Clean Water Lawsuit Decision Looms As Deadline Approaches

BERLIN - Whether stormwater discharge from the Hudson Farm chicken operation merits the filing of a Clean Water Act lawsuit will be determined in the next week, when the 60 days the farm was given to correct the problem are up.

The Waterkeeper Alliance sent a Notice of Intent (NOI) to file a Clean Water Act lawsuit to Alan Hudson and contractor Perdue Farms on Dec. 17, 2009, giving farmer Alan Hudson 60 days to correct problems.

The 60-day clock began when all parties notified of the NOI acknowledge receipt of the letter. The Maryland Department of the Environment did not acknowledge receipt until Dec. 26.

'If we do file a complaint, it'll be on February 26,' said Assateague Coastkeeper Kathy Phillips, who was instrumental in investigating the Hudson Farm discharge.

Phillips observed apparent problems on Hudson Farm during an aerial survey of the region this fall. That flyover showed a large pile of chicken manure or other waste close to a ditch, with manmade trenches leading from the material to the ditch to carry stormwater away. She then accessed the ditch on public land adjacent to the farm and took water samples.

After finding 'astronomically high' levels of bacteria and very high levels of nitrogen, phosphorous, and arsenic, Phillips reported the problem to the national Waterkeeper Alliance. Since then, a pile of treated human waste adjacent to the ditch has been moved to a different location on Hudson Farm. Some improvements have been seen in the ditch water, Phillips has reported, but levels of bacteria and nutrients are still much higher than allowed under the Clean Water Act.

'When the trenches were filled and the pile was moved, the numbers were not as astronomically high but the numbers were still high,' Phillips said. 'Discharges were still coming off that property, our ongoing sampling shows.'

Water from the ditch travels into Franklin Branch, which empties into the Pocomoke River, an impaired waterway, which then empties into the impaired Chesapeake Bay.

Phillips continues to take water samples from the ditch for testing.

'I just took some more samples Friday and we're waiting for the results. The samples we've taken since they moved the pile still have shown an ongoing violation,' Phillips said. 'Are things better over there? I don't think so.'

Phillips said that no decision has yet been made on whether to pursue the Clean Water Act lawsuit against Hudson Farm and Perdue.

The state has also not made any decisions on whether to move against the farm or not.

MDE spokesman Dawn Stoltzfus confirmed yesterday that the department's investigation is ongoing.

The agency was not permitted to take samples from materials on the farm until late January, after threatening to get a search warrant. Samples were finally taken, but the results have not been made available to the public or press.

MDE is reviewing the data, Stotzfus said, but added that she could not speak about the results.

'Because our investigation is ongoing into possible enforcement actions, we can't really comment,' Stotzfus said.

She did say MDE is working closely with the Maryland Attorney General's office on the case.

A decision on whether to pursue enforcement actions over the discharge from Hudson Farm could come down in the next couple of months, Stoltzfus said, but there is no clear deadline in place.