By Kathryn Flagg
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.
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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.”