Committee debates S.124 language on "waters" definition, CAFO permitting and stakeholder process

Legislative Council attorney Michael Grady walked the Natural Resources & Energy Committee through a revised draft of S.124 on April 3, focusing on definitions and structure for a CAFO (concentrated animal feeding operation) permitting framework. "So the the first change is on page 5. It's lines 5 through 8," Grady said as he reviewed line-by-line edits proposed for the bill.

The draft makes multiple technical and structural edits: it removes certain definitional language from statute that the committee discussed should instead live in rulemaking; it moves criteria for when a farm must hold a CAFO permit out of the definition section and into the permitting authority; and it standardizes language such as changing informal deadlines from "immediately" to "shall promptly." Grady noted cross-references to Title 10 and Title 6 definitions and recommended relying on the Title 10 provision that already brings federal "waters of the United States" into the state's definition.

Committee members and agency counsel discussed whether to include definitions such as "continuous discharge" and "daily discharge" in statute when they are not used elsewhere in the text. Catherine Gettsing, general counsel with Fish & Wildlife, and other participants suggested leaving terms to be defined in rulemaking where federal definitions or future regulatory changes would be easier to track.

A recurring issue was choice of legal definition for regulated waters. Agency staff and the committee debated whether to reference the federal Clean Water Act definition directly or to rely on the state's statutory definition that cross-references federal terms. Participants voiced concern that repeatedly changing federal definitions could create confusion; others said consistent reference to the Clean Water Act provides clarity for federal compliance.

The committee also discussed how the stakeholder process should be organized. Some witnesses asked for a focused pre-rulemaking stakeholder group limited to technical stakeholders and subject-matter experts (agricultural representatives, watershed groups, environmental organizations), with public comment preserved for later formal rulemaking phases. Several members suggested allowing subgroups to meet separately (for example, agriculture-sector meetings and environmental-sector meetings) and then convene plenary sessions to seek common ground.

Michael Grady and committee members noted that EPA will review corrective actions and will be engaged when ANR amends water quality standards. Committee members emphasized that the stakeholder group should focus on establishing a CAFO permitting program administered by ANR and on resources and technical assistance needed for farmers to achieve compliance.

The chair asked staff to take the proposed edits under advisement and return with a refined draft; members indicated a desire to continue work at a subsequent meeting and to post stakeholder materials to the committee website for review prior to the next session.