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H.527

Introduced by   Committee on Agriculture

Date:

Subject:  Agriculture; water quality; concentrated animal feeding operations

Statement of purpose:  This bill proposes to amend the agricultural water quality requirements for large, medium, and small farms.  The secretary of agriculture, food and markets is authorized to adopt accepted agricultural practices (AAPs) that prevent pollutants from entering groundwater.  The bill clarifies that a corrective action process required by statute applies only to violations of AAPs, and that the secretary of agriculture, food and markets may bring an enforcement action whenever a violation of the AAPs is suspected.  The secretary of agriculture, food and markets and the secretary of natural resources are required to develop a memorandum of understanding detailing implementation of the federal concentrated animal feeding operations (CAFO) program and the relationship between the requirements of the federal CAFO program and the state agricultural water quality requirements for large, medium, and small farms.  The secretary of agriculture, food and markets may require a medium or small farm to obtain an individual animal waste permit after review of the farm’s history of compliance, application of accepted agricultural practices, or other factors set by rule.  A small farm is authorized to apply for an individual medium farm animal waste permit or for coverage under the medium farm general animal waste permit.

The bill also prohibits any person from constructing or expanding a waste storage facility that does not meet the standards for such systems established by the Natural Resources Conservation Service (NRCS) or an equivalent standard certified by the secretary of agriculture, food and markets or a professional engineer.  The secretary of agriculture, food and markets may require a waste storage facility to meet NRCS standards or an equivalent standard if the system poses a threat to human health or the environment as established by a violation of state groundwater protection standardsThe secretary shall pay the costs of initial groundwater monitoring conducted to determine if a facility poses a threat to human health or the environment.  A farm required to design, construct, or reconstruct a waste storage facility may apply for a cost assistance grant of up to 85 percent of the costs of meeting the relevant standard.  If the state lacks adequate funding to provide cost assistance, the state facility design requirements are suspended for medium and small farms that are required to modify a waste storage facility because it poses a threat to human health or the environment.  The AAPs for groundwater also shall be suspended for a farm if the secretary is unable to provide adequate cost assistance to the farm to bring its waste storage facility up to NRCS standards or an equivalent standard due to a threat to human health or the environment.  Farms may also receive incentive grants to develop and implement nutrient management plans.  The incentive grants shall be awarded according to a priority order and regardless of the size of the farm.  The priority list shall be set according to factors that the secretary determines are relevant to protect the quality of the waters of the state.  The secretary of agriculture, food and markets may contract with natural resources conservation districts, the University of Vermont extension service, and others to implement the nutrient management incentive grants program.  The bill also provides the secretary of agriculture, food and markets with the authority to adopt groundwater contamination rules for large farms.  In addition, the bill delays the date by which the General Assembly must take action on proposed rules for animal waste permits for medium and small farms.

The bill also provides that the secretary of natural resources, pursuant to federal CAFO regulations, may require a large, medium, or small farm to obtain a national pollutant discharge elimination system (NPDES) permit when it discharges to state waters.  In addition, the state requirements for discharges of pathogenic waste, discharges of sewage into Class A waters, and indirect discharges do not apply to CAFOs.  The standards and criteria for the permitting of CAFOs shall be specified by federal regulation.  A stormwater discharge permit is not required for certain stormwater runoff from CAFOs.  Issuance of an NPDES permit voids a state individual animal waste permit or coverage of a medium farm under the state general animal waste permit.

AN ACT RELATING TO AGRICULTURAL WATER QUALITY

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  6 V.S.A. § 4810 is amended to read:

§ 4810.  AUTHORITY; COOPERATION; COORDINATION

(a)  Agricultural land use practices.  In accordance with 10 V.S.A. § 1259(i), the secretary shall adopt by rule, pursuant to chapter 25 of Title 3, and shall implement and enforce agricultural land use practices in order to reduce the amount of agricultural pollutants entering the waters of the state.  These agricultural land use practices shall be created in two categories, pursuant to subdivisions (1) and (2) of this subsection.

