Legislative redux: Water quality bill with $8 million in new revenue clears House

Updated at 6:42 p.m. Thursday.

The Vermont House gave final approval Thursday to sweeping water quality legislation that would clean up Vermont’s polluted waterways.

The House approved H.35 in a 133-11 vote. The bill now heads to the Senate.

The landmark legislation launches a cleanup effort expected to take decades in waterways such as Lake Champlain. It aims to curb pollution runoff from farms, roads and developed areas and raises $8 million in state revenue to support the cleanup.

Proponents say the bill is a historic step toward restoring dozens of impaired lakes, ponds, rivers and streams. Farmers, municipalities and private landowners will shoulder the more stringent pollution prevention measures. Much of the money included in the bill will be used to leverage federal funds and provide grants for projects.

David Deen
David Deen, D-Westminster, chair of the Fish, Wildlife and Water Resources Committee. Photo by John Herrick/VTDigger
David Deen, D-Westminster, chair of the Fish, Wildlife and Water Resources committee, defended the bill as concerns were raised about how to pay for it.

“Now is the time for us to put our money where our mouth is. We say we want clean water, but are we willing to pay for it?” Deen said told House lawmakers late Wednesday.

The lawmakers later approved $8 million in new revenue for fiscal year 2016. This includes $2.3 million in fee increases largely paid by polluters, and $5.7 million through a 0.2 percent surcharge on the property transfer tax that sunsets in six years. The fees would pay for 20 new staff positions to implement the state’s water quality plan. The tax revenue would go into a new Clean Water Fund.

Some Republicans wanted to use existing money in the state budget to pay for the cleanup. They proposed an amendment to redirect money currently allocated from the property transfer tax to leverage government bonds. The amendment was voted down along party lines, 100-40.

Water quality advocates said the policy makes long overdue changes in state law to address pollution sources across all sectors. But some question whether the bill could have placed more stringent regulations on polluters.

“It’s a mile wide and an inch deep,” said Kim Greenwood, a staff scientist with the Vermont Natural Resources Council. “It touches on all of these programs but it doesn’t require that much from all of them.”

Others say it could do more to remediate waterways that are already polluted. Currently, the state does not include a plan to restore South Lake and Missisquoi Bay. The state has set a 20-year timeframe for restoration of Lake Champlain.

“I think the bill lacks a sense of urgency,” said James Ehlers, executive director of Colchester-based Lake Champlain International.

Ehlers said the bill should include a pilot program for projects that would pull phosphorus out of the water, such as a floating island where plant roots suck phosphorus from the water column. Lawmakers and officials say the state needed to rein in pollution first.

Phosphorus is a nutrient that is blamed for blue green algae blooms on Lake Champlain in summer. The algae produce toxins that can cause illness in humans, pets, fish and waterfowl.

“Unless you stop the inputs of pollution into the waterbodies, you are just fighting a losing battle. You have to control those first for it to be cost effective to do an in lake or in stream remediation,” said David Mears, commissioner of the Vermont Department of Environmental Conservation.

Agricultural impact

The bill will require all farms — including small farms, which have yet to be defined — to self-certify that they are in compliance with the state’s water quality rules.

The bill will help educate farmers about their responsibilities and provide them the financial support to make changes to their operations, according to Chuck Ross, secretary of the Agency of Agriculture, Food and Markets.

Farmers who continues to violate water quality rules after a three-step enforcement process — a warning letter, a cease-and-desist order and an official notice of violation — will face civil penalties from the agency. The bill also allows the agency to remove farms from the state’s current use program, which provides tax breaks, if farmers continue to violate water quality standards.

The bill funds seven new farm inspectors, bringing the total number up to 12.

“I think they all should be refamiliarizing themselves with the (accepted agricultural practices),” Ross said. “I think they need to understand that we are about building a new culture across Vermont within the farming community with respect to our concerns and effort to improve water quality. We need their help.”

