Chesapeake Bay Action Plan

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 Erik Michelsen)

In preparing for the 2012 Maryland Legislative session, the memories of largely unproductive sessions for the environment in 2010 and 2011 were very fresh. The combined environmental community – the Clean Water, Healthy Families coalition – resolved to be more focused, to pursue a direct request of legislators, and to focus on goals that would have a measurable impact on improving water quality. Those goals were:

• Finish upgrading the wastewater treatment plants that Maryland has already committed to upgrade.
• Ensure that local governments have resources to reduce polluted stormwater runoff and implement their local clean water plans.
• Reduce pollution from poorly planned development – including limiting new septic systems.
• Require that all wastewater discharges, including septic systems, are treated at the highest levels to protect public health and ensure clean water.

The first two goals were explicitly stated in Maryland’s Watershed Implementation Plan (WIP) and comprised the core funding strategies for the state’s efforts to address pollution from its central urban and suburban corridor. The last two were focused on ensuring that we don’t erase any gains we make via the first two by developing in a way that creates a staggering amount of new pollution.

As the clock ran down on the legislative session yesterday, the future of the Chesapeake and Maryland’s rivers hung in the balance. Early in the day, legislation to double the Bay Restoration Fund (or “flush fee”) passed, followed by a bill aimed at limiting sprawling growth by restricting where septic-served subdivisions can be located. The debate on a bill to require the 10 largest jurisdictions in the state to create dedicated stormwater restoration fees carried on late into the evening, with opponents, largely from the eastern shore and western Maryland, attempting to filibuster until the end of session, at midnight.

At one point, the floor leader for the bill, Senator Paul Pinsky, asked the opponents – many of whom had invented, and then promulgated, the notion of a “war on rural Maryland”  – why, when they opposed additional water quality regulations on farms on the grounds that agriculture wasn’t the only source of pollution to the bay,  they opposed a bill whose impacts fell most heavily on the densest areas of the state. The opponents fell back to a line of defense that can only be characterized as diversionary. They argued that Maryland’s overall pollution contribution was insignificant compared to the contribution of other states, that the cost of compliance was too expensive, and that the Chesapeake Bay TMDL “pollution diet” was in litigation, so there was no need to rush to address it.

Never mind the fact that the bill was aimed at jurisdictions with an MS4 stormwater permit, which has conditions and requirements that exist independent of the TMDL. Eventually though, the filibuster was shut down, those in favor of the bill in the Senate prevailed, and the bill was sent back to House and passed with 10 minutes to spare in the session.

The community still intends to pursue, through regulations, a requirement that all new septic systems be built using the best available technology, but we ended the evening with three of our four goals in hand and a strong commitment to address the fourth. There can be little doubt that the 2012 session will go down in Maryland lore as the “Session of the Bay,” despite the fact that it was tumultuous in many other respects.

And, with the close of the 2012, Maryland’s cities, town, and suburban enclaves are well positioned to meet their pollution reduction goals going forward. They have developed their plans and now have been given the tools to implement them in a timely fashion. There still remains important work to be done in other sectors, though, with Maryland’s nutrient management regulations still under consideration and an agricultural community divided over its willingness to be a full player in the recovery of Maryland’s most valuable natural resource. The session has ended, but the journey to restoration has just begun.

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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 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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