The agricultural community is now being told to assume greater responsibilities for reducing water pollution resulting from farm operations. Notice that I use the term “told,” not “asked.” As a result of Pennsylvania lagging behind in efforts to improve the water quality of the Chesapeake Bay, the U.S. Environmental Protection Agency (“EPA”) has directed Pennsylvania to ratchet up its enforcement efforts, especially with respect to farmers, in order to reduce the discharge of nutrients and sediments to Pennsylvania’s streams located in the Chesapeake Bay watershed. This watershed encompasses approximately all of southcentral Pennsylvania. In the past, farmers generally were encouraged to take voluntary steps to implement pollution reduction measures. Now they will be expected to implement a number of mandatory measures.
What will this mean for farmers? Most notably, farms will have a greater likelihood of being inspected by representatives from either the Pennsylvania Department of Environmental Protection (“DEP”) or county conservation districts. DEP has announced that it intends to conduct farm inspections, with the assistance of the conservation districts, of at least 10% of all farms annually in the Chesapeake Bay watershed. In addition to increasing oversight of the agricultural community’s effort to address water quality, DEP has also announced that it will impose additional requirements on municipalities to reduce their stormwater discharges.
What will inspectors be looking for from farmers? Primarily, they will want to see that each farm has manure management and erosion and sediment control plans in place. Most farms are already required to have these plans. DEP will notify a farmer if his or her farm has been selected for inspection. An actual inspection can be avoided by simply mailing copies of these required plans to DEP. If DEP determines that they plans meet all requirements, there will be no physical inspection of the farm. If these plans are not submitted to DEP, DEP or the county conservation district will schedule an inspection of the farm. At the inspection, the farmer will be asked to produce a copy of these plans for review. If the inspector determines that the plans are satisfactory, the inspection is over. If the farmer does not have the required plans, he or she will be asked to have them prepared and submitted to DEP, usually within 30 days. Failure to do this could lead to an order from DEP or possibly a penalty.
Clearly, the best option for farmers is to make sure they have required plans prepared and in place and provide these plans to DEP if contacted. Farmers choosing this course of action will avoid an actual physical inspection of their farm. While an inspector will only ask to review these plans, if he or she notices other environmental violations during an inspection, a farmer could be required to address them. Therefore, if there is going to be an actual physical inspection, it is imperative that the farmer take common sense steps to address potential environmental problems (e.g. leaking fuel tanks, manure stored close to stream) prior to an inspection.
Other recommendations related to farm inspections include:
- Be as cooperative as possible. Remember, most inspectors are only doing their jobs and are generally pleased if they do not find any violations.
- Inspectors are required to comply with all bio-security measures that are in place at a farm.
- DEP has the statutory authority to conduct the inspections. While a farmer could require the inspector to obtain a search warrant, it typically will not be in a farmer’s best interest to require an inspector to jump through these hoops and obtain a warrant.
- While inspectors generally will not be looking to see if the required plans are being implemented, it makes sense for farmers to actually implement their plans.
If you have questions about how increased farm inspections and potential enforcement actions will affect your farm or business, please contact us. We have attorneys with extensive experience at DEP and with the agricultural community who can help you navigate this new regulatory environment.