These comments were submitted to the Vermont Agency of Agriculture, Food & Markets on July 7, 2016
Dear Agency of Agriculture, Food & Markets:
Introduction
The Vermont Natural Resources Council (VNRC) has been advocating for clean water and sustainable communities that include vibrant village, town and city centers surrounded by working lands since we were founded in 1963. VNRC – and VNRC’s partner organization Vermont Conservation Voters (VCV) – understands that the state must advance policies that allow for a healthy agricultural sector to thrive in order to realize this vision. A key part of achieving this vision is ensuring that farming occurs in a manner that minimizes water pollution.
Vermont is truly at a crossroads. As a state we have been aware for decades that Lake Champlain is polluted with excess amounts of nutrients. The Total Maximum Daily Load (TMDL) clean-up plan adopted by the Environmental Protection Agency (EPA) in 2002 did little to restore water quality in Lake Champlain. In 2011, as a result of a lawsuit filed by Conservation Law Foundation (CLF), EPA disapproved the 2002 TMDL, and ordered that a new clean up plan be put in place.
Several weeks ago, EPA finally issued the revised TMDL for Lake Champlain. The TMDL states that:
“Overall, the largest source of phosphorus is the agricultural sector.” “The major sources of phosphorus within each sector also vary by lake segment, but some general trends are clear from the modeling work completed by Tetra Tech (2015b and 2015c). Within the agricultural sector, cropland is by far the largest phosphorus source, followed by pasture and farmsteads.”
If Vermont is going to meet the requirements of the revised TMDL, and achieve clean water in the Lake, we are going to have to use every tool available to address the largest source of phosphorous pollution – agriculture. The RAPs are a vital tool towards achieving the goal of a clean Lake Champlain.
VNRC has reviewed the proposed RAPs. While the RAPs are an improvement over the current Accepted Agricultural Practices (AAPs), they fall well short in several key areas of what is necessary to remediate phosphorous pollution in the Lake as required by the TMDL. VNRC urges the Agency of Agriculture, Food & Markets (AAFM) to address these shortcomings prior to adopting the final RAPs.
Specific Comments
Sections 1 and 3 – Applicability
The RAPs as proposed apply only to farms required to obtain a certification from AAFM and to farms that meet the requirements in section 4.1 (d). Section 4.1 (d) allows the Secretary of AAFM to designate a farm that does not meet the threshold for certification as needing to comply with RAPs based on certain practices occurring on the farm and the farm’s “actual or potential water quality impacts.”
While it is a step forward to require smaller farms – as defined by AAFM – to become certified and comply with the RAPs, VNRC and VCV are concerned that smaller farms with the potential for significant water quality impacts will not be covered by the RAPs. The intent of Act 64 of 2015, which requires AAFM to adopt RAPs, is that “all persons engaged in farming” shall follow the RAPs. 6 V.S.A.§ 4810 (b). AAFM’s decision to limit the applicability of the RAPs seems inconsistent with 6 V.S.A.§ 4810 (b), legislative intent, and is insufficient to achieve the nutrient reductions from the agricultural sector required by the TMDL. We request that AAFM provide the legal and policy rationale for not applying the RAPs to “all persons engaged in farming.”
VNRC and VCV understand that section 4.1 can serve as a catchall that allows AAFM to require additional farms to become certified. However, the criteria for designating a farm for certification are broad, totally within the discretion of AAFM and dependent on AAFM having the resources to pursue these designations. We recommend that AAFM better define the criteria for making these designations, allow outside parties to petition for these designations to be made, clarify that the decision not to certify a farm is an appealable decision, and provide a specific role for the Agency of Natural Resources (ANR) in the designation process.
For example, the RAPs could set thresholds or triggers for when smaller farms must be certified that are clear and unambiguous. In addition, the RAPs could authorize ANR to recommend that AAFM make such a designation, require AAFM to consult with ANR when a designation is proposed, or allow ANR to pursue the designation on its own. As the agency responsible for ensuring compliance with the Vermont Water Quality Standards (VWQS), ANR must have a more significant and better-defined role in this process.
