Feds: Vermont failing its duty to protect Lake Champlain

EPA presses Vermont to better control farm runoff; state’s environmental agency agrees to corrective steps  

By Zachary Matson

Vermont has failed to issue water quality permits to large dairy farms in the Lake Champlain watershed, despite a long standing obligation under the federal Clean Water Act. 

Now, the Environmental Protection Agency is pushing Vermont to better control runoff from so-called concentrated animal feeding operations (CAFOs), blaming regulatory failures on a system of confused oversight divided between the state’s natural resources and agriculture agencies. 

“The flaws in this program are preventing Vermont from adequately controlling phosphorus discharges from (the farming operations), which contribute to severe water quality problems in Lake Champlain,” EPA Region 1 Administrator David Cash wrote in a September letter addressed to Julie Moore, secretary of the Vermont Agency of Natural Resources.  

In the letter, Cash outlined the results of an EPA investigation into Vermont’s regulation of the animal farms under the Clean Water Act’s agricultural discharge provisions. The Vermont agency is delegated authority to oversee the federal law, but EPA can withdraw that delegation if it determines the state is falling short. 

Environmental groups take action

EPA’s investigation, which arose after a trio of environmental organizations in 2022 challenged Vermont’s regulatory program, found that while state inspectors observed unapproved discharges on Vermont farms, they failed to address them with adequate monitoring or required permitting.

The Conservation Law Foundation, Vermont Natural Resources Council and Lake Champlain Committee in 2022 jointly petitioned EPA to force oversight improvements, alleging a “breakdown” in Vermont’s regulation of the farm operations, many of which impact the Champlain watershed. Relying on documents obtained through Vermont’s public records law, the petition highlighted the failings of a regulatory system with jurisdiction split between the natural resources agency and Vermont’s Agency of Agriculture, Food and Markets. The petition argued the split responsibilities created confusion and led to gaps in enforcement of prohibited discharges of phosphorus and other pollutants into waterways, quoting state officials describing the system as “highly flawed.” Phosphorus, a byproduct of animal waste and fertilizer use, contributes to the growth of harmful algal blooms on the lake.       

Federal officials in their own investigation, which included farm visits in 2023 and 2024, confirmed numerous issues raised in the petition. EPA’s September letter to Vermont directed the state to develop a plan to align its oversight system with federal regulations and develop a permit specific to CAFOs. 

State’s reaction: Is it enough?

“We take these findings seriously,” Moore wrote in a December response to the EPA. 

Vermont’s response outlined a proposed corrective action plan to grow inspection staff, develop new regulations, define the roles of the two agencies and seek statutory changes and funding from the state Legislature. 

Scott Sanderson, a staff attorney with the Conservation Law Foundation and director of its farm and food program, in a recent interview said the state’s plan was a positive step but should go further to disentangle the agriculture agency’s enforcement role. He said the agency should help to support farms but leave the water quality oversight to the natural resources agency.  

“It does seem like the (state’s) plan isn’t addressing that problem fully,” Sanderson said.

Sanderson said an improved oversight program would benefit water quality, bolster awareness of the pollution problem and serve the interests of farms. He said permitting farms would ensure those operating under approved practices couldn’t be held responsible if storms or other unexpected events caused prohibited discharges on their land.

“It’s good for water quality, it’s good for the communities these farms are in, and it’s good for farms, especially given more and more unpredictable weather,” Sanderson said. “Farmers doing all the right things shouldn’t face liability because they got hit by bad luck.”

Targets in place

Both Vermont and New York are subject to a 2002 federal pollution control plan that mandates certain phosphorus targets for the eastern and western sides of the lake. Vermont’s larger phosphorus allowance accounts for the greater area and higher density of agriculture and development on the lake’s eastern shore. New York has met its targets in some tributaries, but neither state has managed to keep phosphorus levels below thresholds outlined to achieve water quality goals.

The total phosphorus load to the lake was estimated at 647 metric tons per year during the 1991 hydrologic base year, according to the plan. The current phosphorus load estimated in Lake Champlain now is above 900 metric tons per year, the New York Department of Environmental Conservation calculated in a watershed plan it adopted last year. 

New York’s current lakewide phosphorus allocation is 119 metric tons per year, while its actual loading is estimated at around 211 metric tons per year. But the bulk of phosphorus pollution in the lake originates from Vermont, currently estimated at around 631 metric tons per year, about three times New York’s contribution. Agriculture is the top source of phosphorus across the watershed.

Photo at top: The Adirondacks from Lake Champlain in April 2024. Photo by Daria Bishop