Editor’s Note: This is the first part of a two-part report

ST. ALBANS — Water quality advocates and farmers lined up to testify Friday as Secretary of Agriculture Chuck Ross considers a petition asking the state to require best management practices on all Missisquoi Bay watershed farms having fields identified as critical sources of pollution.

At the meeting, Vermont Environmental Conservation Commissioner David Mears confirmed that the Agency of Agriculture could require farmers with fields identified as possible critical source areas to allow visits from regulators.

The petition prompting the hearing was filed by the Conservation Law Foundation (CLF) under a previously unused statute enabling residents in an area with a basin plan to petition the agriculture secretary to require best management practices (BMPs), if those practices are deemed necessary to meet water quality standards.

CLF asked Ross to require BMPs on farms identified in a 2011 study as areas contributing a disproportionate amount of phosphorous into Lake Champlain and its tributaries, known as critical source areas (CSAs). The study conducted by Stone Environmental under the auspices of the Lake Champlain Basin Program (LCBP) found that 72 percent of the phosphorous in Missisquoi Bay comes from just 20 percent of the land.

The study also found that agricultural uses, particularly cornfields, contribute more phosphorous to Missisquoi Bay than other uses.

“We cannot allow any polluter regardless of the industry he or she operates in to not reduce pollution,” said Anthony Iarrapino, a senior attorney for CLF. “Continuing to rely solely on voluntary programs is not enough.”

Opponents of the petition questioned the appropriateness of using the study as a basis for regulation. Others cited the work already done by farmers to improve water quality. A representative from the Vermont Farm Bureau argued Ross should reject the petition because funding to implement BMPs isn’t available.

Farmers suggested that such regulations would not be practical because of variations in farm practices, soil types and other conditions.

If, as Mears suggested was possible, regulators visited farms and determined fields contributed excess phosphorous to basin waters, then farmers could be required to work with experts from the agency or elsewhere to create and implement plans to reduce phosphorous flow from their lands. Such a program might be similar to regulations in place for wetlands already.

Nothing in CLF’s petition suggests that it is asking the state to impose the same practices on all fields identified as CSAs. In fact, Iarrapino expressly stated that nothing in the petition would require the uniform adoption of the same practices on all vulnerable fields.

The CSA study

“Agricultural activities are the biggest contributor of pollution to the bay,” said Iarrapino in his opening remarks. “Agriculture will remain the biggest contributor of pollution to the bay unless best management practices are adopted in critical source areas.”

The CSA study has been used to prioritize applications for voluntary programs that assist farmers with the costs of buffers, cover crops and other practices. There is “no rational basis” for limiting the use of the study to voluntary programs, said Iarrapino.

If the study is sufficient to guide voluntary efforts “then it is also a sound foundation on which to rest a regulatory program requiring BMPs and still providing cost share assistance,” said Iarrapino.

Before beginning the CSA study, LCBP consulted with more than 100 scientists and held a series of public meetings and workshops, said Bill Howland, executive director of LCBP. The study itself cost $300,00 and nearly $500,000 was spent to gather data. Fourteen peer reviewers examined it.

The study is a numerical model study using data on soil types, slope, topography and land use to model phosphorous sources from all land uses within the basin. Mike Winchell, of Stone Environmental, who wrote the study, said it drew upon the best available data.

The model was verified by comparing its findings to actual ground conditions using field visits and data from stream gauges. Ninety percent of the time, the study was accurate, and the errors which were found were generally in farm practices, said Winchell.

The identification of CSAs was always intended as first step to be followed by the implementation of pollution reduction practices. The study also found that implementing BMPs on CSAs would lead to a far greater reduction of phosphorous than random implementation of the same practices.

“I’d advise against using the (CSA) maps as the sole criteria for adoption of BMPs,” said Winchell.

“The highest and best use of CSA maps is to identify areas for field analysis,” said Howland, who advised against using the CSA maps as a basis for regulation.

At the same time, Howland conceded, “The (phosphorous) load going into Missisquoi Bay has been difficult to reduce.”

Howland also acknowledged that not all farmers have participated in efforts to reduce lake pollution, saying the same faces show up to water quality meetings. “It’s the faces we don’t see that we’re concerned about,” he said.

Regulation and funding

Currently, the large and medium farms are required to have permits from the state and to have nutrient management plans (NMPs). All farms must follow accepted agricultural practices (AAPs) intended to protect water quality. The AAPs are not as rigorous as BMPs.

The state has announced its intention to make the AAPs more stringent and require small farms to adopt NMPs.

Many large and medium farms are required to adopt best management practices as part of their NMPs, according to Laura DiPietro of the Agency of Agriculture. She provided testimony as an individual and not in her capacity as agency staff person.

“The AAPs are inadequate, are certainly inadequate, as an across the board solution to this problem,” said Howland.

Bill Moore, legislative director for the Vermont Farm Bureau, argued that instead of investing in BMPs on lands identified as the most likely sources of pollution, the state should focus on expanding the implementation of AAPs. When AAPs are adopted, BMPs are sometimes unnecessary.

AAPs, as DiPietro noted, are already legally required on all farms, yet Moore said more money is needed to be implement them.

“The vast majority of small farms out there don’t know what they don’t know,” said Moore. Sixteen to twenty additional regulators would be needed to implement AAPs on all Vermont farms, he said.

Under state law before requiring BMPs be adopted, Ross must determine whether adequate funding is available for their implementation. Adequate funding is not available, Moore asserted, and on that grounds the petition should be denied.

Ross repeatedly asked people to submit information on the level of funding required to implement BMPs and possible sources of funds.

Iarrapino said CLF did not have an estimate because the information required to create one is protected by privacy laws and not available to the general public. He suggested that a tax on dairy processors, such as Dean Foods, might be a possible source of funding.

Denise Smith, executive director of Friends of Northern Lake Champlain (FNLC), said $35 million would be needed over 10 years to clean up Missisquoi Bay. That estimate was based on a report produced a few years ago by the Agency of Natural Resources that put the total cost of lake cleanup at $500 million to $800 million.

The CSA study was, in part, a response to that report, intended to determine whether lake cleanup could be accomplished for less by identifying the largest sources of pollution.

Smith suggested funds could be raised through a $30 per parcel fee or a $2 per worker per month income tax.

Ross will continue to accept public comments on the petition for the next 30 days. Written comments may be mailed to the Agency of Agriculture, 116 State Street, Montpelier, VT, 05620 or emailed to AGR.missisquoiBMP@state.vt.us.

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Next: On Monday, responses from area residents and farmers to the petition.