In December 2019, state agriculture investigators observed manure from Iraburg’s Nelson Farms, a dairy in the Northeast Kingdom, running into a local waterway.
The staff from Vermont’s Agency of Agriculture, Food and Markets were required under a 2017 interagency agreement to report the runoff to Vermont’s Agency of Natural Resources immediately. But they failed to do so until four months later, according to a petition filed to federal officials by environmental advocates.
This misstep wasn’t uncommon. A month earlier, the agricultural agency had inspected the McKnight Farm in East Montpelier and found agricultural wastes flowing through a barnyard and entering surface water, but didn’t refer the matter for over a month.
The mistakes are part of a broader problem in Vermont, state environmental advocates say, in which a conflict between the agencies that govern natural resources and agriculture has thwarted a regulatory system that’s required under the federal Clean Water Act. Since January, they have urged the Legislature to step in.
“I feel strongly that this is not a choice,” Elena Mihaly, vice president for the Vermont chapter of the Conservation Law Foundation, said in a legislative committee hearing on May 15. “We’ve gone too long trusting that this system is working and it is not.”
Last summer, the federal Environmental Protection Agency agreed that the state has been violating the law.
The only way to come into compliance, the EPA told the Agency of Natural Resources, would be to put the state environmental agency in charge of inspecting farms and issuing permits related to water quality — dramatically shrinking the agriculture agency’s role.
This legislative session, a debate about how to fix the system has been playing out in Montpelier. A bill, S.124, which cleared the Vermont Legislature on Friday and is headed to Gov. Phil Scott’s desk would give the Agency of Natural Resources a greater role.
If the bill becomes law, the agency will be authorized to hire three new staff members who would lead some farm investigations. The agency would also be tasked with undertaking a new permitting program to align with federal law and with forming a stakeholder group to work on water quality regulations that includes environmentalists and farmers. The leadership of both of the state agencies have backed the bill.
But critics say this solution may not move the needle. Beyond these changes, the bill looks much like the ghost of regulations past: by maintaining a familiar split between agencies, it could also amount to maintaining the status quo.
“We’re in the middle of a long-term process to build a better regulatory program,” said Scott Sanderson, director of Conservation Law Foundation’s farm and food initiative, in a statement. “This bill takes important first steps and creates a needed stakeholder process, but it doesn’t confront what EPA identified as a root cause of Vermont’s broken system: the division of jurisdiction over agricultural water pollution between the Agency of Natural Resources and the Agency of Agriculture.”
‘Zero is unique’
Under federal law, farms are allowed to send runoff into local waterways only if the farm is monitored under a Concentrated Animal Feeding Operation, or CAFO, permit.
Vermont has more than 140 medium and large animal operations that could be CAFOs, defined as where animals have been stabled or confined for at least 45 days, which includes most dairy farms. Another 1,000 small farms are potential CAFOs and need to be monitored for unpermitted waste discharge, according to the federal Environmental Protection Agency.
For more than half a century, the Environmental Protection Agency has delegated the authority for ensuring that farms, waste systems and waterways comply with the federal Clean Water Act to the Vermont Agency of Natural Resources. In a small state, Vermont’s authority to administer the 1974 federal law meant it could staff its state agencies with experts more capable of managing rural places than federal officials traveling in from outside regions, according to Julie Moore, secretary of the Agency of Natural Resources.
The Agency of Agriculture, Food and Markets oversees state monitoring of water quality on farms.
The CAFO program is the natural resource agency’s vehicle for that federal regulation, but the state has never issued a single CAFO permit.
This fact, and the corroborating examples, became the foundation of a 2022 petition filed by the Conservation Law Foundation, along with the Vermont Natural Resources Council and Lake Champlain Committee, that claimed Vermont was polluting its waterways in violation of the Clean Water Act.
The Environmental Protection Agency studied the state for the following two years, launching its own investigation into Vermont farms and the two agencies in charge of monitoring them.
In the EPA’s 2024 response to the petition, they wrote that the failure to implement this law was caused by “the division of Vermont’s agricultural water quality program between ANR and AAFM, which has resulted in ANR’s nonperformance of delegated duties,” along with insufficient resources given to ANR to administer the federal program.
If the agency didn’t make significant changes, the state’s authority to implement the Clean Water Act would be revoked and the federal government would take over, according to the EPA’s 2024 letter in response to the petition.
EPA staff conducted 10 on-farm investigations and found several farms “had evidence of ongoing or recent discharges that appear unaddressed.”
EPA staff also looked at 113 complaints about discharge received by either agency between February 2021 and January 2023. Many complaints described discharges to surface waters, but almost a quarter of these complaints were unresolved, and about 45% were concluded without a violation notice from ANR, according to the EPA. Only 7% were noted as Clean Water Act violations, and even then, the farm was allowed to correct the violation without a penalty or CAFO permit requirement.
“Us issuing zero is unique,” said Moore of the lack of CAFO permits in the state. But even with a better system, still only a small subset of farms would likely be required to obtain a CAFO permit. In neighboring states like New York, New Hampshire, and Massachusetts, a vast majority of farms are not regulated as CAFOs, Moore said.
