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Title 6: Agriculture

Chapter 215: Agricultural Water Quality

Subchapter 001: General Provisions
§ 4801. Purpose; State policy

It is the purpose of this chapter to ensure that agricultural animal wastes do not enter the waters of this State. Therefore, it is State policy that:

(1) All farms meet certain standards in the handling and disposal of animal wastes, as provided by this chapter, and the cost of meeting these standards shall not be borne by farmers only but rather by all members of society, who are in fact the beneficiaries. Accordingly, State and federal funds shall be made available to farms, regardless of size, to defray the major cost of complying with the requirements of this chapter. State and federal conservation programs to assist farmers should be directed to those farms that need to improve their infrastructure to prohibit direct discharges or bring existing water pollution control structures into compliance with U.S. Department of Agriculture (U.S.D.A.) Natural Resources Conservation Service standards. Additional resources should be directed to education and technical assistance for farmers to improve the management of agricultural wastes and protect water quality.

(2) Officials who administer the provisions of this chapter:

(A) shall educate farmers and other affected citizens on requirements of this chapter through an outreach collaboration with farm associations and other community groups;

(B) shall, in the process of rendering official decisions, afford farmers and other affected citizens an opportunity to be heard and give consideration to all interests expressed; and

(C) may provide grants from a program established under this chapter to eligible Vermont municipalities, local or regional governmental agencies, nonprofit organizations, and citizen groups in order to provide direct financial assistance to farms in implementing conservation practices. (Added 2003, No. 149 (Adj. Sess.), § 2, eff. June 3, 2004; amended 2013, No. 83, § 10, eff. June 10, 2013.)
§ 4802. Definitions

As used in this chapter:

(1) “Agency” means the Agency of Agriculture, Food and Markets.

(2) “Farming” has the same meaning as used in 10 V.S.A. § 6001(22).

(3) “Good standing” means a participant in a program administered under this chapter:

(A) does not have an active enforcement violation that has reached a final order with the Secretary; and

(B) is in compliance with all terms of a current grant agreement or contract with the Agency.

(4) “Healthy soil” means soil that has a well-developed, porous structure, is chemically balanced, supports diverse microbial communities, and has abundant organic matter.

(5) “Manure” means livestock waste in solid or liquid form that may also contain bedding, spilled feed, water, or soil.

(6) “Secretary” means the Secretary of Agriculture, Food and Markets.

(7) “Top of bank” means the point along the bank of a stream where an abrupt change in slope is evident, and where the stream is generally able to overflow the banks and enter the adjacent floodplain during an annual flood event. Annual flood event shall be determined according to the Agency of Natural Resources’ Flood Hazard Area and River Corridor Protection Procedure.

(8) “Waste” or “agricultural waste” means material originating or emanating from a farm or imported onto a farm that is determined by the Secretary or the Secretary of Natural Resources to be harmful to the waters of the State, including sediments; minerals, including heavy metals; plant nutrients; pesticides; organic wastes, including livestock waste; animal mortalities; compost; feed, and crop debris; waste oils; pathogenic bacteria and viruses; thermal pollution; silage runoff; untreated milk house waste; and any other farm waste as the term “waste” is defined in 10 V.S.A. § 1251(12).

(9) “Water” has the same meaning as used in 10 V.S.A. § 1251(13).

(10) “Agricultural activities” means the operation and management of an entity engaged in farming, including all those activities defined as “farming” in this chapter, “agricultural activity” in 12 V.S.A. § 5752, and all of the following:

(A) selling agricultural products at roadside stands or farm markets;

(B) the generation of noise, odors, dust, fumes, and other associated conditions;

(C) the composting of material principally produced by the farm or to be used at least in part on the farm;

(D) the ditching and subsurface drainage of farm fields and the construction of farm ponds;

(E) the handling of livestock wastes and by-products;

(F) the operation of farm machinery and equipment, including irrigation and drainage systems, pumps, and on-farm grain dryers;

(G) the movement of farm vehicles, machinery, equipment, and products and associated inputs on the roadway;

(H) field preparation, crop protection, and ground and aerial seeding and spraying;

(I) the on-site storage and application of agricultural inputs, including lime, fertilizer, organic materials, conditioners, and pesticides;

