Group Employs New Legal Maneuver In Push To Clean Up Lake Champlain

May 22, 2014

One of the most beautiful parts of Lake Champlain has also become its most polluted. The shorelands of Missisquoi Bay have been designated by the Ramsar Convention as a vital wetland, and its waters support a unique wildlife habitat.

But large farming operations along rivers feeding into the bay have led to phosphorus levels in some cases double the target limits. And according to Anthony Iarrapino, staff attorney at the Vermont office of the Conservation Law Foundation, the bay suffers from more high-alert toxic algae blooms than any other part of Lake Champlain.

“Missisquoi Bay, for those that have never been there, is one of the most beautiful waterscapes perhaps in the world,” Iarrapino says. “The problem is increasingly year over year it’s also the place where we see the worst phosphorus problems.”

So Iarrapino’s organization is invoking a little-known legal provision to try to force the state to intensify efforts to clean up this part of Lake Champlain. Iarrapino says the decade-old provision allows citizens to petition the agency of Agriculture to impose what are known as “best management practices” on the large livestock farms responsible for the bulk of the pollution flowing into the bay.

Under state law, Iarrapino argues, citizens can prevail upon courts to require the Agency of Agriculture to force those farms to adopt more stringent anti-pollution measures.

“We’re trying to break out of the historical dynamic in this state where we’ve known for a long time that farm pollution is the largest contributor to the problems in the plagued areas of the lake, like Missisquoi Bay, but we’ve been stuck in this mode where everything has to be voluntary,” Iarrapino says.

Secretary of Agriculture Chuck Ross says the state is already working on a clean-up proposal. He says the final plan will be submitted to the federal Environmental Protection agency next week. He says the plan will include a number of new phosphorus reduction measures, including many of the practices CLF is pushing for.

“They range from buffer strips to exclusion from grazing and watering animals in the streams to nutrient management plans to greater inspections on small farms,” Ross says.

Ross says it’s important to work with farmers, as the state has been doing for more than a year now, rather than simply force mandates on them.

“Now will they be things that every farmer is going to want to embrace immediately, or able to embrace immediately? Maybe, maybe not,” Ross says.

But Iarrapino says relying on the voluntary participation of farmers isn’t enough anymore. He says many farmers are already leading by example.

“But it’s neither fair nor effective given the scope of the problem for one farmer to be stepping up to the plate while his or her neighbor next door is just doing business as usual and polluting the lake,” he says.

The petition from CLF is the latest legal setback for an administration already under heavy pressure to adopt a more robust Lake Champlain clean-up regimen. The state filed a draft phosphorus-reduction proposal with the EPA at the end of March. But in a preliminary review sent back to the state on May 8, the EPA’s Office of Ecosystem Protection also signaled to the state that it will need to see more forceful requirements on farmers, especially in the Missisquoi Bay.

The EPA is also telling the state to show how it plans to pay for the phosphorus reduction plan – something the Shumlin administration has yet to disclose.

Secretary Ross said he hadn’t had time yet to get a legal opinion on the legitimacy of the statutory mechanism being employed by CLF.

The provision was adopted by the Legislature in 2003, in part at the urging of CLF, when the Agency of Agriculture gained new regulatory authority over the pollution-emitting behaviors of the same farms it’s supposed to promote.

It’ll be up to Ross to determine which, if any, of the “best management practices” he’ll require farms to adopt. But in its petition, CLF recommends a number of measures, including more intensive cover crops, spreading manure deeper into the soil instead of spreading it on top, creating vegetated buffer zones between fields and river banks, and leaving the roots of harvested crops in the soil, to reduce the rate at which phosphorus-laden dirt runs into the river.

Adopting those kinds of best management practices will require upfront capital expenditures – expenditures that the state, if it proceeds with a mandate, will, under state law, be required to help farms pay.

But Iarrapino says the practices will have the effect of preserving soils in the long-term. And by keeping their dirt in the fields, instead of losing it to the streams, Iarrapino says investments by farmers will yield dividends in the form of retention of one of their most valued assets.

“So if you undertake practices that keep more soil on the farm and out of the river and the lake, you’re actually going to do better for your business,” he says.

To the extent that the imposition of best management practices does add to operational expenses, Iarrapino says that’s a cost of business that agriculture operations will have to build into the ledger.

“If farmers are going to be in a for-profit business enjoying record high milk prices, they have to do their fair share to make sure that we’re growing our food without poisoning our water at the same time,” Iarrapino says.

If Ross decides not to require farms to adopt new management practices, then CLF can file an appeal in Environmental Court, which, as per state law, will give no deference to Ross’ ruling.