N.C. Riverkeepers Cry Foul Over State’s Farm Law
North Carolina’s riverkeepers are starting to return to business as usual now, more than a year after the COVID-19 pandemic slowed their efforts to fly over hog and poultry farms looking for violations of the state’s environmental regulations.
Before the pandemic, some of the riverkeepers flew over the farms at least once a week. When they found a suspected violation, they took pictures that included a timestamp and GPS coordinates. Then they’d send that information to the state Department of Environmental Quality, which is supposed to investigate the complaint and cite the farm if a violation is found.
By law, the DEQ cannot use a third party’s information to determine whether a farm should be issued a notice of violation, which would force the farm owner to remedy the infraction and abide by the state’s laws and regulations. A fine often comes with the notice. The department has to conduct its own investigation and draw its own conclusions.
The problem, the riverkeepers say, is that a state law approved in 2014 shields the DEQ from revealing any part of its investigation until and unless it issues a notice of violation. Without a notice, the DEQ cannot reveal its investigative findings even if it wanted to.
Some of the riverkeepers say they continually file the same complaints against the same farms, only to find that nothing has been done.
Some question whether the DEQ is doing a thorough job.
“Unless there's a violation, we don't know what they're doing, which could include the fact that they didn't investigate at all, or they went to the location of violation and just had them repair the violation or correct the violation,” said Larry Baldwin, a former Riverkeeper and now coordinator of Pure Farms, Pure Waters NC campaign for Waterkeeper Alliance based in Raleigh. “We don't know how many of these things are being followed through.”
Uncovered Poultry Litter
One of the most common complaints filed by the riverkeepers involves poultry farms that scrape litter from their barns and then leave it in huge uncovered piles for longer than 15 days, which is a violation of DEQ regulations.
Dry poultry litter contains enormous amounts of phosphorus, nitrogen and ammonia. Leaving the piles uncovered increases the risk that wind or rain will carry the substances into rivers and creeks, and pollute the air for people living nearby. The piles, which also contain dead birds, are likely to also contain potentially harmful bacteria, including Salmonella and E. coli, antibiotics and heavy metals, according to a study published in 2019 in the International Journal of Environmental Research and Public Health.
Excessive amounts of nitrogen and phosphorus can cause algal blooms and fish kills in rivers and streams. Excessive levels of E. coli or other fecal bacteria is the primary reason for seasonal warnings that are issued every year around swimming at the state’s beaches and recreational areas.
The presence of E. coli in water is an indicator of recent fecal waste contamination. E. coli bacteria enter the state’s waters from various sources, including leaking septic systems, improperly functioning wastewater treatment plants, stormwater runoff and animal feeding operations.
“Although not all E. coli bacteria are harmful, numerous studies have demonstrated that E. coli concentrations are the best predictor of swimming-associated gastrointestinal illness,” according to a report from Waterkeepers Carolina. “Additionally, illnesses such as eye infections, skin irritations, and respiratory disease are common in people who come into contact with fecal-contaminated water.”
The report says every river basin in the state failed E. coli criteria set by the U.S. Environmental Protection Agency at least once last year. At least 20 failures occurred every week across the state, the report adds.
DEQ Data Raises Questions
On March 18, the Cape Fear River riverkeeper, Kemp Burdette, and his staff filed complaints against 10 poultry farms that Burdette said had left litter piles uncovered for at least 15 days. Six of those were repeat complaints identified from earlier flyovers.
That means the poultry litter at those six farms had been left uncovered for at least 30 days from the time Burdette’s office filed the initial complaint with the DEQ. Burdette believes the piles were probably left uncovered even longer because he was having trouble scheduling flights every two weeks during the pandemic.
“We frequently see piles that are left out for much greater than 30 days, which always kind of begs the question, if we notify the DEQ and the pile stays out for more than 15 days after that, what's being done?” Burdette said. “If they know about it and presumably they're going to check on it and the pile is still there, then why is it still there?
“We can't figure any of that out and, you know, you can't call the DEQ and say, ‘Hey we sent you this referral, but we noticed that litter is still there 15 days later. Is there a problem? Is it not litter?”
Because of the 2014 law, the DEQ cannot respond if no violation is recorded.
Data the department shared may provide a clue. From Jan. 1 to March 31, the DEQ issued seven notices of violation to animal feeding operations. In that same timeframe, Burdette’s office filed 20 complaints with the DEQ. That’s the amount for just one riverkeeper out of the 15 who monitor North Carolina’s waterways. The public, often people living near the farms, also are known to file complaints.
DEQ data from May 1, 2018, to March 31, 2020, also seems to be revealing. The DEQ recorded 85 complaints in that timeframe. Of those, eight resulted in a notice of violation, or 9.4 percent. Another DEQ document shows 138 complaints were filed between Nov. 1, 2018 and April 30, 2019. Of those, 62 of 138 led to notices of violation -- or about 45 percent.
Jill Howell, the riverkeeper for the Tar-Pamlico River Basin, said part of the problem is that the DEQ is under-resourced and underfunded.