(J) the use of alternative pest management techniques;

(K) the management, storage, transport, utilization, and application of farm by-products, including manure or agricultural wastes;

(L) the expansion of farming practices or agricultural activities on a farm or the change or conversion of farming practices or agricultural activities to other farming practices or agricultural activities on a farm; and

(M) the employment, use, and housing of farm labor. (Added 2003, No. 149 (Adj. Sess.), § 2, eff. June 3, 2004; amended 2015, No. 64, § 2; 2019, No. 64, § 5; 2021, No. 162 (Adj. Sess.), §§ 2, 10, eff. June 1, 2022.)
§ 4803. Agricultural Water Quality Special Fund

(a) There is created the Agricultural Water Quality Special Fund to be administered by the Secretary of Agriculture, Food and Markets. Fees collected under this chapter, including fees for permits or certifications issued under the chapter, shall be deposited in the Fund.

(b) The Secretary may use monies deposited in the Fund for the Secretary’s implementation and administration of agricultural water quality programs or requirements established by this chapter, including to pay salaries of Agency staff necessary to implement the programs and requirements of this chapter.

(c) Notwithstanding the requirements of 32 V.S.A. § 588(3), interest earned by the Fund shall be retained in the Fund from year to year. (Added 2015, No. 64, § 5a.)

Subchapter 002: Water Quality; Required Agricultural Practices and Best Management Practices
§ 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 3 V.S.A. chapter 25, and shall implement and enforce agricultural land use practices in order to satisfy the requirements of 33 U.S.C. § 1329 that the State identify and implement best management practices to control nonpoint sources of agricultural waste to waters of the State. These agricultural land use practices shall be created in two categories, pursuant to subsections (b) and (c) of this section.

(b) Required Agricultural Practices. Required Agricultural Practices (RAPs) shall be management standards to be followed by all persons engaged in farming in this State. These standards shall address activities that have a potential for causing agricultural pollutants to enter the groundwater and waters of the State, including dairy and other livestock operations plus all forms of crop and nursery operations and on-farm or agricultural fairground, registered pursuant to 20 V.S.A. § 3902, livestock and poultry slaughter and processing activities. The RAPs shall include, as well as promote and encourage, practices for farmers in preventing agricultural pollutants from entering the groundwater and waters of the State when engaged in animal waste management and disposal, soil amendment applications, plant fertilization, and pest and weed control. Persons engaged in farming who are in compliance with these practices shall be presumed to not have a discharge of agricultural pollutants to waters of the State. RAPs shall be designed to protect water quality and shall be practical and cost-effective to implement, as determined by the Secretary. Where the Secretary determines, after inspection of a farm, that a person engaged in farming is complying with the RAPs but there still exists the potential for agricultural pollutants to enter the waters of the State, the Secretary shall require the person to implement additional, site-specific on-farm conservation practices designed to prevent agricultural pollutants from entering the waters of the State. When requiring implementation of a conservation practice under this subsection, the Secretary shall inform the person engaged in farming of the resources available to assist the person in implementing the conservation practice and complying with the requirements of this chapter. The RAPs for groundwater shall include a process under which the Agency shall receive, investigate, and respond to a complaint that a farm has contaminated the drinking water or groundwater of a property owner. A farmer may petition the Secretary to reduce the size of a perennial buffer or change the perennial buffer type based on site-specific conditions.

(c) Best management practices. Best management practices (BMPs) are site-specific on-farm conservation practices implemented in order to address the potential for agricultural pollutants to enter the waters of the State. The Secretary may require any person engaged in farming to implement a BMP. When requiring implementation of a BMP, the Secretary shall inform a farmer of financial resources available from State or federal sources, private foundations, public charities, or other sources, including funding from the Clean Water Fund established under 10 V.S.A. § 1388, to assist the person in implementing BMPs and complying with the requirements of this chapter. BMPs shall be practical and cost effective to implement, as determined by the Secretary, and shall be designed to achieve compliance with the requirements of this chapter. The Secretary may require soil monitoring or innovative manure management as a BMP under this subsection. Soil monitoring or innovative manure management implemented as a BMP shall be eligible for State assistance under the Clean Water Fund established under 10 V.S.A. chapter 47, subchapter 7. If a perennial buffer of trees or other woody vegetation is required as a BMP, the Secretary shall pay the farmer for a first priority easement on the land on which the buffer is located.

