Author Archives: Mollie

Burlington Free Press: Neil Young plans concert in Vermont

By Brent Hallenbeck
April 20, 2015
Full Article

Rock legend Neil Young will perform July 19 at the Champlain Valley Exposition, South Burlington-based concert presenter Higher Ground announced this morning.

Young will play his first Vermont headlining gig at the Essex Junction fairgrounds with Promise of the Real, which includes Lukas and Micah Nelson. They have played in that band with their father, country veteran Willie Nelson, who regularly joins Young for the Farm Aid benefit concerts.

Young did have an appearance 50 years ago in Killington with the band Four To Go. “On October 30, 1965, Young’s band would play their one and only gig since leaving Thunder Bay (Ontario), and they would have to venture into the States to do it,” according to the 2003 Young biography “Shakey.” “Wobbly Barn was a ski resort in Killington, Vermont, looking for a band to play the winter season. Four to Go lasted exactly one engagement.”

Opening Young’s show with Promise of the Real will be Puss N Boots, a trio that includes singer-songwriter Norah Jones and Catherine Popper, former bass player for Vermont-based rockers Grace Potter and the Nocturnals.

Tickets go on sale at 10 a.m. Friday. Advance prices range from $35-$75 and go up $4 on the day of the show.

Young hasn’t said as much publicly, but his first-ever concert in the Green Mountain State could be connected to Vermont’s stance on genetically modified organisms, or GMOs. The state passed a law requiring companies to label whether their food products contain genetically modified ingredients, and on his website last fall Young criticized Starbucks for taking action “to sue Vermont, and stop accurate food labeling.”

A group including the Grocery Manufacturers Association sued Vermont, calling into question the constitutionality of the GMO-labeling law. Starbucks responded to Young’s website post by saying the coffee company “is not a part of any lawsuit pertaining to GMO labeling” and “is not aligned with Monsanto to stop food labeling or block Vermont State law.”

One clue that the GMO-labeling law may have influenced Young to play in Vermont is that his next album, recorded with Promise of the Real, is a politically and ecologically inspired work titled “The Monsanto Years,” named for the chemical company that produces genetically modified seeds. The album comes out June 16 on Reprise Records.

WCAX: Attorney general says hemp oil OK under Vt. law

Apr 15, 2015
Full Article

MONTPELIER, Vt. – A big ruling for those who turn to hemp oil to treat medical conditions.

WCAX News has reported on the oil; it was developed in Colorado under the name Charlotte’s Web, but it is illegal under federal law.

Some say the oil can help reduce seizures and other medical conditions in children. The Vermont attorney general’s office says they have received proof from the oil’s manufacturer that it doesn’t contain enough THC to make it illegal under state law.

Farmers are Telling Their Stories – online

Read the full update here.

“Farmers Tell Their Stories” Success!

Thanks to everyone who joined us for or participated in our “Farmers Tell Their Stories” kickoff event. Over a hundred people joined us for an evening of celebration. We hope you were both inspired and riled by the stories, song, poetry and skits!

Thanks to Ben Deflorio Photography for all the great photos. Stay tuned for more! Couldn’t make the event? Watch the live stream recording here.

Manchester Journal: Hemp: Vermont’s next big thing?

By CB Hall
Full Article

A number of Vermont farmers would like to grow hemp, which has uses ranging from cosmetics to biofuel. There’s a small problem, however: The federal government could arrest them for growing the plant because it is related to marijuana.

The Vermont Legislature endorsed the production of industrial hemp in 2013 when it passed Act 84. The law cites the low-THC strain of Cannabis sativa, or hemp, as useful in producing “high-strength fiber, textiles, clothing, biofuel, paper products, protein-rich foods, biodegradable plastics, resins, nontoxic medicinal and cosmetic products, construction materials, rope, value-added crafts, livestock feed and bedding, stream buffering, erosion control, water and soil purification and weed control.”

For farmers, it’s a question of opportunity.

“Hemp has great potential for economic revival here in Vermont,” Ken Manfredi of Bridgewater said. Manfredi and his partner, Robin Alberti, grew a quarter-acre of hemp last year on leased land in the town of Chittenden.

Marijuana and industrial hemp are two varieties of the same species, Cannabis sativa. By definition, however, industrial hemp contains no more than 0.3 percent of tetrahydrocannabinol, or THC, the psychoactive ingredient in the plant, and cannot produce a high unless consumed in large quantities. It’s hardly a new idea – George Washington and Thomas Jefferson grew hemp.

Act 84 legalized the growing of industrial hemp in Vermont, with the caveat that producers register with the state and be notified that cultivation of the plant remains a violation of the federal Controlled Substances Act of 1970. In 2014, however, President Barack Obama signed a farm bill under which higher education institutions and state agriculture agencies could grow industrial cannabis “for purposes of research conducted under an agricultural pilot program” notwithstanding the act, which treats all cultivars of the species as illegal.

The 357 pages of the farm bill made no mention of the Drug Enforcement Agency (DEA), which enforces the Controlled Substances Act. Federal narcotics officials have, however, long required that anyone importing cannabis seeds obtain a permit; and importing seeds from places where hemp cultivation is fully legal is the recourse for research institutions, since there are no U.S. suppliers of certified hemp seed – that is, seed certified to have the characteristics sought, such as high oil or fiber content.

University of Vermont field crops expert Heather Darby said that some of her faculty colleagues have taken an interest in working with hemp.

“Initial research, if we receive proper permits, will focus on basic production and agronomy,” she said in an email. She noted that companies as diverse as cosmetics manufacturer Nivea and automaker Ford “have been in contact with us here in Vermont, looking for opportunities.” The latter, she elaborated, “would use the fiber in a number of interior parts of the vehicle — dashboards would be one.”

But having to start with seeds that the DEA treats as marijuana puts the university in what she termed “an interesting situation. Do you move forward with research and put yourself at risk of prosecution?”