The Agency of Agriculture, Food and Markets has the authority to update the accepted agricultural practices, or AAPs, which were first adopted in 1995. The bill requires the agency to update the rules to include new standards for manure stacking, livestock exclusion and tile drainage by July 1, 2016.

Water quality advocates want new standards adopted sooner. They say the bill could do more to limit runoff from farms, which accounts for 40 percent of Lake Champlain’s phosphorus load. The Conservation Law Foundation is among those calling for stricter pollution controls in the most affected waterways.

Developed areas

The bill ramps up the state’s stormwater management program by targeting existing developed land, such as roads and parking lots.

“That’s probably the biggest single gap in stormwater management,” said Mears, DEC commissioner.

The bill gives the Agency of Natural Resources the authority to require permits for existing developments of three acres or greater. The bill also requires stormwater permits for new roads.

The legislation does not change existing stormwater permits. Currently, only construction that disturbs one acre or more needs a permit. Water quality advocates want to see the threshold reduced to half an acre or less to capture more runoff.

“It would get at more commercial developments and certainly more single-family residences. When you look at what the developments are like in Vermont, that’s a large part of new impacts that are not covered anywhere,” said Greenwood, of the VNRC.

Mears said his department is open to the idea because these smaller developments could add up to a lot of pollution. But he said the bill requires the agency to study the costs and benefits of the proposal. A report is due by Jan. 15, 2016.

“We’re certainly open to it and it is certainly an issue,” he said. But, he added, “we feel like we have enough on our plate at the moment. We don’t want to lose focus on priorities.”

In the Lake Champlain basin, only 9.9 percent of all impervious coverage is permitted under the state’s stormwater management program, according to the Department of Environmental Conservation.

Vermont Way or the EPA Way

Most House lawmakers were aware that federal regulators are watching to make sure the state has the resources it needs to implement the plan it submitted to the Environmental Protection Agency to restore Lake Champlain’s water quality. The EPA is overseeing the creation of a new plan and will use a Total Maximum Daily Load, or TMDL, that requires the state to reduce phosphorus pollution by 34 percent. A draft decision on whether to adopt the state’s plan is expected this spring.

Mears said the bill will allow his agency to carry out the state’s implementation plan.

“We’re headed in the right direction. But there is still room for things to get off the tracks,” he said.

If Vermont fails to provide so-called “reasonable assurances” that it can clean up the lake, EPA will step in with its own plan.

Gov. Peter Shumlin has been critical of the EPA’s approach. “Their way makes no sense,” Shumlin said last week. “Their only tool is to require us to swap out every single wastewater treatment plant in Vermont for hundreds and hundreds of millions of dollars.”

EPA could remove the state’s authority to implement the Clean Water Act. That would mean EPA’s Region 1 Office in Boston would issue stormwater permits — not the Agency of Natural Resources — and the state would lose federal grant money for local watershed groups and towns. Vermont would also see longer permit delays and less coordination among the state’s agencies, according to Stephen Perkins, director of ecosystem protection for the EPA’s Boston office.

“We don’t work for the governor,” Perkins said in a recent interview. “The Vermont sources would go on a long list that includes the New Hampshire and Massachusetts sources. We’ve got water quality challenges in those other states as well. And EPA would not get any additional staff to do the additional work. It would just get added to the pile.”

He said there is little precedent for EPA revoking a state’s authority under the Clean Water Act. Most states implement the Clean Water Act. New Hampshire, Massachusetts and New Mexico do not have the authority to do so.

“I don’t feel like we would get a huge environmental benefit from them overseeing environmental programs in Vermont, but I feel like it would be a massive wake-up call for Vermont to have that delegation revoked,” said Kim Greenwood, a staff scientist with the Vermont Natural Resources Council.

Perkins said the bill appears to give the agencies the authority and ability to carry out the state’s plant — though the plan still lacks details on how to address agricultural pollution in certain lake segments.