While the agriculture agency has no authority to enforce the law, it has nine staff at least partially responsible for investigating farms for pollution to surface water, known as discharges, while the natural resources agency only has two. Because of their limited staffing capacity, ANR has long relied on agriculture officials to report discharges back to them.
“If we’re going to have a robust CAFO program, we don’t have enough capacity currently,” Moore said. By the end of 2026, ANR will have to report back to EPA on what they think they’ll require in staffing, according to their corrective action plan.
While the EPA gave four options to remedy the problem, the federal agency said the only viable option that would allow the state to stay in charge of enforcement was “consolidated agricultural regulatory authority with ANR,” meaning ANR should be the lead agency monitoring water quality on farms.
The Agency of Agriculture, Food and Markets declined an interview request for Secretary Anson Tebbetts and instead sent a comment over email.
“The Agency of Agriculture, Food & Markets is working closely with the Agency of Natural Resources to address the issues raised by the EPA,” wrote Scott Waterman, director of communications for AAFM. “We are proud of the work of our Vermont farmers who are doing the hard work to improve our environment. That work will continue today and well into the future.”
Source of pollution matters
The split between the two agencies goes back to the split between how Vermont monitors water quality, distinguishing between two kinds of sources of pollution: nonpoint and point sources. Nonpoint pollution is diffuse, like runoff from rain or snow flowing over land, while point source pollution comes from a singular and identifiable source, like a pipe or ditch.
For decades, Vermont has regulated farms with this separation in source pollution. Nonpoint sources are regulated by the state’s agricultural agency, while point sources are meant to be regulated by ANR.
CAFOs are considered point sources due to the amount of waste they produce and how that waste is stored, in lagoons or spread as fertilizer over farm fields. When manure or waste is discharged into a waterway, the CAFO needs a permit.
In the last five years, the state Agency of Agriculture has reported 170 potential discharges to ANR, according to the agriculture agency’s attorney, Steve Collier. But neither agency knows how many of those were investigated, nor how many showed evidence of an actual discharge, according to attorneys for both agencies who testified in front of the House Environment Committee in May.
Farmers have long worked with the agricultural agency and have developed trust that its officials are working to protect their interests as agriculture faces increasing challenges from global economic rifts and climate change.
They’re not as used to working with ANR, largely because Vermont’s CAFO program is underfunded and understaffed, meaning farmers have interacted less frequently with ANR than they might have under a more robust program, according to Moore.
“I anticipate there are some farms that would require CAFO permits,” Moore said. “But part of our challenge as we sit here today is that we don’t know what we don’t know as far as the number of farms.”
Because no permits have been issued before, implementing such a system has struck a nerve in the farming community.
“It doesn’t exist, but people worry about the worst version of it,” Moore said. “Most Vermonters prefer not to be regulated.”
Collier told lawmakers in May that it wasn’t a victory for the state to issue a CAFO permit. “It’s a victory to have farms not discharging,” Collier said.
But as the 2022 petition and the EPA response showed, farms are discharging, and a CAFO permit is meant to predate a discharge. Without the permit, that discharge is illegal under the Clean Water Act. Therefore a CAFO permit could be a protective measure for farmers, but only if they’re issued.
“We all agree that (the agency of) agriculture’s program is pushing farms to achieve a no discharge standard, so the question is what happens when they don’t, and if they need time to come into compliance,” Moore said.
Caroline Sherman-Gordon, the legislative director for Rural Vermont, a group that advocates for small farmers, said farmers would adhere to CAFO permitting if necessary: “They’ll bite into the sour apple,” she said.
’Dysfunctional and broken’
This isn’t the first time Vermont’s approach to monitoring water quality on farms has been put under a microscope.
Challenges can be traced back to 2008, when the Vermont Law School Environmental and Natural Resources Clinic filed a petition that resulted in a 2013 corrective action plan. Vermont agreed to improve its approach to farms under the requirements of the Clean Water Act.
But by 2016, both agencies were attending a bureaucratic version of couples counseling. The Center for Achievement in Public Service began hosting a series of meetings and retreats for staff members. Early in that process, the center noted the two agencies had divergent missions and cultures and a lack of a shared vision. It noted a history of errors, exclusions, misunderstandings and misinterpretations that “was long and unaddressed,” according to details in the 2022 petition.
After a retreat a month later, the center concluded that the Agency of Agriculture focused on promoting farms and supporting people, the other focused on policy and enforcement. When issues arose, so did groupthink: each agency “tended to rely on assumptions about the other group’s motivation,” according to the center.
For example, when an ANR officer expressed frustration that an agricultural officer had failed to contact him about a point source discharge in a timely manner, after some back and forth the ANR officer emailed, “It seems pointless to discuss these details anymore when we are both working within such a confusing and highly flawed system.”
More emails in 2019 showed that the agricultural agency had called ANR’s work “a waste of taxpayer dollars,” in an email quoted in the petition.