“The DOJ and the DEA aren’t part of the farm bill – they don’t follow the same rules,” she said, referring to the Department of Justice, which includes the DEA. “It doesn’t make a lot of sense.”

The Controlled Substance Act “creates a closed system,” DEA spokesperson Barbara Carreno said. To track materials in that system, it requires registration of the substances’ handlers.

In theory at least, the act tasks the DEA “with tracking the flow of all controlled substances in the United States. Collectively, that would include all the seeds,” Carreno elaborated in a follow-up email. Monitoring every cannabis seed once it enters the country may seem as hopeless a task as following a BB pellet as it rolls around in a boxcar, and as legalization of cannabis gains momentum across the country, but the DEA is not abandoning what it perceives as its duty.

In the tug of war over cannabis, the agency has yielded some ground. In May 2014, three months after the farm bill’s enactment, the state of Kentucky imported 130 kilograms of hemp seeds from Italy, only to have the DEA seize the shipment on its way to several Kentucky universities and farmers contracted for a pilot growing program overseen by the Kentucky Department of Agriculture. Two lawsuits ensued. The DEA backed off and allowed the program to proceed.

“At this point, we don’t see importation as being a limiting factor on the program, because we have a process that is satisfactory to both DEA and the [Kentucky] Department of Agriculture,” said the department’s industrial hemp program coordinator, Adam Watson.

Some Vermonters are eager to test industrial hemp’s potential here. Last year, 17 parties registered to grow the crop. Tim Schmalz, who manages the registry at the Vermont Agency of Agriculture, said the registrants expected to grow 190.41 acres all told, but only about an acre was actually planted. The shortfall, he said, was because of difficulties in getting seed and the tendency of would-be farmers not to realize the amount of work involved.

As of March, only five parties have registered with the state to grow the crop this year. They include Joel Bedard of Huntington, who said he hoped to get through the DEA red tape and import as much as 3,000 pounds of seed, which would yield up to 100 acres to be cultivated by farmers contracting with him as a broker. He sees hemp as a jack-of-all-trades crop and identified two Vermont breweries that might make hemp beer. The crop’s uses, he said, include remediation of polluted waterways, since very dense plantings filter runoff, preventing it from entering the water.

Hemp is also “capable of fixing heavy metals [and even] radioactive isotopes,” he said. “It was utilized at Chernobyl.”

Some cultivars’ seeds, he said, contain up to 30 percent oil, a percentage he termed “off the charts. And the hearts are more nutritious than flax seed. And it’s gluten-free.”

For processing, his crops would go to Middlebury’s Full Sun Company, which its co-founder Netaka White describes as a producer and processor of specialty oilseed crops.

Using low-THC seed ordered online from Europe, White grew a garden plot of industrial hemp last year – enough to yield a pound of seeds. This year, he intends to plant that seed, which he hopes will produce 60 pounds of seed. Planted in 2016, those 60 pounds could yield a two-ton seed crop, enough by his calculation to plant 260 acres in 2017. That season’s yield would suffice to begin commercial processing for feed meal as well as food oil, which UVM’s Darby characterized as “the low hanging fruit” for Vermont’s nascent hemp industry, since processing facilities such as Full Sun already exist.

White did not obtain a DEA permit to import his seed. Asked if the DEA had come after him, he said, “No, I really have to believe that the DEA doesn’t have a lot of interest in pursuing small endeavors.” He referred to an August 2013 policy memorandum issued to U.S. attorneys by Deputy Attorney General James Cole, which outlined eight priority areas for enforcement of the Controlled Substance Act. The memo suggests that those priorities do not include industrial hemp.

For their 2014 crop, Manfredi and Alberti, who like White have signed on to the state registry, ordered food-grade hemp seeds from abroad, since hemp as food can be imported legally, although the growing characteristics of the noncertified seed are unknown. They viewed the effort as experimental. But, even with their quarter-acre – a thousand plants — “we still had the biggest legal plot in the Northeast,” Manfredi said. He and Alberti are using the yield from those plants solely for seed.

“We’re going to expand from what we did,” Alberti said. “We’d love to get as many acres as we can.”

She and Manfredi would like ultimately to concentrate on growing a high-oil variety for pressing. They are not growing on their own land, however — and that could put the farmers hosting the crop at risk of an uninvited visit from the DEA.

“The Farm Bill does not exempt farmers in general from federal law that prohibits the growing of hemp,” the DEA’s Carreno said. Such farmers “could be at risk of DEA action. That said, in allocating its enforcement resources, DEA applies the guidance” in the Cole memo.

All of which answers the crucial question of possible busts with a definite maybe. In an interview, Schmalz expressed the uncertainty hovering over growers: “DEA reserves authority to come in and intervene if they feel someone is growing cannabis that might be more than 0.3% THC.”

Against that backdrop, Manfredi, Alberti, Bedard and White are supporting legislation in Congress that would remove barriers to the commercial production of industrial hemp by simply excluding low-THC cannabis from the federal definition of marijuana.

Sponsors include majority leader Mitch McConnell, R-Ky., in the Senate and Peter Welch, D-Vt., in the House. In a noncommittal statement, the office of Sen. Patrick Leahy, D-Vt., said he looked forward to “consideration of the bill on its merits” in the chamber’s Judiciary Committee, of which he is the ranking member. Jeff Frank, a spokesman for Sen. Bernie Sanders, I-Vt., said only that Sanders had sponsored similar legislation in the past.

With Kentucky — and cannabis-friendly Colorado — already making strides in hemp production, Vermont’s challenge may be to leverage its advantages before hemp’s potential finds a home in other states.

“If farmers are growing hemp for human consumption, for example, or the production of cosmetics, the Vermont label has a certain value,” Schmalz noted, alluding to the marketing factors that give “pure Vermont maple syrup” an aura that “pure Wisconsin maple syrup” hasn’t matched.

