UPDATE (July 16): The Maryland Department of the Environment has rescinded the guidance document it issued last year that allowed farmers to begin operating without manure sheds and other required infrastructure. The agency had done so after some chicken farms were at risk of getting delayed for a lack of state cost-sharing funding.

A decade ago, Maryland’s environmental regulators greatly expanded their scrutiny of densely packed animal farms, including the chicken houses that crowd much of the Eastern Shore’s landscape.Flood waters surround a chicken house complex west of Berlin, Maryland, where owners have constructed eight houses but haven’t started raising birds due to a permit challenge. (Tim Preziosi)

Since then, the Maryland Department of the Environment has approved scores of new industrial-scale operations without ever turning down an applicant.

That has changed, though, since the MDE declined to contest a Maryland administrative law judge’s recent ruling that a permit the agency issued last year violated its own rules.

Judge David Hofstetter urged the MDE in a May 30 order to reverse its August 2017 approval of a stormwater permit for a Worcester County farm that would be one of the largest of its kind. The ruling cited the MDE’s failure to hold the 61-acre operation, owned by Apna Farms LLC, to some of its regulations for stormwater management.

Apna will now have to submit a new plan to address nutrient runoff for approval, MDE spokesman Jay Apperson said. In the meantime, the eight chicken houses Apna has already built won’t be allowed to raise any birds.

The two environmental groups that brought the case to court say that with Hofstetter’s ruling, they expect MDE to enforce pollution-control measures more consistently.

"I hope this is going to set a precedent,” said Kathy Phillips, executive director of the Assateague Coastal Trust, which challenged the permit along with the Environmental Action Center. “No more short cuts. Let's do this right."

To shield waterways from nutrient-laden runoff, the state requires farmers to build separate sheds to store manure and dead birds. A state cost-sharing program aimed at improving the Chesapeake Bay’s health typically helps defray much of those construction costs, but Apna ran into a delay getting the money.

Instead of making the farm wait to go into business, MDE officials brokered a compromise: Apna could start raising flocks as long as it used “temporary measures” to manage its waste. The deal gave the farm up to two years to build the proper structures.

How Maryland regulates — and doesn’t regulate — its poultry industry will play a starring role in the federal and multi-state effort to clean up the Chesapeake Bay, said David Reed, executive director of the Environmental Action Center, the other plaintiff in the case

“Poorly sited, poorly situated and oversized operations like this are a direct threat to water quality,” Reed said.

The Environmental Protection Agency and the Bay’s watershed states are just over the halfway mark in a 15-year campaign to clamp down on pollution.

Agriculture, according to the EPA, is the biggest single contributor of nutrients and sediment to the Bay. Millions of taxpayer dollars have been flowing onto farms from Virginia to New York to help their owners to reduce runoff with actions such as planting vegetative buffers and digging storm ponds.

That work, however, has coincided with an unprecedented wave of poultry house construction on the Delmarva Peninsula, home to one of the densest concentrations of broiler operations in the country.

Many farmers are taking old chicken houses offline, limiting the actual growth to just a percentage point or two per year, according to industry estimates. But the new houses are substantially larger than the older generation of structures. What’s more, owners say they have to squeeze more houses onto each site to offset the higher development costs from the new regulations, which called for more elaborate stormwater structures, among other measures.

Until the past decade or two, most farmers — and their lenders — were satisfied with two or three chicken houses per operation. Now, there are groups of five, seven or more.

Projects like the embattled Apna Farms, which is under contract to raise birds for Tyson Foods, are so large that they are regulated as concentrated animal-feeding operations, or CAFOs. The state has permitted more than 400 such poultry growing operations.

When Worcester County resident Paul Bishop first heard the details of the CAFO that Apna wanted to build on neighboring land, he was concerned, but not surprised.

"The way I look at it, that's not really farming,” said Bishop, whose father owned and operated a farm with two chicken houses. “They put eight houses on a small lot there. That's just crazy. These are the biggest houses you can build, and they just stuck them in there."

He and his wife, Mary Lou, ended up formally joining the two environmental groups in appealing the MDE’s decision.