“But it’s also the case that certain doors could get closed in the last few days of the legislation working on this,” he said. “It looks right so far.”

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  • Folks,
    The House approved 20 more state positions. It will be up to the Senate to ensure those positions and funds don’t give us more of what currently passes for water quality enforcement:


    FYI, the Administration is cutting positions in the Agency of Natural Resources while the Legislature thinks they are adding positions.

    James Ehlers

  • James Maroney

    “Could do more to limit runoff from farms?” California, which produces a third (700 B lbs!!) of the nation’s milk, is experiencing a devastating drought in the Central Valley where the state’s dairy industry is concentrated. If, as seems inevitable, the drought curtails California milk production, the drop in supply will double milk prices in the US. Conventional Vermont dairy farmers will, if they are not already, go to the bank to borrow money to expand capacity, to consolidate their neighbors, and to buy more land in the floodplain on which to grow corn with artificial fertilizer and herbicides. S. 49 makes no provision for this eventuality. That means that in spite of this bill and in spite of how much it costs taxpayers to implement, Vermont will double down on its investment in the conventional farm model, which means a doubling down on farm attrition, on rural economic decay and on pollution in Lake Champlain. It is unimportant, therefore, how much money the legislature allocates to fund H. 35 because it, like its predecessors, was not written to save Vermont agriculture or to protect the lake. It was written to shield the conventional dairy industry from the kinds of prescriptive regulations that would.

  • Fred Moss

    Drum beat…. more taxes!!!!!!

  • Bruce Post

    Dear Messrs. Ehlers and Maroney:

    I very much appreciate your frequent comments on this issue. They certainly provide some needed insight to this very serious problem. I understand that both of you may not be “on the reservation” as the Governor evidently put it. If so, good. Stay off it and keep contributing your lucid critiques.

    • You can count on it, Mr. Post. My “reservation” is swimmable, drinkable, fishable waters for all Vermonters, and that means a food supply produced without poisoning water supplies. Hang tough.

      James Ehlers

      • Jan van Eck

        Mr. Ehlers:

        If you want to remove coal-tar products, used to seal asphalt driveways and parking lots, from getting into the Lake, then the obvious solution is not to have asphalt driveways and parking lots. Do what they do in Holland: use paving bricks. It also allows rainwater to seep through the sand between the brick rows, so that cuts down on the runoff problem. To eliminate tar sealant from flat roofs, build rooftops on top of those flat roofs, paint the flat area with rubber paint, and add a layer of gravel. Then you don’t need tar any more.

        The Peterson Dam (in Milton) generates some 6.2 MW from its turbine. I can show you how to generate 45 MW at least from that site, while eliminating the dam and restoring a free-running river. Costs you nothing at all; all deconstruction costs paid by outside capital. Plus, you get all that extra power. (Whenever I raise this, the response from politicians is stone silence.)

        If you want to get rid of algae blooms right away, then find a Philanthropic Donor to offer a $1 Million prize to whomever comes up with an algae skimmer machine. Don’t be surprised when some enterprising high-school science kids figure out how to do that. Then build a fleet of those skimmer machines and put the summer-break kids to work.

        For the longer term, since it is obvious that manure and human sewage is causing these algae blooms, simply stop putting the stuff into where it washes into the streams, then downward into the Lake(s). If manure is not put on the land in the first place, it does not get into the Lake in the second place. If sewage solids are dewatered and hauled off, then you have physical removal from entering the lake. You cannot tell me that there is no market for the stuff that cannot be developed.

        • John McClaughry

          Creative and interesting. If Midwestern farm tractors and harvesters can be programmed and left to run all day without drivers, and if lawn mowers can mow by themselves once programmed, you’d think a fleet of (solar-powered?) algae skimmers could get the job done and return to port when finished.