“I imagine it is just a matter of time,” UVM’s Darby said, “before all this [legal wrangling] seems ridiculous and people look back and wonder how this happened.”


Seven Days: Sacred Cows: Does Vermont Cut Farmers Too Much Slack on Water-Quality Violations?

By Kathryn Flagg
Full Article

Imagine a business breaks a law. The state agency tasked with enforcement takes notice and sends out a warning letter. A year later, when the problem resurfaces, the offending business gets a cease-and-desist order — followed, five months later, by an official notice of violation.

More than a year and a half after the problem came to light, the business owner finally sits down with state regulators and promises to make the required changes. In exchange, the agency agrees to waive the financial penalty it has threatened to impose.

Too forgiving to be true? It’s exactly how things played out for Newport Center farmer Andreo Pothier, according to water-quality enforcement files at the Vermont Agency of Agriculture.

On numerous instances, a state field agent observed manure trickling across the barnyard of Pothier’s small dairy farm, through ditches, across property lines and in the direction of a nearby stream — a violation of the so-called “accepted agricultural practices,” or AAPs, that govern all farms in Vermont.

The same problem came up in 2012, then again in 2013. In May 2014, Pothier and the ag agency finally sat down in Montpelier for a private conference. According to the subsequent “assurance of discontinuance” issued after the meeting, Pothier didn’t contest the facts of his case. In the AOD, he promised to clean out his overflowing manure pit and to make some improvements to the barnyard. Assuming he meets the deadlines imposed by the agreement — some of which won’t roll around until the end of this year — he won’t be liable for the $1,500 in potential penalties.

The agency even appears to be helping him hold up his end of the bargain. In October, enforcement coordinator Wendy Anderson shot off an email reminding field agent Bethany Creaser to swing by the Pothier farm in advance of those deadlines to “make sure that is on his radar screen and that he has everything lined up to be able to” meet it.

This story, or some version of it, plays out time and again on Vermont farms. A review by Seven Days of the last five years of enforcement records at the Agency of Agriculture reveals that it typically coerces farmers with the carrot, not the stick. Rarely do farm inspections end in formal enforcement violations, even when an inspector notices a problem. Seldom does the agency propose financial penalties for water-quality violations. When it does, they’re often small — and typically waived if a farmer comes into compliance. In four of the last five years, the agency collected only between 5 and 9 percent of the total penalties it initially imposed.

The approach has long provoked the ire of environmentalists, who see a glaring conflict of interest in relying on the same agency that promotes farms to police them, too.

As a society, we expect regulators to take action when someone breaks a law, said Kim Greenwood, the water program coordinator and staff scientist at the environmental advocacy group Vermont Natural Resources Council. “We don’t do that with farmers,” she said. “I understand why. That’s our culture. But it’s kind of hard to talk about a real commitment to cleaning up ag water quality.”

Ag officials say this isn’t accurate and claim they’re committed to getting all Vermont farms — an estimated 7,300, according to the latest U.S. Department of Agriculture census — into compliance with water-quality rules.

“We’re serious on three things,” said Agency of Agriculture Secretary Chuck Ross. “We’re serious about wanting them to understand what to do; we’re serious about providing them the resources to get it done; and we’re serious that if they don’t get it done, we’re going to bring them through an enforcement process to incent them to get it done.”

State v. Feds

Noncompliance is no longer an option. In 2011, the Environmental Protection Agency found the state’s plan to manage the flow of nutrients and pollution into Lake Champlain inadequate — and subsequently revoked it. Now the EPA is overseeing the draft of a new plan, using the Total Maximum Daily Load, or TMDL, that will spell out exactly how much phosphorus Lake Champlain can safely absorb. Bottom line: The state needs to cut total phosphorus runoff into the lake by 34 percent.

In anticipation, last November the state released its Clean Water Initiative, outlining its plan to curb pollution. Lawmakers in Montpelier are currently hashing out details in two major bills — H.35 and S.49 — designed to enact some of those changes.

The EPA’s estimates point to agriculture as the single largest source of phosphorus in the watershed. Runoff from farms accounts for 40 percent of what is going into Lake Champlain — more than any other category of contributor. In one of the most impaired sections of the lake, Missisquoi Bay, farms account for 64 percent of the phosphorus that fuels the growth of blue-green algae blooms in warmer months. These blooms can be toxic; they’ve caused fish kills and beach closures, and could pose a threat to drinking-water supplies.

As officials and lawmakers in Montpelier draft new water-quality laws, environmentalists are pushing for a stricter crackdown on farms. Farm advocates, meanwhile, contend education and technical assistance, not hefty fines or zero tolerance, will bend the curve.

Is stricter enforcement even an option? In some ways, the agency’s hands are tied: Vermont law spells out the process for noting a violation on small farms — which starts with a correction action letter, followed by increasing levels of enforcement. Statutes cap administrative penalties: $1,000 for each violation on a small farm, not to exceed $25,000 in total. The amounts are larger for bigger farms, but not much; individual infractions can ding a farmer $5,000, with totals not to exceed $50,000. Currently, state regulators don’t even have the authority to go after civil — as opposed to these administrative — fines for many water-quality violations on farms. The attorney general’s office doesn’t have jurisdiction.

click to enlarge Environment1-2.jpg

That may change. Proposals in H.35 would give the ag agency more manpower for boots-on-the-ground education, inspections and enforcement. The proposal would nearly double the number of agents in the field, from five to nine. Presumably that would increase the number of dedicated inspectors assigned to farms with fewer than 200 cows, which make up 83 percent of the dairy farms in the state. At the moment, there’s only one.

Some proposed changes would ease limits on fines for many violations. Among the most hotly debated ideas is Gov. Peter Shumlin’s proposal to tie the current-use tax policy, which taxes agricultural lands at a lower rate, to compliance with water-quality laws. Blatant abusers could run the risk of losing the lucrative tax break.

