Chesapeake Bay Action Plan

(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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(Posted by Scott Edwards.)

When it comes to big agribusiness and access to public information, the Chesapeake region is sadly part of a disturbing pattern that exists all across the country. And signs are it might be getting even worse.

Polluting industries are generally subject to a good amount of public transparency and disclosure about their practices, what types of materials they handle, how they dispose of their wastes, etc. Unfortunately, agribusiness has always enjoyed a level of state-sponsored secrecy that serves to undermine this general right of public access. The poor excuses for concealment offered by state departments of agriculture and environment and industry range from national security to trade secrets or, more often than not, no excuse at all.

Take Maryland, for example. With Maryland’s Water Quality Improvement Act (WQIA) in 1998, farms were required to get and put on file with state agencies Nutrient Management Plans (NMPs) that document how much waste is being produced on their facilities and dumped on the land to grow their crops. It was certainly a step in the right direction—at the time NMPs represented the only method to ensure that harmful nutrients were being used in proper amounts on croplands. It was a long-needed measure to bring some semblance of responsibility to the ag industry. But then, during the WQIA negotiations with industry things took a very wrong turn.

First, instead of these environmental protection records going to the Maryland Department of the Environment, whose mission it is to safeguard our waterways, the WQIA gave them over to the Department of Agriculture, whose job it is to ensure that ag gets to operate with as few regulatory burdens as possible. Second, in open disregard for Maryland’s Public Information Act (PIA), the WQIA embraced provisions that kept the NMPs secret documents—out of the hands of concerned citizens and, even, away from other state agencies. Not even the Attorney General of Maryland was allowed to view farm NMP’s under the WQIA.

That changed when Waterkeeper Alliance and many of our local Chesapeake programs sued the Maryland Department of Agriculture back in 2008 for refusing to turn over NMP’s under a Public Information Act request. For the first time, a state judge declared NMPs to be public documents. Since then Waterkeeper and our local partners have sought more public documents related to farms and their waste disposal practices. And, despite our victory, the Farm Bureau keeps fighting to keep us all in a deep, dark hole about ag waste practices—they’ve filed legal challenges to all our requests.

It’s a continual battle to bring about the transparency which should be a given. And now agribusiness’s attempt to cover up their harmful practices is reaching new levels of absurdity. In Iowa, the state House recently passed a bill that makes it a criminal act to take a picture while on a farm without the farmer’s permission. Not to be outdone, Florida has jumped over the crazy line with both feet. There, a Republican state senator recently proposed a bill that makes it a 1st degree felony, punishable by up to 30 years in prison, to take a photo of a farm even if you’re standing on a public road when you click the shudder.

If agribusiness put as much energy and resources into keeping a tight lid on their pollution as they do on keeping a tight lid on public awareness of their improper waste disposal practices, we just might have a cleaner and healthier Chesapeake Bay.

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(Posted by Scott Edwards.)

As of 2008, despite the trumpeting of significant progress made in agricultural discharges of nutrients into the Bay, the industry was still pumping 100 million pounds of nitrogen and over 8 million pounds of phosphorus per year into the Chesapeake Bay watershed. With industry executives and their lobbyists and state Department of Agriculture officials claiming that the vast majority of ag has implemented Best Management Practices (BMPs) and are faithfully adhering to Nutrient Management Plans (NMPs), and ag still remaining the largest contributor of nitrogen, phosphorus, and sediment pollution to the Bay, there’s only one possible conclusion: the ag industry in the Chesapeake is simply unsustainable. And no where is that unsustainablity more evident than in the CAFO (concentrated animal feed operations) sector of big agribusiness.

EPA recently attributed 25 percent of Bay pollution to animal waste from the region’s CAFOs. Big poultry has shoehorned 568 million birds, producing over 1.1 billion pounds of manure per year, into the 5,450 square mile Delmarva Peninsula. That’s over 104,000 birds per square mile. Over 1 billion pounds of waste dumped on a small body of land jutting out into the middle of a fragile aquatic ecosystem – anyone who still wonders why the Bay is dying is simply choosing to hide their head in the manure pile.

This isn’t going to change until the sustainability issue is resolved and the big poultry companies are force to take responsibility for their own mess. Here are just some of the things that need to happen:

Integrator Liability: Let’s stop pretending that manure is a valuable commodity that’s left behind by the integrators as a favor to the contract poultry farmers. It’s a waste product, a heavy burden that local farmers just can’t handle. Nor should they have too. It’s integrators like Perdue, which enjoyed $4.6 million dollars in sales in 2009, that have the financial means to properly dispose of the waste produced by their own chickens. Put the integrator’s names on Clean Water Act permits, make them liable for the waste flowing from farms and fine them when you find pollution just like other industrial polluters get fined when they get caught degrading our waterways.

