The Clean Water Act sets goals for Otter Creek, but is it enough?

THE OTTER CREEK sends a plume of sediment into Lake Champlain after Tropical Storm Irene in 2011. The sediment contained nutrient-rich runoff from Otter Creek’s 936-square-mile basin.

Act 64 “is a joke … If politicians were acting on the science, we’d have a moratorium on development, we’d be investing in infrastructure, and we’d be supporting family farms. We would be banning the use of the chemical (herbicides) … We’re not even close to addressing the problem."— James Ehlers

This is Part II in a three-part series. Vermont’s Clean Water Act (2015) has established regulatory and incentive-driven programs to address the web of nuanced water quality issues in the state. Here, we’ll discuss the Clean Water Act as it applies to the Otter Creek basin, and dive into the assembly of Otter Creek’s 2019 basin plan, which becomes available to the public on October 1.
On the fourth floor of a downtown building in Rutland, several blocks from where the Otter Creek twists through the city, Angie Allen stares into the depths of a computer screen. She’s looking at a map of the Otter Creek basin, lit up green and red like a Christmas tree.
The graphic breaks down different areas in the watershed according to how they contribute phosphorus, and other types of pollution, to the land, the river, and eventually Lake Champlain.
Allen, one of Vermont’s five Tactical Basin Planners, is the planner for the Otter Creek watershed, also called Basin 3. The task requires that she expertly wield a fine-toothed comb so that she can gently tease the watershed’s problem areas out for other experts to see.
Each of the state’s 15 major river basins has a tactical plan, updated in five-year cycles. Planners analyze their assigned watersheds using observations gathered on the ground and data from other statewide, local and private organizations. They work locally, but report to the state under the umbrella of the Department of Environmental Conservation’s Watershed Management Division, as well as the newly formed Water Investment Division.
“Really, basin planning is from soup to nuts,” Allen said. “We do it all, from taking in all of these data streams, integrating all of that information and synthesizing it in a way that translates into priority actions. The plans are meant to be actionable; they’re meant to be used.” 
Allen has sharp blue eyes and a slight accent that hints at her Tennessee origins, and though she only started at the state in March of 2018, her professional chops are tailor-made for the gargantuan task that is basin planning.
Before moving to Vermont, she worked for the Alaska Satellite Facility, located at the University of Alaska, Fairbanks, which was contracted by NASA to make satellite data understandable to scientists and the broader public. There, she was the point-person on water quality projects like the global mapping of wetlands and using radar to map soil moisture.
Even with her qualifications considered, analyzing problems and implementing solutions in land sectors that run the gamut from farm pastures to wastewater treatment facilities is a daunting feat.
“If you ask any one of our team of five planners to describe what it is that they do,” Allen said, “you could get a different answer from every planner, and you might get a different answer from me next month. What’s my area of focus and greatest concentration at that point in time? It changes by basin and as our planning process evolves.”
To parse it out, she works with other state programs like the Department of Environmental Conservation’s Lakes and Ponds program and the Wetlands program, the Agency of Agriculture, Food and Markets and the Agency of Transportation. She also works with academic institutions and non-governmental organizations, like University of Vermont’s Extension program, and federal groups, like the Natural Resources Conservation Service, along with planning and environmental commissions at the local level.
The organizations that Allen coordinates with to create the Tactical Basin Plan are the same ones that use it as a foundation to understand problems and implement clean water projects. One of the most notable of these organizations is the Clean Water Initiative Program, known as CWIP.
A year before the 2016 Total Maximum Daily Load (a document known as a TMDL that states how much phosphorus pollution Lake Champlain’s watershed needs to reduce) was approved by the Environmental Protection Agency, then-Gov. Peter Shumlin signed Act 64, Vermont’s Clean Water Act, into law.
With carrots, sticks, and a projected total price tag of $2 billion over a period of decades, Act 64 requires and incentivizes new procedures in each of the problematic sectors in the TMDL.
The Clean Water Initiative Program, which operates under the Department of Environmental Conservation, is tasked with implementing Act 64. Tactical Basin Planning is its main source of information.
Vermont has engaged in basin planning since the 1970s, but the 2016 TMDL and its intensive modeling (see Part I in last week’s Independent) gave the process more specificity. Basin planners now know exactly how much phosphorus their basins need to reduce — they’re working toward a goal, and that goal has never been more accurate or precise.
Ethan Swift, who oversees all of the basin planners as the head of the state’s Watershed Planning Program was formerly in charge of Allen’s basins, including the Otter Creek. He wrote Otter Creek’s last basin plan, which was published in 2012 (and is available to view on the state’s Tactical Basin Planning website).
Swift has seen the basin planning process evolve with the TMDL and passage of Act 64.
“It’s a much more comprehensive process now,” he said. “Of course, I felt back in 2012 that I had my fingers on a lot of the important data and assessments that were necessary to develop the plan at the time, but we have really refined our abilities to conduct robust assessments on all sectors, and that’s evolved significantly. The data that’s being collected and the projects being prioritized are much more explicit about what the environmental or corollary benefits may be. It speaks more to being able to achieve the target reductions that are anticipated for the Lake Champlain TMDL.”
On Oct. 4, Otter Creek’s new Tactical Basin Plan will become available for a 30-day public comment period, marking the first update to the plan since Act 64 was written into law.