Ishfaq and Zaheer Ahmed, Apna Farms’ owners, are seeking to install more than 2 million broilers per year in the houses, generating more than 1,300 tons of litter, manure and wastewater annually, according to documents filed in the administrative hearing case. Zaheer Ahmed couldn’t be reached for comment, and Ishfaq, who is a partner in at least one other Worcester poultry operation, declined to comment.

Paul and Mary Lou Bishop live next to a proposed poultry operation in Worcester County, MD, and joined the Assateague Coastal Trust and Environmental Action Center to challenge its state-issued stormwater permit. (Jeremy Cox)The proposed farm is tucked off a country road just west of the antique store-dotted community of Berlin. About a mile farther to the west lies the Pocomoke River, a Bay tributary connected to the farm site by a network of agricultural ditches and streams.

The MDE’s regulatory process enables virtually anyone to request a public hearing on a CAFO permit. Over a span of nearly two years, Phillips and Reed have brought a dozen projects to a hearing before MDE officials but with little success until now. . Reed, an attorney, would work with Phillips to draft written arguments against the CAFO, citing the potential for ammonia-tainted air emissions, groundwater degradation and nutrient-laden runoff. The MDE would grant the permit anyway.

In some of the cases, Phillips said she noticed that the MDE was allowing farmers to avoid immediate compliance with some requirements to build the storage buildings for manure and composting facilities for the disposal of dead birds.

The leniency grew out of a budgeting bind, said Louise Lawrence, head of resource conservation for the state Department of Agriculture. During the 2017 fiscal year, Gov. Larry Hogan nixed a portion of the cost-share funding set aside for environmental upgrades on farms, which helped CAFO operators pay for the manure storage and composting buildings.

That left the program with $3 million, or just under one-third of the total funding requests it received that year.

“We’ve been good for 30 years,” Lawrence said. “That was the first year we got caught up in what was going on” in Annapolis.

At Apna Farms, two giant manure sheds normally required would have been replaced by a practice known as windrowing — shoveling the waste into long, narrow piles inside the chicken houses to allow natural composting to take place. After a couple weeks, the material is spread back over the floor and another flock of chickens placed on top. The process is repeated with each new flock.

Meanwhile, the mandatory composting facility would have been replaced by an 18-foot by 25-foot temporary steel shed.

State regulators justified the changes in a memo last year, arguing that the alternative measures they approved would “enable poultry farmers to construct new [animal feeding operations] or expand existing operations, and still meet applicable federal, State, and General Discharge Permit requirements.”

Phillips disagreed.

“We said, ‘This time we're going to contest it,’” she said. It was just the second case they brought before a judge. The first died a paperwork-related death.

Hofstetter’s subsequent 18-page ruling took a “letter of the law” approach to the case. The federal government empowers the state to make farmers draft nutrient management plans to keep them in compliance with the Clean Water Act, he wrote. Those plans must follow a specific set of USDA policies designed to mitigate pollution.

To accept anything less than those minimum standards, Hofstetter wrote, is “legally inconsistent” with the state’s water-quality laws.

While administrative hearings involve cross examination and evidence, they differ from typical courtrooms in one critical way: The judge’s ruling amounts to a recommendation, and an agency can choose to follow it or not. MDE decided to comply.

Farmers aren’t backing down in the face of this new breed of opposition.

James Fisher, a spokesman for the Delmarva Poultry Industry trade group, said a recent U.S. Department of Agriculture assessment has  shown that farmers have made some of the biggest strides toward meeting the Chesapeake Bay’s nutrient-reduction goals.  The Berlin farm’s opponents are “outside the mainstream” view that cost-sharing represents an “efficient, effective” way to accomplish that goal, he said in a statement.

Meanwhile, farmers no longer have to wait for funding. The state has set aside $10 million for the fiscal year that begins July 1.

For her part, Phillips said she plans to continue closely watching the state as it balances restoring the Chesapeake with supporting its farmers.

“The Maryland Department of the Environment is supposed to protect the environment,” she said. “They're not the Better Business Bureau or the Chamber of Commerce.”