Zero Day Stockpiling: You can pay for all the studies you want about 14 days of stockpiling verses 90 days, or sculpting piles of manure into the Eastern Shore’s version of the Great Pyramids to reduce runoff – it’s a silly and senseless debate. Federal and state taxpayers dollars have gone to build hundreds of manure storage sheds on the Eastern Shore, yet drive down this spring and you will find shed after shed filled with farm equipment while manure sits outside in massive piles. Manure left open to the weather will pollute, it’s that simple. Put an end to open stockpiling of any manure, for any amount of time. Manure should go from chicken houses, to storage sheds to field application in agronomic amounts – no exceptions.

Mandatory Excess Waste Removal: Once you make the integrators responsible for their waste and you implement zero day stockpiling measures, make the integrators remove any excess manure from the CAFOs and take the waste out of the already-saturated Delmarva Peninsula. NMPs are supposed to be carefully calculated to allow land application of manure only in amounts that the plants and soil can absorb. If Perdue is producing 300 tons of chicken manure a year on one of its contract grower farms, and the surrounding land application area can only absorb 100 tons, then Perdue must come and pick up its excess 200 tons of manure and remove it from the Peninsula. The big poultry integrators benefit greatly from the concentration of growing operations in an absurdly small geographic area – they should also have to deal with the consequences of that business decision.

Close the Loophole: Regulatory control of waste is useless when there are convenient outs for industry. That’s the problem with Maryland’s CAFO permit. When other industries ship their waste offsite for disposal, there are careful manifesting requirements and ongoing assurances that the waste is disposed of properly by another party. Under the state’s CAFO regime, none of those safeguards exists; the controls on waste storage that attach to CAFOs disappear when that waste is shipped to crop farms. That leads to bad results. Anyone who accepts poultry waste should be made to comply with the same waste storage and disposal requirements that fall on the waste generator.

Stop Looking to the Market: Recently proposed federal legislation and EPA’s TMDL look to nutrient (and sediment) trading as a panacea for the farm pollution problem, but there is no support for this approach. There are no examples of a nutrient trading program successfully cleaning up a waterway in the U.S. Buying and selling the right to pollute simply introduces a whole new element to the mix – a market driven enticement to claim reductions where there are none and a potential overall increase in pollutants into the Bay. As one ag industry source recently said, nutrient trading is a way to “help farmers earn money while providing polluters with the opportunity to increase their pollution to the Chesapeake Bay and its tributaries.”

Support Sustainable Farming: When Waterkeeper filed its Clean Water Act case against Perdue last year for discharges of pollutants from a contract farm, Jim Perdue responded that we were the biggest threat to family farming in 50 years. Curious response, since Perdue and other big CAFO integrators in the country have singlehandedly destroyed family farming in modern day America. And it’s the destruction of the sustainable family farm in exchange for mega-agribusiness operations that has gotten the Bay to where it is today. The situation is being repeated across the country where these industries try to centralize their production as a cost-cutting method. Instead of propping up this highly polluting industry, our tax resources should be going into supporting real sustainable farming operations that grow quality food without harming the environment.

I don’t have much hope that any of these measures will be adopted. To date, all the failed plans to clean up the Bay have suffered from the same fatal defect – they relied on voluntary measures and state political will. Unfortunately, Bay state politicians have proven time and again that they simply aren’t willing to take on this industry in the way that would result in a clean Bay. That’s why Chesapeake 2000 failed and that’s why the new EPA TMDL, with mostly voluntary programs and no clear mandate to attain water quality standards, will also likely fail. For the states, these cleanup plans are all about funding opportunities, ways to make empty promises in exchange for continuing federal dollars.

I’m often asked, “If you clean up farming, would you have a clean Chesapeake Bay?” I don’t pretend to know the answer to that because I recognize that ag is only a part of the problem. But it’s a major part. What I can say with a good degree of certainty is that if you don’t clean up ag, you’ll never have a healthy Bay. Now we just need some state politicians with the courage to do so.

(Read Part One of this series: Chesapeake Bay: An Open Toilet.)

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(Posted by Scott Edwards.)

The old grey mare just ain’t what she used to be. And for that matter, neither are those chickens. Or the cows. And you just wouldn’t recognize the pigs. Even if you could see them. But you can’t. Because they spend their entire, short life in darkened, crowded, filthy sheds. Nope, farms just aren’t what they used to be. In fact, they aren’t really even farms anymore. They’re factories. Every bit as much a factory as a papermill. Or a chemical processing plant. Put away your pastoral picture book – there’s nothing quaint or country about them.