In Bristol, on a rainy day in May, Allen and Swift stood atop what looked like a massive pile of earthy rubble. The chunk of land, referred to by the state as Elephant Mountain Gully, sloped precipitously downward toward a tributary of the New Haven River, which eventually empties into the Otter Creek.
The pile, made of logs and boulders, was not rubble at all, but rather a carefully engineered stabilizer for the gully, which had previously funneled runoff from 15 acres of surrounding farmland into the river.
With that runoff, the slope of the gully had channeled 75 tons of soil per year into the river over a period of 20 years — 1,485 metric tons total.
“We refer to these as puking gullies,” Swift said. “All of the soil that was here is highly erodible — it’s sandy, silty stuff — and it got mobilized into this stream.”
The Addison County River Watch Collaborative, a team of citizen scientists who meticulously document water quality data in the lower Otter Creek watershed, had documented high phosphorus and turbidity levels near this gully, likely caused by both the farm runoff and soil erosion.
What’s more, the gully swelled during heavy rains and would flood onto Route 116 in Bristol, creating a public health hazard. Several years ago, the gully became so problematic that the Agency of Transportation brought it to the attention of Swift, Otter Creek’s basin planner at the time.
With the Agency of Transportation, Swift pulled together a team that included the Otter Creek Natural Resource Conservation District, Vermont Youth Conservation Corps crew, a local contractor and the landowner. Together, they positioned 15,000 cubic yards of boulders and dozens of giant logs to stabilize the gully.
The project cost $35,000. Those funds came from the Clean Water Initiative Program (CWIP).
Gesturing to the mass of logs and rocks, Swift explained how the jumbled structure slows the water, allowing soil to infiltrate before washing into the river.
So far, the project, which was completed in 2016, seems to be doing its job. “We’re not seeing soil get mobilized anymore,” he said. “It used to be that you could look down there, and the floodplain and river bank was covered with fresh soil all the time.”
Basin planners assess problems like these, come up with solutions, and refer them to staff from other state agencies who respond with funding. The Interagency Clean Water Initiative (ICWI) is made up of state government branches like the Agency of Agriculture, the Agency of Transportation and the Agency of Natural Resources, which houses CWIP. Planners then report on these projects in their Tactical Basin Plans.  

Since Act 64 passed, clean water projects are constantly being implemented across the state. Funding comes from CWIP and other branches of state government, but almost all of them have passed through the basin planning process.
Some, like the gully stabilization project, reinforce roads and stream banks. Some provide funding to farmers so they can better manage their nutrients and handle manure properly. Some involve de-constructing dams built centuries ago that concentrate large bundles of nutrients in one place.
From there, CWIP works on a statewide level to track all of the state funds used to clean water. Projects are categorized by basin, then by sectors like “agriculture” and “developed land.”
In an evolving effort, CWIP is tracking the exact amount of phosphorus that projects reduce in each sector. (See sidebar.) Though that kind of accounting is not available yet for all types of projects, it will be soon, as mandated by Act 76, which was passed during the most recent legislative session.        
Act 76 allocates 6 percent of Vermont’s rooms and meals tax to the Clean Water Fund, which is expected to generate about $50 million annually after 2021 to pay for clean water projects. It also frees the state to use funds other than capital dollars for water cleanup efforts, and it requires CWIP to report on exact reductions in phosphorus associated with spending.
Emily Bird, manager of CWIP, says being able to account for phosphorus reduction helps the state know where to improve, and helps the public know whether the efforts are working.
“It’s going to take a lot of time for water bodies like Lake Champlain, that are so massive and have so many other influencing factors, to respond to all the great work that’s going on,” she said. “So it gives this interim hope of, yes, we are making progress, to help provide that feedback loop to the public.”
It’s a challenging goal — to be able to look at a mass of boulders and logs, for example, and provide the exact amount of phosphorus pollution it will remove from the water that passes through it.
According to CWIP’s latest investment report, from 2016 to 2018, the state put $66 million toward clean water projects in the Lake Champlain Basin. Of that, $8.9 million went to the Otter Creek watershed. As a result, Basin 3 has reduced its phosphorus loading to the creek by 269.5 measurable kilograms per year (less than 1 percent of the annual reduction goal).
That might not sound like much, especially considering Basin 3’s load to Lake Champlain is measured in metric tons, not kilograms. To comply with Vermont’s Clean Water Act, the Otter Creek must reduce its load by 33 metric tons per year — 33,000 kilograms.
As the Clean Water Initiative Program develops better systems for tracking pollution removal, that number should increase. But state officials working on this problem know that reaching this goal will take decades.

