These Rules are adopted under the express authority of 6 V.S.A. chapter 215 subchapter 5 section 4858 and under 6 V.S.A. subchapter 1(a)(10). The Secretary is authorized to adopt rules under 3 V.S.A. chapter 25, for the implementation of the provisions of 6 V.S.A. chapter 215 subchapter 5.

Related statutes include 6 V.S.A. chapter 215 subchapter 5 sections: 4856 regarding recycling animal waste nutrients; 4857 regarding definitions; 4858 regarding animal waste permits; 4859 regarding public notice and hearings; 4860 regarding revocation and enforcement; and, 4861 regarding appeals.

Subchapter II. DECLARATION OF PURPOSE

These Rules establish procedures for administration, public notice and hearing, comment, enforcement, transition, revocation and appeals, as well as standards for the issuance of a Medium Farm Operation (MFO) General Permit, including conditions, procedures, and standards for the issuance of Individual Permits for MFOs as may be required under certain circumstances.

The General Permit will be designed to ensure that medium farms generating animal waste comply with Vermont’s water quality standards. Unless otherwise given notice by the Agency, all medium farms in Vermont are required to operate under the coverage and conditions of the General Permit.

The MFO general permitting program is designed to achieve the purpose of 6 V.S.A. chapter 215 subchapter 5. The Vermont Agency of Agriculture, Food and Markets intends that these Rules will establish a process for the issuance of a General Permit that will cause a Vermont MFO operator to manage a medium farm in a manner which achieves at least an equivalent technical standard as required by federal regulations.

Subchapter III. DEFINITIONS

25-year 24-hour Rainfall Event: means the maximum 24-hour precipitation event with a probable recurrence interval of once every 25 years, as defined by the National Weather Service in Technical Paper Number 40, “Rainfall Frequency Atlas of the United States”, May 1961 and subsequent amendments, or equivalent regional or state rainfall probability information developed therefrom.

AAPs: means the Vermont Accepted Agricultural Practice Regulations adopted pursuant to 6 V.S.A. Chapter 215.

AFO: means an animal feeding operation.

Animal Feeding Operation: means a lot or facility which has animals (other than aquatic animals) that have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12 month period, and crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility where animals are confined.

Two or more individual farms qualifying as an AFO which are under common ownership and which adjoin each other or use a common area or system for the disposal of animal waste, shall be considered to be a single AFO if the combined number of livestock or domestic fowl resulting qualifies as a medium farm as defined herein.

Agency: means the Vermont Agency of Agriculture, Food and Markets.

Animal Type: means livestock or domestic fowl type.

Certified Nutrient Management Planner: means an individual certified through the completion of the USDA/NRCS nutrient management certification process who creates, reviews, and modifies NMPs.

Conservation Practice: means a specific treatment used to address specific natural resources needs and can be structural, vegetative, or land management.

Cropland: means land devoted to row crop, perennial production, or pasture production.

Dirty Water: means precipitation or other water which has moved in, over or through a barnyard, manure, or other nutrient or pathogen laden matter, so that they have become co-mingled.

Discharge: means the placing, depositing, or emission of waste directly into surface water.

Domestic Fowl: means laying-hens, broilers, ducks, and turkeys.

Existing MFO: means an AFO meeting the definition of a MFO at the time the General Permit is issued.

Groundwater: means water below the land surface in a zone of saturation, but does not include surface waters.

Land Application Area: means land under the control of an AFO

owner or operator, whether it is owned, rented, or leased, to which wastes from the production area is or may be applied.

Livestock: means cattle, swine, sheep, horses, or other animal types as deemed by the Secretary.

MFO: means a Medium Farm Operation.

Medium Farm Operation: means an AFO which houses:

(i) 200 to 699 mature dairy cows, whether milked or dry;

(ii) 300 to 999 youngstock or heifers;

(iii) 300 to 999 veal calves;

(iv) 300 to 999 cattle or cow/calf pairs;

(v) 750 to 2,499 swine weighing over 55 pounds;

(vi) 3000 to 9,999 swine weighing less than 55 pounds;

(vii) 150 to 499 horses;

(viii) 3,000 to 9,999 sheep or lambs;

(ix) 16,500 to 54,999 turkeys;

(x) 9,000 to 29,999 laying hens or broilers with a liquid manure system;

(xi) 25,000 to 81,999 laying hens without a liquid manure handling system;

(xii) 1,500 to 4,999 ducks with a liquid manure handling system;

(xiii) 10,000 to 29,999 ducks without a liquid manure handling system; or,

(xiv) any other animal type and number that the Secretary may deem

New MFO: means an AFO meeting the definition of a MFO after the General Permit is issued.

