Lawmakers weigh scope of CAFO regulation, buffers and emergency exemptions in S.124

Michael Grady, legislative counsel, told a Vermont legislative committee that advocates disagree sharply on how broadly the state should regulate concentrated animal feeding operations under draft bill S.124. "The environmental advocates say treat the Clean Water Act as the regulatory floor," Grady said, while some agency language would "treat the Clean Water Act requirements as the goal, as the ceiling of what you would have to do."

That basic choice — whether to limit CAFO permitting to discharges to waters of the United States (the federal Clean Water Act definition) or to the broader state definition of "waters of the state" — threaded through committee questions. Grady said the bill as passed by the Senate used "waters of the state," a definition that explicitly includes "waters of the United States," but the Agency of Agriculture has proposed narrowing the CAFO program to discharges to waters of the United States to make the program more implementable. Environmental advocates urged keeping the broader state definition.

Why the distinction matters: under the broader state definition, the Agency of Natural Resources (ANR) has primary permitting authority for discharges to waters of the state, but in practice ANR has rarely issued CAFO permits and most operations have been run through the agricultural regulatory program. Narrowing the scope to waters of the United States could reduce the number of features subject to CAFO permitting (for example, isolated ponds or ephemeral streams), but it also raises questions about which agency will regulate discharges that fall outside the federal definition. Grady warned the committee the agencies currently coordinate under an MOU based on the broader state definition, and shifting definitions could reopen that coordination question.

Committee members pressed for technical clarifications. Representative Burt asked about setback rules: Grady said the Required Agricultural Practices (RAPs) now require a 25-foot vegetated buffer between crops and surface water (top of bank) and 10 feet between ditches and crops; the federal CAFO-related restrictions can require a 100-foot setback for manure application or a 35-foot vegetated buffer, unless alternative practices are demonstrated. "They're going to have to prevent discharges. They're going to have to keep their animals out of the water," Grady said of what CAFO permits would require.

Members also discussed how ephemeral or private ponds are treated. Grady and other speakers distinguished navigable or interstate waters (waters of the United States) from mapped state wetlands and many headwater streams, which the state treats as waters of the state even if they may not be waters of the United States. The Winooski River and Otter Creek were cited as examples of waters clearly regulated at the federal level, while small, private ponds and some vernal wetlands are treated under state rules.

The hearing also addressed emergency and seasonal exemptions for land application of manure. S.124 would authorize the secretary to grant an emergency exemption in addition to the existing seasonal exemption (commonly covering roughly December'April timeframes). Grady noted the RAPs currently allow a secretary-granted seasonal exemption with detailed submittal requirements; the proposed statutory language for an emergency exemption lacks the same specificity. Several members asked whether the bill should tie statutory emergency authority to RAPs criteria so the secretary's discretion is exercised under the same procedures already used for seasonal exemptions.

Committee members raised citizen-suit risk under the Clean Water Act. Grady described the federal citizen-suit process and noted that before a citizen can sue, they must notify the enforcement authority and the authority has 45 days to initiate a diligent enforcement action; citizen suits are rare, he said, because agencies typically take enforcement first.

The committee also discussed administrative burden and compliance certification for certified small farms. Under the draft language, newly identified certified small farms would be required to submit a certification of compliance; after initial certification the secretary could require periodic certifications at the agency's discretion. Grady said about 200 certified small farms currently submit a two-page annual certification and that regulatory relief could reduce agency administrative load while preserving authority to require certifications as needed.

Finally, members asked about timing: S.124 calls for a document (a successor to an MOU) defining agency roles and responsibilities by a set date and also establishes a stakeholder process to develop the CAFO permit and report back. Grady said the September 1 delivery date for the agency document may be EPA-driven and that aligning the document delivery with the stakeholder group's timeline could merit discussion. He also advised the committee to expect a multiyear implementation process with statutory tweaks likely over two to three years as the permit and stakeholder input are finalized.

No formal motions or votes were taken during the hearing; the committee focused on clarifying statutory language and potential amendments to S.124 prior to later action.