Divided Oversight Hampers Enforcement In Major Vermont Farm Pollution Case

Nov 22, 2019

Two state agencies have failed to penalize an Addison County farm that allowed tens of thousands of gallons of liquid manure to reach a stream and Lake Champlain. 

It's not for of lack of evidence. One official described it as the most egregious violation of its kind in several decades. Yet state records show the enforcement case is stalled between two agencies with overlapping jurisdiction for regulating farm pollution.

The case began eight months ago, when an Addison County farm spread excess manure on its snowy fields.

There is no question where the manure then went that day last March. Panton resident Eben Markowski took video with his phone as it ran off the farm field and into a stream that flows into Lake Champlain less than a mile away.

“This field right here, you can see right there, manure was spread yesterday on top of the snow,” Markowski narrated, panning his camera. “It smells like s--t right here ... All of that manure flushed into this water.”

Eben Markowski filmed this on March 14, 2019, along Adams Ferry Road in Panton.
Credit Eben Markowski, Courtesy

The case seemed clear cut. Pollution was flowing directly from Allendale Farm into a waterway without a permit, in violation of state and federal law. Regulators wrote the farm a letter of reprimand, but they have not yet fined or penalized the farm.

The reason for the stalled enforcement has to do with how state agencies regulate farm pollution.

A legal agreement called a "memorandum of understanding" divides authority between two state agencies. The Vermont Agency of Agriculture, Food and Markets regulates activities on farms, including manure spreading. The Department of Environmental Conservation, within the Vermont Agency of Natural Resources, takes over if waste flows off the farm and directly into a waterway.

At the agriculture agency, Laura DiPietro is the water quality division director. She said she and her staff told Allendale Farm in writing that it had violated state rules, called "Required Agriculture Practices," or RAPs. 

Then the agriculture agency kicked it over to ANR, because the case involved an off-farm, direct discharge of pollution.

"We enforced immediately. You know, as soon as we could, we referred it over to the Agency of Natural Resources." — Laura DiPietro, Agency of Agriculture

“We enforced immediately," DiPietro said. "You know, as soon as we could, we referred it over to the Agency of Natural Resources. It was not acceptable. They violated the exemption that we had issued to them.”

But the agriculture agency did not fine the farm. DiPietro said when she referred the case to the environmental regulators, she expected them to determine an appropriate penalty.

And, as DiPietro said, the farm actually was one of many she exempted from a seasonal ban that prohibits manure from being applied to fields during the winter and early spring. She said last winter started early and snow covered the ground from November until March. That meant many farms had overflowing manure pits because they were not allowed to spread on snow or in the winter months.

The Vermont Agency of Agriculture issued this manure spreading exemption to Allendale Farm in Panton in March 2019.
Credit Vermont Agency of Agriculture, Courtesy

Allendale Farm faced that situation. Farmer Claudia Allen said this week they spread the manure based on the agriculture agency's approval.

But DiPietro said even though she gave the farm verbal permission to spread the manure, she did so with clear instructions that manure be kept out of waterways.

“Every verbal we did, every exemption we’ve ever done, has been very clear: It is your responsibility, farmer, to manage that there is no runoff,” she said.

DiPietro said in this case, the farm spread far more than what she allowed. Theoretically, this is where the Department of Environmental Conservation, with its jurisdiction over waste that flows into waterways, would step in. But just this month, the water regulators said they would not do anything.

Why? Because the agriculture agency gave the farm the green light to spread the manure. And even though DEC is within an independent agency, with its own mandates, it chose not to pursue the case because the agriculture agency had granted the exemption.

"... the evidence indicates that the farmer was acting in reliance upon an oral waiver from AAFM [Agency of Agriculture, Food and Markets]. Because of that waiver, it is improper to invoke penalty authority in this matter." — Sean McVeigh, DEC chief enforcement officer

Sean McVeigh, the chief environmental enforcement officer for DEC, spelled out his concerns in a Nov. 8 letter to DiPietro:

"... while there is evidence of an unpermitted discharge to waters of the State, the evidence indicates that the farmer was acting in reliance upon an oral waiver from AAFM [Agency of Agriculture, Food and Markets]. Because of that waiver, it is improper to invoke penalty authority in this matter."