(d) 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 nonpoint source pollutants and discharges from concentrated animal feeding operations. On or before July 1, 2016, the Secretary of Agriculture, Food and Markets and the Secretary of Natural Resources shall revise the memorandum of understanding for the nonpoint program describing program administration, grant negotiation, grant sharing, and how they will coordinate watershed planning activities to comply with Pub. L. No. 92-500. The memorandum of understanding shall describe how the agencies will implement the antidegradation implementation policy, including how the agencies will apply the antidegradation implementation policy to new sources of agricultural nonpoint source pollutants. The Secretary of Agriculture, Food and Markets and the Secretary of Natural Resources shall also develop a memorandum of understanding according to the public notice and comment process of 10 V.S.A. § 1259(i) 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 this chapter. The memorandum of understanding shall describe Program administration, permit issuance, an appellate process, and enforcement authority and implementation. The memorandum of understanding shall be consistent with the federal National Pollutant Discharge Elimination System permit regulations for discharges from concentrated animal feeding operations. 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 10 V.S.A. § 1258(b), to comply with Pub. L. No. 92-500. The Secretary of Natural Resources shall be the State lead person in applying for federal funds under Pub. L. No. 92-500 but shall consult with the Secretary of Agriculture, Food and Markets during the process. The agricultural nonpoint 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 nonpoint source pollution shall be consistent with the water quality standards and water pollution control requirements of 10 V.S.A. chapter 47 and the federal Clean Water Act as amended. In addition, 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 the proper management of composting facilities when those facilities are located on a farm. On or before January 15, 2016, the Secretary of Agriculture, Food and Markets and the Secretary of Natural Resources shall each develop three separate measures of the performance of the agencies under the memorandum of understanding required by this subsection. Beginning on January 15, 2017 and annually thereafter, the Secretary of Agriculture, Food and Markets and the Secretary of Natural Resources shall submit separate reports to the Senate Committee on Agriculture, the House Committee on Agriculture, Food Resiliency, and Forestry, the Senate Committee on Natural Resources and Energy, and the House Committee on Environment and Energy regarding the success of each agency in meeting the performance measures for the memorandum of understanding. (Added 1991, No. 261 (Adj. Sess.), § 4; amended 2003, No. 42, § 2, eff. May 27, 2003; 2003, No. 149 (Adj. Sess.), § 4, eff. June 3, 2004; 2005, No. 78, § 1, eff. June 24, 2005; 2007, No. 38, § 13, eff. May 21, 2007; 2009, No. 141 (Adj. Sess.), § 3b, eff. June 1, 2010; 2015, No. 64, § 12; 2017, No. 113 (Adj. Sess.), § 35.)
§ 4810a. Required Agricultural Practices; revision

(a) The Secretary of Agriculture, Food and Markets shall maintain the Required Agricultural Practices in order to improve water quality in the State, ensure practices on all farms eliminate adverse impacts to water quality, and implement the small farm certification program required by section 4871 of this title. At a minimum, the Required Agricultural Practices shall:

(1) Specify those farms that:

(A) are required to comply with the small farm certification requirements under section 4871 of this title due to the potential impact of the farm or type of farm on water quality as a result of livestock managed on the farm, agricultural inputs used by the farm, or tillage practices on the farm; and

(B) shall be subject to the Required Agricultural Practices but shall not be required to comply with small farm certification requirements under section 4871 of this title.

(2)(A) Except as authorized under subdivision (C) of this subdivision (2), prohibit a farm from stacking or piling manure, storing fertilizer, or storing other nutrients on the farm:

(i) in a manner and location that presents a threat of discharge to a water of the State or presents a threat of contamination to groundwater; or

(ii) on lands in a floodway or otherwise subject to annual flooding.

(B) Except as authorized under subdivision (C) of this subdivision (2), manure stacking or piling sites, fertilizer storage, or other nutrient storage shall not be located within 200 feet of a private well or within 200 feet of a water of the State.

