Kathy Phillips pulls her skiff close to the shores of South Point Spoils, a tree-covered island in Sinepuxent Bay. The sun has just begun peeking through the canopy of clouds. Egrets glide across the sky, searching for breakfast. As she sits back and watches waves lap, Phillips could be mistaken for a conventioneer from nearby Ocean City out for a day cruise, or a youngish retiree.

But she’s not. Kathy Phillips is the little lady who started the Big Chicken War.

In March, Phillips and her organization, the Assateague Coastal Trust, filed a federal lawsuit against Perdue Farms Inc. and one of the company’s growers, Alan and Kristin Hudson, who have an 80,000-bird poultry farm just outside Berlin, Md. They accuse the farm of violating the Clean Water Act by illegally discharging pollutants into state waters—in this case, a branch of the Pocomoke River. Joining Phillips in the lawsuit are the Waterkeeper Alliance, which Robert F. Kennedy Jr. founded a decade ago. The University of Maryland’s Environmental Law Clinic also assisted in the case and will serve as co-counsel. As of press time, a court date had not yet been set.

Lawsuits over pollution are not new. Nor is it a revelation that poultry manure is a significant problem in the Chesapeake Bay’s waterways. Manure is rich in nitrogen and phosphorus, the bay’s two biggest pollutants, and chickens are mostly raised on the Delmarva Peninsula. Yet, the chicken lawsuit has rocked both the genial Eastern Shore and the sharper-elbow world of Annapolis politics.

At stake is the question of who is accountable for all that chicken manure. The chicken companies tightly control every aspect of how their contractors raise the birds, but they do not control—nor do they want to—the chickens’ waste.

Jim Perdue, whose grandfather founded the company 93 years ago, called the lawsuit “one of the largest threats to the family farm in the last 50 years” and noted that lawsuits like this one probably wouldn’t happen in Delaware. His remarks re-ignited a perennial panic in Annapolis that he could leave the state and jeopardize hundreds of jobs in the heat of the recession. Shore legislators sponsored a bill intended to strip the law clinic of state funding, though it was later amended to just require a report on its activities. Even other environmentalists were conflicted, especially those living on the Shore. Couldn’t the riverkeepers have simply called the Maryland Department of the Environment or paid the Hudsons a visit?

Phillips says she’s tried contacting the agency numerous times over the past four years, and gotten nowhere. And, she notes, you can’t just saunter up to a chicken farm, which has strict rules about visitors and isn’t likely to welcome a riverkeeper anyway.

“These are laws,” she says. “Laws are supposed to be enforced. Permits are supposed to be monitored. And that’s what I am going to do. MDE shirks their responsibility. They haven’t done their job—and people wonder why the Chesapeake Bay is in the shape it’s in.”

Phillips didn’t set out to sue Purdue. Originally, she just wanted to surf.

Phillips and her husband, a teacher, lived outside of Washington, D.C., and used to come to Ocean City on the weekends to catch the waves. They moved to the beach permanently 30 years ago. While her husband got a teaching job, Phillips eventually landed as executive director for a regional surfing association.

In 2006, Phillips ran for Worcester County commissioner. She lost. But the movers and shakers liked what she had to say, and suggested she apply for the job of Assateague Coastkeeper. The position was only a few years old; the first coastkeeper had just left for the West Coast.

Phillips got the job. She learned on the fly, literally—a pilot flew her around the Shore to show her the area. During the flight, she saw the piles of chicken manure that many farmers kept uncovered, despite government funding to help them build sheds to keep it from washing into the bay. She saw how close the farms were to crucial waterways, kept notes, took pictures. Together with the Waterkeeper Alliance, which had already taken on hog farms in North Carolina for some of the same pollution problems, Phillips pressed for stricter regulations on chicken operations, which she argued were more analogous to factories than the typical family farm. The EPA eventually agreed. Now the states are undertaking a permitting process for concentrated animal feeding operations, though they have not yet finished.

