Full list: Agriculture in the News

VT Digger: Senate OKs water quality bill that includes surcharge on property transfer tax

John Herrick May. 11 2015
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The Vermont Senate gave preliminary approval to an $8 million water quality bill on a voice vote Monday.

The money would be raised through a 0.2 percent surcharge on the property transfer tax, the same funding mechanism that was approved by the House. The property transfer tax is paid by real estate purchasers at closing.

The Senate’s version sunsets the tax in 2018 with the expectation that it would be replaced with a more equitable tax policy in which polluters pay more to clean up the state’s waterways.

The bill, H.35, aims to slow pollution into the state’s waterways, including Lake Champlain. It creates new permits to reduce runoff from developed areas and sets a timeline for the creation of pollution control measures on farms, among other measures.

The debate on the Senate floor Monday was more about about funding than policy. Three Senate committees have passed some form of a per parcel fee in which landowners pay a surcharge on their property tax bill.

But when Gov. Peter Shumlin, who originally proposed a tax on commercial and industrial properties in the Lake Champlain watershed, described the per parcel fee as a “property tax fee” last week, the Senate got cold feet.

Senate President Pro Tempore John Campbell, D-Windsor, said that could have stalled the bill.

“The only thing that tripped people up was the financing. The governor has been calling it a property tax repeatedly, and that kind of poisoned the well,” Campbell said. “The most important thing for me was to get the bill through.”

Others say it’s not fair that future property buyers, including young people seeking to establish roots in the state, be asked to pay for water pollution problems that were caused by past development and farming practices.

“We have legacy costs and we’re making the future pay for it instead of all of us,” said Sen. David Zuckerman, P/D-Chittenden.

Sen. Dick Sears, D-Bennington, was also concerned about tax fairness. One variation of the fee would have charged a constituent who lives in a trailer and another who lives in a mansion the same amount.

“That doesn’t seem fair to me,” he said. “That’s not what I call a progressive tax.”

The per parcel fee would have set the stage for a more complicated tax policy in the future in which polluters pay more. Both the Senate and the House version included a study on how to collect a tiered tax based on the amount of pollution a property generates.

David Mears, commissioner of the Vermont Department of Environmental Conservation, said the state should be looking at ways to tax based on pollution.

“It should be fair and tied to the source of the pollution. The so-called ‘polluter pays’ concept is an important one,” Mears said.

Despite the arguments over fairness, even supporters of the per parcel fee agreed to the property transfer tax because they wanted to see the bill move forward.

“It’s a balance that’s workable, and we know we have more work to do in the years to come,” said Sen. Chris Bray, D-Addison, chairman of the Senate Natural Resources and Energy Committee, whose committee supported a per parcel fee. “I think it’s important to be able to move the bill forward.”

“If we can’t pass any ‘all-in’ measure today after four months of talking water quality as the top policy question, do you think we’re going to do it in three years?” Zuckerman said. “This is the time to do it when the whole state says we are ‘all in.’”

In 2008, the Conservation Law Foundation sued the Environmental Protection Agency for failing to implement the Clean Water Act when it approved the state’s water quality plan for Lake Champlain. Now the EPA is seeking a commitment from the state that it can fund its new plan or the EPA will issue what are expected to be more costly regulations on stormwater and wastewater. A decision is expected early summer.

The EPA modeled the state’s plan last year and found that it did not achieve the phosphorus reductions necessary to comply with state standards. The state is still working with the EPA and the agency has not indicated whether it will approve the state’s plan, according to Mears.

“There is no guarantee. They are in charge of running the models. They may ask us to do more,” he said. “But all the signals from EPA are very positive.”

Food-Navigator USA: GMA et al file appeal vs Vermont GMO ruling, but they are running out of time, say attorneys

By Elaine Watson+
Full Article

As widely predicted, the Grocery Manufacturers Association (GMA) is appealing a federal court ruling denying its bid to halt implementation of Vermont’s GMO labeling law (Act 120) until a lawsuit over the Act is resolved.

Food Safety News: Judge: Vermont’s GMO-Labeling Law and Industry Lawsuit Can Both Proceed

U.S. District Court Judge Christina Reiss decided Monday to let Vermont go ahead with its plans to become the first state to require labeling of food containing genetically modified ingredients on July 1, 2016, and to let the Grocery Manufacturers of America-led litigation to stop it from happening proceed.

Both sides were left going through the trial judge’s 84-page decision to see where she agrees and disagrees with both sides. Reiss, who was appointed to the federal bench in 2009 by President Barack Obama, has definitely left both sides with plenty to chew on.

Although the state wanted the lawsuit dismissed, Attorney General William Sorrell told local media there is much in the judge’s decision that goes the state’s way for the “heart and soul” of the labeling law. But the Vermont AG acknowledged it may be a reach for the state in other areas, including its desire to ban food companies using genetically modified ingredients from using the word “natural.”

Like Sorrell, the grocery industry is going through the decision looking for where its case was helped or hurt.

