Committee reviews bill clarifying ANR, Agency of Agriculture roles after EPA concerns

A legislative committee reviewed a miscellaneous agriculture bill designed to clarify how the Agency of Natural Resources (ANR) and the Agency of Agriculture will share responsibilities for farm water-quality regulation, committee counsel Michael O'Grady said during a Feb. 28 meeting.

The bill responds to concerns raised to the U.S. Environmental Protection Agency (EPA) — including a petition from the Conservation Law Foundation (CLF) — that ANR was not adequately implementing federal Clean Water Act permitting for concentrated animal feeding operations (CAFOs). The measure keeps separate state programs but directs ANR to lead implementation of federal CAFO (NPDES) permitting while the Agency of Agriculture continues to administer the state's agricultural water-quality program for nonpoint-source runoff and farmer-facing services.

Michael O'Grady, committee counsel, said the legislation replaces a memorandum-of-understanding framework with a written document that will set each agency's role and require them to “continue to cooperate” as ANR implements federal CAFO responsibilities. O'Grady said the change is intended to address EPA's corrective-action direction while preserving the Agency of Agriculture's farmer-facing programs and technical assistance.

Laura DiPietro, director of the Agency of Agriculture’s water-quality division, clarified that buffer requirements in the agency's rules apply to cropland — for example, between cropland and a ditch or stream — and do not require moving existing infrastructure. “So it doesn't apply if there's any infrastructure that is in place that is not the stuff that needs to be buffered,” DiPietro said.

Key provisions described during the committee walkthrough include: - Replacing language that required an interagency memorandum of understanding with a requirement that the agencies issue a document describing their respective roles in implementing federal CAFO (NPDES) permitting and the state's agricultural water-quality programs. - Confirming ANR will take the lead for inspections, permitting, and enforcement tied to federal CAFO authority while the Agency of Agriculture will continue to operate farmer-facing programs (grant/engineering assistance, cost-share programs, small-farm certification and RAPs enforcement) aimed at preventing discharges. - Conforming statutory language across the agricultural water-quality chapters and aligning state definitions with federal CAFO rule definitions adopted in 2005 (including updated references to liquid manure handling systems and common ownership aggregation rules used to determine thresholds). - Adjusting small-farm certification procedures so the agency can require newly-identified eligible small farms to submit certifications and may require annual certification where circumstances warrant; the intent is to reduce administrative burden where a farm is known to be out of business or otherwise unreachable.

The counsel noted that, under current practices, large farm operations (LFOs) would continue to have active inspections and be subject to ANR permitting where discharges are identified. The bill also contains fee and permit clarifications: the committee was told the current large-farm operation fee to the Agency of Agriculture is $2,500 per year and that there are not yet any active "K4" permits under the new inspection approach described in the draft.

Committee discussion addressed logistics and enforcement dynamics, including whether Agency of Agriculture staff would accompany ANR on every inspection and how frequently ANR would inspect large farms. O'Grady said ANR “is gonna have to have a more proactive program” and that EPA has directed ANR to inspect, review nutrient management plans and look for on-farm discharges.

The committee did not take a final vote on this bill during the meeting; members agreed to reconvene after the committee’s recess to continue work and to consider conforming changes elsewhere in state code (including suggested edits to Title 10 definitions and related provisions). Ending the discussion, the committee scheduled further markup after the break and thanked agency staff for their participation.

The transcript shows the discussion began when the committee chair introduced the miscellaneous agriculture bill and concluded when the committee moved on to consider S.60 and other items on the agenda.