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Who Regulates Vermont's Water? Records Show Confusion, Delayed Enforcement By Two Agencies

Muddy, manure-laden water on top of hay and grass.
Vermont Agency of Agriculture, Courtesy
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This photo, taken by a Vermont Agency of Agriculture inspector in May 2019 on the Vorsteveld farm, shows the kind of documentation state agencies do when they respond to complaints about agricultural water pollution.

Two Vermont agencies share responsibility for regulating water pollution from farms. But public records reviewed by VPR show the bureaucratic divide can lead to confusion among regulators, as well as delays in enforcement cases – delays that sometimes cause pollution to flow unchecked for months.

The public is increasingly sounding the alarm about farms polluting waterways. Here’s a message someone left with the state after seeing manure running directly into water:

“You got acres of it! And you got an active stream running right through the middle of it. It’s just above freezing, it’s melting and going into the stream, which then goes into the St. Albans Bay, as you well know.”

Listen to the audio from the voicemail left by a citizen filing a complaint about agricultural runoff near St. Albans Bay:

st-albans-bay-runoff-complaint.mp3

Farm waste – carrying phosphorus pollution – has fed toxic algae blooms on Lake Champlain and threatens other lakes around Vermont. And the taxpayers have invested heavily to get the water clean. Since 2017, the state has dedicated $25 million to help farms reduce pollution in the Lake Champlain watershed.

State Treasurer Beth Pearce has estimated it could cost almost $1 billion, and take 20 years, to fully clean the lake.

How Vermont addresses agricultural pollution, now

Another caller left a voicemail, wanting to know what the state was doing now about the runoff he saw flowing into streams in Franklin County:

“And why we’re letting these people pollute the rivers, and eventually the Lake Champlain basin? Instead of spending millions of dollars on lake clean-up, let’s take care of it at the source.”

Listen to the audio from a different voicemail left by a citizen filing a complaint about agricultural runoff in Franklin County:

franklin-county-runoff-voicemail.mp3

Farm regulation is divided between two state agencies. The Agency of Agriculture inspects and permits farms, and it can also help farms find funding. But if water pollution leaves the land and runs directly into a ditch or stream, the Agency of Natural Resources (ANR) takes over.

But it’s hardly a perfect partnership. Records show that cases are tossed back and forth between the two bureaucracies, even when evidence seems to be compelling. Sometimes pollution can continue to flow for months. In some cases, despite repeated warnings and legal sanctions, the same violations repeatedly re-occur.

Since 2017, the agriculture agency has referred 88 suspected cases of farm waste entering waterways to ANR. Twenty-nine cases – about a third – are still open at ANR. Four cases were sent to the Vermont Attorney General's office for possible legal action.

Read the Vermont agricultural agency's 2020 annual report on its joint efforts with ANR here.

Kim Greenwood is a deputy commissioner at ANR, and she said her agency often would wait until the agriculture agency had tried to help the farmer by, say, getting funds to build a new manure pit.

“What we found is that, unfortunately, that process can take a really long time,” she said. “If you are waiting on a grant, let’s say for $300,000 or whatever the cost is for a new manure pit, that could be a long period of time. And in the meantime that discharge is continuing to occur. And it was really slowing down our ability to be able to close those incidents out.”

Yet sometimes cases get stalled because the two agencies don’t agree on what to do. Last May, an agriculture agency inspector visited a large farm owned by the Vorsteveld family in Addison County.

According to records, the inspector saw farm waste coming out of a culvert and going into a ditch that flowed toward the Dead Creek and Lake Champlain. The agriculture agency told the Vorstevelds to fix the problem, and sent a report and photos over to ANR.

Brown water coming out of a culvert and going into a ditch.
Credit Courtesy, Vermont Agency of Agriculture
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Courtesy, Vermont Agency of Agriculture
A photo of manure-laden water running through a culvert and into a ditch at the Vorsteveld farm.

But state records show one month later, ANR closed the case, having never visited the farm. The agency has since said it’s taking a second look at the farm, eight months after the initial report.

Greenwood said in an email the decision was based on a more recent referral from the agriculture agency. She said the split jurisdiction over water quality can get confusing for all involved.

