2.21.2020 – Water Quality Violations and the Senate Education Hearing on the Weighting Study

In recent months we have heard a lot about farms discharging waste to the waters of the state. This has been covered in the press as well as on radio and television. There is no doubt that things have gotten challenging for our farmers. With increased extreme precipitation events and the resulting saturated ground, early snow, and overtopping manure pits, spreading manure at just the right time has become an art form.

We have also heard it questioned that the Agency of Agriculture, Food, and Markets (AAFM) can promote agriculture and at the same time regulate and enforce activities on Vermont’s farms. In fact, a bill in the Senate, S.315, “proposes to transfer from the Secretary of Agriculture, Food and Markets to the Secretary of Natural Resources all authority to administer and enforce water quality requirements on farms in Vermont.”

Currently, there exists a Memorandum of Understanding (MOU) between the AAFM and the Agency of Natural Resources (ANR) that the AAFM has jurisdiction over non-point source pollution and ANR, specifically their Department of Environmental Conservation (DEC), has jurisdiction over point source pollution. To understand the difference, a good example of non-point source pollution is water that flows off a field; point source is something that comes out of a pipe or a culvert. If, on a farm inspection, an Agricultural Water Quality Specialist sees what he/she believes is a point source violation, it is referred to DEC. One would expect that DEC would follow up and communicate their findings to AAFM, but that hasn’t necessarily happened.

In testimony, we have heard that there have been numerous referrals made to the DEC that have not been followed up on and if they have, AAFM has not been notified. That number is in the high eighties or low nineties.

I decided to do some research to determine what is actually happening and focused on an Addison County farm. On May 8, 2019, an inspection was done by an Agricultural Water Quality Specialist from AAFM who observed agricultural waste coming out of a culvert; giving specifics as to the path that the waste was taking through ditches, under a road, and emptying into surface water. The Specialist’s opinion was that the whole system was hydrologically connected. Because he believed it to be a point source violation, two days after the inspection, the case was referred to DEC with a “referral packet” that included a map explaining the alleged discharge and supporting photos.

The AAFM did not hear back from ANR with any indication that they had followed up on the referral. In November of 2019, it was the AAFM that issued a Corrective Action Warning Letter to the farm indicating that they were in violation of their farm permit describing the observation of wastes that were brown in color with an odor of manure coming out of a culvert that empties into a ditch, ultimately emptying into a surface water. Wastes were not actually observed entering surface water, but the ditches were hydrologically connected to surface water.

In the Corrective Action Warning Letter, the farm was notified that ANR could conduct its own investigation if they chose to do so and take a separate enforcement action against the farm. Also included were the corrective actions that the farm had to take with a request for a written response within 30 days outlining the specific actions that the farm would take to remedy the situation.

It was not until John Dillon, a reporter for Vermont Public Radio, asked ANR in January for the public records regarding this case that AAFM found out how DEC had handled the referral. A month after the referral in May, without doing a site visit to the farm, the Environmental Enforcement Officer’s Investigation Report stated “It would be a significant undertaking for ANR to explore the entire farm complex in order to locate all related infrastructure that may or may not be contributing to any potential discharge from only the piping outlets shown in report. No site visit was conducted.” The determination – “No Violations Found.”

One alarming thing is that included in the referral packet were maps with lines, arrows, and a legend detailing the alleged violation and its connection with surface waters, so the work involved in researching and locating the problem was essentially done. Another alarming thing is that there are 80-plus cases like this that have been referred to ANR since 2016, and one wonders what has been done about them. For these reasons, ANR should definitely not have “all authority to administer and enforce water quality requirements on farms in Vermont” as prescribed in the Senate bill. In fact, it is my belief that the MOU should be amended and AAFM should take authority over point source issues on farms, as well as non-point.

That was the bad news, here is some good news.

We recently had a briefing on the Clean Water Performance [Investment] Report by Emily Bird from DEC. Data indicate that from 2016-2019 there have been 1,827 water quality compliance farm visits conducted by AAFM to ensure compliance with the Required Agricultural Practices as well as Medium and Large Farm Operation rules. More than 2,000 technical assistance visits have been conducted by AAFM to support implementation of conservation practices during the same time period. Farmers are stepping up to the plate to make improvements and employ soil health practices to better meet the requirements of the Required Agricultural Practices.

The encouraging news is that between 2016 and 2019, 97% of the annual estimated total phosphorous load reduction achieved by clean water projects that support implementation of the Lake Champlain Total Maximum Daily Load plan is due to agricultural efforts.

The slideshow for Emily Bird’s Clean Water Performance [Investment] Report can be found at: https://legislature.vermont.gov/Documents/2020/WorkGroups/House%20Agriculture/Clean%20Water%20Initiative/W~Emily%20Bird~Presentation%20Slideshow~1-17-2020.pdf,

Finally, and on another topic, there will be a Senate Education Committee hearing on Wednesday, March 11, at 4-6 PM in Room 11 at the State House. Senate Education will be hearing testimony on the Weighting Study and those of us who have sponsored legislation to enact the recommendations of the Study encourage you to attend and sign up to testify. If you have questions, please contact Reps. Sibilia, Gannon, Pajala, or me. Your voices are important as we try to rectify the unfair, and potentially unconstitutional, education funding formula that has shortchanged the students in many of our schools and overtaxed our taxpayers for the last 20+ years.