“While we are pleased that the District Court found us likely to succeed on several of our claims, we are nevertheless  disappointed by the court’s ultimate decision to deny our Motion for Preliminary Injunction to block the implementation of the Vermont GMO labeling law — Act 120 — on grounds that the manufacturers had not yet shown a sufficient degree of harm. We are reviewing this decision and considering our legal options,” GMA said in a post-decision statement.

The Organic Consumers Association (OCA) applauded the court’s decision, suggesting that it has positive implications for other states looking to pass GMO-labeling legislation.

“This landmark ruling not only paves the way for Vermont’s GMO labeling law to take effect on schedule, July 1, 2016, but more importantly it signals that the courts agree that states have a constitutional right to pass GMO labeling laws,” said Ronnie Cummins, OCA’s international director.

“This ruling also bodes well for GMO labeling bills that are moving through other state legislatures, including Maine, where a public hearing on Maine’s LD 991 is scheduled for April 30,” Cummins added.

Vermont Governor Peter Shumlin signed Act 120 into a law a year ago, and rules to implement it next year were released earlier this month.

Seven Days: Court Will Not Issue Injunction to Block GMO Law

Apr 27, 2015

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Vermont won a partial victory Monday in defending a new law that would require labeling of genetically modified foods.

U.S. District Court Judge Christina Reiss denied the Grocery Manufacturers Association’s motion for a preliminary injunction that would have blocked the law’s enforcement. It is slated to go into effect in July 2016.

Her ruling also dismissed parts of the case challenging the law, but allows other portions to proceed — setting it on course for a trial.

“Today was a big step in moving this case forward,” said Attorney General Bill Sorrell. “There’s much to be happy about for those who think our foods containing genetic engineering should be labeled.”

Key to the state’s case, Sorrell said, was Reiss’ finding that food labeling is within the state’s interests. “The safety of food products, the protection of the environment, and the accommodation of religious beliefs and practices are all quintessential governmental interests,” she wrote, as is the intention to “promote informed consumer decision-making.”

Roger Lowe, executive vice president of the Grocery Manufacturers Association issued a statement. “While we are pleased that the District Court found us likely to succeed on several of our claims, we are nevertheless disappointed by the court’s ultimate decision to deny our motion for preliminary injunction … on grounds that the manufacturers had not yet shown a sufficient degree of harm,” he said. “We are reviewing this decision and considering our legal options.” Lowe warned the law would “set the nation on a path toward a 50-state patchwork of GMO labeling policies that will be costly and confusing for consumers.”

Legislators passed the food-labeling law last year, setting the stage for Vermont to become the first state to require foods made with genetically modified ingredients to be labeled as such. The Grocery Manufacturers Association and other food giants quickly filed suit in federal court.

Jared Carter, who filed a brief supporting the state through Vermont Law School’s Community Law Center, called the decision “overall very positive. Our biggest fear was she would grant the preliminary injunction.”

Reiss did not take the state’s side on all issues. The law seeks to prohibit the use of the word “natural” on products that contain genetically modified ingredients, but, Reiss said, the state never defined natural. Her ruling says, “The state thus faces an uphill battle in arguing that a GE manufacturer’s use of ‘natural’ terminology is actually or inherently misleading because the alleged deception cannot be measured against a statutory, or even a regulatory, definition of the restricted terms.”

IVN: Federal Prohibition Prevents Billion-Dollar Industry from Helping Economy

By Katherine Bullington
Full Article

Farmers can yield, at most, $1,000 per acre from corn. Moonrise Extracts, an industrial hemp operation in Colorado, expects to reap tens of thousands per acre, from what started as a few dozen feral hemp plants.

Moonrise Extracts was lucky to obtain local hemp seeds to start their plants. Seed procurement and local adaptation from foreign seeds are a big hurdle for the industrial hemp market. The dozens of plants harvested in the summer of 2014 became 12,500 square feet of greenhouse production and 15-20 varieties of native seeds for development.

Moonrise Extract’s high crop value is thanks to the cannabinoid, cannabidiol (CBD), found in the cannabis plant. CBD is used for cancer, HIV, anorexia treatments, controlling seizures, and pain relief. It works by interacting with cannabinoid receptors in the brain, nervous system, organs, connective tissues, glands, and immune cells.

Consumers can buy a month’s supply of CBD from Moonrise Extracts for about $100.

Zev Paiss, executive director of the Rocky Mountain Hemp Association, says Colorado hemp production is well suited for the extraction of CBDs for nutraceuticals, which are concentrated in the flowers of hemp plants. The soil conditions, higher elevation, abundant sunshine, and smaller amount of annual rainfall, however, may limit hemp fiber production.

Paiss said that experimentation is underway to determine the best cultivars for Colorado, but hemp in the state may be best used for seed, flower, and oil production.

Industrial hemp grown for cannabinol is different than the medical marijuana that is legal in 23 U.S. states. Both crops contain dozens of cannabinoids. The difference is that medical marijuana has high levels of THC, which produces psychoactive effects, along with various therapeutic effects.

In 2015, Moonrise Extracts will plant 293 acres of industrial hemp — mostly for CBD and food production — on organic soil. The company’s seed is considered organic because of its wild origins.

