When Nitrate Threatens Well Water, The State's Response Is Inconsistent, Often Undocumented

Dec 15, 2017

Farm runoff isn't just polluting Vermont lakes and streams — nitrate from manure and fertilizer is also contaminating private drinking wells.

And although the Vermont Agency of Agriculture, Food & Markets has regulatory authority, its response is inconsistent, and often undocumented.

The rash started on the underside of Jim Lovinsky's wrists.  Then it spread to the bottom of his feet.

"It looked like a raised circle, with the lower spot in the middle. Kind of like a donut, but very small," he said. The bumps were red and itchy. Jim's doctor sent him to a dermatologist, who asked if Jim works with chemicals or develops film. He didn't. His wife, he told the doctor, had also been getting bouts of hives.

"You need to get your water checked," she said.  

The Lovinskys had moved from Massachusetts to their 70-acre homestead in East Hardwick in 1989, about a decade earlier. Their water comes from a 7-foot-deep, spring-fed well on a hill between their house and some marshland. It had never been a problem.

Because the family lived adjacent to a dairy farm, the Agency of Agriculture tested the well for free as part of that agency’s groundwater monitoring program. It was October 2000 when the agency's soil scientist, Jeff Comstock, came up to do the tests.

"The next thing I know," Lovinsky recalled recently, "he was calling me at work telling me not to drink our water."

The drinking water had low levels of the the herbicide Metolachlor, which is known to cause rashes. Immediately after switching to bottled water, Jim’s rash disappeared. But the Metolachlor is not what worried Comstock. The well had also tested 76 percent over (almost double) the safety standard for nitrate, a naturally occurring compound found in high concentrations in human and animal waste.

Understanding Nitrate Risk Near Farms: A Q&A With Hydrogeologist Miles Waite

At low levels in drinking water, nitrate is common and harmless. At or above the federal and state safety standard of 10 parts per million (ppm), consuming nitrate can be fatal for babies who drink formula. High levels of nitrate may also increase the risk of pregnancy complications. The International Agency for Research on Cancer categorizes the compound as a "probable carcinogen."

This month, the couple received the results of their 34th groundwater sample. It came back 19.9ppm, nearly twice the safety standard, and slightly higher than their first test in 2000. After 17 years, little had changed.

"If we were having a water issue caused by PFOA, or because we had a gas station next door that had a gas leak, obviously something happens really fast," Jim says. "But because it's an agricultural thing, it seems like it's just not even being addressed." 

Widespread Contamination

In fact, at least 63 private drinking water wells have tested over the safety standard for nitrate on or near Vermont farms in the last 10 years, according to the Agency of Agriculture’s groundwater monitoring database. These wells are distributed across 29 Vermont towns, from Derby to Westminster, Pawlet to Sheldon. Some of the wells feed barns and milkhouses. Many feed farmers, their tenants and their neighbors. They range in depth from shallow, dug wells to drilled wells as deep as 670 feet.

Some owners of contaminated wells have installed water treatment systems or use bottled water. Others have drilled new wells, or simply decided to drink the water as it is. Meanwhile, the contamination often persists. Seventy-five percent of wells affected in the last decade remain over the legal safety standard for nitrates.

In Vermont, 40 percent of the population drinks private well water at home. (Public drinking water systems must test for nitrate and submit their results to the state.) Although state officials urge private well owners to test their wells for contaminants, Vermont Department of Health estimates only 5 percent actually do.

The Agency of Agriculture’s process for responding to such contamination has been inconsistent and is often undocumented.

Credit Visualization Map by Samantha van Gerbig

Jeff Comstock, the soil scientist who first tested the Lovinskys well 17 years ago, initiated the Agency of Agriculture's groundwater monitoring program in 1986. Lawmakers had passed a law the year before requiring the agency to conduct research on pesticide use in the state. According to the agency, the purpose of their program is to identify and mitigate public health impacts from agricultural practices. It was testing for pesticides that led the agency to discover the elevated nitrate. 

