Committee reviews S.124 changes that shift CAFO discharge determinations to ANR and clarify farm permit rules

Lawmakers and agency staff spent a committee meeting reviewing S.124, a bill that would amend Vermont’s agricultural water-quality statutes to align with U.S. Environmental Protection Agency (EPA) expectations for concentrated animal feeding operations (CAFOs) and to clarify how state farming permits are administered.

The committee examined provisions that make the Agency of Natural Resources (ANR) the lead determiner of whether a farm has an unpermitted discharge that triggers an EPA CAFO permit, change a previously required memorandum of understanding (MOU) into a different document referenced to ANR’s discharge authority, and spell out how large farm (LFO), medium farm (MFO) and CAFO permits interact. The changes also address buffers, seasonal and emergency exemptions for manure application, permit fees, and small-farm certification requirements.

Supporters said the text largely follows EPA guidance and is intended to preserve the state’s nonpoint-source program while clarifying roles between the Agency of Agriculture and ANR. Mike (committee counsel) summarized the core change: under S.124 the secretary of agriculture would “refer promptly” potential discharges discovered during permit review to ANR, and ANR would make the formal determination whether a CAFO permit is required. “Region 1 EPA is not a big office,” Mike said in the meeting, urging caution about any move to have EPA administer programs directly; he warned that delegating permitting to EPA could slow approvals and raise enforcement questions.

Why this matters: the bill affects which state office makes formal discharge determinations, which farms must obtain multiple permits, how buffer rules apply to farms determined to be CAFOs, and where permit fees are deposited. Those procedural changes could affect inspection practices, permit timing, and which state fund receives yearly permit revenue.

Key provisions and staff explanations

- Change in discharge determinations and the MOU: S.124 removes language requiring a memorandum of understanding and replaces it with a document, developed in consultation with EPA, that reflects ANR’s NPDES (National Pollutant Discharge Elimination System) authority. Under the draft language, when Agency of Agriculture staff reviewing an LFO or MFO application conclude the farm may have an unpermitted discharge, they must promptly refer that potential to ANR; ANR then determines whether a CAFO permit is required. If ANR determines no discharge, the file is returned to the Agency of Agriculture and regulation proceeds under the ag nonpoint-source program.

- LFO/MFO/CAFO interaction and dual permits: The committee reviewed how the statutes treat large and medium farm permits and CAFO permits. A farm determined to be a CAFO would generally need both the CAFO (discharge) permit administered by ANR and the LFO or MFO (land-use/nonpoint) permit administered by the Agency of Agriculture. The bill includes a provision to avoid double fees — if both permits are required, the $2,500 fee identified in statute would go to ANR for the CAFO permit rather than to the Agency of Agriculture’s Ag Water Quality Special Fund.

- Buffers and exemptions: The draft adds a sentence clarifying that the statutory minimum vegetated buffer does not apply to farms that ANR determines are CAFOs required to hold a CAFO permit; those farms would comply with setback and buffer requirements in federal CAFO regulations. The bill preserves existing statutory language distinguishing ditches that are not “surface waters” under state law and keeps the careful wording around subsurface tile drainage and hydrologic connectivity, which affects whether a water feature is regulated as a water of the state.

- Thresholds and definitions: The draft keeps EPA-consistent numeric thresholds for large, medium and small operations as set out in federal guidance. Committee counsel explained the numeric table (for example, the EPA-derived counts for laying hens under liquid and non-liquid manure handling systems) is taken from EPA definitions; the committee did not propose revising those thresholds in this session.

- Seasonal and emergency manure-application exemptions: Sections 5 and 6, discussed separately from the EPA-requested changes, set criteria for seasonal exemptions and emergency exemptions (such as structural failure or loss of storage capacity). Committee counsel explained the emergency exemption requires immediate justification and carries different documentation standards than the seasonal exemption, which needs more detailed supporting information.

- Small-farm certification: S.124 changes the certified small-farm annual certification requirement so that newly eligible operations (for example, those newly exceeding a 50-head threshold) must certify annually; existing, previously-identified small farms would be subject to certification only as the Agency requires. Staff described that change primarily as an administrative workload adjustment rather than a new water-quality requirement.

Questions and concerns raised

- Delegation vs. federal administration: Several members asked whether Vermont could or should cede permitting authority to EPA (sometimes described as “de-delegation”). Counsel and others warned that if EPA assumed direct permitting in the region, Region 1’s limited staff could slow permitting and potentially erode enforcement effectiveness, and that some farm and conservation constituents oppose de-delegation.

- Duplication and timing: Members noted duplication between permit-application requirements for construction/expansion and operational permits for LFOs/MFOs and discussed combining or streamlining the statutory text. Committee counsel acknowledged duplication but said eliminating it during this review was not necessary and suggested a later drafting clean-up.

- Common ownership and circumvention: The draft adds federal-conforming language to treat two or more farms under common ownership and that adjoin or that share waste-disposal areas as a single farm for threshold calculations to reduce circumvention. The committee discussed how non‑adjoining farms that nevertheless share manure-storage or application areas could be treated as one operation.

Numbers and funding mentioned in the meeting

- Permit thresholds cited from federal definitions (unchanged in the draft): examples discussed included the EPA table for laying hens (30,000 with liquid manure systems; 82 for the other category as presented in the draft table). Committee counsel said those figures come from the EPA definitions and the committee did not propose changing them in S.124. (The committee noted some participants find the table counterintuitive and suggested staff research for clarity.)

- Permit fees: current statute sets a $2,500 annual fee for an LFO payable to the Agency of Agriculture; ANR permit fees for CAFOs are deposited in the environmental/permit fund. S.124 directs that when both permits are required, fee allocation will avoid “double payment” to the Ag fund; ANR’s fee would go to the environmental permit fund.

- Budget context: committee counsel referenced larger funding for the Ag Water Quality Special Fund in the pending budget—citing roughly $11 million from multiple sources with about $3 million typically for staffing and the rest for grants and programs—but did not detail every line item.

Next steps

Committee members directed staff to continue review and to invite ANR program staff (the committee discussed asking ANR’s water management leads) if members want deeper technical briefing. The committee planned another meeting after the legislative floor session to consider any drafting changes (options discussed included a strike-all replacement or narrower, discrete amendments). Mike (committee counsel) and committee members said they were not proposing further changes to the EPA-consistent thresholds at that time.

Ending note: the meeting closed with scheduling plans and a brief note that House bill H.167 had passed its Senate committee and contains a $500,000 appropriation related to the topic discussed.