By Ashley Ellixson and Paul Goeringer
This post should not be considered legal advice or a political statement for or against this proposed legislation.
I hope, this year, to look at more proposed legislation currently pending before the General Assembly during the 2016 session. Recently introduced was SB 496, the Poultry Litter Management Act (http://mgaleg.maryland.gov/2016RS/bills/sb/sb0496f.pdf), which would change how poultry litter is handled in Maryland. SB 496 would require a poultry company, also known as the integrator, to take ownership of poultry litter in certain situations. The legislation would also make certain information available which currently is not publically available.
Overview
Before we look at the legislation in detail, let’s talk about how the current system works in Maryland. Currently, the contract between the integrators and growers specifies that the litter is the property of the grower. Growers utilize the litter as a low cost organic fertilizer that is applied to various fields according to a comprehensive nutrient management plan. Litter can be temporarily stored according to Maryland Department of Environment (MDE) regulations. If growers over apply nutrients without regards to their nutrient management plan or improperly store litter, then those growers will face penalties from MDE. The excess litter can be transported to other producers in need of nutrients or to alternative users (such as utilization for energy production) through programs offered through Maryland Department of Agriculture.
Proposed Legislation
The proposed legislation would change how the current system operates. Under the proposed legislation, a grower would only retain the amount of manure necessary to meet the nutrient needs from the comprehensive nutrient management plan. Any excess litter would be the responsibility of the integrator to remove from the farm and deliver to a specified list of places; more on that in a minute. This removal of excess litter would take place once a year.
So what kind of locations are acceptable delivery points for the removed litter? Agricultural operations that need nutrients and have an unexpired nutrient management plan would be acceptable. Other facilities that could take the litter would be a storage facility with adequate indoor storage or alternative use facilities, those which can utilize the litter in a way that does not result in additional loads into the Bay Watershed. An example would be litter to energy production.
A grower may also keep all the excess manure, and can get written permission from the integrator to retain the excess. The grower would also need to obtain an approved alternative use plan for the litter from Maryland Department of the Agriculture (MDA), ensuring the excess litter would not result in any additional nutrient loads into the Chesapeake Bay.
The proposed legislation would also make records publically available. When transporting the litter, the integrator or a litter broker would need to keep records on 1) amount of litter removed and address and location of grower, 2) nutrient analysis of the litter, and 3) the name, location, and amount of litter delivered to each facility. However, it important to note that all animal feeding operation (AFO) permits are currently publically available. MDA is prohibited from releasing individual farm information but can give general information such as on manure from poultry operations in a given county but not on a specific farm-by-farm basis.
Does the Law Duplicate Current Permit Requirements?
According to MDE, the proposed law would not duplicate current AFO permit application requirements. The main portion of the application that would change would be where the grower is asked where the operation’s excess manure is being sent. The blank currently filled in with “Farmer Joe’s crop land” would be replaced with “Integrator.” When it comes to the comprehensive nutrient management plans, MDE simply reviews what is written by the qualified writers, making sure all the blanks are filled in correctly and the forms are completed, but does not question the calculations done by MDA or qualified analysts. Further, MDE sends auditors to farms to ensure the plans are actually being followed.
Additionally, “The Manure Transport Program” could potentially become extinct. Right now, the program is partially funded by integrators. If the proposed law were enacted, there would be no incentive for the integrators to help finance the program since the excess manure would become their responsibility (and property, legally speaking) to transport. The integrators would become financially as well as legally responsible for the excess manure which may mean they would transfer that cost to the growers in the end. This may not be the actual case, but is one possible effect on the current program.
Impact on Proposed Legislation
You will notice here we ask more questions than we answer. The reason for this is, we have no idea how this law would apply until MDA implements it and we see how legal challenges play out. The biggest question is: Do we have an excess litter problem on the Eastern Shore? Or are poultry farmers utilizing existing litter properly under their nutrient management plans? If there is no excess litter issue, there may be no reason to pursue the proposed law.
Would the integrators pass the cost of removing excess litter to the growers? If yes, then growers would see smaller checks per flock, which would have huge impacts on the Eastern Shore economy.
Would the integrators pass on the costs of transporting litter to farmers in need of nutrients in the Upper and Mid Shore regions? Because the proposed law would not allow public funds in the manure transport program to be utilized, this means nutrient deficient producers would potentially have to pay the cost of transporting the manure to their operations. The issue here would be whether inorganic commercial fertilizers would be cheaper compared to transporting excess poultry litter to a grower’s farm.
Are we turning the integrator into a new compliance agency? MDE requires concentrated poultry feeding operations to qualify for the general discharge permit. From reading the proposed law, it seems MDE and the integrators would not have to check nutrient management plans to determine validity. Do we really need both groups checking this? Or do we need to include a private actor in this process?
On February 25, Maryland Secretary of Agriculture Joe Bartenfelder issued a statement saying, “Based on information we have, to date, there is not an excess of poultry litter in Maryland.” If this is the case, it sounds like the proposed law is unnecessary. Unfortunately, it appears that until the Phosphorus Management Tool is entirely implemented and actual nutrient numbers are determined, the definite amount of excess manure may still be unknown. Secretary Bartenfelder further explained that “[t]he department intends to modify these estimates as real data becomes available.” Again, we may not have the answers but these are the concerns and considerations at issue. See Secretary Bartenfelder’s full statement: http://news.maryland.gov/mda/press-release/2016/02/25/statement-by-secretary-joe-bartenfelder-on-the-poultry-litter-management-act/
As we said earlier, we ask more questions than we answer. If this law passes, its true impacts will not be seen till implementation and court challenges are complete. We welcome your comments below on how you think this law could potentially impact the poultry industry or benefit the Chesapeake Bay.