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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?
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?
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?
Q: There was also a pipe, a — that was going to be put in Ditch 3, correct?
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?
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?
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