Will these changes be enough to satisfy critics? The tougher question is: If every farm in Vermont were to comply with the state’s environmental laws, would it curb phosphorus enough to make the necessary improvements in water quality?

It’s not likely, admitted Ross — which is why another change proposed under H.35 calls for strengthening the AAPs for the first time since their adoption in 1995. As they exist today, AAPs might not be restrictive enough to drive the water-quality improvements the EPA is mandating. It will take major changes from all Vermonters, not just farmers, to make a dent, Ross stressed.

“What are we enforcing, and to what end?” asked James Ehlers, the director of the water advocacy nonprofit Lake Champlain International. “It certainly hasn’t been to produce clean water, or prevent pollution.”

Promoting or Policing?

The Department of Environmental Conservation enforces most water-quality and environmental regulations in Vermont; whether you’re a homeowner with a failing septic system or a business with a heating oil spill, you deal with the DEC.

But the regulation of most clean-water infractions on farms falls to the Agency of Agriculture. As Chris Kilian recalls it, that arrangement came about as a result of some last-minute legislative wrangling in 1992. The director at the Vermont branch of the Conservation Law Foundation was then a newly minted lawyer with the Vermont Natural Resources Council. As the legislative session drew to a close, Kilian caught wind of some strange dealings in the House Corrections & Institutions Committee, which rarely concerned itself with farm or agricultural issues.

The committee was weighing in on a proposed phosphate detergent ban that had already passed the House and Senate. Independent of the bill, the Vermont Farm Bureau was pushing for the Agency of Agriculture — then the Department of Agriculture — to take over water-quality regulatory authority from ANR, a move environmentalists opposed.

Seemingly out of the blue, the House committee quietly tweaked the detergent bill to empower the ag agency. The water-quality advocates who’d fought tooth and nail for the detergent ban suddenly found their bill had become a Trojan horse for a move they very much opposed.

Environmentalists hoped to scrap the transfer of regulatory authority in conference committee. They didn’t succeed.

“It was never voted on by either the House or the Senate in any kind of formal, conscious way,” said Kilian, and it’s been a “horror show” ever since. CLF and other water-quality groups have long argued that the regulatory authority to police farms should move back to ANR.

The Agency of Agriculture’s collaboration with both ANR and the Office of the Attorney General proves that it’s serious about enforcement, according to Ross. ANR and ag officials occasionally investigate cases together; last year the AG’s office prosecuted three ag cases in quick succession for blatant, direct discharges of manure into state waterways, for which the office does have jurisdiction.

Cumulatively, the three farms are on the hook for $118,000 — nearly four times the total the ag agency has collected in the last five years.



“The agency is really kind of touchy about it,” said Greenwood. “They say these two worlds never meet. But at the very least, it sends a very bad public perception … We should have some distance between who’s making the rules and who’s enforcing the rules.”

DEC Commissioner David Mears isn’t convinced. He said that farm compliance is among the most complicated regulatory work there is. Enforcers aren’t just tasked with pinpointing one source of pollution, such as a pipe discharging pollutants into a stream. Farm inspectors need to look at the ecosystem of a farm, and Mears sees value in the relationship between a trusted regulator and the farm community.

“What matters is that you build strong programs with stability and people with strong expertise,” said Mears. “I’m seeing real improvements happening over at the Agency of Agriculture. I don’t see how there would be some magic gain or improvement just by shifting it over to my department.”

Apples and Oranges

DEC and ag enforcers approach their regulatory work differently. Notably, DEC isn’t required by statute to follow the same notification and warning process that the ag agency has to for small farms. Corrective action letters, cease-and-desist orders — “We just don’t have those steps,” said Gary Kessler, the director of the compliance and enforcement division at DEC. The department goes straight to a notice of alleged violation or an enforcement action.

Another major difference: “If you look through our AODs, you’ll be hard-pressed to find one without a penalty,” said Kessler. A review of AODs at the Agency of Agriculture found many cases in which a farmer agreed to come into compliance and the agency waived penalties. At DEC, Kessler said, penalties are “absolutely” still involved, even if agreements are reached and improvements are made.

DEC also makes a priority of collecting penalties. “It’s really important not to give up on it,” said Kessler. “Otherwise, you don’t have any deterrent at all.”

The Agency of Agriculture collected $1,000 of the $18,250 in penalties proposed last year: slightly more than 5 percent. DEC collected 91 percent of the penalties it proposed in AODs, administrative orders, emergency orders and informally closed cases in 2014.

Ag enforcement officials don’t see this as a problem.

“We’re not in the business of collecting money from these farmers because they’ve done something wrong,” said Anderson, the enforcement coordinator at the agency of ag; the agency would rather see that money go into improvements on the farm.

In Anderson’s view, a year when the agency collects few penalties is a good year. “That means farmers got on board,” she said. “They worked with us. If we entered into an agreement, they did what they needed to do.”

Should enforcement look different at each agency? “I would hope so,” said Sen. Robert Starr (D-Essex/Orleans), who chairs the Senate Agriculture Committee.

They’re like apples and oranges, according to Bill Moore, the legislative director at the Vermont Farm Bureau.

If farmers drag their feet before making improvements, Starr said, it’s a decision borne out of necessity, not negligence. “It’s simply because they didn’t have two nickels to rub together,” he said. Farmers, he added, aren’t in the same class as businessmen in $500 suits; they need technical assistance, not hefty fines.

Big financial penalties, said Moore, “may only serve to bankrupt the farm.”

This sort of thinking supports Greenwood’s thesis: that Vermont has long treated farmers as an industry apart. She gets the rationale — to a point.

“We want them to succeed,” said Greenwood. “We don’t want them to sell out.” As as a result, she said, lawmakers seem to adhere to an unofficial agreement: “You just don’t impose regulation on farmers.”

Greenwood thinks that sentiment might be changing.

“We can still love our farmers,” she said, “and ask them to do better.”