But last fall, while on a flight with a Wall Street Journal reporter and the Waterkeeper’s director of advocacy, Scott Edwards, Phillips spotted “multiple piles” of manure on the Hudson farm. She also noticed a trench from one pile that led to a drainage ditch leading to the Franklin Branch of the Pocomoke River, which empties into the Bay. The next day, Phillips took water samples from the ditch. The numbers for E.coli and fecal coliform bacteria were off the charts. Assateague Coastkeeper and the Waterkeepers filed a notice of intent to sue. 

The farmers refused to let MDE test the pile, but they did move and cover it at the agency’s insistence, says MDE spokeswoman Dawn Stolzfus. Five weeks later, based on documentation from Ocean City, MDE concluded the pile was biosolids, or treated human waste, from an Ocean City treatment plant, which farmers often use as a fertilizer to supplement manure. The state also found extremely high levels of contamination in the water but concluded it came from area wildlife. Nonetheless, they fined the farm $4,000.

Stolzfus says the fact that inspectors got the farmers to move the pile and then levied the fine shows that MDE is enforcing the law. “That is doing our job,” she says. “We took action that was appropriate.”

The riverkeepers have never been satisfied with the assertion that the original pile was biosolids, since it specifically was never tested. Perdue, for its part, maintains each farmer is an independent contractor, and it has nothing to do with an individual farmer’s decision to obtain more fertilizer, so it should not be held liable. But regardless of what was in the pile, its condition was a violation of the Clean Water Act. For that, Edwards puts the blame squarely at the feet of Perdue.

“This is a very sophisticated industry that understands very well what nutrient levels do to the Chesapeake Bay,” he says. “Every single step of the way, the industry has resisted doing the right thing.”

Perdue Vice President Luis A. Luna disagrees. He won’t comment on the lawsuit or any specifics relating to the Hudsons—and the Hudsons’ attorneys didn’t return calls for comment. But Luna points to the company’s efforts to help the Chesapeake. Nine years ago, it set up Perdue AgriRecycle, a pelletizing plant in Delaware that takes excess manure farmers don’t want and turns it into a fertilizer additive, which is sold commercially. Perdue has invested $33 million in the plant, Luna says, and this past year was the first that the plant made more money than it lost.

For no cost, Perdue will come to a farm and transport its manure to the plant, which handles about 50,000 tons of manure a year—about a tenth of the total manure produced on the peninsula.

The reason more farmers don’t take Perdue up on its offer is because the manure has value. It’s free fertilizer.

“People do want the manure. This idea that there’s tons and tons of it that is just sitting on the road and not being used is false,” says Virgil Shockley, a Worcester County commissioner who raises chickens for Tyson and saves thousands of dollars every year spreading manure on his 325 acres of cropland. “At the end of the day, manure can be recycled, and the best way is to put it back into the ground and grow a plant.”

The problem is there’s simply too much manure on the peninsula, where the amount of farmland has shrunk but the number of birds has increased. Besides, much of the soil has so much phosphorus in it already that scientists worry it can’t take much more.

Even Phillips would agree that many chicken farms are like Shockley’s—responsible stewards who follow best management practices. They keep pads on the ground to absorb any excess manure, a grass buffer between the houses to absorb pollution, and swales to direct storm water to retention ponds. And, they keep their manure in their sheds. In order to even acquire chickens from a major company, farmers are now required to have a nutrient management plan and manure and composting sheds. And they are subject to random state and federal inspections.

The devil is in the details of how each farmer manages beyond these requirements. Shockley says the farmers are trying to do the right thing—if they could only figure out what that is. Between the changing state and federal requirements, Shockley says, farmers “quite frankly don’t know what the hell to do.”

Perdue is trying to help, Luna says. Working with the EPA, the company started the Clean Waters Environmental Initiative, which uses flock supervisors to make sure the farmers are being good environmental stewards. Those programs were part of the reason Maryland Gov. Martin O’Malley gave Jim Perdue the prestigious International Leadership Award this year, much to the riverkeepers’ consternation. But Luna argues the riverkeepers are blaming the wrong people.