NRCS: means United States Department of Agriculture (USDA) Natural Resources Conservation Service.

Nutrient Management: means managing the amount, form, placement, and timing of plant nutrient applications to obtain optimum forage and crop yields, minimize the entry of nutrients into waters of the state and groundwater, and optimize economic use of nutrients generated on and off the farm.

Nutrient Management Plan: means the system by which animal waste generation, storage, and use is handled for the purpose of obtaining optimum forage and crop yields including the relating management aspects of fertilizer nutrients, conservation practices, animal mortalities, clean water, chemical handling, waste and soil testing, and record keeping.

NMP: means nutrient management plan.

Pasture: means a confined area of perennial vegetation used for the grazing and confinement of animals.

Permit Decision: means a decision by the Secretary to issue a General Permit or permits, to issue a subsequent General Permit or permits, or to require a small farm to obtain an Individual Animal Waste Permit in order to continue in operation.

Permittee: means a person or business that has received a MFO General or Individual Permit.

Person: means:

(a) an individual, partnership, corporation, association, unincorporated organization, trust or other legal or commercial entity, including a joint venture or affiliated ownership; or

(b) a municipality or state agency; or

(c) individuals and entities affiliated with each other for profit, consideration or any other beneficial interest derived from agricultural land management.

Person Aggrieved: means a person who alleges an injury to a particularized interest where the injury is attributable to an act or decision by the Secretary under subchapter 5 of chapter 215 of title 6 and the injury can be redressed by the environmental court or the Supreme Court.

Production Area: means those parts of a MFO that includes the animal confinement area, the manure storage area, the raw materials storage area, and the waste containment areas. Also included in the definition of production area is any egg washing or egg processing facility, and any area used in the storage, handling, treatment, or disposal of mortalities.

Ruling: means a determination by the Secretary, after notice and an opportunity to be heard by a medium farm, that a medium farm is required to apply for and to obtain an Individual Animal Waste Permit in order to continue in operation, or a determination by the Secretary to deny an application by a medium farm for coverage under an Individual Animal Waste Permit.

Secretary: means the Secretary of the Agency of Agriculture, Food & Markets.

Small Farm Operation: means an AFO which houses no more than 199 mature dairy animals, 299 youngstock or heifers, 299 cattle or cow/calf pairs, 749 swine weighing over 55 pounds, 2,999 swine weighing less than 55 pounds, 149 horses, 2,999 sheep or lambs, 16,499 turkeys, 8,999 laying hens or broilers with a liquid manure handling system, 24,999 laying hens without a liquid manure handling system, 37,499 chickens other than laying hens without a liquid manure handling system, or 9,999 ducks without a liquid manure handling system.

Vermont Water Quality Standards: means the standards and criteria adopted by the Vermont Water Resources Board, pursuant to 10 V.S.A. Chapter 47 section 1252 (e).

Waste: means, for the purposes of these Rules, spoiled feed, manure, milkhouse waste, washwater, leachate, used bedding, carcasses, barnyard runoff, or other dirty water.

Waste Management System: means an on-farm waste management program and conservation practices which include, but are not limited to, a combination of:

1. an adequately sized waste storage facility, field stacking, composting, leachate control system, and milkhouse waste system;

2. contracts which transfer the ownership of wastes generated at a production area to another party for management in a manner determined by the Secretary; and/or,

3. a nutrient management plan (NMP) for all wastes to be applied in compliance with these Rules.

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.

Waters of the State: means, for the purpose of these Rules, all rivers, streams, creeks, brooks, reservoirs, ponds, lakes, springs, and all bodies of surface waters, artificial or natural, which are contained within, flow through or border the State or any portion of it.

Subchapter IV. COVERAGE UNDER THE MFO GENERAL ANIMAL WASTE PERMIT

A. After the conclusion of the MFO General Permit adoption process and final issuance of the MFO General Permit, no person shall operate a medium farm without authorization from the Secretary pursuant to 6 V.S.A. chapter 215 subchapter 5.

