August 19, 2020

 

Opposition against poultry fee proposal made by Maryland, US, government

 

A bid by the government of US state Maryland to spare poultry farmers from higher stormwater permit fees has hit a roadblock after the Maryland Department of the Environment's (MDE) counsel rejected a proposed fee structure.

Top officials with MDE are now assessing their next move. Matthew Standeven, the attorney general's office lawyer assigned to the MDE, warned in a July 17 memo that the agency would be treading into "unlawful" territory if it moved forward with its plan.

Attorney General Brian Frosh and the General Assembly's counsel, Sandra Benson Brantley, also condemned the proposal as against the law.

State Senator Paul Pinsky (D-Prince George's County) accused the Maryland administration of being slow to implement the fees.

"The law says they have to collect enough money to provide oversight and technical assistance" to farmers, Pinsky said. "This won't do it."

The fee impasse represents an escalation in environmentalists' fight to get farmers to bear a larger portion of the cost of cleaning up the Chesapeake Bay. Livestock and chicken manure generate nearly half of the nutrients that reach the bay, according to estimates from the state-federal Chesapeake Bay Program.

On the Delmarva Peninsula, one of the densest poultry regions in the Bay watershed, more than 5,000 chicken houses produce more than 600 million chickens a year for agribusiness giants like Perdue and Tyson. The birds are raised indoors, but the poultry litter - a mix of manure and bedding materials such as sawdust, woodchips or straw - is usually spread as fertiliser on neighboring farmland.

The MDE made changes in 2009 that greatly expanded the number of operations needing to comply with its stormwater management programme. The agency under then-Governor Martin O'Malley waived the permit fees to encourage farmers to make necessary drainage improvements around their properties.

Larry Hogan, the current Governor of Maryland, continued offering the break after taking office in 2015. The state has lost out on about US$400,000 a year in potential revenue by waiving the fees, critics estimated.

However, under a 2019 measure approved by the General Assembly, the biggest farms - new or expanding farms with at least 350,000 square feet of total house space - would have to pay a US$2,000 application fee as well as an annual charge of US$1,200.

All other poultry operations would have to begin paying a fee. But lawmakers left it up to MDE staff to determine how much should be charged and how often.

MDE Secretary Ben Grumbles responded last fall with a plan to charge the rest of the farms small farms between US$60 and US$800, depending on their size. The fees would be due when the permit's renewal deadline crops up once every five years. He didn't propose an annual fee for the operations with less than 350,000 square feet.

In November, the Joint Committee on Administrative, Executive and Legislative Review put a hold on the measure, pending further analysis. After discussions with key members of the committee, Grumbles proposed moving forward with the regulations as previously drafted.

"Following discussion with the AELR chairs and after carefully considering public comments on the proposed regulations, MDE continues to believe that the 2019 regulatory proposal is appropriate," Grumbles wrote in a July 1 letter.

The biggest sticking point: The new fee structure would collect US$425,000 less per year compared with the totals called for - but not collected - under the existing law, state officials say. Under a longstanding regulation, the application fees must be set at an amount "designed to cover the cost of the permit procedure."

Grumbles said that the programme is adequately funded through a "combination of sources," including Maryland's Clean Water Fund.

Jay Apperson, an MDE spokesman, said the agency's counsel initially found legal sufficiency in the secretary's action but later withdrew it. In his July memo, Standeven, the agency's attorney, pointed to the argument made several months earlier by Benson Brantley.

"Although there is no prohibition against the administration from appropriating additional funds to support the programme, when the statute directs the agency to set the application fee 'to cover the cost of the permit procedure,' other funding should not be relied on to supplant the fee revenue MDE needs to cover those costs," she wrote last October.

The MDE is working to determine what to do now, Apperson said.

"The matter is still under discussion," he said.

- Bay Journal