Boots in the Barnyard

What environmentalists see as lax enforcement on farms may look different to the people who run them. In dairy-rich Franklin County, farmer Darlene Reynolds is hearing anecdotally from peers that the ag agency seems to be ramping up enforcement — sometimes, for rules that farmers didn’t know existed.

It can come as a shock to farmers, especially those with smaller operations. Medium- and large-size farms, with several hundred dairy cows, operate under special permits, but smaller farms don’t go through that same process. Even so, they’re subject to the AAPs.

“I think you would be surprised how many farmers that I work with … who don’t know they fall into regulation,” said Heather Darby, an agronomy specialist with University of Vermont Extension who, like Reynolds, sits on the board of the Farmers’ Watershed Alliance.

Moore agrees. “I would argue the vast majority of small farms not currently under the permit system are the ones that are making the mistakes,” said Moore. “They don’t know what they don’t know.”

The AAPs have been in effect since 1995 — for two decades. But the first dedicated small-farm inspector wasn’t hired until 2013. The agency has five inspectors on the ground devoted to water-quality issues. Four of those focus on medium- and large-size dairies with more than 200 cows.

The lack of manpower frustrates Reynolds, who runs a medium-size dairy farm and has long operated under a “medium farm operation” permit. While the agency drafted AAPs, Reynolds doesn’t think it did a particularly good job of advertising them or educating farmers. She wants to see more transparency.

Writing regulations but not enforcing them sent the wrong signal, said Reynolds. “The department of ag has pretty much said that it’s OK for these small farms to do whatever they want to do,” she said. Now she thinks regulators want to go from “A to Z in 2.2 seconds.” Is it any surprise that smaller farms are taken aback?

Vermont’s first small-farm inspector, former dairy farmer John Roberts, has spent the last year and a half educating farmers in Franklin County. In 2014, he was focused on providing technical assistance and guidance; this year, according to the agency’s annual report, he’ll be stepping up comprehensive compliance inspections.

Greenwood of VNRC isn’t convinced that more education will slow the runoff. If the state tries to go farm-by-farm, and educate each and every individual about regulations and best practices, Vermont will never reach its water-quality goals, Greenwood said.

“When are they going to be inspired to learn if there isn’t at least the threat of enforcement action?” she asked.

Of course, there’s another kind of enforcement that bypasses the Agency of Agriculture altogether: the court of public opinion. In Franklin County, residents are becoming increasingly vocal, and frustrated, about the diminished water quality in the St. Albans and Missisquoi bays. Farmers are feeling the heat.

“I’m not worried about the department of ag coming to my farm,” said Reynolds, who has never been out of compliance with the permit for her farm. She’s more concerned about what her neighbors think.

“There’s a lot of police officers out there,” said Reynolds, of the citizens-turned-water-quality advocates. “There’s going to be a lot of policing.”

Brian Kemp, who manages a large organic beef farm in Sudbury and Orwell, isn’t looking to be a policeman — but as the president of the Champlain Valley Farmer Coalition, he does want to play a role in helping other farmers get up to speed on regulations. The coalition of 26 farmers wants to encourage mentorship among farms — especially of smaller farmers who may not know the AAPs.

“They may not have had that knock on the door to say, ‘Hey, it looks like you’ve got a little problem over there,'” said Kemp. Hearing that news from another farmer, and one who can speak about the benefits of finding a fix, might be a missing link in the process.

That said, Kemp thinks enforcement will play a role in the push for better practices on Vermont farms. He has little patience for large and medium farms that, in his view, can’t plead ignorance to what’s required.

In the cases of what he called “blatant abusers,” he wants to see the Agency of Agriculture step up and crack down. “Some farmers shouldn’t be farming,” said Kemp, “If you enable them, you’re enabling them to have another problem down the road.”

Ehlers of LCI agreed. He said he’s sympathetic to the plight of small farmers, and thinks there should be some help on the table to get those farmers equipped with the tools and technology necessary for cleaner farming. But he’s also not willing to sacrifice clean water to keep farms in business that, he argues, shouldn’t be: “A farm that produces food that poisons water is not the kind of farm we need in this state, or anywhere, for that matter,” said Ehlers.

His idea? Broadcast the message, loud and clear, that pollution won’t stand. Draft stronger standards. Give farmers a grace period — he suggests a year — to make their changes, and then start levying fines or, in the case of the willfully negligent, jail time. Enforcement has to have real teeth, Ehlers said.

“Most of us don’t consider ‘Please don’t do this anymore’ letters as forms of enforcement,” he said.

Waiting for Action

April 1 marks the end of Vermont’s winter ban on manure spreading. Farmers across the state will head out in their tractors in the coming weeks to apply phosphorus-rich manure to fields; in rural farm communities, the odor is synonymous with springtime. A few days before the manure-spreading ban was lifted, the Agency of Agriculture pushed out a reminder to farmers in a press release, making note of the AAPs and urging farmers to “operate with the utmost of care so that water quality is protected.”

The thaw brings with it a painful reminder for Lunenberg residents James and Karen Abbruscato. It’s been nearly four years since they first reached out to the ag agency with concerns about their neighbor’s small farming operation. Their neighbor, Paul Girard, had constructed a small pen — roughly 20 by 40 feet — on his half-acre lot, and started raising a few cows. Later, he switched to pigs.

“He doesn’t remove his manure,” James Abbruscato said in a phone conversation, noting that his home is about 80 feet from the pen. The Abbruscatos can’t open their windows in warmer months because “the place just over-the-top stinks.” AAPs prohibit the storage of manure less than 100 feet from property lines.

The couple first called the Agency of Agriculture in 2011. A field agent has visited a number of times since, but so far the Abbruscatos haven’t seen any improvement. The agency recently issued Girard a notice of violation. The next step in enforcement proceedings is a hearing, but Girard will have a chance for a confidential “pre-hearing conference” first, which the Abbruscatos aren’t allowed to attend. They’re worried Girard will convince the enforcers of his innocence.

