Md. Farmers Face Permit Logjam

SALISBURY, Md.  (Aug. 6, 2010) – Bobby Graves had his misgivings about a pollution-control permit newly required for many animal farms in the state. But he placed his trust in the government and applied, ready to detail how he’s storing and disposing of the manure from his 110,000 chickens.

 

Now, more than three months after seeking help from the Maryland Department of Agriculture in crafting a plan for reducing his farm’s wastewater runoff – the final step needed for the permit – he’s still waiting. And growing more frustrated with each passing day.

 

Graves is one of the hundreds of Maryland farmers who have become entangled in a new permit process that is pivotal to the state’s plan to reduce one of the leading sources of pollution in the Chesapeake Bay – the rich cocktail of livestock manure that oozes into local waterways.

 

The permit requirements, enacted by the state last December to comply with updated regulations from the Environmental Protection Agency, is meant to give tighter controls over pollution generated by the poultry industry. But the program has struggled to take off.

 

Almost no farmers have the training and certification necessary to write the nutrient management plans required under the program, and the government is struggling to meet the growing need for help. Those farmers who do finally secure their nutrient plans find there’s often little follow-up from the government to see if their farms are complying with the plans they’ve laid out.

 

The Maryland Department of the Environment, which runs the program for the state, has just two inspectors to deal with the follow-up with the more than 500 farmers who applied for permits, said spokeswoman Dawn Stoltzfus.

 

Maryland is not alone in scrambling to comply with the EPA’s 2008 rules, according to John Capacasa, the director of the EPA’s Water Protection Division for the mid-Atlantic region. In most Chesapeake Bay watershed states, the revised permit programs mandated by the EPA are still in development; Maryland was the first state to have one. (See related story.)

 

“The demand of servicing those increased permits is a common challenge for the states,” Capacasa said. “And I think with the economic tightness and budget challenges facing a lot of agencies, that’s difficult to keep up with and difficult to fulfill. I’m sure that they’re doing the best job that they can.”

 

But the EPA has made it clear that if the states don’t enforce its regulations, the federal government can take back control of the whole process.

 

“It’s great to have a state regulation or law that goes beyond the federal minimums, but you need to carry that out,” Capacasa said. “You need to have effective enforcement power in the field and effective presence on the farm to make sure it’s happening, rather than just being a legal requirement on paper.”

 

In the farm-rich Wicomico County on the Eastern Shore, just nine of the 107 farms that had applied for pollution-reducing permits as of Aug. 1 had comprehensive nutrient management plans in place, according to an MDE online database.

 

Of the 16 farms that sought permits in Salisbury as of June, 14 remain on the waiting list for help developing their nutrient plans with a U.S. Department of Agriculture field service center, according to documents submitted to MDE.

 

“We do have staff available in each office to develop [comprehensive nutrient management plans], but without a doubt, it is a workload issue for our offices,” said Tim Pilkowski, Maryland conservation agronomist for the U.S. Department of Agriculture’s National Resource Conservation Service, which helps run the service centers.

 

The USDA is just one of a web of federal and state agencies involved in the permit process. USDA and MDA help develop the nutrient plans for farmers; the EPA created the regulations and oversees the program; and the Maryland Department of the Environment issues and enforces the pollution-control permits in the state.

 

Of the 16 farms that sought permits in Salisbury, only one – Graves’ farm – had been inspected as of July 14. And his farm did not yet have a comprehensive nutrient management plan that inspectors could hold him accountable to.

 

“I said, ‘Well, what am I supposed to do?’ ” Graves said he told the two inspectors – one from the MDE and one from the EPA – who came to visit him June 24. “ ‘You’re going to come on my farm to tell me what I’m doing wrong, and I don’t even have a plan telling me what I’m supposed to be doing.’ ”

 

The environmental advocacy group Waterkeeper Alliance said the MDE, which acknowledges it is understaffed, has failed to adequately enforce the federal law that forced states to put plans in place.

 

“You can have all the regulations in the world on the books,” said Scott Edwards, director of advocacy for Waterkeeper Alliance. “But if you’ve got an agency like MDE closing its eyes, it doesn’t do you any good.”

 

 

The Chesapeake Bay watershed has the largest ratio of land to water of any coastal body of water in the world. So farmers, who see themselves as the original stewards of the land, also serve as stewards of the Chesapeake.

 

But agriculture is also the source of more than 40 percent of the bay’s nutrient pollution. Nitrogen and phosphorus from animal waste and fertilizer flush off farms and into the bay and its tributaries. The overabundance of nutrients causes algae to thrive and use up the water’s oxygen, creating zones of oxygen depletion that spread across the bay in the summer, making those areas uninhabitable for plants and wildlife.

 

“If you ask me how well these regulations have worked, all I can say is, look at the continuing downward spiral of the health of the bay,” Edwards said. “They’ve been failures, and the evidence that they’ve been failures is that the bay has not gotten any better.”

 

The precarious state of the bay’s health helped prompt the EPA to set new, stricter permit regulations for animal farms under the Clean Water Act in 2008.

 

The MDE had been running the permit program on a much smaller scale since 1990. But until the 2008 update, chicken farms did not fall under the requirements, though chicken farming is a huge presence in the state’s agriculture industry – almost 300 million broiler chickens were produced in Maryland in 2008, according to Delmarva Poultry Industry. That puts it among the top 10 states in the nation for broiler production, according to the USDA.

