Commentary: Small Vermont Farms in EPA’s Crosshairs (March, 2014)

The  Obama EPA is bringing the hammer down on Vermont wastewater plants, to force the state to install a command-and-control regime over 6,000 small farms.

by John McClaughryJohn McClaughry

The Vermont legislature is now seized with an important issue that must be addressed to the satisfaction of the Obama administration in the next couple of months, or the state will find itself in Washington’s enforcement crosshairs.

Everyone in Vermont wants to see the waters of Lake Champlain maintained in healthy condition for swimmers, boaters, anglers, and tourists. There are different ways of translating that universal wish into reality. The leading one at the moment is the expansion of command-and-control regulation of Vermont farm operations.

The Federal Clean Water Act of 1972 gave the Environmental Protection Agency the power to prevent or regulate the discharge of any pollutant from a point source into watercourses that lead to navigable waters. Very little of the current Champlain basin problem – algae blooms and noxious weed growth – comes from water treatment plants, factories, and large farm operations. These have long had to comply with EPA discharge and runoff standards.

The new pressure for command-and-control comes from the Conservation Law Foundation’s dissatisfaction with implementation of the state’s 2002 water quality plan. In a posting on its web site CLF explains that its urgency on this issue stems from the appearance of “climate change”, as if the climate had never changed for the previous two hundred years.

This “climate change” will lead, so they say, to “heavy precipitation and flooding”, causing more pollution to run off into lakes and rivers. The 2002 plan, CLF argues, failed to consider the dire predictions of the “climate change” computer programs, all of which, incidentally, have failed to predict the flat global temperatures of the past 15 years.

Under CLF pressure the Obama EPA has given the state an ultimatum. The state must put in place a far more extensive program to reduce discharges from “non-point sources”. This is aimed principally at nitrates and phosphorus used by six thousand small farms, which EPA considers “the low hanging fruit”. Unless Vermont proves to EPA that it is making rapid progress, EPA will issue tough enforcement orders.

But here’s the curve ball: the EPA orders will threaten to put costly new requirements on municipal waste treatment plants, which are around 95% compliant, to force the state to install a command-and-control system over small farm operations.

The legislative response (H.586) requires state regulation and “certification” of small farms, followed by inspections, remedial orders, and fines of as much as a $10,000 per day for each continuing violation. To the Vermont Farm Bureau, this looks a lot like government licensing of farms and farmers. Interestingly, little of this is happening on the New York side of the Lake, which is in a different EPA district with different regulations.

How will this sharply expanded bureaucratic control over small farms be paid for? With Vermont Yankee no longer available for extortion, the House Fish, Game and Water Resources Committee proposes increasing the rooms and meals tax, the rental car contract tax, and the wine and spirit taxes to scrape together an estimated $4 million a year.

One would think that increasing the present fee on fertilizer tonnage would be more logical, but it’s politically difficult to bury small farmers under new regulations, and then tax their fertilizer to pay for it.

Since 1987 the state has had a Vermont-designed model for nudging people into curtailing activities that cause environmental problems. It’s called the Acceptable Management Practices for forestry operations. Today almost every Vermont logger willingly observes the AMPs, like not running skidders through streams.

When a harmful practice is the subject of a complaint, Forest Parks & Recreation sends out a field person to explain, educate, and assist the operator. In the vast majority of cases, this results in sound practices. FP&R traditionally wants good outcomes, not adversarial legal battles.

Why not use the same collaborative approach for Acceptable Agricultural Practices for small farms? That would build on the successful AMP experience. But the CLF’s fanatic “climate change” lawyers, the EPA control freaks in Washington, and their willing enablers in Montpelier think they can install a costly command-and-control system instead.

Granted, more effort needs to be made to reduce agricultural runoff. But EPA holding water treatment plants hostage to force a state to impose a burdensome regulatory regime on its small farms is the wrong idea. Vermonters need to strengthen their own common sense approach for keeping more ag nutrients out of Lake Champlain.

-  John McClaughry is vice president of the Ethan Allen Institute (www.ethanallen.org).

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