Chris Kilian, director of the Vermont office of the Conservation Law Foundation, is not surprised by the widespread incidence of nitrate contamination. "It's probably happening a lot more than we know," he says.

According to Vermont statute, the Secretary of the Agency of Agriculture is "responsible for the execution and enforcement of all laws relating to agriculture." Additionally, agency rules state "farm operations shall be conducted so that the concentration of wastes in groundwater originating from agricultural operations do not reach or exceed the primary or secondary groundwater quality enforcement standards," standards which include nitrate levels over 10 ppm.

An Uninformed Public

In practice, the agency rarely enforces the nitrate standard, and often fails to inform the public of potential risks.

On Feb. 22, 2010, an Agency of Agriculture field agent drove to East Charleston and sampled a 12-foot dug well on the property of Lynwood Crown, a dairy farmer in his 50s. The test came back at 10.3 ppm in nitrate: just over the safety standard.

According to the agency, a test over the standard triggers a series of responses. First, the agency contacts the well owner and any tenants. If the well supplies drinking water, the agency urges them to find alternatives. Through document requests and interviews, VPR confirmed this does usually take place.

Next, according to the agency, field agents assess the environment to identify any neighbors whose wells may be at risk. Because the agency offers the promise of confidentiality to well owners, it does not issue a public health advisory. But, according to officials, they do go door to door to all potentially vulnerable neighbors and farm tenants, and ask to test their water.

If these actions took place in East Charleston, they were not written down. By 2013, the level of nitrates in the well had more than doubled, to 24.7 ppm. Still, according to the agency’s investigation files, no analysis of the landscape or geology was documented. Crown's farm is two-tenths of a mile from homes and businesses in two directions. According to records, the agency has never tested neighbors' wells for nitrate.

In 2014, Crown would become the only person to receive a cease and desist order for nitrate contamination in the state in over a decade. Unlike other farmers with high levels of nitrate contamination, the agency alleged Crown refused to move his manure storage area and refused to allow field agents to continue testing his well.

In January 2017, another well on the property tested at 39.2 ppm, nearly four times the safety standard. Although the agency is in touch with a farm tenant, records show it still has not tested neighbors' wells.

A similar scenario played out in Craftsbury. According to agency documents, inspectors from the Agency of Agriculture and the Agency of Natural Resources arrived on Aug. 9, 2016, at Douglas "Chip" Nelson Jr.'s dairy farm, located along the Black River. They found multiple waste storage practices causing wastewater to flow into the Black River. While there, the inspector with the Agency of Agriculture took a sample from a drilled 300-foot milkhouse well.

Back at the lab, the well test came back at 18.7 ppm. Although the agencies issued a joint warning to the farmer about waste storage practices, there has been no follow-up regarding the contaminated groundwater. No assessment of risk to neighboring properties was documented, and records show no additional water samples have been taken on or near the farm.

A Lack Of Documentation

According to agency rules, when the agency determines that a waste storage facility is violating the state’s "Groundwater Quality Standards," — including nitrate exceedance — the agency "shall provide notification to the Department of Health and the Agency of Natural Resources.”

Nitrate exceedance constitutes a violation of the state's Groundwater Quality Standards. Yet officials with the Agency of Natural Resources say they do not recall ever being notified of  a nitrate violation. Officials with the Department of Health directed VPR to the Agency of Agriculture, whose investigation file does not contain any correspondence with that department.

Early in VPR's investigation into nitrate contamination of groundwater, we asked agency officials how they document their efforts to mitigate nitrate contamination.

Jeff Comstock, who began testing groundwater for the agency in the 1980's, and his colleagues pointed to personal communication. "We have each other's cell phone numbers, so we talk about these issues regularly," Comstock said of the farmers. When asked if the phone calls were documented, Comstock's boss Cary Giguere cut in.

"No," Giguere said. "We send one person, maybe two, that assess the situation, that tries to figure out what’s going on, what’s going on underground, and what [agricultural] practices could be changed to mitigate the issue in the community," he said. "This is a community effort and the farms are the heart of the community. Everybody’s involved in the solution, it's not so much a regulatory process that initiates from the agency. That was established during the inception of the program, and it hasn't changed, and it hasn't needed to change."