Non-organic CBD oils, Trojan says, can be contaminated with heavy metals, potentially complicating health issues. He expects their crop to bring in millions in 2015.

While medical marijuana is legal in 23 states, only 13 states allow industrial hemp production. Of those, only 3 states have planted hemp crops: Kentucky, Colorado, and Vermont.

Some, like Moonrise Extracts and Atalo Holdings, Inc., in Kentucky, have been very successful breaking into the U.S. hemp industry. However, a few key issues are holding the market back.

The most pressing issue is decoupling hemp production from federal DEA regulations.

Federal regulations prohibit seed from crossing state and national borders. Some hemp growers, like those in Vermont, are at risk of federal prosecution, even if states allow hemp production. Hemp seed has been illegal in the U.S. for decades. This, along with the prohibition of seed transportation, makes it difficult to start a crop.

One model, which is being used by farmers in Kentucky, is to import and plant seeds from other countries, with coordinated DEA permits.

Infrastructure is another barrier that will come down slowly. Few have equipment to harvest and process fiber at economies of scale, and procuring new equipment is expensive. Hemp oil is the breakout product for U.S. hemp, because harvesting and extraction can be done with available technology.

Bill Billings and Jim Bramer founded the Colorado Hemp Project and planted 2 acres of hemp in 2014. They hand harvested and processed their hemp into hemp oil products, like soaps and lotions. Billing’s daughter sells the products through her company, Nature’s Root. They also sold their hemp flowers to local beer makers.

Colorado Hemp Project currently has a cooperative of 4 farmers, but Bramer, who is 77, says he is not interested in trying another hemp crop in 2015.

“It will be a hard crop to pursue, until they come up with something,” he said.

He explained that the DEA restrictions are prohibitive, and the industry needs infrastructure for harvesting and processing hemp fibers.

Vermont grew less than an acre of hemp last year, largely because seeds cannot be transported over state lines unless they are crushed or sterilized, thus making them useless for planting. In an interview for IVN, Tim Schmalz of Vermont’s Department of Agriculture said that Vermont would like to add hemp oil to its state brand, but prospects are hard to gauge under federal prohibition.

It is clear that hemp can be a high value crop, but for many farmers, the path to profits remains a bit tangled.

VT Digger: Attorney General adopts GMO labeling rules for Vermont food retailers

John Herrick
Apr. 21 2015
Full Article

The Vermont Attorney General’s Office adopted new regulations last week for labeling food products containing genetically engineered ingredients sold in Vermont after July 1, 2016.

The regulations require manufacturers to place a label anywhere on the package where it can be “easily found” with guidelines on font size and color. Vermont retailers will have to label unpackaged products, including genetically engineered raw agricultural products such as sweet corn and processed foods such as potato salad.

“We are pleased at the amount of public input we received during the rulemaking process – from industry and consumers – and are glad that, with the formal adoption of this rule, we are giving ample time for food manufacturers and retailers to prepare for the law to take effect in just over fourteen months,” said Attorney General Bill Sorrell in a statement.

The Attorney General filed the rule with the Secretary of State’s Office on April 17. Manufacturers will not be liable for compliance until Jan. 1, 2017.

As much as 80 percent of the processed food sold in the United States is a product of modern genetic engineering. Typical genetically engineered ingredients include soy, corn, canola oil and cottonseed oil, which are often found in processed foods.

Some retailers say Vermont’s GMO labeling requirement will impact a wider array of foods than originally anticipated.

“It’s a lot more than just Campbell’s,” said Jim Harrison, president of the Vermont Retail and Grocers Association.

Campbell Soup Co. is a member of the trade group suing Vermont over the GMO labeling law. The national Grocery Manufacturers Association, and other trade groups, are suing the state over its GMO labeling law, arguing it is unconstitutional. A federal district court judge heard oral arguments in January and a date for a decision has not been scheduled.

Foods that are prepared and intended for immediate consumption, or a taxable meal, are exempt from the labeling requirements.

Internet food sales are also exempt from the labeling requirement under Act 120, the Attorney General determined.

That means online retailers who sell chocolates and specialty foods, for example, are not affected by the law. Harrison said this creates a competitive disadvantage for brick-and-mortar retailers. Next year, he said the association may seek to change the law to include online sales.

Wendy Morgan, chief of the Attorney General Office’s public protection division, said some foods are exempt. Pastries sold at bakeries, for example, do not require a label. These products may fall under the exempt category of “intended for immediate consumption.” Dairy products derived from animals fed genetically engineered food are also exempt.

Andrea Stander, director of Rural Vermont, a supporter of the labeling law, said the regulated community will have time to adjust, and may decide to remove genetically engineered ingredients from product lines.

“For someone who doesn’t want to put that label on their products there are many, many avenues to go and many opportunities to find non-GMO ingredients,” Stander said.

On July 1, she does not expect the grocery stores to look any different. She said consumer demand for non-GMO products is growing, and some manufacturers are responding.

“I think what we are going to see is a lot like what we’ve seen already; we’ve seen more and more products sprouting non-GMO labels on them,” Stander said.

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
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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.

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.

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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.”