(1)  “Accepted Agricultural Practices” (AAPs) shall be standards to be followed in conducting agricultural activities in this state.  These standards shall address activities which have a potential for causing pollutants to enter the groundwater and waters of this the state, including dairy and other livestock operations plus all forms of crop and nursery operations.  The AAPs shall include, promote, and encourage practices for farmers in preventing pollutants from entering the groundwater and waters of the state when engaged in, but not limited to, animal waste management and disposal, soil amendment applications, plant fertilization, and pest and weed control.  Persons engaged in farming, as defined in section 6001 of Title 10, who follow these practices shall be presumed to be in compliance with water quality standards.  AAPs shall be practical and cost effective to implement.  The AAPs for groundwater, as they relate to a waste storage facility, shall be suspended for a farm with a waste storage facility subject to the requirements of subsection 4815(b) of this title when the secretary lacks adequate funds for cost assistance under subsection 4826(b) of this title.

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(b)  Cooperation and coordination.  The secretary of agriculture, food and markets shall coordinate with the secretary of natural resources in implementing and enforcing programs, plans and practices developed for reducing and eliminating agricultural non-point source pollutants and discharges from concentrated animal feeding operations.  The secretary of agriculture, food and markets and the secretary of natural resources shall develop a memorandum of understanding for the non‑point program describing program administration, grant negotiation, grant sharing and how they will coordinate watershed planning activities to comply with Public Law 92-500.  The secretary of agriculture, food and markets and the secretary of the agency of natural resources shall also develop a memorandum of understanding regarding the implementation of the federal concentrated animal feeding operation program and the relationship between the requirements of the federal program and the state agricultural water quality requirements for large, medium, and small farms under chapter 215 of this title.  The allocation of duties under this chapter between the secretary of agriculture, food and markets and the secretary of natural resources shall be consistent with the secretary’s duties, established under the provisions of section subsection 1258(b) of Title 10, to comply with Public Law 92-500.  The secretary of natural resources shall be the state lead person in applying for federal funds under Public Law 92-500, but shall consult with the secretary of agriculture, food and markets during the process.  The agricultural non-point source program may compete with other programs for competitive watershed projects funded from federal funds.  The secretary of agriculture, food and markets shall be represented in reviewing these projects for funding.  Actions by the secretary of agriculture, food and markets under this chapter concerning agricultural non-point source pollution shall be consistent with the water quality standards and water pollution control requirements of chapter 47 of Title 10 and the federal Clean Water Act as amended.

Sec. 2.  6 V.S.A. § 4812 is amended to read:

§ 4812.  CORRECTIVE ACTIONS

(a)  When the secretary of agriculture, food and markets determines that a person engaged in farming is managing a farm using practices which are inconsistent with practices defined by rules under this chapter subchapter, the secretary may issue a written warning which shall be served in person or by certified mail, return receipt requested.  The warning shall include a brief description of the alleged violation, identification of this statute and applicable rules, a recommendation for corrective actions that may be taken by the person, along with a summary of federal and state assistance programs which may be utilized by the person to remedy the violation and a request for an abatement schedule from the person according to which the practice shall be altered.  The person shall have 30 days to respond to the written warning.  If the person fails to respond to the written warning within this period or to take corrective action to change the practices in order to protect water quality, the secretary may act pursuant to subsection (b) of this section in order to protect water quality.

(b)  After an opportunity for a hearing, the secretary may issue cease and desist orders and institute appropriate proceedings on behalf of the agency to enforce this chapter subchapter.

(c)  Whenever the secretary believes that any person engaged in farming is in violation of this chapter subchapter, an action may be brought in the name of the agency in a court of competent jurisdiction to restrain by temporary or permanent injunction the continuation or repetition of the violation.  The court may issue temporary or permanent injunctions, and other relief as may be necessary and appropriate to curtail any violations.

(c)(d)  The secretary may assess administrative penalties in accordance with sections 15, 16, and 17 of this title against any farmer who violates a cease and desist order or other order issued under subsection (b) of this section.