(C) The Secretary may authorize one or more of the following:

(i) siting of manure stacking or piling sites, fertilizer storage, or other nutrient storage within 200 feet, but not less than 100 feet, of a private well or surface water if the Secretary determines that the site is the best available site on the farm for the purposes of protecting groundwater quality or surface water quality; and

(ii) siting of a waste storage facility within 200 feet of a surface water or private well if the site is the best available site on the farm for the purposes of protecting groundwater quality or surface water quality and the waste storage facility is designed by a licensed engineer to meet the requirements of section 4815 of this title.

(3) Require the construction and management of barnyards, waste management systems, animal holding areas, and production areas in a manner to prevent runoff of waste to a surface water, to groundwater, or across property boundaries.

(4) Establish standards for nutrient management on farms, including:

(A) required nutrient management planning on all farms that manage agricultural wastes; and

(B) recommended practices for improving and maintaining soil quality and healthy soils in order to increase the capacity of soil to retain water, improve flood resiliency, reduce sedimentation, reduce reliance on fertilizers and pesticides, and prevent agricultural stormwater runoff.

(5) Require cropland on the farm to be cultivated in a manner that results in an average soil loss of less than or equal to the soil loss tolerance for the prevalent soil, known as 1T, as calculated through application of the Revised Universal Soil Loss Equation or through the application of similarly accepted models.

(6)(A) Require a farm to comply with standards established by the Secretary for maintaining a vegetative buffer zone of perennial vegetation between annual croplands and the top of the bank of an adjoining water of the State. At a minimum the vegetative buffer standards established by the Secretary shall prohibit the application of manure on the farm within 25 feet of the top of the bank of an adjoining water of the State or within 10 feet of a ditch that is not a surface water under State law and that is not a water of the United States under federal law.

(B) Establish standards for site-specific vegetative buffers that adequately address water quality needs based on consideration of soil type, slope, crop type, proximity to water, and other relevant factors.

(7) [Repealed.]

(8) Regulate, in a manner consistent with the Agency of Natural Resources’ flood hazard area and river corridor rules, the construction or siting of a farm structure or the storage of manure, fertilizer, or pesticides within a river corridor designated by the Secretary of Natural Resources.

(9) Establish standards for the exclusion of livestock from the waters of the State to prevent erosion and adverse water quality impacts.

(10) Establish standards for soil conservation practices such as cover cropping.

(11) Allow for alternative techniques or practices, approved by the Secretary, for compliance by an owner or operator of a farm when the owner or operator cannot comply with the requirements of the Required Agricultural Practices due to site-specific conditions. Approved alternative techniques or practices shall meet State requirements to reduce adverse impacts to water quality.

(b) The Secretary of Agriculture, Food and Markets shall maintain the Required Agricultural Practices in order to include requirements for reducing nutrient contribution to waters of the State from subsurface tile drainage. Upon adoption of requirements for subsurface tile drainage, the Secretary may require an existing subsurface tile drain to comply with the requirements of the RAPs for subsurface tile drainage upon a determination that compliance is necessary to reduce adverse impacts to water quality from the subsurface tile drain.

(c) The Secretary shall amend the Required Agricultural Practices to include requirements for activities occurring in areas that are excluded from regulation by the Agency of Natural Resources under 10 V.S.A. § 902 because the area is used to grow food or crops in connection with farming activities. (Added 2015, No. 64, § 4; amended 2015, No. 105 (Adj. Sess.), § 1, eff. May 12, 2016; 2017, No. 113 (Adj. Sess.), § 36; 2019, No. 64, § 6.)
§ 4811. Powers of Secretary

The Secretary of Agriculture, Food and Markets in furtherance of the purposes of this chapter may:

(1) Make, adopt, revise, and amend reasonable rules that define practices described in section 4810 of this title as well as other rules deemed necessary to carry out the provisions of this chapter.

(2) Appoint assistants, subject to applicable laws, to perform or assist in the performance of any duties or functions of the Secretary under this chapter.

(3) Enter any lands, public or private, and review and copy any land management records as may be necessary to carry out the provisions of this chapter.

(4) Sign memorandums of understanding between agencies when the Secretary of Agriculture, Food and Markets agrees it is necessary for the success of the program.

