The Struggle Between Man and Nature—Agriculture, Nonpoint Source Pollution, and Clean Water: How to Implement the State of Vermont's Phosphorous TMDL Within the Lake Champlain Basin

Abstract

This article provides an overview of the CWA and Section 303(d) of the U.S. Clean Water Act, examines case law interpreting the respective roles of the EPA and states in performing and implementing Total Maximum Daily Loads (TMDLs) for impaired waters, reviews other efforts and potential approaches for restoring impaired waterways, and suggests ways the State of Vermont can reduce pollutant loads identified by scientifically-based TMDL studies, specifically focusing on the Lake Champlain Basin. However, as illustrated in state political debates regarding approval and implementation of the State’s Phosphorus TMDL for Lake Champlain, there are few easy solutions to these problems.Part I of the article discusses nonpoint source pollution control under the CWA as applied within our federalist system of governance. Part II reviews Vermont’s Phosphorus TMDL for Lake Champlain (the Lake) approved by the EPA in 2002, evaluates the State’s efforts to implement the TMDL, and identifies existing agricultural nonpoint sources which continue to contribute heavily to the Lake’s impaired water quality, as well as current State regulations and programs related to agricultural nonpoint source pollution control. Part III evaluates legal mechanisms and systems of governance utilized, established, or contemplated by other states and local authorities, which could be adopted or used to further enhance existing State programs to address the continued agricultural nonpoint source (NPS) pollution within the Lake’s watershed. These programs include state and local land use planning and zoning measures; watershed-based natural resources planning, management, and regulation; mandatory agricultural best management practices, and whole farm conservation plans; taxation of agricultural inputs and byproducts which contribute to NPS pollution and property tax abatement for well-managed farmlands; and watershed-based pollution trading. Part IV provides final suggestions and remarks on ways that the State of Vermont and its citizens can successfully implement the 2002 Phosphorus TMDL to restore and maintain the Lake’s water quality.