[O]ne week after Gov. Peter Shumlin cast a spotlight on water quality in his inaugural address, the administration presented an early draft to lawmakers of legislation designed to curb pollution into Lake Champlain and other waterways. Details about enforcement and funding, however, were scant.
On Friday, the Shumlin administration introduced a 59-page draft bill that will be the centerpiece of the state’s effort to restore Lake Champlain to the members of the Fish, Wildlife and Water Resources Committee. The legislation imposes new pollution control regulations on farming and development.
Lake Champlain has been polluted by phosphorus from farms, parking lots, roads and forestry practices. The lake no longer meets federal standards under the Clean Water Act.
Federal regulators have set a limit on phosphorus contamination for Lake Champlain, known as a Total Maximum Daily Load, or TMDL. In May, the state sent a plan to the Environmental Protection Agency outlining how it will achieve this goal, which is subject to federal approval this spring. The new legislation outlines how the state plan will be implemented and how the state will raise the money for cleanup.
If the state’s plan for implementation and financial support doesn’t meet the EPA’s expectations, the feds may cut funding and issue regulations for the state.
New regulations for farming practices is a centerpiece of the bill. The industry accounts for about 40 percent of phosphorus pollution in Lake Champlain, according to EPA estimates.
The bill eliminates an existing provision in statute that requires the state to provide farmers with financial assistance to implement pollution control measures, known as best management practices. Under the Shumlin administration’s proposed language, the state only has to inform farmers of best practices.
Farmers must employ additional pollution control measures in order to comply with the new water quality regulations. These practices are known as accepted agricultural practices, or AAPs.
The new accepted agricultural practices include: limits on stacking manure, required vegetative buffers between crops and waterways, fences between animals and waterways, a prohibition on manure or pesticide storage within flood zones, and standards for tile drainage, which are pipes beneath fields that drain pooling water.
The bill also includes a certification for small farms. The self-reporting program is designed to ensure compliance with the accepted agricultural practices. The provisions would take effect July 1, 2017.
No details on enforcement are included in the bill. Accepted agricultural practices are currently reviewed upon complaint. The Agency of Agriculture, Food and Markets is planning to write enforcement language for the bill next week, officials said.
Chuck Ross, the secretary of the Agency of Agriculture, said the provisions would enable the state to expedite enforcement and increase the range of penalties for noncompliance. His agency is partnering with the Agency of Natural Resources on enforcement to maximize resources.
The Shumlin administration is also proposing the elimination of Current Use tax breaks for farmers who don’t comply with water quality rules. Current Use is a conservation program that gives landowners a special tax abatement for forest and farmland.
“We are serious about holding people accountable who are clearly not complying with the rules and laws of the state,” Ross said.
The Vermont Farm Bureau opposes the plan. The bureau says it will make participation in the program confusing and could hurt water quality efforts.
The bill would expand requirements for stormwater runoff permits. The purpose is to target pollution runoff from buildings, parking lots and roads. The bill proposes a fee for non-compliance, but does not offer details.
The state also plans to use a little-known legal strategy to curb stormwater runoff caused by existing development. After a lawsuit in 2009, the state was forced to impose pollution controls to curb urban stormwater runoff flowing into four brooks around Burlington. The state has not used the so-called Residual Designation Authority, a legal tool under the Clean Water Act, since.
Kim Greenwood, a water quality scientist with the Vermont Natural Resources Council, says the state has exercised its residual designation authority under protest until now. “Maybe it’s a statement the agency is warming up to it,” Greenwood said.
Through this authority, the state can decide on a “case by case” basis if certain areas require a stormwater permit.
Karen Horn, the director of public policy and advocacy for the Vermont League of Cities and Towns, agrees stormwater is a problem, but she questions whether the state has the money to address it.
“Our biggest problem with all of this is where is the money coming from?” Horn said. “If the state requires permits from existing development, they are also going to have to enforce those permits. And that’s one thing that we are very concerned about. What is the enforcement entity?”
Last year, the committee suggested raising state revenue for the cleanup, such as an increase to the rooms and meals tax. But Gov. Peter Shumlin was hesitant to support the plan, and lawmakers later dropped the proposals, citing a lack of political will.
Rep. David Deen, D-Westminster, the chair of House Fish and Wildlife, introduced last year’s bill and he said those funding proposals are still on the table.
This year the administration is proposing a fee on fertilizer and a per parcel development tax. According to the administration’s proposed fee bill, the state’s fertilizer tax should be raised from 25 cents to $50 per ton. The increase would raise $1.2 million in fiscal year 2016. The money would be used to hire seven new staff to help farmers implement pollution control measures.
The per parcel development tax was scheduled to be included in the water quality bill on Friday, a state official said, but legislative council is still having it reviewed by tax experts.
The money would go into a special water quality fund, known as the Clean Water Restoration Fund. But Rep. Jim McCullough, D-Williston, vice chair of the committee, was concerned the money in the fund could get spent on other programs that are starved for dollars.
Ross said the Legislature will ultimately decide how the money will be spent. For years, he said, the state has “over promised and elevated expectations” beyond the resources it has to commit to water quality efforts.
“And when I walked in the door in 2011, we had five people in the Agency of Agriculture responsible for 5,500 to 5,700 farms,” he said. “We believe if we have a pot of money called the ‘Clean Water Fund’ … that you can be a better guardian of those monies than if they’re blurred into the whole appropriations process.”
The committee plans to vote on a final bill by Feb. 18, according to Deen.