“If there’s any blame to be laid at the plight of Chesapeake Bay, I wouldn’t go to the farmers first,” Luna says. “It makes no sense to me, except that it’s a lot easier to blame a couple thousand farmers than it is to blame 20 million people.”

Judith Stribling doesn’t entirely disagree. A longtime environmentalist, Salisbury University biology professor, and one of the founders of Friends of the Nanticoke, she says Perdue has evolved over the years to become better environmental stewards. To get them the rest of the way, she says cooperation—not a lawsuit—is the answer.

“When the Waterkeepers filed their lawsuit, [farmers] said, ‘That’s what the environmentalists are trying to do. They want to shut us all down.’ The truth is, we have different approaches. I just am not in favor of demonizing people, especially when you’re working with people and negotiating,” she says. “These are our friends, our neighbors, our colleagues.”

Don’t tell that to Fred Kelly. In 1974, the silver-haired Severn riverkeeper was a young attorney working for the Chesapeake Bay Foundation. While there, he heard that PEPCO, the power company, was planning to build a nuclear power plant at Douglas Point along the Potomac River—the very spot where more than half of the East Coast’s striped bass spawn. Kelly knew that the plant would trap thousands of stripers, endangering one of the Chesapeake’s last productive fisheries.

He filed a petition before the Nuclear Regulatory Commission to block the issuance of the permit. But before the matter could go before the three-judge panel, CBF balked, not wanting to appear too radical. So Kelly quit CBF and took the case on himself, representing a small watershed association. He was up against PEPCO’s team of a half-dozen attorneys. He couldn’t even afford the daily court transcript.

But he won. And several years later, the state bought the property, to be forever protected. Kelly netted just $300, but he got so much more, he says. If he hadn’t filed suit, that power plant would stand today.

“True environmental protection only comes from lawsuits, where an impartial judge looks at the action being taken by the polluter and says, ‘You’re in violation of the law. You have to stop,’” Kelly says. “I can understand those groups that want voluntary compliance, but how bad does the Chesapeake Bay have to get before they decide it isn’t working?”

These days, his former employer is inclined to agree. Since 2005, the Chesapeake Bay Foundation has filed more than a dozen legal actions, thanks to a $1.25 million grant from the Philadelphia-based Lenfest Foundation specifically for litigation. It has sued regulators, municipalities, and even Philip Morris. Recently, it settled a lawsuit with the EPA after the agency agreed to meet strict deadlines and limits on its cleanup plan. It also helped kill the King William Reservoir, which would have diverted water from the Mattaponi River to create a water supply for manufacturing in Newport News.

“If we didn’t sue, that reservoir would have been built,” says Jon Mueller, CBF’s vice president of litigation. “That’s some 400 acres of forested wetlands that would be underwater.”

CBF is not part of the riverkeeper suit, but staffers are watching it closely. Obviously, Mueller says, if a chicken farmer violates the Clean Water Act, he is responsible. But whether Perdue is also liable, he says, is “a very interesting question.”

If the chicken companies were forced to also be responsible for chicken waste, Phillips and Edwards say, they would use their vast resources to look for ways to make money by turning manure into energy, and the Shore would likely be the site of many more innovations like the AgriRecycle plant. If that happened, the companies might even pay the farmers for the waste while also taking responsibility for it.

Not only would that change the way chicken companies did business on the Shore, Edwards says, but it could also help the Bay. Manure wouldn’t be piled up anymore, or at least not for long. And farmers wouldn’t have to worry they were polluting one of the state’s most precious resources.

“If we win, that is a victory for every small family farmer on the Eastern Shore,” Edwards says. “I don’t think I’ll get any thank-you notes from them, but that’s the reality.”

Contributor Rona Kobell also writes for the Bay Journal.