In frustration, the Abbruscatos last year reached out to the attorney general of Vermont. They’ve documented information, taken pictures, sent countless emails. They looked up the AAPs themselves to learn more about ag practices. At one point, they allege, they were told by an Agency of Agriculture official that it would be best if they took their neighbor to court themselves, and that the agency had “bigger fish to fry.”

Girard has his own story. He said the Abbruscatos moved up from Connecticut and take issue with his choice to raise animals. “Anything he can do to harass me, he does,” said Girard of James Abbruscato. “I wish he’d just move back to Connecticut where he belongs.”

But on one point, the Abbruscatos and Girard are in surprising agreement: Both are fed up with the Agency of Agriculture — albeit for very different reasons.

“They want to enforce all kinds of rules on me, even though I’m too small to be regulated,” said Girard, apparently not realizing that AAPs apply to all farms, regardless of size. The ag agency, he said, is “picking a fight with the small guy who’s got no money.” A field agent will come out, walk around and ask him to make some changes — but Girard said he doesn’t have the financial resources to rent equipment to dig a ditch or improve drainage.

James Abbruscato’s complaint? “No one comes around,” he said of the field agents. “It’s only after we pressure them.” And even then, months will go by between visits.

“Enforcement can’t just be a slap on the hand,” said Karen Abbruscato. “It’s accountability in enforcement, that’s really all we want.”

From the Case Files

‘Keeping an Eye on It’ — Pete’s Greens

Pete Johnson, of Pete’s Greens in Craftsbury, received a warning letter in December 2013 for mismanaging a manure storage structure; allegedly, Johnson used a hose to siphon dirty water from an overflowing manure pit into nearby fields — a direct violation of accepted agricultural practices. Spreading waste in this manner, the letter warned, was likely to send agricultural waste directly into the Black River.

Johnson didn’t respond to the letter. The following July, field agent Bethany Creaser returned to the farm for a follow-up inspection. The manure pit was full to capacity, and overflowing in one location. In early August, Johnson assured ag officials that he’d empty the manure pit; four days later, Creaser returned to find manure levels slightly lower.

But according to Creaser’s report, when she pressed Johnson about the methods he’d used to draw down the pit, he said he’d applied the waste overland “by running the water out with a hose that I move around on the fields” — precisely the practice the December 2013 warning letter forbade. A month and a half later, the state sent Johnson a cease-and-desist order. Johnson didn’t request a hearing, and the agency never imposed a final notice of violation or a fine.

“I’ve been keeping an eye on it and, so far, so good,” wrote Creaser in an email to other enforcement officials on January 9. 

Rebuffing the Buffers — PABOCO Farms

Paul Bourbeau owns a dairy farm with several hundred cows — PABOCO Farms, Inc. — in Swanton. When inspector Trevor Lewis visited in May 2011, Lewis observed a ditch running between two fields. Lewis determined that the ditch was in fact a natural waterway that had been straightened in recent decades, most likely after the 1940s. Under the general permit that governs medium farm operations, farmers can’t plant right to the edges of a stream; 25-foot vegetated buffers are intended to keep nutrients and soil from running off cropland and into the waterway.

In June, when Lewis called Bourbeau to follow up, he learned that the farmer had already planted corn in the two fields. Lewis told the farmer he’d need to seed for the buffers that fall, after harvesting his corn. When autumn rolled around, Lewis and another ag agent met with Bourbeau, and they measured and flagged the 25-foot buffer for the length of the stream. They also told Bourbeau about some of the cost-sharing programs available to help farmers pay for vegetated buffers, according to the public records for this case.

But no one from the agency inspected the field for buffers in either the 2012 or 2013 planting seasons. In May 2014, three years after first noticing the problem, Lewis returned to the farm — this time, because Bourbeau was transitioning from a medium farm permit to the state’s large farm designation. Just as he was leaving the farm, Lewis observed what appeared to be inadequate vegetation along the buffer zone.

Walking part of the stream bank, he found buffers that varied from 17 feet in width to as little as nine feet, with the buffers shrinking in width the farther Lewis walked from the road. Vegetation consisted of sparse, natural growth — not the purposefully seeded perennial plantings the agency had recommended.

In June, the agency finally issued a notice of violation and recommended a $1,500 penalty. November rolled around, and with the 2014 corn crop off the field, the buffers still weren’t plowed or seeded. A December 5 order from deputy secretary Diane Bothfeld concluded that Bourbeau’s actions had contributed harm to the environment; the lack of buffers meant sediment and nutrients from the cropland had entered the ditch, flowed into Jewett Brook and eventually into Lake Champlain.

Bothfeld also found that the farm had enjoyed an economic benefit by flouting the rules, harvesting extra corn from acreage that should have been set aside for buffers. She upped Bourbeau’s penalty to $5,000 in the hope that the fine would serve as a deterrent to Bourbeau and other farmers.

Bourbeau is currently appealing the fine in the environmental division of Superior Court.

Waste Not — Four-Hills Farm

Four-Hills Farm is a large Bristol dairy farm owned by Ronald, Kevin, Joanne and Brian Hill. It came under scrutiny in November 2013, when the agency issued a notice of violation proposing administrative penalties totaling $3,000. The problem? The Hills had failed to notify the Agency of Agriculture about their plan to construct two new waste storage facilities in New Haven on River and Hunt roads. They didn’t provide plans and specifications prior to construction — and later told the agency that it was a simple case of not knowing the regulations. (The farm was working with engineers from the USDA on plans for the manure pits, said Brian Hill’s wife, Chanin Hill.) This failure was a violation of their large farm operation permit.

The agency also alleged that the farm wasn’t preventing manure runoff from two feedlots.