Section 6.07 – Riparian Buffer Zones
Establishing and maintaining riparian buffer zones is one of the most effective methods of protecting water quality, reducing erosion and discharges of pollutants, including phosphorous. ANR’s “Guidance for Agency Act 250 and Section 248 Comments Regarding Riparian Buffers (Guidance),” recommends that to be effective riparian buffers from streams be a minimum of 50 feet from top of bank. The Guidance recommends that riparian buffers from rivers, lakes and ponds be a minimum of 100 feet. Importantly, the Guidance is clear that for these riparian areas to be effective, they must be “undisturbed.” The Guidance defines undisturbed as “no construction; no earth-moving activities; no storage of materials; no tree, shrub, or groundcover removal; and no mowing.” Guidance at 6.
The riparian areas proposed in the RAPs fall well short of ANR’s minimum recommendations. The RAPs require “a vegetative buffer zone of perennial vegetation” and a required width of 25 feet. Moreover the RAPs allow the harvesting and maintenance of the buffer as a crop, and allow farms to use fertilizer or compost in the buffer areas.
To be effective, the RAPs must be amended to provide for wider vegetative riparian areas from streams, rivers, lakes and ponds consistent with the Guidance. VNRC recommends that riparian areas be a minimum of 50 feet from the top of bank of streams, and 100 feet from the top of bank of rivers, lakes and ponds. In addition, as set forth in the Guidance, the science is clear that these areas must be undisturbed to be effective in filtering sediment and nutrients before runoff reaches receiving waters. Similar to ANR’s Guidance, AAFM can allow for deviations from these minimum riparian areas under very specific limited circumstances.
VNRC and VCV understand the concerns regarding the economic impact of farms if riparian areas are to be wider, and if disturbance in these areas is prohibited. However, these, at a minimum, are the measures that are necessary to address nutrient loading from farms. VNRC believes there is a way to have a healthy agricultural sector in Vermont that properly addresses water pollution.
Section 6.04 Cover Cropping
The cover cropping provisions also must be strengthened. The RAPs require that annual croplands subject to frequent flooding from adjacent surface waters must be planted to cover crops. This section should be revised to require cover crops on all annual croplands.
We are also concerned about the application of pesticides to cover crops and urge AAFM to prohibit the use of pesticides on cover crops.
Section 6.04 (a) of the proposed RAPs requires farmers to increase organic matter in soil, reduce soil compaction, promote biological activity in soil, and reduce erosion when “practicable.” VNRC and VCV request that AAFM define when it is “practicable” for farmers to engage in these activities. Absent specificity, it will be impossible to provide know when farmers must take these steps that will reduce water pollution.
Section 7 – Livestock Exclusion
The proposed RAPs allow livestock outside production areas to have access to surface waters unless there are already unstable banks with erosion. This practice neither excludes livestock, nor prevents erosion and adverse water quality impacts. Again, this provision is inadequate to achieve clean water. AAFM should not allow livestock to access stream banks, riverbanks, and the water itself. Livestock must be clearly prohibited from accessing these areas. Fencing or other control of livestock to prevent access to waterways must be required. These are minimum steps necessary if Vermont is going to meet the aggressive targets in the Lake Champlain TMDL for reductions in nutrient loading from farms.
Tile Drains
Act 64 requires that AAFM include provisions in the RAPs that address the use and impacts of tile drains. AAFM has issued an interim report, as required by Act 64 that acknowledges the harmful impact that tile drains have on water quality. In light of the knowledge that tile drains cause or contribute to water nutrient pollution, and in the absence of an existing framework or program for monitoring or controlling tile drain impacts in Vermont, AAFM should place a moratorium on future tile drainage installation in the proposed RAP’s. The moratorium on new tile drain installations should remain in place until existing tile drain systems are located and mapped, and a satisfactory program and controls are adopted to ensure that any new tile drains will not increase water pollution.
Conclusion
In addition to the comments above, VNRC recommends that the RAPs incorporate a timeline and process for revisiting and assessing whether the RAPs are actually achieving the water quality goals set out in the Lake Champlain TMDL and Act 64. A check in provision is required to ensure that Vermont is meeting the aggressive pollution reduction requirements for agriculture in the Lake Champlain TMDL, and to enable AAFM to adjust the RAP’s if necessary.
Thank you for this opportunity to comment
Sincerely,
Jon Groveman, Vermont Natural Resources Council, Policy and Water Program Director
Lauren Hierl, Political Director, Vermont Conservation Voters