(d)(e)  Any person subject to an enforcement order or an administrative penalty who is aggrieved by the final decision of the secretary may appeal to the superior court within 30 days of the decision.  The environmental judge shall be a specially assigned superior court judge for the purpose of hearing the appeal The administrative judge may specially assign an environmental judge to superior court for the purpose of hearing an appeal.

Sec. 3.  6 V.S.A. § 4813(b) is amended to read:

(b)  Any person engaged in farming that has been required by the secretary of agriculture, food and markets to implement best management practices or any person who has petitioned the secretary of agriculture, food and markets under subsection (a) of this section may appeal the secretary of agriculture, food and market’s decision to the water resources board environmental court de novo.

Sec. 4.  6 V.S.A. § 4815 is added to read:

§ 4815.  WASTE STORAGE FACILITY

(a)  No person shall construct a new waste storage facility or expand or modify a waste storage facility in existence on July 1, 2006 unless the facility meets the standard established for such facilities by the Natural Resources Conservation Service of the U.S. Department of Agriculture or an equivalent standard.  If an equivalent design standard is used, the design and construction shall be certified by the secretary of agriculture, food and markets or a licensed professional engineer operating within the scope of his or her expertise.

(b)  The secretary may require the owner or operator of a waste storage facility in existence on July 1, 2006, to modify the facility to meet the standard set forth in subsection (a) of this section if the facility poses a threat to human health or environment as established by a violation of the state groundwater protection standards.  If the secretary determines that a facility that meets the standard set forth in subsection (a) of this section poses a threat to human health or the environment, the secretary may require the owner or operator of the facility to implement additional management measures.  The costs of initial groundwater monitoring conducted to determine if a facility poses a threat to human health or the environment shall be paid by the secretary.

(c)  For purposes of this section, “waste storage facility” means an impoundment made for the purpose of storing agricultural waste by constructing an embankment, excavating a pit or dugout, fabricating an

in-ground or above-ground structure, or any combination thereof.

Sec. 5.  6 V.S.A. § 4826 is added to read:

§ 4826.  COST ASSISTANCE FOR WASTE STORAGE FACILITIES

(a)  The owner or operator of a farm required under section 4815 of this title to design, construct, or modify a waste storage facility may apply in writing to the secretary of agriculture, food and markets for cost assistance.  Using state or federal funds or both, a state assistance grant shall be awarded, subject to the availability of funds, to applicants.  Such grants shall not exceed 85 percent of the cost of an adequately sized and designed waste storage facility and the equipment eligible for Natural Resources Conservation Service cost share assistance.  Application for a state assistance grant shall be made in the manner prescribed by the secretary.  For purposes of this section, “waste storage facility” means an impoundment made for the purpose of storing agricultural waste by constructing an embankment, excavating a pit or dugout, fabricating an in-ground or above-ground structure, or any combination thereof.

(b)  If the secretary lacks adequate funds necessary for the cost assistance awards required by subsection (a) of this section, the design and construction requirements for waste storage facilities under subsection 4815(b) of this title shall be suspended until adequate funding becomes available.  Suspension of the design and construction requirements of subsection 4815(b) of this title does not relieve an owner or operator of a farm permitted under section 4858 of this title from the remaining requirements of the owner’s or operator’s permit, including discharge standards, groundwater protection, nutrient management planning, and land application of manure.  This subsection does not apply to farms permitted under section 1263 of Title 10 or farms permitted under section 4851 of this title.

Sec. 6.  6 V.S.A. § 4827 is added to read:

§ 4827.  NUTRIENT MANAGEMENT PLANNING; INCENTIVE GRANTS

(a)  A farm developing or implementing a nutrient management plan under chapter 215 of this title or federal regulations may apply to the secretary of agriculture, food and markets for financial assistance.  The financial assistance shall be in the form of incentive grants.  Annually, after consultation with the U.S. Department of Agriculture Natural Resources Conservation Service and others, the secretary shall determine the average cost of developing and implementing a nutrient management plan in Vermont.  The dollar amount of an incentive grant awarded under this section shall be equal to the average cost of developing a nutrient management plan as determined by the secretary or the cost of complying with the nutrient management planning requirements of chapter 215 of this title or federal regulations, whichever is less.