 

Before the 2008 change, just 10 animal feeding operations in Maryland – almost all of them dairy farms –fell under the state’s pollution-control requirements. Now, 529 facilities have applied for the new pollution-control permits, and chicken farms account for all but 17, according to the Department of the Environment’s online database. There are more than 12,800 farms of all kinds in the state, according to the USDA.

 

Each of these 529 farms must either have a comprehensive nutrient management plan – dictating how they’ll handle operations ranging from manure storage to odor reduction – or be working toward one. The MDE has issued permits to many farms still waiting for their nutrient management plans.

 

The county soil conservation districts, part of the field service centers run by the federal and state departments of agriculture, are struggling to handle the deluge of new customers.

 

 

With hundreds of farmers turning to offices with two or three certified planners, the government cannot handle the requests. In Wicomico County, owners of 102 of the 107 farms that sought permits in the county have been to the soil conservation office to request plans, according to Mike Sigrist, the Wicomico County district conservationist for the U.S. Department of Agriculture’s Natural Resource Conservation Service.

 

The USDA hired three additional conservation planners who spread their time throughout the state and made developing plans the priority in the field offices, Pilkowski said, but it still hasn’t been enough.

 

And farmers looking to avoid the congestion can’t do it themselves. To write the plans, they must have two different levels of certification, both from the USDA and from the MDA, Pilkowski said.

 

To alleviate some of the strain, officials at county conservation offices suggest that some farmers go to certified independent consultants who can help them apply for federal funds to split the cost of hiring a private planner. Of the 16 farms that applied for permits in Salisbury by June, the two that do have comprehensive nutrient management plans hired an independent consultant, according to documents submitted to the MDE.

 

With the average development of a comprehensive nutrient management plan for a broiler farm taking 95 hours, or more than two full work weeks, according to a USDA report, the backlog could stretch on for a long time to come.

 

“Basically, with what I’m looking at in Wicomico County, within two years we could be done,” Sigrist said. “So by the end of next year, we’re going to be very close, if not finished, with our 102, which I think is reasonable.”

 

Sigrist said the MDE has been understanding of the delays.

 

“We know the staff are in high demand,” Stoltzfus said.  “So basically what we’ve done for people who don’t immediately have their required [nutrient management plans], we’re working to put them on a compliance schedule.”

 

Under the permit program, while farmers needed to request nutrient management plans by early January, they can remain on waiting lists indefinitely, as long as they check in with status forms every six months.

 

Still, Dr. Frank Coale, chairman of the of environmental science department at the University of Maryland, predicts an uphill battle permitting and inspecting all the farms.  “All the state agency budgets are being cut, so it’s really, really difficult to see how we are going to keep pace with increasing demand when we have decreasing resources to throw at it,” he said.

 

 

The Maryland Department of the Environment must deal with how it will enforce the new permit program without additional manpower.

 

The agency has the ability to mete out penalties of up to $5,000 a day for each violation of a point in their plan, or more if it takes legal action.

 

But five staff members total – including two inspectors – make up the permit program.

 

“The fact remains that the plans, once they’re filled out and filed, there’s very little follow-up on them, there’s very little inspection, there’s almost no monitoring,” said waterkeeper Kathy Phillips. “The plans just basically go into a file cabinet, and unless some type of complaint or action is brought, they don’t see the light of day.”

 

Still, Stoltzfus said environmental regulations such as the permits can be effective even when enforcement lags behind. “Most people are going to try to comply with the law,” he said.

 

But the EPA, the national administrator of the pollution permits, and environmental advocates want MDE to put its authority to use, though the EPA estimates the new regulations will likely increase the MDE’s administrative burden by $700,000 annually.

 

Until now the EPA has maintained a hands-off approach and preferred to delegate to states, but the federal agency is getting more involved. An executive order from May 2009 and the strategy released a year later call on federal and state agencies to take more aggressive measures for bay restoration. One of biggest goals is placing pollution controls on 4 million acres of farmland, specifically targeting livestock farms on the Delmarva peninsula.

 

“It really gave EPA the big stick to make sure progress was being made and gave them a little bit more authority to push things along at the pace that they think needs to be achieved,” Coale said.

 

 If the MDE does not perform its duties, the EPA can step in and take charge, Capacasa said, conducting its own farm visits and even taking power and authority for the permits back from the state.

 

So despite the MDE’s limited resources, Stoltzfus said Maryland Department of the Environment Secretary Shari Wilson has placed a premium on enforcement. Since she started in 2007, the agency has increased enforcement actions by 44 percent overall without adding additional staff.

 

Statewide, the MDE inspected 66 farms since last December, often partnered with the EPA. While a handful of farms have faced fines, most visits have been warning shots.

 

Graves is still not sure what the point is to inspect without a plan.

 

Just 70 minutes after the two inspectors showed up at his 110,000-chicken farm this summer, they were gone. According to Stoltzfus, a thorough inspection takes at least half a day.

 

While the inspectors didn’t find any problems when they visited, Graves said it seemed more like they were succumbing to pressure than making progress.

 

“I feel like the government just said, ‘OK, we’ve got to do this, we’ve got to make a plan. And if we do that, we’d better enforce the plan,’ ” Graves said.