“Having one body who is regulating farms would certainly help with that, so then the issues would be dealt with at the moment that they’re found,” Greenwood said.

A difficult marriage?

Greenwood said ANR has now accelerated its enforcement process.

“A year or two years is just too long, in terms of our priorities and the urgency with which we are trying to address the issues around Lake Champlain and all our waters,” she said.

But despite this sense of urgency, state records show that months-long delays in enforcement – even a year or more – are not unusual.

“I think that delay is inherent in having multiple bodies regulate,” Greenwood said.

Laura DiPietro is director of water quality at the Agency of Agriculture, and she said it’s important to keep her specialists working with farms to curb pollution, even if the case has been referred to ANR for enforcement. Agriculture agency staff have the expertise, she said, to help the farmer find funding to install a new manure pit, for example.

More from VPR: Divided Oversight Hampers Enforcement In Major Vermont Farm Pollution Case [Nov. 22]

And, she added, her inspectors are quick to take action and that they refer cases over to ANR when they see pollution leaving a farm.

“What we can do is put the farm on notice, and then work through the different partnerships to try and make the correction,” DiPietro said. “Because typically when something is a direct discharge or a point discharge, there’s typically an infrastructure need to fix it. If for some reason they choose that it's not a point source, then we can pick it up and follow it from there."

Where the process between the agriculture agency and ANR can become problematic, she said, is making sure farms are on notice and a case is moving forward.  And records show the two agencies aren't always on the same page.

In one case this past summer, manure was allegedly flowing into Lake Champlain from a farm near St. Albans. Officials from ANR and the agriculture agency exchanged a series of terse emails over whether the pollution was a direct discharge, and thus ANR’s responsibility, or an indirect discharge, which falls under the agriculture agency's authority.

Read the series of emails acquired by VPR between the agriculture agency and ANR.

An agriculture agency inspector said the problem seemed to be a lack of buffers along a field. But the ANR official quotes a witness who said manure-tainted brown runoff reached 50 feet into the lake.

“This sounds like a discharge complaint to me,” the ANR official said.

State records reviewed by VPR show the two agencies have struggled for years to even agree on a shared definition of a point source – like a straight pipe sending waste into a stream – or a non-point source – like runoff from a field.
 
DiPietro said finding a workable definition is harder than you'd think.

“On paper, every definition is clear. In the field, no definition is clear,” she said. “There’s this space where, depending on the precipitation, before, after, the conditions of soil saturation, the timing and nature of the type of discharge it might be, it may not all be happening at the same time and space. And so, what one entity may see on one day, the next day it looks totally different.”

In the era of climate change

Listen to the audio version of the second part of this story:

vpr-news-farm-pollution-part2-20200206.mp3

As a whole, 2019 was a very wet year in Vermont, following a trend with annual precipitation above normal.

All that rain and snow melt filled up manure pits at dairy farms around the state, and saturated fields made it tough for farmers to plow or to spread manure as fertilizer for their crops. Last winter and this winter, the agriculture agency lifted a seasonal ban and allowed farmers to spread manure on snow.

The agriculture agency cited the wet weather caused by a changing climate as a major reason for allowing farmers to do this. The practice is normally banned because if the snow melts, the manure can easily run off into streams.

“This is likely what it looks like to live in a changing climate," said Ryan Patch, the deputy director of water quality at the Agency of Agriculture. “And the agency needs to support farmers to, you know, identify solutions and try to address the challenges of managing all this additional rainwater.”

A graph showing two upward slanting lines with the space in between colored green.
Credit National Weather Service
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National Weather Service
In this Nov. 2019 screenshot of an automatically-generated graph by the National Weather Service, a year's worth of precipitation in Burlington, Vermont shows higher-than-normal totals.

The agriculture agency granted the spreading exemption with the strict warning that waste could not enter waterways. Yet despite that warning, and concerns raised by ANR, that’s allegedly exactly what happened at least four times last winter and spring.

“They banned spreading manure on snow because the obvious is going to happen,” said Michael Colby, the leader of the group Regeneration Vermont, which advocates for clean water and sustainable farming practices. “It’s going to melt, it’s going to slide off and it’s going to head right to our waterways.”

Colby said the agriculture agency needs to recognize weather patterns have changed and exemptions to the spreading ban should no longer be allowed.