Today’s animal farms would make George Orwell cringe. They’re meat manufacturing plants, using genetic engineering, technology, drugs and chemicals to force animals to grow as quickly as possible. They leave behind a massive environmental footprint in our air and watersheds. Ammonia, arsenic, nitrogen, phosphorus, fecal coliform, various strains of fecal bacteria and residual antibiotics are just some of the harmful waste products of this intensive manufacturing process.

Yet where other industries have been forced to take responsibility for their damaging waste streams, agribusiness continues to get a free pass under the self-serving proclamation that “there are no better environmental stewards than the American farmer.” While that claim may have held some weight decades ago, nowadays environmentally sustainable farms are the rare exception. Today’s meat producers are cogs in an ever-spinning industrial wheel, put in unsustainable motion by the greed of the big factory farm integrators like Perdue, Smithfield, Tyson and Sanderson. And none of these industries wants to spend a dime of their enormous profits on responsible waste disposal.

Waterkeeper Alliance and our local Riverkeepers – in the Chesapeake and across the nation – have been challenging factory farms, also known as concentrated animal feed operations (CAFOs), to lessen their environmental impact on our nation’s watersheds. The public trust doctrine, which decrees that all waterways in the country belong to the people, not governments or industrial polluters, provides the backbone of Waterkeeper’s advocacy approach. We believe that no one has the right to take our clean water rights away – not politicians, not chemical manufacturers, not sewage facilities and not industrial farms. Pollution of our shared waterways is every bit as much theft as someone walking onto your yard and stealing your property.

For many years now the factory farming industry has acted as if they own our waterways, including the Chesapeake Bay. They’ve been slowly stealing the Bay away from the boaters, crabbers, fishermen, recreational users of this great waterway. The big poultry integrators on the Eastern Shore have burdened their growers with unsustainable amounts of poultry waste, virtually ensuring that the Bay watershed will continue to serve as an open toilet for the many pollutants which flow freely from their facilities.

Despite the endless state and federal political rhetoric (surpassed only by taxpayer dollars) thrown at the Bay problem for the past twenty years, things are not getting better. And here’s just one example of why:

A couple of years ago Maryland said they were finally ready to take on factory farming by implementing a Clean Water Act permitting scheme that carefully controlled poultry waste. Putting aside the fact that the state originally wanted to hand out lax states permits that allowed for three solid months of open stockpiling for the huge majority of Eastern Shore CAFOs until it was forced to issue more protective 14 day stockpiling permits, the big problem with Maryland’s program is that it contains a waste management loophole big enough to drive a manure-laden truck through. Because although CAFOs can’t stockpile manure for more than 14 days, crop farms can.

Go down to the Eastern Shore during shed cleanout season and you’ll find trucks filled with poultry manure crisscrossing the roadways, carting the waste from regulated CAFOs to unregulated crop farms, where it can be stockpiled in rain swept open fields and runoff into ditches and out into the Bay. To add insult to Bay injury, this waste disposal avoidance scheme is facilitated by the Maryland Department of Agriculture’s manure transport program which uses taxpayer funds to move the waste from CAFO’s to crop farms.

We’ve all heard the ongoing claim that CAFOs need manure for their cover crops. So how do they make up for the poultry manure that they’re shipping off to their crop cousins? They’re bringing in hundreds of tons of sewage sludge from local wastewater treatment plants (WWTPs). Poultry waste on chicken farms is regulated; sewage sludge is not. So they’re trading regulated waste for unregulated waste, while their regulated waste becomes unregulated when it gets to the crop farms.

Unfortunately, it doesn’t end there. As an extra-added incentive to agribusiness, EPA’s recent Chesapeake Bay TMDL (Total Daily Maximum Load) allows for the trading of pollutants, including nutrients, from nonpoint sources of pollution (like crop farms) to point sources (like WWTPs). So those very crop farmers who take poultry waste from CAFOs and stockpile it in open fields can now make unverified claims that they’ve actually reduced their pollutant loads to the Bay, generate nutrient pollution credits and peddle them to the wastewater treatment plants. The WWTPs can take those new pollution credits, bring in more waste and create more sewage sludge to send to CAFOs to dump on their lands so that they can ship more poultry waste to unregulated crop farms who can generate more unverified nutrient reduction credits to sell to the WWTPs to . . . well, you get the picture. It’s the old shell game with massive piles of waste.

The CAFO permit loophole, the manure transport system, sludge delivery and nutrient trading – all complex regulatory mechanisms being employed for one reason, and one reason only – to shift responsibility, evade control and keep waste moving around the Eastern Shore, with little record keeping and no accountability. There’s little wonder the Bay is such a mess – question is, who has the political courage to put an end to it all?

Part Two: Some simple steps we can take to stop this madness.

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