B. The following animal feeding operations shall seek coverage under the Medium Farm General Permit:

1. An existing animal feeding operation (AFO) meeting the definition of a Medium Farm Operation (MFO); or,

2. A new animal feeding operation (AFO) meeting the definition of a Medium Farm Operation (MFO).

C. A Medium Farm Operation seeking coverage under this General Permit is required to submit a Notice of Intent to Comply (NOIC) with the conditions as set forth within the General Permit. The NOIC must be received by the Agency no later than 180 days from issuance of the General Permit.

D. Prior to increasing the animal numbers to more than those defined by the MFO definition, a farm operation shall submit a NOIC in compliance with the conditions of the MFO General Permit.

E. 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 compiles with the requirements and conditions of the Medium Farm General Permit.

F. All farm operations seeking coverage under the Medium Farm General Permit shall receive written notification of permit coverage or denial.

G. The following situations may be exempt from the MFO General Permit requirements:

1. A farming operation that already operates under a MFO Individual Permit; or,

2. An operation that already operates under a LFO permit.

F. The following activities are prohibited under the coverage of this MFO General Permit:

1. Operation of a production area in a manner to cause a discharge to waters of the state, or to violate state groundwater standards.

Subchapter V. PUBLIC NOTIFICATION AND HEARING PROCESS FOR THE ADOPTION OF A DRAFT GENERAL ANIMAL WASTE PERMIT

A. Whenever the Secretary proposes to issue a General Permit for the regulation of animal wastes for medium or small farms he or she shall first prepare a draft permit for the purpose of receiving and considering public comment.

B. The following elements of the Draft MFO General Permit shall include, but not be limited to:

1. A Cover Page;

2. Effluent Limitations and Standards;

3. Monitoring and Reporting Requirements;

4. Record Keeping Requirements;

5. Special Conditions;

6. Standard Conditions;

7. Signatory Requirements;

8. Certification;

9. Availability of Reports;

10. Penalties for Violations of Permit Conditions; and,

11. Definitions.

C. The Draft General Permit shall contain at least the following information:

1. Conditions for required compliance with animal waste management standards and standards for waste management systems;

2. Standards for nutrient management planning;

3. Conditions for required compliance with record keeping;

4. Conditions for required compliance with inspection and monitoring; and,

5. Conditions for required compliance with implementation schedules.

D. Notification of the Preparation of the Draft General Permit

The Agency shall provide public notice of the preparation of a Draft MFO General Permit allowing at least 30 days for public comment.

The Agency shall provide notice of the preparation of a Draft MFO General Permit to the following:

a) State Office of the U.S. Corps of Engineers;

b) State Office of the U.S. Fish and Wildlife Service;

c) State Office of the U.S. Department of Agriculture Natural Resource Conservation Service;

d) Vermont Agency of Natural Resources;

e) Vermont Agency of Commerce and Community Affairs;

f) Persons on a mailing list developed by the Agency; and,

g) All town clerks in the State of Vermont.

3. Notice of the preparation of the Draft MFO General Permit will be placed in two (2) prominent Vermont newspapers. Included in the text of the public notice shall be the availability for viewing of the Draft MFO General Permit on the Agency homepage.

4. Additionally, the Agency may use any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

5. Public notice of the preparation of the Draft MFO General Permit may be combined with public notification of the initial 30 day comment period and the date and location of a public hearing.

6. A fact sheet for the Draft General Permit shall be prepared by the Agency and made available to the public accompanying the draft permit. The fact sheet shall include:

a) A brief description of the facilities and activities subject to the Draft General Permit;

b) A description of the waste, including manure, milkhouse waste, washwater, leachate, used bedding, carcasses, barnyard runoff, and dirty water, which is subject to regulation under these Rules;

c) A list of the significant conditions of the Draft General Permit;

d) A brief summary of the basis of the Draft General Permit;

e) A description of the procedures for reaching a final decision on the Draft General Permit;

f) The beginning and ending dates of the comment period;

g) Procedures by which the public may participate; and,

h) The name, address and telephone number of a person from whom interested persons may obtain further information, including copies of the Draft General Permit and a fact sheet.

E. Public Comments and Hearing Requests

1. During the initial 30 day public comment period, any person may submit written comments on the Draft MFO General Permit.

