EPA finds Vermont’s ANR not fully implementing CAFO permit program; Legislature faces policy choice

Mike O'Grady, legislative counsel, briefed a legislative committee on federal and state water-quality law and the recent dispute between the U.S. Environmental Protection Agency and Vermont over how agricultural discharges are regulated.

O'Grady said EPA concluded that the Agency of Natural Resources, the delegated NPDES authority for Vermont, “was not appropriately implementing the [CAFO] program” and required corrective action. “ANR personnel must inspect all potentially jurisdictional farms to determine if a CAFO permit is required,” he said, summarizing EPA’s findings and required steps.

Why it matters: EPA’s finding bears directly on the Lake Champlain total maximum daily load (TMDL) and the state’s Clean Water Initiative. The TMDL distributes required pollutant reductions across point sources (permitted discharges) and nonpoint sources such as agricultural runoff; if one program changes, the state must show the TMDL’s required load reductions will still be achieved.

How the law works: O'Grady explained that the Clean Water Act allows EPA to delegate NPDES permitting to states and that Vermont has long used two parallel approaches: ANR’s NPDES authority and an agricultural nonpoint program administered by the Agency of Agriculture. He said EPA’s 2003 CAFO rule and subsequent guidance encouraged states to use agricultural agencies and voluntary measures for medium and small operations, but that EPA also expects delegated states to issue permits where an actual discharge occurs.

Scope of EPA’s corrective order: According to O'Grady’s account of EPA’s letter, EPA told ANR to inspect potentially jurisdictional farms, review nutrient-management plans, track permitting/monitoring/enforcement comprehensively, enforce against farms discharging without permits, ensure adequate staffing, and seek any statutory or regulatory authority necessary to implement the program. EPA asked for a reasonable but expeditious corrective-action timeline.

State response and options for the Legislature: ANR’s written response, as described to the committee, commits to joint inspections with the Agency of Agriculture, shared data management, review of nutrient-management plans, development of an updated Vermont CAFO rule, and requests for any needed statutory or regulatory authority. Advocates, O'Grady said, have urged transferring the entire Agricultural Water Quality authority from the Agency of Agriculture to ANR; he cautioned that EPA can order ANR to implement the permit program better or withdraw delegation, but EPA cannot itself transfer statutory agency duties — that would be a legislative policy decision.

Technical and program details discussed: - CAFO definition and thresholds: O'Grady summarized federal definitions: a “production area” includes areas with animals confined 45 days or more; size categories cited in the briefing put large dairies roughly at 700 or more animals, medium at about 200–699, and small below that. He said medium and large CAFOs with actual discharges generally need an NPDES permit. - Agricultural stormwater exemption: When manure or fertilizer is applied according to site-specific nutrient-management plans that meet NRCS standards (commonly NRCS standard 590), those applications are typically treated as agricultural stormwater and are exempt from discharge permitting unless they result in an actual discharge. - Example of one-time discharge vs. ongoing discharge: O'Grady described a past incident in which a custom applicator’s equipment tipped and manure entered Lake Champlain. He said that kind of event is a discharge, and agencies must decide whether one-time incidents trigger permit requirements or are handled through enforcement and corrective actions. - Public participation and transparency: An NPDES CAFO permit carries more formal public review, and nutrient-management plans would be part of the permit record if ANR issues CAFO permits.

Funding and progress: The Clean Water Fund supports the state’s implementation plan. O'Grady noted the fund receives revenue from a property-transfer tax surcharge, a portion of meals-and-rooms tax revenues, and unclaimed beverage-container deposits and observed the fund provides roughly $45–$50 million a year to clean-water programs. He said state reporting shows agriculture has accounted for a substantial share of measured load reductions under the Clean Water Initiative, though year-to-year numbers can fluctuate with weather.

What the committee asked and next steps: Committee members asked for clarification on definitions (for example, what constitutes a CAFO), on the relative contributions of wastewater and agricultural sources to phosphorus loads, and on which agency enforces municipal permits. O'Grady said ANR has the delegated authority for municipal and industrial NPDES permits, while the Agency of Agriculture administers the agricultural nonpoint program; the agencies have an MOU intended to coordinate enforcement. He told the committee that ANR’s corrective-action response was under review by EPA and that the Legislature could be asked to consider statutory or budget changes depending on EPA’s determination and ANR’s proposed fixes.

No formal motions or votes were recorded during the briefing. The committee scheduled time to continue questions and follow-up in a future session.

Ending note: O'Grady urged the committee to weigh policy options, including whether to clarify statutory authority or preserve the two-agency arrangement with strengthened coordination and resources, and said the choice of how to respond to EPA’s objection is ultimately a policy decision for the General Assembly.