The Hills didn’t contest the underlying facts of some of the alleged violations; they took issue with others. After a pre-hearing conference with the Hills in February 2014, the agency drafted an assurance of discontinuance. The document laid out the timeframe for improving the feedlots and bringing a manure pit up to code standards. As of this week, the Hills are still in negotiations with the agency, and haven’t yet signed an AOD. Charin Hill said that while the state wants immediate action, the farm’s hands are tied as they wait for cost-sharing assistance and engineering approval from other government agencies.

“Every farmer wants to do better,” said Hill. “We care about our land, we care about our waterways, we care about our neighbors.” 

USA Today: Vt. agriculture businesses face audits, big tax bills

Dan D’Ambrosio, The Burlington (Vt.) Free Press
Full Article

BURLINGTON, Vt. — Chris Conant didn’t know how mad he could get until he was audited by the Vermont Department of Taxes.

The co-owner of Claussen’s Florist & Greenhouse in Colchester said auditors were in his business for the months between April and July 2014 — his busiest season — going over his records.

“I’m not a rude person, I always make sure to be very cordial to people I’m dealing with, but at one point I got so frustrated because of inconsistent information that for the first time in my life I walked away from them and said, ‘I’m done, we’re done having this conversation because obviously you’re challenging my integrity,'” Conant said. “You’re calling me a liar.”

The issue that brought Conant to the boiling point was the sales and use tax. Gregg Mousley, deputy commissioner of the tax department, explained the difference between the two types of tax and how they are collected.

Take flowers, for example, something Conant sells. Flowers are sold retail, sales tax is collected, and therefore flowers are exempt from use tax. The sponge that holds the flowers, the plastic wrap that wraps them, the wires and ribbons that adorn them and hold them together, are not being resold and are therefore subject to use tax.

“It’s a question of whether the item is going to be resold or if it’s being consumed,” Mousley said.

If it’s resold, sales tax applies. If it’s consumed, use tax applies. Sounds simple, but in Conant’s case the distinction took on almost Orwellian overtones, leaving Conant frustrated and perplexed.

“They started digging out invoices and looking at products we use and all of a sudden the language of use tax came up,” Conant said.

Conant learned he would be charged use tax for the soil to grow his plants.

“I don’t understand,” Conant said. “How do you get a use tax on soil you grow your plants in when you can’t grow a plant without the soil and the plant is exempt?”

Conant told the auditors he had never paid use tax on his soil before, but was told that based on the criteria set forth in the state statute, he should have been.

“Plants are exempt, not the soil they’re grow in, not the media they’re grown in,” Conant said.

A very fine line

Deputy Commissioner Gregg Mousley understands Chris Conant’s frustration.

“It comes down to while the use tax very generally might make sense to people, how it’s interpreted involves a very fine line regarding what’s eligible and what’s not,” Mousley said. “It’s not always clear and it’s complex and difficult for business owners to keep track of all the law changes.”

As Conant’s audit progressed, and the use tax he owed began to pile up, he realized the seriousness of the problem he faced.

Conant’s total bill for use and sales taxes owed, once his plastic wrap, tags, pots, packs, boxes and flats were added to the tally, was nearly $150,000. As of Dec. 1, he had gotten that bill down to $46,000, “basically through the diligence of explaining to them about our industry,” Conant said.

“I don’t want this to be a bitch session because I’ll do whatever I’m told, but up to this point there’s been nothing laid out on the table for us to be told our obligation for this use tax,” he said.

“Virtually everything I touch is being taxed, except the plant,” Conant added.

Tom Jennings at Green Mountain Florist Supply in South Burlington is two years into his audit and is still waiting for the tax department to get back to him regarding his counter-offer to the tax bill he was given.

“They basically came in here looking for any scraps they could find,” Jennings said. “They came at me with packaging, that what I sold was not floral-related, that it was packaging.”

That non-exempt packaging included vases. Jennings was handed a $200,000 bill. He has made a counter-offer based on what he felt was fair that is considerably less than $200,000. That offer was made right after Christmas. Jennings said he is sitting on “pins and needles” waiting for the state to respond.

Retailers hopeful about sales tax bill

Mousley said the tax department is trying to reach out, mostly through 15 fact sheets available on its websites. The tax department is also doing what it can to meet with business owners face to face.

“We are getting to some industry groups,” Mousley said. “We go out to the Better Business Bureau booth at certain trade shows. We are doing our best. We only have two positions that do that and they can only reach so far.”

There are currently more than 500 active appeals like Jennings’ appeal before the tax department, Mousley said. Predicting how long those appeals will take is impossible because each one is unique. Often taxpayers have to produce additional documents as part of the appeal process.

Appeals can take a few weeks, or a few years, Mousley said.

Don’t clear the snow

Mousley described the difficulty in making calculations that presumably go into determining whether a piece of equipment is tax exempt.

“It’s really hard to prove,” Mousley said. “In many cases the tax department has just assumed that certain pieces of equipment are not tax exempt. You would have to have a log to prove you use it 96 percent of the time on agricultural purposes. That’s where it gets really hard. If you push the snow out of your driveway you’re done.”

The Farm Bureau got involved in the sales and use tax debate after equipment dealers became the focus of audits.

“It’s on our list of priority issues to straighten out because it’s a mess and ultimately the people who will pay the bill for shrinking of the farm exemption will be farmers,” said Clark Hinsdale, a Charlotte dairy farmer and longtime president of the Farm Bureau.

Meanwhile, back at Claussen’s Greenhouse, Chris Conant waits for his grievance to be processed by the tax department. He tried to settle for just over $20,000 but that didn’t fly. He thinks there could be 100 businesses ahead of him in the queue and figures it could be more than a year before he gets “closure.”

“I’m frustrated,” Conant said. “Every bill that goes through my hands, based on what’s being challenged, I’m accounting for it in preparation for paying use tax. I have to. If I don’t they can randomly come in and say, ‘How come you’re not paying use tax on this?'”

“I’m scared stiff of how much more I’ll have to pay, I really am,” he said.