According to the agency, Comstock made similar phone calls — also undocumented in the record — to a Department of Health official to report incidents of nitrate contamination deemed to pose a risk to human health. Comstock, who spent three decades at the Agency, retired in September. Since his departure, and — according to Giguere — in response to questions from VPR,  the Agency of Agriculture and the Department of Health have begun composing a memorandum of understanding regarding communication about health risks.

Still, Chris Kilian, who has spent decades fighting farm pollution with the Conservation Law Foundation, says the agency’s lack of documentation is evidence that it is unfit to regulate the environmental and health impacts of contemporary agriculture.

"There's just a fundamental conflict of interest between the Agency of Agriculture's historic mission as a promoter of agriculture and these critical roles of protecting the environment," he says. 

Kilian believes modern dairy farming is a polluting industry that should be regulated as such. For years, he says, he has endeavored to convince lawmakers to assign environmental regulation of farms to the Department of Environmental Conservation, which oversees environmental regulation of most other industries.

Neighbors Against Neighbors

The story of nitrate pollution in Hardwick involves policy, hydrogeology, agricultural practices — and relationships between long-time neighbors.

When the Lovinskys moved to East Hardwick in 1989, they dreamed of a small, self-sustaining homestead farm.

"I think I had this sort of Vermont life idea,” says Mary-Ellen Lovinsky, "that we could buy a piece of property, live on it and farm; raise the family, make enough money to support it."

That dream has been elusive. Until recently, the Lovinskys maintained two traditional full-time jobs, raising a handful of cattle and a family garden on the side. Together, they also started a business selling an ecologically friendly alternative to packing peanuts, which they call "Sylvacurl."

In November in East Hardwick, Mary-Ellen Lovinsky prepared a hoophouse for winter.
Credit Emily Corwin / VPR

In 2011, Mary-Ellen retired early to try to farm in earnest. She now grows and sells organic garlic and greens, and keeps 22 goats which pasture alongside the family's dozen curly haired Scottish Highlanders —cattle the family acquired to clear overgrown pasture land.

"We basically work to raise our own food organically and responsibly," she says. Still, the farm is far from profitable.

Late last fall, one of the Lovinskys' Highlanders died. The family had no way to move the massive bull — and nowhere to put it while it decomposed. Their neighbor, dairy farmer John Laggis, arrived in his tractor, picked up the animal and drove it back to the animal composting facility he has next door.

"He's a good man," Mary-Ellen says.

John Laggis and his brother Chris started farming in Vermont with 28 cows in the early 1980s. "It would be sweet to milk 30 cows again," he says. But to stay profitable, the farm had to grow. In 1990, they expanded onto farmland across the street from the Lovinskys, bringing 150 cows. Today, the Laggises have 1,000 head of cattle — 500 milkers — and about 10 employees.

Like most conventional dairy farms, the Laggises keep their milking cows in covered barns with cement floors. In stalls bedded with hay and sand, the cows eat corn grown on fields that once were pasture. Every day, manure from the cows is pushed into a large, concrete-lined manure pit. Between April and December, workers take manure from the pit and spread it on the cornfields as fertilizer.

From the moment Mary-Ellen and Jim got their first water sample results, they knew who they thought was responsible. "It's kind of a no-brainer," says Mary-Ellen. "I live next door to a really big dairy farm that is continuing to get larger."

The Lovinskys want two things. First, they want to be reimbursed for their filtration system and its maintenance, and for any reduction in property value. But for them, it's bigger than that.

"It isn't just about fixing our water source. It's about the fact that the water is being contaminated," says Mary-Ellen.

For the Agency of Agriculture, pinpointing the source of the nutrient contamination would prove difficult. The Laggises weren't violating any specific farm practice rules.

At the Lovinskys' urging, additional water samples were taken; soil cores were tested for nitrogen and phosphorous; even electromagnetic induction radar were used to measure animal wastes in the soil. A year later, the agency issued a report documenting its methods and conclusions. It found that, while the source of the nitrate was likely agricultural, "the sampling and analytical techniques used in this investigation cannot identify or verify a specific origin."