(5) Solicit and receive federal or private funds.

(6) Cooperate fully with the federal government or other agencies in the operation of any joint federal-state programs concerning the regulation of agricultural nonpoint source pollution.

(7) Establish programs to improve agricultural water quality.

(8) Provide grants or contracts from agricultural water quality programs established under this chapter, or by the Secretary of Agriculture, Food and Markets, for the purpose of providing technical and financial assistance in preventing agricultural pollution from entering groundwater and waters of the State, provided that the Secretary shall only use capital funding available to the Agency for water quality programs or projects that are eligible for capital assistance. (Added 1991, No. 261 (Adj. Sess.), § 4; amended 2003, No. 42, § 2, eff. May 27, 2003; 2019, No. 64, § 7.)
§ 4812. Repealed. 2015, No. 64, § 18.
§ 4813. Basin management; appeals to the Environmental Division

(a) The Secretary of Agriculture, Food and Markets shall cooperate with the Secretary of Natural Resources in the basin planning process with regard to the agricultural nonpoint source waste component of each basin plan. Any person with an interest in the agricultural nonpoint source component of the basin planning process may petition the Secretary of Agriculture, Food and Markets to require, and the Secretary may require, best management practices in the individual basin beyond Required Agricultural Practices adopted by rule, in order to achieve compliance with the water quality goals in 10 V.S.A. § 1250 and any duly adopted basin plan. The Secretary of Agriculture, Food and Markets shall hold a public hearing within 60 days and shall issue a timely written decision that sets forth the facts and reasons supporting the decision.

(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 Markets’ decision to the Environmental Division de novo.

(c) When requiring implementation of a best management practice, the Secretary shall inform a farmer of the resources available to assist the farmer in implementing the best management practice and complying with the requirements of this chapter. (Added 1991, No. 261 (Adj. Sess.), § 4; amended 2003, No. 42, § 2, eff. May 27, 2003; 2005, No. 78, § 3, eff. June 24, 2005; 2009, No. 154 (Adj. Sess.), § 236; 2015, No. 64, § 14.)
§ 4814. Education and technical assistance

The Secretary of Agriculture, Food and Markets may:

(1) Develop educational programs dealing with agricultural nonpoint source reduction, with the assistance of other organizations, utilizing various types of media, group meetings, tours, on-farm demonstrations, and one-on-one farm visits.

(2) Provide technical assistance, or contract for services to provide technical assistance, to qualified persons engaged in farming for reducing agricultural nonpoint source pollution. (Added 1991, No. 261 (Adj. Sess.), § 4; amended 2003, No. 42, § 2, eff. May 27, 2003.)
§ 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 the engineer’s 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 the environment. 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.

(c) If the Secretary suspects that a waste storage facility may be contaminating groundwater, the Secretary shall pay the costs of any initial groundwater monitoring to determine whether a facility poses a threat to human health or the environment. Within 21 days after a determination under this subsection that a facility poses a threat to human health or the environment because of apparent violation of the Groundwater Protection Standards, the Secretary of Agriculture, Food and Markets shall notify the Department of Health and the Secretary of Natural Resources of the location of the facility and the name of its owner or operator.

(d) As used in 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 inground and aboveground structure, or any combination thereof. (Added 2005, No. 78, § 4, eff. June 24, 2005; amended 2015, No. 39, § 1; 2021, No. 162 (Adj. Sess.), § 3, eff. June 1, 2022.)
§ 4816. Seasonal application of manure

(a) Prohibition on application. A person shall not apply manure to land in the State between December 15 and April 1 of any calendar year unless authorized by this section.

(b) Extension of prohibition. The Secretary of Agriculture, Food and Markets shall amend the Required Agricultural Practices by rule in order to establish a process under which the Secretary may prohibit the application of manure to land in the State between December 1 and December 15 and between April 1 and April 30 of any calendar year when the Secretary determines that due to weather conditions, soil conditions, or other limitations, application of manure to land would pose a significant potential of discharge or runoff to State waters.