2. All persons who believe any condition of the Draft MFO General Permit is inappropriate must raise all reasonable ascertainable issues and submit all reasonable arguments supporting their position by the close of the public comment period.

3. The Secretary may extend the public comment period at his or her discretion whenever, for instance, such comments might clarify one or more issues involved in the permit discussion or expedite the issuance process. Notice of an extended comment period shall be posted on the Agency homepage.

4. At the time of issuance of the MFO General Permit, the Agency shall issue a response to comments raised during the comment period, or hearing(s), specifying which provisions, if any, have been changed and the reasons for the changes, and a brief description and response to all significant comments.

F. Public Hearings

1. The Secretary shall hold a public hearing for the adoption of the Draft General Permit.

2. Public Hearing Procedures

a) The purpose of the hearing shall be to provide an opportunity for the public to learn about the conditions of the General Permit and provide comments to the Agency.

b) The Agency shall find locations for the public hearing and schedule the public hearing meeting.

c) The Agency shall provide public notice of the hearing date and location at least 30 days prior.

d) Notice of the preparation of the hearing date and location will be placed in two (2) prominent Vermont newspapers and will indicate the presence of the Draft General Permit on the Agency homepage. Additionally, the Agency may use any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

e) The published advertisement shall be at least two (2) columns wide by three (3) inches high.

f) Public notice of the hearing may be combined with public notification of the prepared Draft MFO General Permit and initial comment period.

g) Any person may submit oral or written statements and data concerning the Draft MFO General Permit.

h) Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required.

i) The Secretary may designate a Presiding Officer who shall be responsible for facilitating the hearing to ensure, to the extent possible, full participation by attendees.

j) The public hearings shall be recorded and transcripts made available at cost to the public upon written request to the Secretary.

k) The Agency will receive public comments for at least 30 days following the hearing.

l) All persons who believe any condition of the Draft MFO General Permit is inappropriate should raise all reasonable ascertainable issues and submit all reasonable arguments supporting their position by the close of the public comment period.

m) Following the 30 day comment period, the revised Draft MFO General Permit will be placed on the Agency’s homepage.

n) Public hearings shall be held in handicapped accessible locations.

Subchapter VI. ISSUANCE AND DURATION OF THE MFO GENERAL ANIMAL WASTE PERMIT

A. After the close of the public comment period, the Secretary shall issue the MFO General Permit. The MFO General Permit shall be in affect immediately after the Secretary’s signature and dating.

B. The MFO General Permit will remain in affect for a period of five (5) years from the date of issuance.

C. Transfer of an MFO permit

1. A MFO may transfer General Permit coverage with the sale or lease of a farm. Written notification shall be made by the original permittee to the Agency within 10 days of that transaction. Written notification shall include a statement signed by the new owner or lessee which indicates that the new owner or lessee understands and agrees to comply with the conditions of the transferred MFO permit.

2. The new owner or lessee shall notify the Secretary in writing within 30 days of that transaction, describing any proposed changes in operation or facilities, or the lack thereof. No change in animal type is allowed to occur without a full review of the operation by the Agency.

Subchapter VII. ISSUANCE OF AN INDIVIDUAL ANIMAL WASTE PERMIT FOR MEDIUM FARM OPERATIONS

A. Upon determination of any of the following circumstances, the Secretary may require a Medium Farm Operation to apply for and obtain an Individual Medium Farm Operation Permit:

1. A determination by the Secretary that a MFO is not in compliance with the conditions of the General Permit;

2. A determination by the Secretary that a MFO has had a history of non-compliance and continues not to be in compliance with AAPs;

3. A determination by the Secretary that a MFO owner or operator is using unproven experimental technology;

4. A determination by the Secretary that a field is no longer acceptable for spreading or spray irrigation of wastes, thereby requiring site specific conditions;

5. A determination by the Secretary that the nutrient application rates need to be adjusted, thereby requiring site specific conditions; and,

6. A determination by the Secretary that implementation of a NMP may result in an unpermitted discharge to waters of the state.

B. Process for Secretary’s Determination for Issuance of a Ruling Concerning Requirements for an Individual Permit for a Medium Farm Operation

1. Upon determination by the Secretary that an Individual Permit for a MFO is warranted, the Agency will notify the owner or operator in writing by certified mail, or in person, that an application for an Individual Permit is required.