ST. ALBANS — Secretary of Agriculture Chuck Ross has denied a Conservation Law Foundation (CLF) petition that would have added greater regulation of some farms operating within the Missisquoi Bay watershed.

The CFL had requested that best management practices (BMPs) be required on all fields that have been deemed likely critical source areas of phosphorous within the watershed.

CLF has the right to appeal the decision to the Vermont Environmental Court. As of press time, the Messenger had been unable to reach the organization for comment.

The decision was released Monday afternoon, when the state also released a water quality report (see accompanying article). That report was required by the General Assembly that outlined how the state intends to raise funds for measures needed to improve water quality.

Although he rejected additional regulation, Ross did, as part of the decision, direct his agency’s water quality program “to continue to re-deploy its personnel and accelerate its compliance and enforcement activities in the Missisquoi Bay basin for Vermont’s existing agricultural water quality requirements and focus on those farms confirmed through ground inspection to be within critical sources areas and in need of additional water mitigation efforts.”

In the conclusion of his decision Ross reminded farmers that they remain subject to the statue under which the petition was filed, “including the possibility that BMPs may be required on a case by case basis as result of the AAFM’s (Agency of Agriculture Farms and Markets) compliance and enforcement activities… The Petition and this Decision can be considered a fair and meaningful warning to those farmers not making adequate progress.”

The CLF petition was made under a previously unused provision of Vermont law allowing residents in an impaired watershed to request BMPs be required on farms in a watershed with a state basin management plan. CLF argued the voluntary measures and financial incentives on which the state has relied for decades have been inadequate for controlling the agricultural runoff polluting the Missisquoi Bay.

Phosphorous in agricultural runoff and from streambank erosion is causing blooms of blue-green algae in the bay.

In 2011, a study by engineering firm Stone Environmental combined data on soil types, topography, and land use to determine what areas of the watershed were critical sources of phosphorous. Thestudy found that the majority of the phosphorous was coming from just 20 percent of the land, and that land was primarily being used to grow corn.

Multiple analyses have confirmed agricultural pollution is the leading source of phosphorous in Missisquoi Bay and the rivers feeding it.

In rejecting the petition for BMPs on those fields, Ross said the petition conflicts with the total maximum daily load (TMDL) process. The state is currently working with the Environmental Protection Agency on a new TMDL for Lake Champlain. A TMDL is both a determination of the maximum amount of phosphorus the lake can accept without becoming polluted and a plan for meeting that target. The state is currently awaiting approval of its plan.

However, that plan is inadequate to reduce phosphorous runoff to the levels needed to bring an end to blooms of blue-green algae in Missisquoi Bay, a fact acknowledged within the plan itself.

The second reason Ross gave for denying the petition also was a technical one. His decision states CLF did not adequately document the water quality violations at issue or demonstrate a correlation between those violations and farm practices on individual farms.

Finally, Ross said there is insufficient funding available to assist farmers in implementing BMPs.

In his decision, Ross also raised questions about using the critical source area study completed in 2011 for regulatory purposes, citing the fact that the land use data incorporated into the study came from 2003.


Thus far on the ground verification of the critical source areas has found that the study is 90 percent accurate, according to testimony provided to Ross at a July hearing on the petition held in St. Albans.