Given the enormity of the task at hand, along with Vermont’s repeated and failed efforts to remediate the quality of Lake Champlain (see Part I), there is some doubt that the state’s efforts are effective, much discussion about how things could be done differently, and skepticism that the goals can be reached at all.
James Ehlers, the president of an environmental advocacy organization called Lake Champlain International, is one of the most outspoken critics of the state’s plan. He’s been following the efforts for decades, and is the first to admit that he has a “different take than most” on these issues.
“It’s a joke,” he said of Act 64. “This is a fool’s errand. If politicians were acting on the science, we’d have a moratorium on development, we’d be investing in infrastructure, and we’d be supporting family farms. We would be banning the use of the chemicals — the atrazine and the glyphosate (herbicides). We’re not even close to addressing the problem.”
Ehlers believes that Vermont needs to regulate farming more strictly, and believes the TMDL’s goals do not reach far enough to curb pollution. He often cites the Law of Conservation of Mass — mass is neither created nor destroyed — making the point that if nutrients continue to be imported, they will throw the balance of our natural system off-kilter.
Ehlers is not the state’s only critic. On July 15, State Auditor Doug Hoffer published a report criticizing the recent spending efforts of the state. His office, whose mission is to hold the government accountable, produced a non-official audit of the Interagency Clean Water Initiative.
The report, titled “Where’s the Money Flowing? Cost Effectiveness of Lake Champlain Clean Water Efforts,” concluded that current clean water investments are not cost-effective.
“The Legislature charged the Clean Water Board with achieving ‘the greatest water quality gain for the investment,’” the report reads, “and these investments do not seem to meet this charge.”
The non-official audit makes the assertion that CWIP must be able to draw a straight arrow from spending to pollution reduction, something the program can only half-accomplish right now because of their developing ability to track the results of their projects.
But a back-and-forth correspondence between the auditor and state officials at the end of the non-audit, which takes up 10 pages of the 40-page report, raises important context.
To understand the nuances of the non-audit, it’s important to understand the data it cites. The auditor uses what’s called the Clean Water Roadmap Tool, which is more down-scaled than the TMDL data, and is intended to help basin planners look at watersheds from multiple angles.
The Roadmap Tool focuses only on non-point sources, like agriculture. It excludes wastewater and in-channel erosion from its data set.
“The SAO used Clean Water Roadmap Tool source estimates because the Tool’s land-use sector classifications and geographic units of analysis more closely correspond with State clean water expenditure data,” the report reads.
The Otter Creek Basin is dominated by agricultural land, so the phosphorus it appears to produce skyrockets in the non-audit. Data used in the TMDL says agriculture in Basin 3 produces 68.9 metric tons of phosphorus per year; the non-audit says agriculture produces 106.6 metric tons.
“Approximately 30 percent of phosphorus (in the Lake Champlain Basin) flows from the Otter Creek watershed, which includes most of Addison County and areas of Rutland County near Route 7,” the non-audit states.
These circumstances make the funding allocated to agriculture in the Otter Creek look woefully inadequate compared to the size of the problem. The report says agriculture makes up 67 percent of the basin’s phosphorus loading (while the TMDL says agriculture accounts for 50 percent of Basin 3’s loading), while the state only spent 38 percent of the basin’s funds there between 2016 and 2018.
According to state officials, the report’s suggestion that all state funds should be spent on the most cost-effective sectors isn’t realistic — the EPA and Vermont Clean Water Act mandates that the state carry out clean water projects in all sectors.
Emily Boedecker, commissioner of the Department of Environmental Conservation, included the following in a response to the auditor’s report: “The Report fails to acknowledge the broader statutory and regulatory framework that governs the work of the Clean Water Initiative Program. The failure to consider this context offers readers a false choice — suggesting that some of the less cost-effective investments are optional and could and should be reprogrammed.”
To make matters even trickier, Eric Smeltzer, the state’s leading lake scientist when the efforts to compile the TMDL began, says that the state has been pushing the very thing the auditor is suggesting for decades.
In the non-audit, Hoffer points out that revising wastewater treatment facilities is too costly, and says the state should instead put funds toward agriculture, which is much more cost-effective.
“The state auditor’s findings about the relatively poor cost-effectiveness of removing more phosphorus from wastewater came as no surprise to those of us at Vermont DEC who worked on the development of the TMDL,” Smeltzer wrote in an email.
At the time, the DEC found that it would cost $300 million-$600 million to update wastewater facilities to meet ultra-low targets. So the state pushed back at the EPA, asking it to limit further requirements in the wastewater sector to more developed areas where the most cost-effective improvements could be made.
“This is why facilities in the Otter Creek watershed like Middlebury and Vergennes are not required by the TMDL to upgrade their phosphorus treatment systems beyond what they already have in place,” Smeltzer said.
After the EPA issued the TMDL in 2016, the state’s wastewater discharge permits were challenged again by the Conservation Law Foundation, which wanted to see stricter wastewater allocations.
“So while the Auditor’s conclusions about the poor cost-effectiveness of additional wastewater phosphorus projects are valid,” Smeltzer said, “I think the report is unfairly critical of the state agencies responsible for carrying out what are obligations imposed by the EPA, and the findings regarding wastewater policy are a little late to the party.”
CWIP Manager Emily Bird notes that an official audit, conducted by a third party, will be released in January of 2021.
“As an agency, we’re not trying to debate the findings,” Bird said. “We understand what they were trying to accomplish, and this transparency is so important. We absolutely own the need to fill these gaps and continue to improve on our reporting.”
In the report’s last paragraph, the auditor states that 95 percent of clean water expenditures “did not yield any measurable reduction in phosphorus.”
But, in interviews with state officials, it became clear that this 95 percent represents a gap in the state’s ability to track phosphorus reduction, rather than what’s suggested: that implemented and ongoing projects don’t do anything for water quality at all.
Officials say it will take time to see the effects of how water quality projects change local waters, and longer to see a difference in Lake Champlain.
“It’s critical to show how we’re making progress in achieving our water quality goals,” Swift said. “It may take a long time before we see that work translated in the actual water quality data. I think that’s where continuing to track the number of these best management practices, these projects that get implemented on the ground, are going to be really key in showing some of the progress that’s being made.”
But critics like Ehlers believe that, as long as nutrients are imported into Lake Champlain’s basin, the lake’s water quality will never be remediated.
“We’re going to spend a lot of money, but what good is a buffer on a field that’s already been filled in as it was once a wetland?” he said.  “It’s absurd.”

