Environmental groups call on EPA to simplify pollution regulation

Vermont Secretary of Agriculture Anson Tebbetts speaks in Salisbury on July 21, 2021. File photo by Glenn Russell/VTDigger

Environmental groups are petitioning the federal government to order changes in how Vermont monitors agricultural pollution, arguing the current regulatory structure, which is split between two agencies, doesn’t properly enforce clean water standards.

The Conservation Law Foundation, Vermont Natural Resources Council and the Lake Champlain Committee filed the petition Wednesday with the Environmental Protection Agency. They also say the structure is confusing and can be a burden to farmers.

At issue is Vermont’s enforcement of the federal Clean Water Act’s National Pollution Discharge Elimination System program, under which the state Agency of Natural Resources must ensure that facilities of all types, including farms, do not discharge pollution from a point source into surface water without a allowed.

Point source pollution comes from a single, identifiable source such as a discharge pipe. Nonpoint sources, on the other hand, do not have one identifiable source.

State law requires that the Agency of Natural Resources delegate control of agricultural pollution from nonpoint sources to the Agency of Agriculture, Food and Markets. The Agency of Agriculture also conducts most inspections in the field, the petition says, and must notify the Agency of Natural Resources if it finds evidence of a point source discharge.

But the petitioners charge that the agencies disagree on how to define a point source, and, in general, have a “broken relationship” that hinders enforcement of the National Pollution Discharge Elimination System program, also known as NPDES, in the state.

The groups suggest that the EPA order Vermont to pass legislation that would give the Agency of Natural Resources sole authority over agricultural water pollution.

And if the state does not take “corrective actions,” they said, the EPA should withdraw its authority to enforce the Clean Water Act program.

“Both agencies are getting stuck on defining the source of the pollution,” said Elena Mihaly, vice president and director of Conservation Law Foundation Vermont. “What this means for farmers is a lot of delay in determining whether farmers are even in compliance with the law.”

The petitioners argue that the Agency of Agriculture has not always met a requirement to document investigations within 30 days, a process that facilitates the Agency of Natural Resources’ involvement.

They cite data from 2019, stating the Agency of Agriculture actually averaged 177 days to finalize reports that year. Of those, 14 reports took more than a year, and four were delayed more than 500 days, the petition says.

The petitioners also point to an October 2020 memo by Agency of Natural Resources Secretary Julie Moore, which raised concerns with the split regulatory structure.

“This largely artificial construct (distinguishing between point sources and nonpoint sources) and division of responsibility/overlapping jurisdiction between ANR and AAFM has led to tension and conflict between the agencies, regulatory uncertainty for farmers, and more time-consuming outcomes for water quality resulting in more pollution,” she wrote.

Moore also proposed transferring Agency of Agriculture staff responsible for pollution monitoring to the Agency of Natural Resources.

The petition contends that the Agency of Agriculture rarely alerts the Agency of Natural Resources when farms over-apply soil amendments such as manure and fertilizer, further limiting the latter agency’s ability to monitor for point source discharges.

Anson Tebbetts, the Agency of Agriculture secretary, said in an interview he thinks the state’s existing regulatory structure is working, citing data that agriculture has been responsible for 96% of phosphorus reductions in the state since 2016.

In response to a question, Tebbetts acknowledged there may be disagreements between officials in the two agencies, but he thinks that’s to be expected because “it’s not always a cut and dry situation when you’re out in the field.”

“We want to make sure that we have a rigorous discussion between the two agencies on some issues,” Tebbetts said. “I think that’s healthy for good government.”

Moore also described this lack of clarity in the field, noting there often is not a bright line between point and nonpoint sources, leading both agencies to receive and investigate complaints that fall outside their jurisdictions. This results in referrals to the other agency, she said, and sometimes duplicate investigations.

The Department of Environmental Conservation commissioner, Peter Walke, said he does not think the state is out of compliance with the Clean Water Act, as the petition suggests. The department is a subsection of the Agency of Natural Resources.

Walke also pointed to the state’s progress in improving water quality.

“Any time there’s a relationship between two agencies in the work that we do, there’s going to be some tensions,” the commissioner said.

Mihaly, of Conservation Law Foundation, said the organizations behind the petition don’t intend to criticize farmers, but rather, are squarely blaming the state agencies.

“We think farmers are caught in the middle here between two feuding agencies,” she said, “and that consolidating regulation into one agency will help provide regulatory clarity.”

Emma Cotton contributed reporting.

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Filed under:

Energy & Environment

Tags: Anson Tebbetts, Conservation Law Foundation, Environmental Protection Agency, Lake Champlain Committee, pollution, Vermont Natural Resources Council

shaun robinson

About Shaun

Shaun Robinson is a Report for America corps member with a special focus on issues of importance to Franklin and Grand Isle counties. He is a journalism graduate of Boston University, with a minor in political science. His work has appeared in the Boston Globe, the Patriot Ledger of Quincy and the Cape Cod Times.