Lawmaker: Take water regulation away from Ag agency

Anson Tebbetts is sworn in as agriculture secretary. VTDigger file photo
The Agency of Agriculture may no longer be regulating water quality within the same farm industry that it’s responsible for promoting, if a Bennington lawmaker’s proposed legislation passes.
The transfer of authority would represent a legislative rebuke to an agency that has allowed farming to pollute Vermont public waters, with some rendered unsafe for swimming and drinking for months at a time.
But Agency of Natural Resources head Julie Moore said the shift might be more cosmetic than substantive.
“There certainly is that perception out there, of the fox guarding the henhouse,” she said, speaking of the Agency of Agriculture’s dual role of both promoting and regulating the agriculture industry. “I don’t think that’s true.”
The Agency of Agriculture’s secretary, Anson Tebbetts, said in a text message only that his agency’s current rules serve as a complement to other environmental laws that apply to other industries. Tebbetts said he had no time for an interview.
The bill’s author, Sen. Brian Campion, D-Bennington, said it’s simply good government to separate regulatory authority over agriculture from the agency whose task it is to promote agriculture.
As it stands, the Agency of Agriculture performs almost all of its oversight without any public involvement, and with no approval required from other local or regional authorities, he said.
The bill would take water-quality enforcement and administration duties from the Agency of Agriculture and place that authority with the Agency of Natural Resources.
It would also require farms to acquire permits if they are found to pollute Vermont public waters with agricultural waste, such as fertilizers, pesticides and animal excretions.
It would remove exemptions that currently allow farmers to send sewage, human pathogens and other harmful materials into public waters.
It would require the Agency of Agriculture to set up a financial assistance program to help farmers comply with state and federal water-pollution laws, but it would require the Agency of Natural Resources to enforce those laws.
The Agency of Natural Resources is equipped to take on that role, Moore said, but it could create redundancies, too. The Agency of Agriculture has the most technical understanding of the way farms work, she said, and duplicating that kind of knowledge within her own agency could be an inefficient use of government resources.
Furthermore, if the Agency of Agriculture were simply to shift all of the relevant enforcement and administrative staff to Moore’s agency, she said, the outcomes would likely be very similar.
Campion’s bill would also strike from current law numerous provisions that establish preferential treatment for farmers and for their practices.
For instance, his bill strikes entirely from existing law the following declaration: “It is State policy that… the cost of meeting [agricultural pollution] standards shall not be borne by farmers only, but rather by all members of society, who are in fact the beneficiaries.”
Campion’s bill also strips an existing requirement that the state of Vermont and the United States government subsidize farms’ compliance with pollution laws.
And it removes from current law a presumption that farmers aren’t polluting public waters when they follow a set of rules called “required agricultural practices.” Instead, the bill would simply state that farmers who do pollute public waters must obtain permits to do so, as other industries must throughout the state.
This is one of numerous bills Campion has offered in to reduce Vermont industries’ pollution of public waters.
Current law states that Vermont’s public waters must be kept safe for drinking, swimming and other purposes.
But hundreds of residents of Bennington, where Campion lives, discovered last year that a Teflon-products company had poisoned their wells, rendering water from them unsafe to drink. Affected residents likely have been unwittingly drinking a toxicant called perfluorooctanoic acid for years, authorities have said.
Just this year, Lake Carmi in Franklin County was closed to the public for months after phosphorus pollution — an estimated 85 percent of it from farms — fueled a toxic cyanobacteria outbreak that turned the lake’s waters green and unsafe.
A VTDigger-Bennington Banner investigation published this summer found that Bennington’s poisoned wells resulted when agencies and individuals up to and including former Gov. Howard Dean placed concern for jobs and the economy over warnings against threats to public health.
Farming was once a dominant industry in Vermont, with as many as 11,000 individual farms as recently as the mid-20th century. Since that time farms have consolidated into the hands of fewer businesses running larger operations confined to smaller spaces.
Although Vermont farms today contribute around 40 percent of the pollution that led to cyanobacteria outbreaks that closed numerous Lake Champlain beaches this summer, and although farms are the foremost polluters leading to federal water-quality orders on Lake Champlain, Lake Carmi, Lake Memphremagog and others, those farms number fewer than 1,000.
Campion and others recently asked Tebbetts why agriculture should be exempt, as it currently is, from the state’s land-use law, called Act 250. Campion specifically asked Tebbetts to analyze whether the exemption had led to any greater amount of water pollution from farms than would have been allowed if farms had to meet the same land-use law as other Vermont industries.
More than a month after Campion made the request, Tebbetts appeared before lawmakers this week and said he had not done any analysis that would allow him to say whether that were the case. Lacking that analysis, he nevertheless asserted that rules his agency has put in place uphold the same water-quality standards as Act 250 would.
What’s currently in place “is working,” Tebbetts told lawmakers.
Campion said he wasn’t so sure.
“I’m not as confident as he is, in his statement that what we have is working,” Campion said.
On the other hand, Campion said, lawmakers in recent years have required the Agency of Agriculture to put greater water-quality rules in place than the agency had instituted on its own in the past. Some of those new regulations, called Required Agricultural Practices, could have a positive effect, Campion said.
It’s possible that those new regulations actually parallel what Act 250 would require from farms, if they weren’t exempt, Campion said. He’s asked the Legislature’s in-house attorneys to analyze the Agency of Agriculture’s water quality rules and compare them with Vermont’s other water quality rules.
“It would have been nice for the Agency of Ag to bring a side-by-side showing that” Act 250 and the agency’s own rules really do uphold the same water-quality standards, as Tebbetts asserted, Campion said. But Campion said the analysis he’d requested was for a committee tasked with revamping Act 250, and that committee has a year to fulfill its task, so there’s still ample time for Tebbetts to return with all the evidence he needs to support his position.
What’s in place now doesn’t appear to work, in any event, Campion said.
Currently the ANR oversees all water-quality efforts in the state except for those having to do with agriculture, Campion said.
“We know that Lake Champlain and other bodies of water are in rough shape,” Campion said.
They got that way under current rules, he said.
“Vermonters want and deserve clean water,” he said. “We are at a moment where we need to ask ourselves what is working and what is not.”
Read the story on VTDigger here: Lawmaker: Take water regulation away from Ag agency.