“It might take them a little bit to get out there, so conditions could have changed since what we saw to what they see,” Howell said. “We're not there with them. We don't know when they go out so we don't know if they're, you know, looking in the right place or how thorough they're being once they are out there. So we don't know any of those specifics. If they do go out and they don't find an issue like what we saw, we can never know that because they will not have issued a notice of violation. They're not allowed to say anything.”
In a later email, Burdette said that severe budget cuts the DEQ has faced in the last dozen years or so has hampered its effectiveness and that the department’s regional office in Wilmington appears to be trying to improve its response to the riverkeeper’s complaints. The law itself, Burdette said, is the primary problem.
In an email to NC Health News, DEQ spokesman Josh Kastrinsky cited the law and added: “We will look into whether there is a discrepancy in the reporting of complaints received, but will not be able to resolve that prior to your deadline.”
A Lack Of Transparency
Environmental activists lament the lack of transparency caused by the 2014 law. Many say it was created by design.
State Rep. Jimmy Dixon, a Duplin County Republican who once raised more than 700,000 turkeys on his farm, was among those who pushed for the confidentiality law involving DEQ investigations of animal feeding operations. Dixon, who serves as chairman of the House Agriculture Committee, was quoted in a 2019 article in the Guardian:
“We fully expect and desire to have any violations known and exposed,” Dixon told the news outlet. “But just to throw it wide open for every Tom, Dick and Harry to make unsubstantiated claims, like some of the people do – we believe that there is an inherent expectation that I should be determined to be innocent until proven to be guilty.”
That explanation doesn’t fly well with the riverkeepers.
They say they should be working with the DEQ to help investigate the polluters. Instead, they are left in the dark.
“Everything is confidential, and if there's no violation determined, we never even know the outcome of our report,” said Emily Sutton, the Haw River riverkeeper.
Baldwin, the coordinator for Waterkeeper Alliance NC, put it another way.
“It's a system which would give no transparency, and transparency is probably the best word to use for a lot of things that go on in the state,” he said. “It's basically a law that I see is there to protect the violator and give the violator the opportunity to correct the violations.”
A Far Bigger Issue
The law is not the biggest issue with poultry farms. A far bigger issue, some of the riverkeepers said, is that almost all of the state’s poultry farms remain largely unregulated.
In a 2017 report, the DEQ wrote that dry-litter poultry farms are not required to have permits, unlike large swine and cattle operations that are required to have state general permits and federal pollution permits. As a result, the report said, the department didn’t even know how many poultry farms were in the state, where they were located, or how they disposed of their waste. The main regulatory branch for the poultry farms is the state Department of Agriculture.
The location of swine and cattle animal feeding operations (AFOs) are known because a state or NPDES permit is required. However, the locations of dry litter poultry operations and the disposal of their waste are not known to environmental regulators, making it difficult to form a complete picture of possible non-point source contributions within a specific watershed. Knowing what nutrient sources exist in the watershed can help water quality managers better understand available water quality data and to formulate appropriate decisions and regulatory recommendations.”
“There's no regulations around poultry facilities that are being enforced,” Sutton said, noting that there isn’t even a way to determine where the poultry litter piles go after they are hauled away.
“All of this is supposed to be included in the nutrient waste utilization plan that is supposed to be kept on site at the poultry facility, but because that nutrient waste utilization plan is not required to be submitted or reviewed or turned in -- it just has to exist on the property -- you're not sure that it's even being created in the first place,” Sutton said. “That means that nobody, even the agencies, have information about how much litter is being produced and where it's being land applied.”
Huge Increase In Poultry Farms
The state now has a much better idea of the locations of the poultry farms, thanks to the efforts of Waterkeeper Alliance and the national Environmental Working Group, which used satellite imagery and other means in 2018 to locate them.
Their findings uncovered an explosion of industrial poultry farms in the state, especially in Sampson, Duplin and Robeson counties, which also happens to be the heart of hog country. Like the hog farms, some of those poultry farms have been built in flood plains, where they’re more vulnerable to hurricanes and other major storms.
According to a report from the Environmental Working Group and Waterkeeper Alliance, the groups found that there are now twice as many poultry farms in the state as there are hog farms -- 4,700 poultry farms to 2,100 hog farms.
“The groups’ research found that in 2018, manure from 515.3 million chickens and turkeys joined the waste from 9.7 million hogs already fouling waters and threatening North Carolinians’ health,” the report said.
Another report from the groups, dated July 30, 2020, found that the estimated number of chickens and turkeys in Duplin, Sampson and Robeson counties swelled from 83 million to 113 million between 2012 and 2019, an increase of 36 percent.
“The three-county increase was driven by the astounding expansion in Robeson County, where the number of chickens and turkeys increased by 80 percent, to 24 million,” the report said.
The riverkeepers said they aren’t seeing more fish kills or algal blooms because of the increase in poultry farms.
On the other hand, they said, the situation isn’t getting any better.
“I wouldn't say I see it getting worse every year,” said Sutton, the Haw River riverkeeper. “It's just not getting better and DEQ hasn't been responding to the complaints to alleviate the problem.”