Legislative staff outline S.124 changes shifting CAFO permitting authority to ANR, set implementation deadlines

Legislative counsel and lawmakers on the House Agriculture, Food Resiliency, & Forestry Committee and the House Environment Committee on Thursday reviewed S.124, a Senate "miscellaneous agriculture" bill that would change which state agency leads permitting and enforcement for concentrated animal feeding operations (CAFOs) to meet U.S. Environmental Protection Agency (EPA) expectations.

Committee members heard that the federal Clean Water Act and EPA rules require states that run NPDES permit programs to implement CAFO permitting. "The Federal Clean Water Act requires states, that are delegated to implement, the NPDES permit program to to implement those programs," said Mike, legislative counsel, summarizing the federal context and EPA's prior CAFO rulemaking.

The bill responds to an EPA finding that the state was not adequately implementing the CAFO permitting program. According to legislative counsel, EPA told the Agency of Natural Resources (ANR) it needed corrective action after advocates petitioned EPA alleging inadequate enforcement. "EPA agreed with them. EPA agreed that ANR was not properly enforcing or requiring discharge permits or discharges at concentrated animal feeding operation," Mike said, and EPA reviewed draft legislation ANR supplied that is largely before the committees now as S.124.

Why shift authority: under current practice the Agency of Agriculture, Food Resiliency, & Forestry (the agency of agriculture) has been issuing written determinations about whether a farm is discharging; EPA objects to that arrangement and has required ANR to be the lead on direct discharges. Mike said the bill strikes repeated references to a memorandum of understanding (MOU) and instead requires a public, EPA-consistent document that defines roles and responsibilities between ANR and the agency of agriculture.

Key provisions explained to the committees include:

- Permitting primacy: ANR would be established as the primary agency to administer federal CAFO/NPDES discharge permitting and would have authority to designate an animal feeding operation (AFO) as a CAFO "in the secretary's sole discretion." The bill would require ANR to adopt a CAFO general permit and issue it by Dec. 15, 2025, with implementation by July 1, 2026.

- Definitions and thresholds: the draft follows federal-style thresholds: large operations are shown as 700 or more mature dairy animals (or federal equivalents), medium operations 200–699 mature dairy animals, and small operations below that. The bill also includes anti-circumvention language treating two or more adjoining or commonly owned AFOs as a single operation for permitting.

- Buffer and setback alignment: CAFOs subject to ANR permitting would follow federal setback/buffer requirements for manure application (federal rules include a 100-foot setback for manure application subject to alternatives), rather than the state's existing RAPs buffer minimums (25 feet for top-of-bank to water, 10 feet from a ditch), unless the operator demonstrates an alternative practice.

- Nutrient management and public applications: farms required to obtain CAFO permits would have to submit site-specific nutrient management plans (NMPs) as part of an ANR application; those plans would be part of the public record. Mike warned the committees that NMPs "are hundreds of pages long" and that the bill does not specify how ANR will make them practically available.

- Inspections, access and discretion: ANR would be able to inspect AFOs and CAFOs and require documentation; legislative counsel said ANR staff "would be calling ahead" and scheduling inspections rather than "just ... walking on to farms," though the bill gives ANR authority to access private property for inspections and take photographs.

- Fees and permit structure: the bill prevents double-fee obligations where a farm would otherwise pay separate agency fees; a farm subject to an ANR CAFO permit would pay the applicable ANR CAFO fee (the existing large-farm fee cited in discussion is $2,500). CAFO permits would be issued for five-year terms.

- Transition and stakeholder process: the bill creates a community stakeholder group to advise on implementation and transition; the group is required to report back by Feb. 15, 2026. ANR must post the roles-and-responsibilities document for public comment and reissue it every five years.

Debate and capacity questions: lawmakers pressed whether ANR has staff and funding to implement the program. Representative Austin asked specifically, "Does ANR have the funding to reach capacity to implement this program?" Mike said ANR identified staffing and funding needs in its response to EPA and "were requesting some of those in this year's appropriations bill," but he did not have current appropriation results at the briefing.

Other committee members pressed how federal and state differences could affect farms, citing concerns about differing standards across states and Lake Champlain nutrient-reduction obligations. Mike noted Vermont's Lake Champlain TMDL and said that changing the regulatory program could implicate TMDL load-reduction requirements.

What the bill does not change: the agency of agriculture would retain its existing large-farm (LFO) permitting authority over land-use matters tied to large farms (noise, dust, pests, etc.), but if the agency of agriculture identifies a potential discharge while reviewing LFO or medium-farm applications it must promptly refer the matter to ANR for a CAFO determination.

No formal committee action or votes occurred at the briefing. The committees agreed to continue taking testimony from ANR and agency-of-agriculture staff and other witnesses, and members were reminded that the bill's proposed effective date in the draft language is July 2025.

The committees scheduled further review and stakeholder engagement as part of the transition process; no statutory amendments were adopted at the briefing itself.