DEC boss assesses situation

Mears: 2 sides to state’s view of farm policy

Michelle Monroe

By Michelle Monroe

Executive Editor

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ST. ALBANS — Vermont Environmental Commissioner David Mears is cautiously optimistic about the future of Lake Champlain.

The longtime environmental attorney, who previously worked to enforce federal environmental laws as a staff attorney for the U.S. Attorney General, led the state’s efforts to craft new limits on phosphorous for Lake Champlain and a plan to meet them.

The Environmental Protection Agency (EPA) has formal responsibility for drafting the plan, known as a TMDL or total maximum daily load plan, but Vermont will have to implement it. The two have worked closely in a process Mears has compared to a dance in which it’s not clear who is leading.

In a lengthy conversation with the Messenger last week, Mears spoke about the TMDL, the challenges in Missisquoi Bay, and the state’s Water Quality Initiative.

Mears believes that meeting the phosphorous limits for the majority of Lake Champlain is challenging but doable. It’s a different story for Missisquoi Bay, which has long been plagued by blooms of blue-green algae. In addition to being unpleasant, the blooms have been linked to animal death and illness in humans.

“The burden (EPA is) suggesting we need to meet in Missisquoi Bay is quite large,” said Mears. EPA found a 75 percent reduction in phosphorous from agricultural fields and stream erosion would be needed in order to restore water quality in the bay and end the blooms.

“There needs to be a fundamental change in how we address agricultural pollution in Franklin County,” said Mears.

A 2011 study of the Missisquoi basin found that agricultural lands contributed 64 percent of the phosphorous, even though only 17 percent of the land in the basin is used for agriculture. The largest source was land in a corn and hay rotation.

Asked if the only way to meet the 75 percent reduction target would be to take land located along the basin’s rivers and streams out of corn production, Mears said recent evidence is indicating that management may be as key to phosphorous loss as what is being grown.

For example, hay fields where manure was spread shortly before a rainstorm had runoff comparable to cornfields, he explained.

“There’s been a shift in dairy practices,” said Mears. “You’ve got grain-fed cows and liquid manure.”

The state has pledged to revise the accepted agriculture practices (AAPs) – the minimum practices to protect water quality all farms must follow – as part of its efforts to meet the TMDL. Not spreading manure before it rains may need to be included, he suggested, even though it would appear to be common sense.

Small farms, those with fewer than 200 cows, are required to follow the AAPs, but are not required to have a permit. The state has proposed a certification program for small farms, which also would be required to have nutrient management plans.

“There’s a lot of impact in these smaller farms that’s gone largely unaddressed,” said Mears.

The models used to create the target reductions for the TMDL cannot take into consideration the impact of outreach and education, said Mears. Those efforts will likely help to improve the bay, in his view.

When asked about enforcement of agricultural rules, state officials — including Mears at a public meeting with EPA last week — often respond by talking about the need for education and outreach. Yet the AAPs have been the law of the land for 20 years.

In 2008, when the Conservation Law Foundation challenged the state’s designation as the enforcer of the federal Clean Water Act in Vermont, one of the key pieces of evidence was the state’s weak enforcement of agricultural regulations intended to keep the state’s waters clean and safe, including failures to issue fines, require improvements, or make follow-up visits to farms where manure was found to be running into streams.

The state was allowed to keep its designation as the enforcer of the Clean Water Act after agreeing to changes, including the creation of a confined animal feeding operation (CAFO) permit for farms where more than 700 animals were kept confined in a barn for 45 days or more, and a more transparent enforcement program in which deals reached between regulators and farmers would be made available for public comment.

Yet the perception of weak enforcement persists and is raised consistently at clean water meetings across Franklin County. However, the state did issue a $40,000 fine against an Enosburgh farmer last week for multiple water quality violations.

One of the reasons farms are treated differently from other businesses is because Vermont law treats them differently, explained Mears. “I don’t deny there’s room for conversation with the Legislature about how the law is structured with regards to farms,” he said.

“They are treated differently. It is a business, and it’s dominated by largely small business people,” he said, adding that in Vermont small businesses are generally treated in a supportive manner by the state.

Fines sufficient to deter bad behavior are now the goal, according to Mears. “Our goal is that the fines and enforcement cost are not the cost of doing business,” he said.

Asked about the memorandum of understanding transferring his department’s enforcement authority over farms to the Agency of Agriculture, Mears said, “I have no interest in taking enforcement authority away from the Agency of Agriculture.”

There has been a substantial increase in the ability and willingness of that agency to do enforcement, said Mears, who rejects the argument that putting the agricultural agency in charge of farms is like the “fox guarding the hen house.”

“I also work for a boss interested in the economic viability of our farms,” said Mears. “That’s just the nature of state government.”

Urban lands

Although farms are getting a lot of attention, the costs for retrofitting urban lands to reduce the storm water runoff that both carries pollutants into waterways and accelerates stream erosion are larger.

Mears said he is hopeful communities will be able to “find creative ways to manage the costs,” perhaps by incorporating storm water improvements into other projects as St. Albans City did with its recent streetscape project, which redirected storm water from Main Street into Taylor Park where it can sink into the ground.

The state is in the midst of an update to its storm water manual changing the standards for storm water management in the state. The new manual will focus on methods that reduce phosphorous in runoff, not simply methods which slow down the flow of water, explained Mears.

Although the state has identified the need to protect river corridors from development as central to reducing stream erosion, no new state regulations are proposed. Instead, communities will need to make changes to their land use regulations. “At the end of the day, communities will have to step up,” said Mears.

Municipalities in areas hard hit by Tropical Storm Irene in 2011 have shown a greater willingness to change their rules to protect those corridors than other communities, said Mears.

During Irene, there was less flooding damage in areas where rivers had access to floodplains. Protecting and restoring that access has become a state priority both because it prevents flood damage and because water that fills a floodplain and which then is slowly released carries less phosphorous than water that has simply roared down a river, eroding soils as it goes.

To help municipalities sort through the challenges of managing storm water and protecting river corridors, ANR has proposed adding water quality staff to the regional planning commissions. “Particularly for the smaller communities, the regional planning commissions provide crucial support,” said Mears.

The proposal is part of Water Quality Initiative released last week. The Legislature had instructed the administration to identify the top five priorities for cleaning the state’s waters and two possible funding sources.

According to Mears, Gov. Peter Shumlin was clear he wanted a connection between the funding sources and water quality – hence a proposal to tax fertilizers one percent and create a fee on impervious surface to be paid by businesses and institutions but not residents.

Mears is proposing those funds go into a Water Quality Fund that would create structure for tracking how much the state is spending on water quality and how it’s being spent, with annual reports to the legislature and the public.

The committee overseeing the fund would also project the spending needs for the forthcoming year. “It’ll create this constant focus,” said Mears.