step “action plan,”  specifically with respect to science-based recommendations to control agricultural pollution, foster clean development, upgrade septic systems, and improve wastewater treatment plants:

• Reduce pollution from the spreading of animal waste on farm fields (Senate Bill 594)–See my recent Baltimore Sun op-ed and Will Morrow’s letter to the editor on the need for this legislation.
• Finish upgrading the wastewater treatment plants that Maryland has already committed to upgrade with enhanced revenues from the Bay Restoration Fund (Senate Bill 240 / House Bill 446)
• Ensure that local governments have resources to reduce polluted stormwater runoff and that they implement their local clean water plans (Senate Bill 614 / House Bill 987)
• Reduce pollution from poorly planned development by limiting new septic systems (Senate Bill 236 / House Bill 445)
• Require that all wastewater discharges, including septic systems, are treated at the level of best available technology to protect public health and ensure clean water (Through Amendments to Senate Bill 236 / House Bill 445 or by Regulation)

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(Posted by Dawn Stoltzfus)

As has been rumored for many months—yesterday Virginia Congressman Bob Goodlatte introduced legislation in the U.S. House of Representatives that would undercut the Clean Water Act and essentially quash the multi-state Chesapeake Bay “TMDL” pollution diet cleanup process. This would be devastating, as many Bay scientists and advocates are hopeful that the TMDL and each state’s Watershed Implementation Plans could finally provide a solution to making our waters, and the Bay, fishable and swimmable again. We’ll be watching this closely and, as CBF’s Doug Siglin says, strongly urge all members of Congress to “steer well clear” of this bad legislation.

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.

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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 Sen. Gerald Winegrad. This op-ed originally appeared in The Baltimore Sun on February 20, 2012.)

Millions of tons of one of the Chesapeake Bay‘s largest sources of pollution continue to be dumped onto farm lands without proper regulation. Farm animals produce 44 million tons of manure annually in the bay watershed, and most of it is collected and disposed of on farmland — or left where it falls.

This ranks the bay region in the top 10 percent in the nation for manure-related nitrogen runoff, and the problem of proper management of this waste is exacerbated by the fact that three highly concentrated animal feeding operation areas contribute more than 90 percent of the manure. The Delmarva Peninsula, one of these three areas, has some of the greatest concentrations of chicken farms in the country.

According to the U.S. Environmental Protection Agency Bay Program, in 2009 agricultural manure contributed more than 20 percent of all nitrogen and 26 percent of the phosphorus flowing to the bay system. This exceeds the combined levels of nutrients flowing from all wastewater treatment plants handling the waste from 13 million people and all industrial dischargers. Human waste disposal is strictly regulated, and we have made great strides in meeting requirements at wastewater plants at great public costs exceeding several billion dollars. Unfortunately, the agricultural lobby continues to block efforts to sensibly regulate animal manure.

The costs of this failure are high both in the destruction of bay water quality and the contamination of groundwater: The United States Geological Survey (USGS) concluded that 15 percent of all Delmarva drinking water wells contained nitrates exceeding EPA maximum-contaminant levels. More than 70 percent of all wells tested had nitrate. A USGS study concluded that “Concentrations of nitrate and herbicide concentrations in ground water of the Delmarva Peninsula are among the highest in the Nation.” The major source of this excessive nitrogen is chicken and other animal manure, as well as chemical fertilizers.

Soil surveys document that much of the soil on the Delmarva Peninsula already tests “optimum” or higher for phosphorus and therefore should not have any animal manure applied to it. The Chesapeake Bay Foundation in 2005 reported that about two-thirds of soils in the watershed test “optimum” or higher for phosphorus and should receive no phosphorus fertilizer, and certainly no phosphorus-rich animal waste (poultry litter, municipal sewage sludge or manure).

Many federal and state programs provide significant funding for farms to better manage animal excrement, such as the Maryland Agricultural Cost Share Program, which I helped develop and gain passage of in 1982. This program has provided more than $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.

Unlike the millions of tons of animal excrement, the land application of treated biosolids from advanced human wastewater treatment systems, called human sludge, has been strictly regulated since the mid-1980s. The Maryland Department of Environment adopted these regulations at the urging of the farm community. Our group of Senior Scientists and Policymakers for the Bay has consistently proposed that the state adopt parallel measures for animal manure applied to land. After all, human sludge is treated in advanced wastewater systems meeting stringent federal and state requirements, while animal excrement is land-applied just as it comes out of the animals.

On Oct. 27, the Maryland Department of Agriculture proposed changes to its nutrient management regulations to deal with the problem — although the changes were far short of what was necessary. When both the farm lobby and the environmental community objected, the regulations were withdrawn and have not been reissued.

The MDA stated that one of the key purposes of the withdrawn regulations was “to achieve consistency in how all nutrient sources are managed and applied to agricultural land. … That consistency is important if the State of Maryland is to meet its Total Daily Maximum Load requirements, as set forth in EPA’s Watershed Implementation Plan for restoring the Chesapeake Bay.” The MDA proposals were far short of attaining that consistency with the sludge regulations.

Wastewater treatment plants have met or are nearing their required reductions, while agriculture lags far behind. Gov.Martin O’Malley’s proposed doubling of the flush tax to complete the $1.4 billion nutrient removal job at sewerage treatment plants is before the legislature, as is septic tank legislation. These tanks contribute about 6 percent of the nitrogen and close to zero of the phosphorus. The much larger problem of farm animal manure from concentrated feeding operations seems to go unchallenged.

Legislation to deal with this problem is scheduled for a hearing Tuesday in Annapolis. The bill would require much better management of animal manure and all biosolids disposed on farm land. We wouldn’t let a town of 25,000 people dump human manure untreated on open lands; why should we allow the dumping of the equivalent amount of manure from 150,000 chickens without meaningful regulation?

Properly regulating the disposal of raw animal excrement can be achieved at a very small fraction of the cost of other measures to restore the bay, but unless policymakers aggressively address the problem and overcome “big chicken” and the rest of the farm lobby, the bay will only continue to decline as the manure is piled on.

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