The Heartland Institute: Vermont Lawmaker Proposes Easing Raw Milk Rules

By Kelsey Hackem
Full Article

Vermont State Rep. Teo Zagar (D-Windsor) is proposing a bill to loosen state regulations on raw milk sales in the state. Zagar is sponsoring a bill allowing dairy farmers to sell raw milk through community farmers’ markets and agricultural programs, with less oversight from the Vermont Department of Health.

Keep Food Legal Foundation executive director and George Mason University Law School adjunct professor Baylen Linnekin says Zagar’s bill benefits Vermont consumers.

“Strict regulations don’t really serve anyone’s interest, except those who are incumbent businesses who are already in favor of the regulations, which is not always a universal thing,” he said. “In the case of dairy, pasteurized dairy vendors, most often along with public health agencies are the primary opponents of raw milk.”

Moo-ving Towards More Consumer Choice

Linnekin says the bill was likely to be beneficial to the state’s residents, without any negative consequences.

“This Vermont bill would seem to be another example of that, of benefitting Vermont farmers and consumers, to the detriment likely of no one,” he said.

Linnekin says people should be allowed to buy milk that has not been processed or treated before consumption.

“I don’t think pasteurization is at all a bad idea, but I think obviously there is a segment of consumers who prefer not to by pasteurized milk,” he said. “It may be some of the same people who prefer not to buy cooked chicken or cooked ground beef, who prefer to get it at the store and if they choose to cook it do so themselves, or people that eat sushi. I think it’s really a matter of choice.”

‘Right to Consume’

The Farm-to-Consumer Legal Defense Fund’s president, Pete Kennedy, says states’ food regulations are confusing and restrict people’s choices.

“I think ultimately it boils down to a freedom-of-choice issue. The law for raw milk in many states is dysfunctional right now. It is legal to consume raw milk, you can’t get arrested for possession, yet people still in a number of states don’t have access to it so they can exercise their right to consume it,” he said. “It’s not like it’s a drug, where you can get arrested for possession.”

Kennedy says food safety regulations often arbitrarily prevent consumers from purchasing products they enjoy drinking and eating.

A lot of the regulations are one-size-fits-all. They make it difficult for smaller producers to make a living,” he said. “I think, overall, raw milk sales whether they are regulated or unregulated have a good track record for safety.”

Waterbury Record Op-Ed: The House Judiciary Committee, plus the raw milk bill

Thursday, March 26, 2015
House Report by Rep. Maxine Grad
Full Op-Ed

Raw Milk

The Agriculture and Forest Products Committee has taken up H.426, the raw milk bill, and has heard from milk producers, cheese makers, conventional dairy farmers, veterinarians and the Department of Health. The bill has a long way to go and is a work in progress, but our guiding principles are food safety and economic opportunity.

Vermont’s raw milk law has helped small farmers start businesses and meet a growing demand for farm-fresh milk, but many believe there is room for improvement.

Since unpasteurized milk came under state regulation in 2009, there have been no reported cases of illness associated with producers operating under the raw milk law and in the business of selling raw milk to consumers. Raw milk is potentially harmful when improperly handled or if the health of the animal is compromised, but the risks can be mitigated through appropriate regulation, inspection, testing and market access.

Since the Legislature expanded the law last year by allowing those producing between 87.5 and 280 gallons per week to deliver their milk at farmers’ markets, the number of such producers jumped from two to seven. However, an internal policy decision at the Agency of Agriculture potentially threatened the viability of some farmers. This bill is an attempt to restore the legislative intent, expand economic opportunities, and continue to have sound food safety policies.

H.246 includes these primary proposals:

• Expand market access and sales volume for Tier 1 and 2 producers.

• Eliminate the requirement that a customer visit the farm before buying milk.

• Allow direct sale at approved locations.

• Streamline and improve the testing regulations.

• Modify the language on warning labels and signs to convey necessary information.

• Allow limited production and sale of value-added products such as cheese, yogurt and butter.

• Create a new “neighborly tier” for small amounts of milk for on-farm sale only.

Everyone wants Vermont farmers to succeed and consumers to have access to safe products. Raw milk producers have a vested interest in making a high-quality product; their livelihoods and reputations depend on it.

USA Today: Roundup a ‘probable carcinogen,’ WHO report says

Tracy Loew
March 20, 2015
Full Article

A report published Friday in the journal The Lancet Oncology says glyphosate, the main ingredient in Monsanto’s Roundup, is a “probable carcinogen.”

The report is from the International Agency for Research on Cancer, the France-based cancer research arm of the World Health Organization.

“This latest finding, which links Monsanto’s Roundup to non-Hodgkin’s lymphoma and lung cancer is not the first to make these links, but it is one of the strongest indictments of glyphosate, the key ingredient in Monsanto’s Roundup,” said Ronnie Cummins, international director for the Organic Consumers Association.

Monsanto disagreed with the classification.

“All labeled uses of glyphosate are safe for human health and supported by one of the most extensive worldwide human health databases ever compiled on an agricultural product,” Philip Miller, Monsanto’s global regulatory affairs vice president, said in a written statement.

Roundup is the No. 1 herbicide used in the world. Most genetically modified crops, such as corn and soybeans, are modified to withstand applications of Roundup.

The Department of Agriculture does not test food for glyphosate residues, but in 2013, the Environmental Protection Agency raised the allowed limits of glyphosate residues on fruits and vegetables.

The report comes as legislatures in Oregon and other states consider mandatory labeling of genetically modified food and restricting the planting of genetically modified crops.

It prompted the Environmental Working Group to call on the FDA to require mandatory GMO labeling.

“The widespread adoption of GMO corn and soybeans has led to an explosion in the use of glyphosate — a main ingredient in Monsanto’s Roundup and Dow’s Enlist Duo,” said Ken Cook, EWG president. “Consumers have the right to know how their food is grown and whether their food dollars are driving up the use of a probable carcinogen.”