Farming awards line the wall of John Laggis' office in East Hardwick.
Credit Emily Corwin / VPR

For John Laggis, this made sense. He and his brother may operate a large, conventional dairy farm. But, Laggis says, they've always been ahead of the curve when it comes to protecting the environment. The Laggises hired consultants to create nutrient management plans long before they were required by the state. John Laggis is on board of trustees for the Vermont Land Trust. According to the Agency of Agriculture's 2002 nitrate contamination report, "The current practices of the Laggis Farm represent a responsible approach to nutrient management."

The investigation to identify the source of the Lovinksy's nitrate contamination would continue for the next 15 years, with extensive geological and isotope testing. But according to the Lovinskys, this 2002 report would mark the last time the agency formally communicated its findings.

"I asked repeatedly for plans in writing that would say: what are you doing? What have you identified? What are you planning on doing to fix this issue? What are the steps that you are taking? What's the timeline? We never got any of that information," Mary-Ellen recalls.

Internal agency documents show that in April 2004, the agency tested a drilled well supplying a trailer on the Laggis farm for the first time. The well came up more than three times the safety standard for nitrate, at 33ppm — far higher than any other well the agency had tested in East Hardwick. The Lovinskys were not informed.

A few weeks later, according to the Lovinskys, Jeff Comstock visited their home, explaining the agency now believed fertilizer practices on Laggis cornfields may be contributing to their contamination. Two days later, the Lovinskys followed up with a letter hoping to clarify the new findings. "Please respond to us in writing if we are not in agreement," they wrote. The agency never responded.

The following year, the Lovinskys asked their state representative Lucy Leriche to follow up with the agency on their behalf. "The second question I have is for Jeff to simply put into writing the Department’s the [sic] most likely cause of the Lovinskys spring contamination," Leriche asked in an email.

Jeff Comstock then issued a memo to Steve Kerr, then-secretary of the Agency of Agriculture. Excerpts from that memo include:

These are excerpts from the June 3, 2005 memo from Jeff Comstock to Steve Kerr. Ellipses and highlighting have been added by VPR. The full memo available at link below.

Find the full memo from Comstock to Kerr (June 3, 2005) here.

The Lovinskys say they never received this memo or anything like it, even as they sought an insurance claim against the Laggis farm.

"I always thought that, you know, we pay taxes, and people in government, they're supposed to help protect us from things like this," Jim Lovinsky says. "And then when I pursue it and I feel like I'm being stonewalled or not being dealt with honestly and that's a problem for me. It's no different than being lied to, really."

Taxpayer Dollars

Sitting behind a cluttered desk, Laggis, the dairy farmer, has mud on his hands from work, a ruddy face and a candid demeanor. He's been happy with the agency's process. "If you go through all the reports from the state, it's totally inconclusive," he says.

As he pages through documents, an odd sound interrupts him. One of his Jersey cows, he explains, is licking the opposite side of the wall.

"I wish I had the answers," he says. "If information comes down the line, I'll change accordingly."

There are a lot of resources for farmers whose businesses may be contaminating groundwater. Every five years, individual farmers are eligible for as much as $650,000 in state and federal dollars to implement practices that address environmental concerns.

The Laggises have taken advantage of these programs. In 2006, they installed a then state-of-the-art manure pit and transfer system. The projects came to $187,099. The state paid 25 percent, the federal government paid 57 percent and the Laggises paid 18 percent.

John Laggis stands beside a new manure storage pit in East Hardwick.
Credit Emily Corwin / VPR

Meanwhile, the Lovinskys have sought and failed to receive reimbursement for the water treatment system they installed in 2001, which has cost thousands of dollars in upfront and maintenance fees. In 2008, the family tried to get their insurance to pay for a new well to be drilled on the property. They were denied. Instead, Mary-Ellen says, "we've worked to try to take care of a problem that we didn’t create."