(b)  Application for a state assistance grant shall be made in a manner prescribed by the secretary and shall include, at a minimum:

(1)  an estimated cost of developing and implementing a nutrient management plan for the applicant;

(2)  the amount of incentive grant requested; and

(3)  a schedule for development and implementation of the nutrient management plan.

(c)  The secretary annually shall prepare a list of farms ranked, regardless of size, in priority order that have applied for an incentive grant under this section.  The priority list shall be established according to factors that the secretary determines are relevant to protect the quality of waters of the state, including:

(1)  the proximity of a farm to a water listed as impaired for agricultural runoff, pathogens, phosphorus, or sediment by the agency of natural resources;

(2)  the proximity of a farm to an unimpaired water of the state;

(3)  the proximity of a drinking water well to land where a farm applies manure; and

(4)  the risk of discharge to waters of the state from the land application of manure by a farm.

(d)  Assistance in accordance with this section shall be provided from state funds appropriated to the agency of agriculture, food and markets for integrated crop management.

(e)  The secretary may contract with natural resources conservation districts, the University of Vermont extension service, and other persons and organizations to aid in the implementation of the incentive grants program under subsection (a) of this section and to assist farmers in the development and implementation of nutrient management plans.

Sec. 7.  6 V.S.A. § 4850 is amended to read:

§ 4850.  DEFINITIONS

For purposes of this subchapter:

(1)  “Animal unit” means 1,000 pounds of live body weight of livestock. Animal units are calculated by adding the following numbers: the number of slaughter and feeder cattle multiplied by 1.0, plus the number of mature dairy cattle multiplied by 1.4, plus the number of swine weighing over 25 kilograms multiplied by 0.4, plus the number of sheep multiplied by 0.1, plus the number of horses multiplied by 2.0, for any large farm operation.

(2)(1)  “Domestic fowl” means laying-hens, broilers, ducks, and turkeys.

(3)(2)  “Livestock” means cattle, swine, sheep, or horses.

Sec. 8.  6 V.S.A. § 4851 is amended to read:

§ 4851.  PERMIT REQUIREMENTS FOR LARGE FARM OPERATIONS

(a)  No person shall, without a permit from the secretary, construct a new barn, or expand an existing barn, designed to house more than 700 mature dairy animals, 1,000 cattle or cow/calf pairs, 1,000 veal calves, 2,500 swine weighing over 55 pounds, 10,000 swine weighing less than 55 pounds, 500 horses, 10,000 sheep or lambs, 55,000 turkeys, 30,000 laying hens or broilers with a liquid manure handling system, 82,000 laying hens without a liquid manure handling system, 125,000 chickens other than laying hens without a liquid manure handling system, 5,000 ducks with a liquid manure handling system, or 30,000 ducks without a liquid manure handling system.  No permit shall be required to replace an existing barn in use for livestock or domestic fowl production at its existing capacity.  The secretary of natural resources may require a large farm to obtain a permit under section 1263 of Title 10 pursuant to federal regulations for concentrated animal feeding operations.

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(d)  A person seeking a permit under this section shall apply in writing to the secretary.  The application shall include a description of the proposed barn or expansion of animal units livestock or domestic fowl; a proposed nutrient management plan to accommodate the number of livestock or domestic fowl the barn is designed to house or expand to; and a description of the manure management system to be used to accommodate agricultural wastes.

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Sec. 9.  6 V.S.A. § 4852 is amended to read:

§ 4852.  RULES

The secretary may adopt rules pursuant to chapter 25 of Title 3 concerning program administration, program enforcement, appeals and standards for waste management and waste storage, groundwater contamination, odor, noise, traffic, insects, flies, and other pests in order to implement this subchapter.  In no case shall the rules be stricter than the federal regulations when adjusted where appropriate to 95 percent of the federal threshold governing concentrated animal feeding operations, as set forth in the EPA Guide Manual on NPDES Regulations and in EPA Document 833-B-95-001 of December, 1995.