State officials try not to throw each other under the bus, but there’s clearly some tension between the agriculture agency and DEC over farm enforcement issues.

“Anytime that we are unable to kind of close that loop of enforcement, it can be pretty frustrating for us,” said Kim Greenwood, who was recently named deputy commissioner of environmental conservation. Before this new post, she oversaw enforcement and compliance.

“There’s lots of reasons that happens, and some of those are good reasons, and some of those are not so good reasons,” she said.

DiPietro said she granted the exemption to the farm because the manure pit was overflowing, which would have caused immediate water pollution. She said she told the farm to simply draw down the manure pit, not empty it, and to make sure no waste entered a waterway. State records show the contractor spread 10 times the manure that DiPietro said was authorized.

But this was one of 19 written exemptions and 67 verbal exemptions to last season’s spreading ban.

That’s another point of contention between the two agencies. In his letter, environmental enforcement officer Sean McVeigh said:

  • The agriculture agency should not issue exemptions to the spreading ban.
  • But, if exemptions are granted, any exemption should be in writing, and should clearly state how much manure can be spread.

In the case of Allendale Farm, McVeigh said the farm’s contractor spread 540,000 gallons of manure.

“While it was determined after the fact that [the contractor] had applied more manure than AAFM had intended to be, the lack of clear, written direction as to the allowed volume makes an enforcement action unviable,” McVeigh wrote.

Environmental activist Michael Colby – who reviewed the state records obtained by VPR – called this case a microcosm of the lax enforcement against agriculture generally.

The agriculture agency, he said, has a dual mission: to both promote and regulate farming.

“They’re letting the promotional side of their job take over,” Colby said. “They’re bending rules, they’re not enforcing the rules, they’re not following laws, and the end result is dirtier and dirtier water.”

Colby argues ANR should be the sole cop on the beat on water pollution, whether it comes out of a factory pipe or from a farm field.

“It makes no sense at all, the way they've split up the regulatory obligations,” he said. “What Vermont needs is advocates for clean water that are regulating, that are advocating for all Vermonters, not just big agricultural interests. And that's what's happening now. These people are rolling over for an industry that is basically controlling an agency.”

"It makes no sense at all the way they've split up the regulatory obligations ... These people are rolling over for an industry that is basically controlling an agency." — Michael Colby, environmental activist

Kim Greenwood at DEC said the divided authority on farm pollution can slow things down. She added that the U.S. Environmental Protection Agency delegates to states the authority to enforce the federal Clean Water Act.

“We have regulatory authority over point sources from our delegation from EPA," Greenwood said. "And then per the statute, we delegate our non-point source authority to the Agency of Ag[riculture],” she said. “And so that does kind of box us in, in terms of what tools we each have available. That’s a kind of a long way of saying: I am not sure what’s next.”

DiPietro, at the agriculture agency, said the Allendale Farm enforcement issue is not dead. In a letter back to Sean McVeigh at DEC, she said the agriculture agency may refer the case directly to the Vermont Attorney General’s office for action.

Correspondence between the state's environmental regulators and Vermont's Agency of Agriculture shows the latter is considering bringing the matter of Allendale Farm's manure spreading to the state attorney general's office.
Credit Vermont Agency of Agriculture, Courtesy

But with this fall’s heavy rain and November’s early snow, manure pits are getting full, and the state is likely to again grant exemptions to the ban on spreading over snow or in the winter.

The problem is compounded by the wetter weather and a changing climate. Ryan Patch, the agriculture agency’s deputy director of water quality, said this year’s rainfall is 10 inches above average. 

“This is likely what it looks like to live in a changing climate: The increased precipitation that’s been predicted and is documented to be happening in the Northeast, and especially in Vermont,” Patch said. “The agency needs to support farmers to identify solutions and try to address the challenges of managing all this additional rainwater.”