The Laggises have made changes. A few years ago, John Laggis took the cornfield closest to the Lovinskys out of rotation. He says he still spreads manure on it, but not as much as he would if it were planted in corn. This year, he installed another, larger, state of the art manure pit on the farm. Fresh-looking cement covers nearly every surface in the barns and around the pit, and Laggis explains that grate-covered drains lead to an on-farm water treatment system. Accidental manure runoff seems unlikely.

The Lovinskys aren't impressed. Even if the manure pit isn't leaking, the manure is still headed for cornfields which — the Lovinskys believe — are too porous to hold the nutrients.  "All that manure is still going to be dumped on the land the same way it always has," Jim says.

Plus, Jim and Mary-Ellen fear that bigger pit, however high-tech, only means the farm will continue to grow. Kilian, with the Conservation Law Foundation, agrees. "The limited controls on manure spreading, livestock management, and application of fertilizer," he says, "virtually assure that these water contamination problems will continue to occur. "

A New Narrative

Seventeen years after discovering the pollution in their well, the Lovinskys are still waiting for the state to identify the source of the pollution and hold someone accountable.

I recently asked the Agency of Agriculture to clarify the agency's current assessment of the cause of nitrates in the Lovinsky well.

Cary Giguere called me back. With the call came a new hypothesis.

Mary-Ellen and Jim Lovinsky, of East Hardwick, have kept 17 years of sampling records for their well.
Credit Emily Corwin / VPR

"My understanding is that the Lovinskys' well is in the middle of their pasture, and their animals have access to the swamp," Giguere said, "so it's hard to say if it’s their own activities or someone else is impacting their well."

This theory had not been mentioned in the records VPR obtained. "Jeff, I know, has suggested they remove the cows from accessing, buffer their own well, and they've been hesitant or reluctant to do so," Giguere said.

I called Mary-Ellen.

"That’s incorrect. That's incorrect," she repeated, dumbfounded.

She said nobody had ever suggested her animals were responsible. "I’m totally confused by all of this at this point."

The animals, she said, have always been fenced out of the spring area. Until Mary-Ellen retired in 2011, the Lovinskys had at most five cattle at a time on the farm.When Jeff Comstock suggested she keep her animals out of the marsh in her backyard, she says, "we did."

Although pasturing animals near a shallow well can lead to nitrate contamination, research shows that isn’t common. A U.S. Geological Survey study modeling nitrate nationwide has shown a significant and positive relationship between groundwater nitrate and farms where animals are fed and raised in confinement. The model showed no relationship between groundwater nitrate and unconfined — or pasture-based — animal feeding operations.

Confusion At The Agency

Even among veteran employees, officials within the agency cannot agree on its intended role. Over the duration of VPR’s investigation, pesticide program manager Cary Giguere has reiterated his belief that the agency does not have direct jurisdiction over agricultural nitrate contamination. Giguere argues nitrate is merely an indicator of other agricultural violations over which the agency does have jurisdiction.

Giguere’s section is the first stop for nitrate tests in the agency. He supervises both the collection of  groundwater samples and decisions about whether or not to communicate results inside and outside the agency. However, he says, “there’s no responsibility attached. There’s no statutory responsibility.”

Yet during a recent conversation, Giguere’s boss, division director Jim Leland, contradicted Giguere on that point.

Sitting next to Leland, Giguere said if a farmer is abiding by agency rules yet still contaminates his or her own well, “the agency can’t impose a remedy.”

“We could impose a remedy," Leland corrected him. “We have all the authority to do that.... If it’s over the standard, we are not going to just walk away from it and say good luck. That we don’t do.”

Giguere's misunderstanding makes sense, however. According to Leland, the agency chooses only to use its enforcement authority when farmers violate specific required agricultural practices. It has used its authority over groundwater contamination to demand action only once in the last decade.

Chris Kilian, with Conservation Law Foundation, says that's a problem. "If all we're doing is running farms through a whole bunch of paperwork and red tape, but the end result is it's just fine to contaminate your neighbor’s well," he says, "then what’s the point?"

Freelance data reporter Hilary Niles contributed to this story.