The U.S. Environmental Protection Agency says a bureaucratic division of labor in state government is causing Vermont regulators to fall short when it comes to regulating water quality on farms that raise livestock in close quarters, like conventional dairy farms.
The rebuke from the EPA comes after a federal investigation revealed that state regulators are not enforcing the Clean Water Act — the primary federal law that regulates water pollution in the U.S. — uniformly on farms.
It’s a concern that environmental advocates have raised over Vermont’s regulation of CAFOs — or farms where animals are raised in confined quarters — for more than a decade. The EPA’s investigation came after a series of petitions asking the federal regulators to intervene.
In a letter stating its intent to take regulatory action against Vermont’s Agency of Natural Resources, the EPA wrote, “The flaws in this program are preventing Vermont from adequately controlling phosphorus discharges from [farms], which contribute to severe water quality problems in Lake Champlain and other water bodies in the state.”
“It is a momentous decision,” said Elena Mihaly, who leads the environmental advocacy group Conservation Law Foundation in Vermont, which petitioned for an investigation, along with the Vermont Natural Resources Council and Lake Champlain Committee. “It’s saying what many people believe to be true, which is that the status quo is not working to protect water quality or really to provide clarity and evenness to the regulated community.”
The delegation of federal power
For decades, the federal government has used the National Pollutant Discharge Elimination System (NPDES) program to require that industry and businesses — including those in Vermont — get a federal permit before they release a pollutant into any body of water protected by the Clean Water Act.
The federal permitting program regulates everything from chemical contaminants produced during manufacturing to overflowing manure pits on farms. The permits set limits on how much pollutant can be released and requires a plan for how to reduce or eliminate the problem over time. Regulators are required to review those plans and make them available to the public.
For decades, the EPA has had an agreement with the state that says the Agency of Natural Resources is responsible for enforcing this aspect of the Clean Water Act in Vermont. At the same time, state law gives ANR relatively limited jurisdiction over water quality on farms, and gives the bulk of the jurisdiction to the Agency of Agriculture, Food and Markets.
“The shared goal that ANR and the Agency of Agriculture have always had has been to eliminate discharges from Vermont farms,” ANR Secretary Julie Moore said.
Moore said ANR’s policy has been to allow the agriculture agency to require that Vermont farms attest that they are not discharging any manure into local waterways and therefore their operations don’t trigger the Clean Water Act, before they can receive their local permitting from the Agency of Agriculture, under state law.
“The shared goal that ANR and the Agency of Agriculture have always had has been to eliminate discharges from Vermont farms.”Julie Moore, Vt. Secretary of Natural Resources
Moore says Vermont’s state regulations — including what are known as required agricultural practices — are also intended to prevent spills.
“And so we created what could be argued is a higher regulatory bar, where farms that obtain permits from the Agency of Agriculture are prohibited from having any discharge, and so with no discharge, there is no nexus with the Clean Water Act,” she said.
Under the current system, ANR does some surveillance of farms to look for violations like overflowing manure pits or free flowing wastewater, but most often relies on the Agency of Agriculture or members of the public to report spills. From there, ANR is responsible for deciding what action to take to remediate the problem.
However, in a Sept. 6 letter to Moore, regulators at the EPA’s New England office said a higher bar is not, in their view, being achieved.
The EPA says Vermont has issued no individual federal NPDES wastewater permits for the more than 1,100 farms in the state that do or could qualify as CAFOs by the EPA’s standards, and the agency says it believes some of those farms could be releasing nutrient-rich waste in a way that is restricted under the Clean Water Act.
Thelma Murphy, deputy director for the Water Division at EPA's New England Office, said even farms that are doing everything they can to protect water quality could accidentally spill a regulated substance like manure during the course of doing business. Murphy says by allowing farms to operate without a federal permit, state regulators are putting them at risk of violating federal law.
"In an ideal world, perhaps there would be no discharges. But in the real world, things happen," she said. "A farm doing its best could still have a discharge. And so the permit program is actually protective for the farm."
Most conventional dairy farms in Vermont qualify as CAFOs under federal law, and could potentially require NPDES permits to carry out their business, even if they are doing everything they can to protect water quality in their day to day operations.
As climate change brings more extreme rain events to Vermont, the sorts of spills that would necessitate a NPDES permit — like a manure pit that overflows and runs into a nearby stream or wetland, a spill of milkhouse wastewater or runoff from silage bunks or the barnyard — are poised to become more common.
The EPA reviewed 113 water quality complaints against Vermont farms from 2021 to 2023, and found that for almost half the cases, there was evidence suggesting farms were discharging phosphorus-laden waste that should be regulated under federal law, but that regulators at ANR took no action to require they get a federal permit under the Clean Water Act.
Instead, EPA says it observed a persistent pattern in which state regulators allowed farms to fix a spill without formal regulatory action by the state, or a federal NPDES permit — both of which the EPA says are required under the Clean Water Act. Federal regulators say the federal permit process creates greater public transparency surrounding cleanup efforts and compliance.