Sec. 10.  6 V.S.A. § 4858 is amended to read:

§ 4858.  ANIMAL WASTE PERMITS

* * *

(b)  Rules; general and individual permits.  The secretary shall establish by rule, pursuant to chapter 25 of Title 3, requirements for a “general permit” and “individual permit” to ensure that medium and small farms generating animal waste comply with the water quality standards of the state.

(1)  “General” and “individual” permits issued under this section shall be consistent with rules adopted under this section, shall include terms and conditions appropriate to each farm size category and each farm animal type as defined by section 4857 of this title and shall meet standards at least as stringent as those established by the U.S. Environmental Protection Agency for concentrated animal feeding operations, as set forth in USEPA National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations; Final Rule, 68 Fed. Reg. 7176 (2004)(to be codified at 40 C.F.R. Parts 9, 122, 123, 68, and 412) federal regulations for concentrated animal feeding operations.  Such standards shall address waste management, waste storage, development of nutrient management plans, carcass disposal, and surface water and groundwater contamination, plus recordkeeping and reporting regarding such matters.

(c)(1)  Medium farm general permit.  The owner or operator of a medium farm seeking coverage under a general permit adopted pursuant to this section shall certify to the secretary within a period specified in the permit, and in a manner specified by the secretary, that the medium farm does comply with permit requirements regarding an adequately sized and designed manure management system to accommodate the wastes generated and a nutrient management plan to dispose of wastes in accordance with accepted agricultural practices adopted under this chapter.

(2)  The owner or operator of a small farm may seek coverage under the medium farm general permit adopted pursuant to this section by certifying to the secretary, in a manner specified by the secretary, that the small farm complies with the requirements and conditions of the medium farm general permit.

(d)  Medium and small farms; individual permit.  Upon determination by the secretary that a medium or small farm may be a significant contributor of pollutants to the waters of the state, the secretary may require the farm to obtain an individual permit in order to continue in operation  The secretary may require the owner or operator of a small or medium farm to obtain an individual permit to operate after review of the farm’s history of compliance, application of accepted agricultural practices, or other factors set forth by rule.  The owner or operator of a small farm may apply to the secretary for an individual permit to operate under this section.  To receive such a an individual permit, an applicant shall in a manner prescribed by rule demonstrate that the farm has an adequately sized and designed manure management system to accommodate the wastes generated and a nutrient management plan to dispose of wastes in accordance with accepted agricultural practices adopted under this chapter, including setback requirements for waste application.  An individual permit shall be valid for no more than five years.  The secretary of natural resources may require a medium or small farm to obtain a permit under section 1263 of Title 10 pursuant to federal regulations for concentrated animal feeding operations.  Coverage of a medium farm under a general permit adopted pursuant to this section or an individual permit issued to a medium or small farm under this section is rendered void by the issuance of a permit to a farm under section 1263 of Title 10.

* * * Agency of Natural Resources * * *

Sec. 11.  10 V.S.A. § 1259(f) is amended to read:

(f)  The provisions of subsections (c), (d), and (e) of this section shall not regulate accepted agricultural or silvicultural practices, as such are defined by the secretary of agriculture, food and markets and the commissioner of forests, parks and recreation, respectively, after an opportunity for a public hearing; nor shall these provisions regulate discharges from concentrated animal feeding operations that require a permit under section 1263 of this title; nor shall those provisions prohibit stormwater runoff or the discharge of nonpolluting wastes, as defined by the board.

Sec. 12.  10 V.S.A. § 1263(g) is added to read:

(g)  Notwithstanding any other provision of law, any person who owns or operates a concentrated animal feeding operation that requires a permit under the federal National Pollutant Discharge Elimination System permit regulations shall submit an application to the secretary for a discharge permit and pay the required fees specified in 3 V.S.A. § 2822.  The substantive permitting standards and criteria used by the secretary to evaluate applications and issue or deny discharge permits for concentrated animal feeding operations shall be those specified by federal regulations.  The secretary may issue an individual or general permit for these types of discharges in accordance with the procedural requirements of subsection (b) of this section and other state law.  For the purposes of this subsection, “concentrated animal feeding operation” means a farm that meets the definition contained in the federal regulations.