Progress Implementing the Clean Water Initiative in the Otter Creek Basin from 2016-2018:
•  Agriculture: CWIP spend 38 percent of the Otter Creek’s funding on agricultural projects. It reports a reduction of 216 kilograms of phosphorus per year.
•  Natural Resources: These projects include buffer planting to bolster stream banks, restored floodplains and wetlands, improved river crossings and more. CWIP reports a 37.1-kilogram reduction in phosphorus loading per year from these efforts.
•  Developed Lands—Stormwater: CWIP has treated 12 acres of impervious surfaces, resulting in a 2.5-kilogram reduction in annual phosphorus loading to the Otter Creek.
•  Developed Lands—Roads: Improving drainage and limiting erosion has reduced phosphorus loading by 13.9 kilograms per year.
•  Wastewater Projects: One combined sewer overflow was avoided in the Otter Creek Basin, but the amount of phosphorus reduction is unknown.
• Overview: From 2016-2018, the state put $66 million towards clean water projects in the Lake Champlain Basin. Of that, $8.9 million went to the Otter Creek watershed. As a result, Basin 3 has reduced its phosphorus loading to the creek by 269.5 measurable kilograms per year (less than one percent of the annual reduction goal). To comply with Vermont’s Clean Water Act, the Otter Creek must reduce its load by 33 metric tons per year—33,000 kilograms.
(Read Part III here.)
(Giving Stream: Series home.)

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