(c) Seasonal exemption. The Secretary of Agriculture, Food and Markets shall amend the Required Agricultural Practices by rule in order to establish a process under which the Secretary may authorize an exemption to the prohibition on the application of manure to land in the State between December 15 and April 1 of any calendar year or during any period established under subsection (b) of this section when manure is prohibited from application. Any process established for the issuance of an exemption under the Required Agricultural Practices may authorize land application of manure on a weekly, monthly, or seasonal basis or in authorized regions, areas, or fields in the State, provided that any exemption shall:

(1) prohibit application of manure:

(A) in areas with established channels of concentrated stormwater runoff to surface waters, including ditches and ravines;

(B) in nonharvested permanent vegetative buffers;

(C) in a nonfarmed wetland, as that term is defined in 10 V.S.A. § 902(5);

(D) within 50 feet of a potable water supply, as that term is defined in 10 V.S.A. § 1972(6);

(E) to fields exceeding tolerable soil loss; and

(F) to saturated soils;

(2) establish requirements for the application of manure when frozen or snow-covered soils prevent effective incorporation at the time of application;

(3) require manure to be applied according to a nutrient management plan; and

(4) establish the maximum tons of manure that may be applied per acre during any one application. (Added 2013, No. 159 (Adj. Sess.), § 15.)
§ 4817. Management of non-sewage waste

(a) As used in this section:

(1) “Non-sewage waste” means any waste other than sewage that may contain organisms pathogenic to human beings but does not mean stormwater runoff.

(2) “Sewage” means waste containing human fecal coliform and other potential pathogenic organisms from sanitary waste and used water from any building, including carriage water and shower and wash water. “Sewage” does not mean stormwater runoff as that term is defined in 10 V.S.A. § 1264.

(b) The Secretary may require a person transporting or arranging for the transport of non-sewage waste to a farm for deposit in a manure pit or for use as an input in a methane digester to obtain approval from the Secretary prior to transporting the non-sewage waste to the farm. The Secretary may require a person to report to the Secretary at a designated time one or more of the following:

(1) the composition of the material transported to the farm, including the source of the material; and

(2) the volume of the material transported to a farm.

(c) After receipt of a report required under subsection (b) of this section, the Secretary may prohibit the import of non-sewage waste onto a farm upon a determination that the import of the material would violate the nutrient management plan for the farm or otherwise present a threat to water quality. (Added 2019, No. 129 (Adj. Sess.), § 16; amended 2021, No. 47, § 8; 2021, No. 162 (Adj. Sess.), § 4, eff. June 1, 2022.)
§ 4818. Farming; scope of activities

(a) As used to determine the scope of nuisance protection in 12 V.S.A. chapter 195, “agricultural activities” shall include “farming” as defined in this title.

(b) For purposes of the application of 12 V.S.A. § 5753, all “agricultural activities” defined in this chapter, subject to the limitations and requirements set forth in 12 V.S.A. § 5753, are entitled to the rebuttable presumption that they do not constitute a nuisance. (Added 2021, No. 162 (Adj. Sess.), § 11, eff. June 1, 2022.)

Subchapter 003: Water Quality; Financial and Technical Assistance
§ 4820. Definitions

As used in this subchapter:

(1) “RAPs” means “Required Agricultural Practices” as defined by the Secretary of Agriculture, Food and Markets pursuant to subchapter 1 of this chapter.

(2) “Secretary” means the Secretary of Agriculture, Food and Markets.

(3) “Agency” means the Agency of Agriculture, Food and Markets.

(4) “FSA” means the “Farm Service Agency,” formerly named the “Agricultural Stabilization and Conservation Service,” of the U.S. Department of Agriculture.

(5) “NRCS” means the “Natural Resources Conservation Service,” formerly named the “Soil Conservation Service,” of the U.S. Department of Agriculture.

(6) [Repealed.] (Added 1995, No. 62, § 37, eff. April 26, 1995; amended 2003, No. 42, § 2, eff. May 27, 2003; 2015, No. 39, § 2; 2019, No. 64, § 8.)
§ 4821. Assistance program created; administration

(a) Program created. A program is created to provide State financial assistance to Vermont farmers in support of their voluntary construction of on-farm improvements and maintenance of acceptable operating standards designed to abate nonpoint source agricultural waste discharges into the waters of the State of Vermont, consistent with goals of the Federal Water Pollution Control Act and with State water quality standards. The program shall be conducted in a manner that makes maximum use of federal financial aid for the same purpose, as provided by this subchapter, and that seeks to use the least costly methods available to accomplish the abatement required. The construction of temporary fencing intended to exclude livestock from entering surface waters of the State shall be an on-farm improvement eligible for assistance under this subchapter when subject to a maintenance agreement entered into with the Agency of Agriculture, Food and Markets.