“And it’s really disturbing that here we are two years in a row, that they’re declaring an 'emergency,'” he said. “And the emergency last year was early snow, and this year it’s kind of, it was late rain and early snow. And this is the new norm.”

Colby pointed to one Franklin County case he said shows the problems of divided regulation.

State records show a Highgate farmer spread manure on snow in November of 2018. The waste then ran off toward a stream, according to video taken by a state agriculture agency inspector.

Because it was pollution leaving the farm, the inspector notified the Agency of Natural Resources. Twelve days later, an ANR enforcement officer rode with the farmer in his truck around the fields. The officer found no violation and closed the case.

“That’s a serious problem,” Colby said. “Because this is a direct discharge, of farm runoff into a waterway in Vermont, in the middle of a water crisis.”

Sole authority or stronger leadership?

One lawmaker wants to end the bureaucratic back and forth. Bennington Democratic Senator Brian Campion has introduced legislation that would give ANR the sole authority to regulate farm pollution.

“We don’t talk about agricultural air, we shouldn’t be talking about agricultural water,” he said. “Water is something that we all want to make sure is clean. It belongs with the entity that is responsible for keeping our natural resources clean. It’s really as simple as that.”

While he doesn’t have any co-sponsors on his bill, Campion said the idea is beginning to get support, especially as toxic algae blooms fed by farm runoff continue to plague Lake Champlain.

More from VPR: High Heat + Precipitation = Blue-Green Algae Blooms In Vermont [July 19]

“I think we are at the tipping point," Campion said. "Again, when you look at agricultural runoff, sure there are some improvements happening, but to put [the Agency of] Agriculture in charge of clean water does not make sense to me whatsoever."

Clean water advocate James Ehlers, executive adviser to Lake Champlain International, said the problem is not just that agriculture water cases are divided between two agencies.

Gov. Phil Scott signing paper surrounded by smiling people.
Credit Elodie Reed / VPR
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VPR
Gov. Phil Scott signs Act 76, legislation setting up funding infrastructure for clean water projects in Vermont, in Aug. 2019.

“If it were as simple as the Agency of Natural Resources taking over, I would wholeheartedly support that,” he said. “But as we can see from stormwater and wastewater and drinking water, the Agency of Natural Resources isn’t doing their job in that regard either.”

Ehlers said stronger leadership is needed to force the agencies to work together to protect public health and the public’s water.

More from VPR: 'It's The Dairy Sewer': Neighbors Say State Is Failing To Regulate Agricultural Pollution [Dec. 9]

“These multiple agencies all have one thing in common, and that’s their boss,” he said. “There’s a governor at the top.”

But state officials and other experts insist Vermont has made significant progress, both with new money and by promoting changes in farming practices.

Progress on the farms

University of Vermont extension service agronomist and soils specialist Heather Darby recently told lawmakers that Vermont farmers don’t get the credit they deserve for making dramatic improvements in how they farm, such as switching to no-till agriculture, which reduces runoff.

Darby said 30,000 acres in Vermont are under no-till farming, up from virtually none a few years ago.

“The rate of implementation over the last three to four years is what I think is going to start to turn the tide,” she said.

Darby said the criticism of farming detracts from the progress farmers are making.

“We just constantly fight over: Do we need more wetlands, do we need less ag land? Do we need that food? Do we need clean water? It’s not an argument we should be having,” she said. “We should be coming together around, ‘How do we get all of it?’”

A person bending over crops in a field.
Credit Cal Woodward / Associated Press
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Associated Press
Heather Darby, seen in this June 22, 2018 photo taken in Alburgh, said Vermont farmers deserve credit for the actions they are taking, like using no-till methods on their fields, to prevent agricultural pollution in Vermont's waterways.

Darby added that regulation of farming in Vermont is strict, compared to other states.  

“When I go to other states, they love to hear about Vermont, because they actually make comments to me like, ‘We do whatever the hell we want,’” she said.

But advocates like Colby and Ehlers are not so sanguine about the state’s progress. They argue there are simply too many cows on too little land to absorb all that manure without eventually polluting water.

Given the millions of dollars taxpayers are spending to clean up the lake, they said, that level of public investment, deserves a more coordinated response to farm pollution.

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