Moore wrote in an email to agricultural secretary Tebbetts: “The assertions that our work is either poorly conceived or nefarious makes [it] extremely difficult to engage constructively and needs to stop.”
A year later, Moore wrote a memo in response to the governor’s call to improve efficiency across state agencies. She said the dual oversight was fact-intensive, time-consuming, and reduced clarity for the farming community. She proposed transferring agricultural staff responsible for inspections under the Clean Water Act to ANR to create a single program because the division had “led to tension and conflict between the agencies, regulatory uncertainty for farmers, and more time-consuming outcomes for water quality resulting in more pollution.” She suggested it would save two inspector positions and an estimated $350,000.
In an email to Secretary of Administration Susanne Young, she called the challenges that existed between the agencies not only institutional and statutory but “at times, even personal.”
The Vermont Agency of Administration declined to act on Moore’s suggestion.
“It’s really easy to write it in a memo and much more challenging to implement as it involves real humans and changing where they work and who they work for,” Moore said of the memo five years later. “It raised concerns in the agricultural community that they don’t have the same relationship with ANR and therefore we haven’t built trust in that community yet.”
But by 2022, the petition was filed by three environmental organizations to the EPA alleging that the relationship was “dysfunctional and broken.”
“All Vermonters are harmed by AAFM’s stubborn rivalry with ANR, including farmers,” the petitioners wrote.
The EPA report noted that for over 15 years, Vermont has had “ample time and opportunity to cure longstanding program deficiencies” but failed to do so. The EPA concluded that consolidating the authority to implement the agricultural water quality program into ANR “is the only workable solution” to avoid losing the state’s ability to oversee the Clean Water Act.
‘This is crazy’
Early in the current legislative session, a different bill, H.146 — endorsed by the environmental organizations that filed the 2022 petition — suggested an easy answer: entirely transition the state’s water quality regulation and enforcement to ANR and require all large and some medium farms to obtain federal permits. That bill never left committee.
Sherman-Gordon, the legislative director for Rural Vermont, said her organization opposed the original House bill.
“What we often hear is that if farmers have to deal with ANR, then they feel less heard and less seen,” Sherman-Gordon said.
She said farmers feel historically underrepresented in the legislature, and she doesn’t feel that farmers were appropriately consulted or invited to testify on H.146. “The issue is that ANR hasn’t been doing the job they’ve been told to do, and instead of holding them accountable, the discourse is can we take away jurisdiction without hearing from farmers.”
Instead, by mid-May, the compromise bill, S.124, was being discussed in the House Environment Committee as members tried to determine whether to add language that could make the bill more stringent.
On May 21, when the committee was voting on that amendment, Collier, with the state’s agriculture agency, interrupted the meeting with a raised hand. In a previous meeting, he’d told the committee that the Agricultural Agency felt the regulatory work was getting done. He argued that the only reason they were discussing this issue was because “the advocates filed a petition and they want ANR to do all the work.”
“We have some of the most restrictive water quality regulations in the country so the question is not about whether ANR should do more, it’s whether anyone should do more,” Collier told the committee on May 21.
“That’s crazy,” said committee chair Amy Sheldon, D-Middlebury, clearly frustrated.
“We’ve been confronted with a petition that has been years in the making. We have water quality issues, staff are under stress. We need to be engaged in this and empowering the agency to take responsibility,” Sheldon said. “Under the current political regime, ANR hasn’t taken responsibility, and we’re saying they need to take responsibility.”
Rep. Rob North, R-Ferrisburgh, encouraged his fellow committee members to “take a breath.”
“There’s been a fair amount of animosity pointed towards these two departments that are trying to work together,” said Rep. Christopher Pritchard, R-Pawlet. He claimed that the advocates who wrote the petition had “no skin in the game” and wouldn’t have to deal with the repercussions of the amended bill.
“From the point of view of the advocates, the skin in the game we all have is that if we want to have better water quality in our state, this is how to go about it,” Rep. Larry Satcowitz, D-Randolph, said in response.
While the EPA’s most recent letter supported S. 124, it acknowledged that it would likely require more legislation in the future.
Moore said she expected more information from the federal agency in the coming weeks. ANR plans to do 10 farm inspections this summer and take the lead on inspections required on medium and large farms next year under its revised corrective action plan with the EPA.
If the EPA approves of the legislation, ANR will draft a new document that will outline the agreement between the dual agencies by September 1. That document could give ANR new authorities related to inspections and establish a more thorough stakeholder process to help the agencies coexist and reconcile their responsibilities.
In the background is an unsettling federal landscape under President Donald Trump’s administration. In committee meetings, legislators have wondered about including language from the federal Clean Water Act into state law. That way, if the federal law is overturned or changed, the state law will remain strong.
“There’s real value in having people on the ground doing work that are familiar with the specifics of Vermont and our rural nature and the small, small size of many of our systems,” Moore said. “A lot of that would be lost if the programs were returned to EPA.”