Sec. 13.  10 V.S.A. § 1264(e)(2) is amended to read:

(2)  As one of the principal means of administering an enhanced stormwater program, the secretary may issue and enforce general permits.  To the extent appropriate, such permits shall include the use of certifications of compliance by licensed professional engineers practicing within the scope of their engineering specialty.  The secretary may issue general permits for classes of regulated stormwater runoff permittees and may specify the period of time for which the permit is valid other than that specified in subdivision 1263(d)(4) of this title when such is consistent with the provisions of this section.  General permits shall be adopted and administered in accordance with the provisions of subsection 1263(b) of this title.  No permit is required under this section for:

(A)  stormwater Stormwater runoff from farms subject to accepted agricultural practices adopted by the secretary of agriculture, food and markets;

(B)  Stormwater runoff from concentrated animal feeding operations that require a permit under subsection 1263(g) of this chapter; or

(C)  for stormwater Stormwater runoff from silvicultural activities subject to accepted management practices adopted by the commissioner of forests, parks and recreation.

Sec. 14.  Sec. 9 of No. 149 of the Acts of the 2003 Adj. Sess. (2004) is amended to read:

Sec. 9.  RULEMAKING FOR MEDIUM AND SMALL FARM ANIMAL WASTE PERMITS

Before filing under section 836 of Title 3, the secretary of agriculture, food and markets shall report to the general assembly a proposal for rules required by subsection 4858(b) of Title 6.  The house and senate committees on agriculture shall review the proposed rules and recommend whether the rules shall be approved.  Absent action by the general assembly, the secretary may file the proposed rules with the secretary of state after 30 legislative days from the day of the report no earlier than May 1, 2005.

Sec. 15.  AGENCY OF AGRICULTURE WATER QUALITY OUTREACH, EDUCATION, AND TRAINING

(a)  Prior to February 2006, the agency of agriculture, food and markets shall develop educational and training programs and conduct public hearings to inform farmers in Vermont of the requirements of this act, the proposed general permit for medium farm operations, and the federal regulations for concentrated animal feeding operations.  In developing the education programs required by this section, the agency may utilize various types of media, group meetings, on-farm demonstrations, and one-on-one farm visits.

(b)  The agency of agriculture, food and markets, in consultation with the agency of natural resources, shall coordinate the training of staff from the natural resources conservation districts, the University of Vermont extension service, the Natural Resources Conservation Service, and other persons and organizations regarding the requirements of the state animal waste permit program and what may constitute a discharge from a concentrated animal feeding operation.

Sec. 16.  REPORT TO THE COMMITTEES ON AGRICULTURE

(a)  The agency of natural resources shall report to the house and senate committees on agriculture by January 15, 2006 concerning agency implementation of a National Pollutant Discharge Elimination System permit program for farms subject to the federal clean water act regulations for concentrated animal feeding operations.  The report shall include:

(1)  a summary of the status of the federal regulations;

(2)  a summary of the litigation challenging the federal regulations;

(3)  a summary of any revised rulemaking by the U.S. Environmental Protection Agency;

(4)  a recommendation by the agency of natural resources regarding the rules regulating discharges from concentrated animal feeding operations; and

(5)  a copy of the proposed memorandum of understanding for concentrated animal feeding operations required by section 4810 of Title 6 and a recommendation by the agency of natural resources regarding any need to amend the memorandum of understanding.

(b)  The agency of agriculture, food and markets shall report to the house and senate committees on agriculture by January 15, 2006 concerning the status of the state animal waste permit program.  The report shall include the status of rulemaking for the medium farm general permit and any pending or proposed rulemaking for large farms or accepted agricultural practices.  The report shall also include a summary of agency efforts to develop educational programs and conduct public hearings to inform farmers in Vermont of the requirements of this act, the proposed general permit for medium farm operations, and the status of the federal regulations for concentrated animal feeding operations.

Sec. 17.  EFFECTIVE DATE

This act shall take effect on passage.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us