(b) Program administration. The Secretary:

(1) Shall administer the State assistance program, for which purpose the Secretary shall coordinate with officials of the U.S. Department of Agriculture or other federal agencies, and shall adopt rules pursuant to 3 V.S.A. chapter 25 concerning farmer application and eligibility requirements, financial assistance award priorities, and other administrative and enforcement conditions.

(2) May provide technical assistance to individual farmers with the preparation of on-farm agricultural waste management plans, applications for State and federal financial assistance awards, installation of on-farm improvements, and maintenance of acceptable operating standards during the term of the program grant agreement. For this purpose, State employees of the Agency shall cooperate with federal employees of the U.S. Department of Agriculture or other federal agencies. (Added 1995, No. 62, § 37, eff. April 26, 1995; amended 1999, No. 100 (Adj. Sess.), § 3, eff. May 5, 2000; 2003, No. 42, § 2, eff. May 27, 2003; 2009, No. 110 (Adj. Sess.), § 9, eff. May 18, 2010; 2015, No. 39, § 3.)
§ 4822. Eligibility for State assistance

Vermont farmers shall be eligible to receive available State financial assistance with the installation of on-farm improvements designed to control agricultural nonpoint source waste discharges, provided that:

(1) for farmers who also seek federal financial assistance for this purpose, the improvements:

(A) are eligible for federal assistance through programs of the U.S. Department of Agriculture; and

(B) are consistent with a “nutrient management plan” prepared by the Vermont field office of the NRCS, or with an animal waste management plan based on standards equivalent to those of the NRCS; or

(2) for farmers who decline to seek or accept federal financial assistance for this purpose, the improvements:

(A) are determined by the Secretary to be equivalent to those eligible for federal assistance through programs of the U.S. Department of Agriculture; and

(B) are consistent with an animal waste management plan based on standards determined by the Secretary to be equivalent to those of the NRCS; and

(3) improvements will be constructed on a farm that is in good standing with the Secretary at the time of the award on all grant agreements, contract awards, or enforcement proceedings. (Added 1995, No. 62, § 37, eff. April 26, 1995; amended 2003, No. 42, § 2, eff. May 27, 2003; 2015, No. 39, § 4.)
§ 4823. Priorities; State financial assistance awards

(a) Priorities. State financial assistance available under this subchapter shall in each fiscal year be allocated according to the following priorities, except as provided by subsection (b) of this section, and as further defined by rule by the Secretary:

(1) First priority shall be given to proposed improvements on individual farms that do not meet RAPs because of physical constraints of a farm site that are located, in descending order, within the boundaries of the Lake Champlain Basin, the Lake Memphremagog Basin, the Connecticut River Basin, or the Hudson River Basin as these boundaries are defined by the State Water Quality Plan prepared by the Agency of Natural Resources.

(2) Next priority shall be given to proposed improvements on all other individual farms that are located, in descending order, within the boundaries of the Lake Champlain Basin, the Lake Memphremagog Basin, the Connecticut River Basin, or the Hudson River Basin.

(b) Exceptions. The Secretary may award financial assistance under this subchapter for improvements on a farm that otherwise would not receive assistance under the priorities established by this section when the Secretary determines a severe condition of nonpoint source waste discharge exists that requires immediate abatement. (Added 1995, No. 62, § 37, eff. April 26, amended 1995; 1997, No. 148 (Adj. Sess.), § 67, eff. April 29, 1998; 2003, No. 42, § 2, eff. May 27, 2003.)
§ 4824. State financial assistance awards

(a) State grant. State financial assistance awarded under this subchapter shall be in the form of a grant. When a State grant is intended to match federal financial assistance for the same on-farm improvement project, the State grant shall be awarded only when the federal financial assistance has also been approved or awarded. An applicant for a State grant shall pay at least 10 percent of the total eligible project cost. The dollar amount of a State grant shall be equal to the total eligible project cost, less 10 percent of the total as paid by the applicant, and less the amount of any federal assistance awarded, except that a State grant shall not exceed 90 percent of the total eligible project cost.

