Hot News

2.12.2008

By BRUCE HOTCHKISS
Senior Editor

The privacy of the nutrient management plans of Maryland farmers is guaranteed by Maryland law.
That, however, did not stop the litigious Waterkeeper Alliance from filing a lawsuit against the Maryland Department of Agriculture to force those plans into the open.
Robert F. Kennedy Jr., Waterkeeper Alliance president, and his stable of lawyers, which in this case includes Jane F. Barrett, director of the University of Maryland Law Clinic, say they are trying to lift “an illegal curtain of state secrecy to protect its biggest corporate polluters.”
That argument could fall on deaf judicial ears.
The Maryland nutrient management law is specific. It reads:

§ 8-801.1. Nutrient management plan.
(b) Filing with Department.-
(1) A summary of each nutrient management plan shall be filed and updated with the Department at a time and in a form that the Department requires by regulation.
(2) The Department shall maintain a copy of each summary for 3 years in a manner that protects the identity of the individual for whom the nutrient management plan was prepared.
[1998, ch. 324, § 3; ch. 325, § 3; 2004, chs. 428, 433.]

Industry sources said the privacy protection provided by that statute appears to be ironclad.
MDA officials have yet to respond to the filing of the suit. But the fact that a state agency is a defendant in a legal action may pose a legal, if not moral dilemma for Doug Gansler, the state’s new attorney general.
It would fall to the Attorney General’s office to represent a state agency when it is challenged in court.
Problem? Gansler, in his election campaign, said he would “clean up the Bay” and has wondered publicly why the farmers’ nutrient management plans are not in the public domain.
The Chesapeake Bay Foundation, which has joined forces with MDA recently in contending that environmentally conscious agriculture in the watershed of the Bay is far better than rampant development, issued this statement from Kim Coble, CBF’s executive director for Maryland.
“CBF has yet to see the lawsuit, so we cannot comment in its specifics. That being said, while there may be farmers who are not complying with the law, the vast majority of the state’s farmers are good stewards of the land.
“But it is MDA’s responsibility to ensure that the laws are followed. These laws protect both farming, by ensuring there is an even playing field among farmers, and water quality. Enforcement of these laws, as with any other, is important and necessary.”
Eight affiliates of the Waterkeeper Alliance joined in the suit with the starship organization. In addition to one coastkeeper, Assateaugue Coastkeeper, the other riverkeeper organizations are all on the Western Shore, all out of the Waterkeeper focus on the poultry industry. They are: Baltimore Harbor Waterkeeper, Patuxent Riverkeeper, Potomac Riverkeeper, Severn Riverkeeper, South Riverkeeper and West/Rhode Riverkeeper.
River associations on the Eastern Shore are attempting to distance themselves from Waterkeeper and the lawsuit. Bob Parks, executive director of the Chester River Association, said RFK Jr.’s attack “is no way in the best interest of our farmers or our watershed. This lawsuit has no value.”
Parks said that grain farmers along the Chester are the primary focus of the work of the association, noting that it is that grain that feeds the poultry industry.
“We work with farmers and encourage them to employ conservation practices. It’s the best way to save the Bay,” Parks continued. “Healthy farms mean a healthy Chester River. We need our farmers. We need our lifestyle over here.
“We’re trying to build a working relationship with farmers and this (filing a suit against the MDA) is not the way to do it,” Parks said.
Paul Spies, who is the agriculture conservation planner for the Chester River Association, said that the association was solicited by Waterkeeper Alliance to join the suit but refused.
“We are advocates for farmers and we told them we would not be a party( to their legal action),” Spies said.
Delaware officials also have been queried by Waterkeeper representatives about their nutrient management plans and were told their privacy was protected by law.
Delaware Ag Secretary Michael Scuse said: “We don’t anticipate any legal action in Delaware. Our situation is different from Maryland’s in that our nutrient management plans remain in the hands of the producers and not with the Department of Agriculture.
“Only CAFOs are required to file plans with the Department of Agriculture and are subject to FOIA (Freedom of Information Act) request.”
Should Delaware, however, come into the focus of the Waterkeeper Alliance, “we are prepared to deal with it,” said a spokesman for the ag department, expanding on the secretary’s comment.
“We were approached by the Waterkeeper Alliance in December 2007 with legal questions about the public availability of nutrient management plans.
“The nutrient management plans that are available by public request are those plans associated with a Concentrated Animal Feeding Operation (CAFO) permit.
Thirteen permitted CAFOs are administered by the Delaware Nutrient Management Program. Those nutrient management plans required by the State Nutrient Management Law are exempt, by law, from the Freedom of Information Act.”