Additionally, EPA says it’s unclear whether state regulators were following up with farms that were found to have violations to see if the problem was fixed, or to track whether any businesses had repeat violations.
The EPA says this division of labor between the Agency of Natural Resources and the agriculture department — established by the Legislature decades ago — is a major factor in why.
ANR Secretary Julie Moore says both state agencies were endeavoring to work with farmers to fix reported violations as fast as possible. She says in her view, issuing a NPDES permit isn’t always the most expeditious way to stop a spill.
“Our goal is to achieve compliance, maintain compliance. And in instances where we find a discharge or a problem, to see it resolved as quickly as possible,” Moore said. “What EPA is saying is there is no allowance for that ‘resolved as quickly as possible’ [approach] under the Clean Water Act. If you don’t have a [federal] discharge permit, you can’t ever have a discharge. Hard stop.”
The EPA is now calling for the Agency of Natural Resources to have sole authority over water quality on Vermont farms, and for the agency to submit a plan for how it will make this happen, by Dec. 5.
If ANR fails to produce a satisfactory plan, or EPA finds the agency is still not requiring NPDES permits, EPA says it will take away Vermont’s authority to regulate wastewater under the Clean Water Act.
It’s a scenario Moore says everyone wants to avoid, and one state regulators say would mean all of Vermont’s wastewater and stormwater permitting would be overseen by federal regulators in the EPA’s Region 1 Boston office rather than by locals who know Vermont’s landscape and economy and communities.
“To me, removing the program authority is sort of the nuclear option,” Moore said. “No one wants to get there because it would be complicated to unwind all of the things we’re doing.”
A long and (sometimes) heated debate over jurisdiction
This isn’t the first time that EPA — or environmental advocates — have called for Vermont to reform its regulation of wastewater on farms.
In 2008, Vermont Law School Environmental and Natural Resources Law Clinic (ENRLC) filed a petition with EPA on behalf of the regional environmental advocacy group Conservation Law Foundation that raised many of the concerns listed in EPA’s recent letter.
In response, EPA required ANR to develop a plan to bolster enforcement and require more consistent NPDES permits from farms — particularly from medium-sized CAFOs — in 2013.
In March of 2022, Conservation Law Foundation, Vermont Natural Resources Council and the Lake Champlain Committee filed a joint petition with EPA saying the state still wasn’t regulating water quality consistently and calling for the feds to remove the agriculture agency from Vermont’s regulatory process.
Elena Mihaly with Conservation Law Foundation called the EPA’s latest letter “momentous” and said the agency’s findings regarding spotty enforcement far exceeded what environmental advocates had thought was going on.
“This is a pivotal moment for safeguarding water quality in the state,” she said.
Mihaly has faith that ANR can correct the problem and implement the Clean Water Act, given full regulatory authority and more resources.
“At the root of the systematic failure was this divided jurisdiction, where the Agency of Natural Resources sub-delegated some of its authority, what the EPA is saying unlawfully, to the Agency of Agriculture,” Mihaly said.
She says in her view, this system was overly complicated and cumbersome.
Environmental advocates have in the past also expressed concern that Vermont statute charges the Agency of Agriculture with advocating for farms in addition to regulating them, creating an inevitable conflict of interest for the state’s agriculture agency.
But state regulators say the agency brings important expertise to regulating farms, like technical knowledge about how they work and the economic conditions farmers face.
Agriculture Secretary Anson Tebbetts said, in his view, Vermont’s system is working to improve water quality — even if the current process leaves gaps when it comes to the federal Clean Water Act. He argued Vermont farms are doing their share.
"If we need to make adjustments, so be it, we’ll make adjustments to make it better.”Anson Tebbetts, Vt. Sec. of Agriculture, Food and Markets
“This current system is working, has worked. And you know, if we need to make adjustments, so be it, we’ll make adjustments to make it better,” he said. “But I think the overall program is working. This is sort of a certain box that some would like to check in a different way.”
Vijay Nazareth, who leads the Champlain Valley Farmer Coalition, says farmers have good relationships with both ANR and the agriculture agency, and just want there to be clarity regarding the rules so they can comply.
“Focusing on clean water in Lake Champlain is a really high priority for us,” Nazareth said, adding that climate change is a priority, too. “The regulatory environment — you know, if there is going to be a change, we want it to be a smooth transition, but we would be less concerned with which agency has the authority to oversee that.”
"...If there is going to be a change, we want it to be a smooth transition, but we would be less concerned with which agency has the authority to oversee that.”Vijay Nazareth, Champlain Valley Farmer Coalition
Moore says ANR plans to file a corrective action plan as called for by the EPA, and that while they may push back on some of the changes federal regulators are calling for, they plan to cooperate. She says these sorts of improvements are important in the face of climate change.
Still, Moore said in her view, this is an administrative issue, not a case of industry failure or neglect — something environmental advocates emphasized as well.
“This really isn’t about the work being done by farmers,” she said. “Farmers are doing what they’re being asked to do in response to the regulatory programs they’re subject to.”
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