          • Jan van Eck

            I can envision a pontoon machine with a big roll of cotton matting on spools, turning very slowly. The matting intersects the water plane at an angle, allowing the water to flow through and the algae trapped in the cotton. The cloth then loops through a scrape and press section where surface algae is removed and fed into a collector container. You might use compressed air to extract the algae. Now the cloth loops back for another pass. Eventually the cloth itself gets saturated, for removal where you bury it for decomposing or (shudders!) burn it.

            I am trying to suggest practical solutions to vexing problems, not ideological ones. If coal-tar is polluting the lake, then don’t use the stuff. Change your driveway materiel and you don’t need it an y more. If manure spread on the land is a problem, then don’t put the stuff on the land in the first place. If city sewage is a problem, then put the stuff into de-watering tanks and haul it off. Develop a new market for it, and sell it. If residues in the lake bottom is a problem, then dredge the spoil up and haul it off. You can get out from underneath in one Summer, and not 20 years, if you use practical solutions. Even make some money doing it!

  • Ed Letourneau

    Some history. When the clean water act was passed, the focus was on point sources of pollution, and billions were spend of fixing them. Everyone knew that non-point sources were the bigger problem, and there wasn’t enough money in the entire US to fix them. That has not changed. So what is the planned result of this bill — besides throwing money at a problem we can’t fix if people are going to live on this land!

  • Rich Lachapelle

    E.Coli is an indicator species that typically is associated with other nutrient loads such as phosphorus. Many of the often-cited “impaired waterways” are in the urban areas of Chittenden County where there are few dairy operations. So what is it about the urban runoff that produces all the coliform load? Dogs doing their thing in the ditches and lawns adjoining the condos and apartments which are unsuited for handling a nominal amount of animal waste. At least the farmers are producing something useful, namely food. These proposed sanctions against farmers should be matched by serious fines for failure to pick up after dogs.
    A bump up of the property transfer tax should accompany a commensurate state-enforced surtax on all dog licenses. I await the responses claiming that “dog companionship is a human right”.

    • Jan van Eck

      Hard to believe that the accumulated output from the neighborhood dogs, that portion that does not dissipate into the ground, is causing massive e-coli loads in Lake Champlain. How about: 50,000 gallons of raw sewage overflowing from an antique sewage plant, not designed or capable of dealing with the expanded urban loads? In terms of sheer poundage, that should outweigh the dog stuff.

    • Jan van Eck

      P.S. Human companionship is a dog’s right. So, be nice to your dog!

  • In response to Mr. Ehler’s proposal to undertake something that might actually work (and that could be implemented immediately) Comm. Mears stated the obvious:

    “Unless you stop the inputs of pollution into the waterbodies, you are just fighting a losing battle. You have to control those first for it to be cost effective to do an in lake or in stream remediation.”

    …which is curious given that neither the House of Senate water quality bills come close to achieving this preemptive approach.

    So, Comm. Mears, what’s your backup plan?

    • Mr. Forlie,
      It appears that they do not have the confidence in their plan that they, in fact, would like for the public to have. Suppose we will expand agencies while we figure it out?

      If you look at the timeline proposed for AAP overhaul, then allow for staff hiring, training, farmer education, and enforcement, best guess is something tangible in the field to assess by 2019.

      Numerous more urgent alternatives have been offered (the reporter noted but one in this story), but it appears the bureaucracy is wed to the same sort of thinking that created the problems we are witnessing today.

      Unless this addressed both as economic opportunity, as well as an environmental one, I remain concerned we will fall short of our legal obligation to ensure swimmable, drinkable, fishable waters not having seen the Agency of Commerce involved nor the Department of Health.

      Sadly, this academic and political exercise will have “common man” ramifications.

      If nothing else, we will continue to request that “injured” parties be compensated, and that public health and drinking water monitoring and notification be stepped up while we press for a plan, and implementation of such, that achieves the stated targets for the most polluted communities.

      James Ehlers
      Lake Champlain International