(b) Grant terms. A State grant awarded to an applicant under this subchapter shall be awarded in accordance with a State grant containing terms substantially the same as those required for receipt of a federal award for the same purpose from the U.S. Department of Agriculture, except as provided by the Secretary by rule. (Added 1995, No. 62, § 37, eff. April 26, 1995; amended 2003, No. 42, § 2, eff. May 27, 2003; 2007, No. 112 (Adj. Sess.), § 3, eff. May 3, 2008; 2011, No. 104 (Adj. Sess.), § 28b, eff. May 7, 2012; 2015, No. 39, § 5.)
§ 4825. Reports

Annually by January 15 of each year, the Secretary shall report to the General Assembly regarding activities in support of the objectives of this subchapter, including use of State, federal, and private funds:

(1) undertaken during the preceding fiscal year;

(2) in progress during the current fiscal year;

(3) projected for the following fiscal year; and

(4) remaining to be undertaken after the following fiscal year. (Added 1995, No. 62, § 37, eff. April 26, 1995; amended 2003, No. 42, § 2, eff. May 27, 2003.)
§ 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 90 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.

(b) If the Secretary lacks adequate funds necessary for the cost assistance awards required by subsection (a) of this section, the Secretary shall appear before the Emergency Board, as soon as possible, and shall request that necessary funds be provided. If the Emergency Board fails to provide adequate funds, the design and construction requirements for waste storage facilities under subsection 4815(b) of this title and the RAPs 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 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 or 4851 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 10 V.S.A. § 1263.

(c) The owner or operator of a farm with a waste storage facility may apply in writing to the Secretary of Agriculture, Food and Markets for a State assistance grant for the costs of complying with the U.S. Department of Agriculture Natural Resources Conservation Service requirements for inspection of a waste storage facility. Such grants shall not exceed 90 percent of the cost of the inspection of the waste storage facility. Application for a State assistance grant shall be made in the manner prescribed by the Secretary. (Added 2005, No. 78, § 5, eff. June 24, 2005; amended 2011, No. 104 (Adj. Sess.), § 28c, May 7, 2012; 2015, No. 39, § 6.)
§ 4827. Repealed. 2021, No. 162 (Adj. Sess.), § 5, effective June 1, 2022.

(Repealed by 2021, No. 162 (Adj. Sess.), § 5, eff. June 1, 2022.)
§ 4828. Capital Equipment Assistance Program

(a) It is the purpose of this section to provide assistance to purchase or use innovative equipment that will aid in the reduction of surface runoff of agricultural wastes to State waters, improve water quality of State waters, reduce odors from manure application, separate phosphorus from manure, mitigate greenhouse gases, and reduce costs to farmers.

(b) The Capital Equipment Assistance Program is created in the Agency of Agriculture, Food and Markets to provide State financial assistance for the purchase of new or innovative equipment to achieve the purposes of this section.

(c) Assistance under this section shall in each fiscal year be allocated according to the following priorities and as further defined by the Secretary. Priority shall be given to capital equipment to be used on multiple farms; equipment to be used for phosphorus reduction, separation, or treatment; equipment to be used to achieve the most significant or cost-effective benefits that advance the purposes of this section, including by reducing nitrogen runoff; and projects managed by nonprofit organizations that are located in descending order within the boundaries of:

(1) the Lake Champlain Basin;

(2) the Lake Memphremagog Basin;

(3) the Connecticut River Basin; and

(4) the Hudson River Basin.

(d) An applicant for a State grant under this section to purchase or implement phosphorus reduction, separation, or treatment technology or equipment shall pay 10 percent of the total eligible project cost. The dollar amount of a State grant to purchase or implement phosphorus reduction, separation, or treatment technology or equipment shall be equal to the total eligible project cost, less 10 percent of the total as paid by the applicant, and shall not exceed $300,000.00. (Added 2007, No. 197 (Adj. Sess.), § 1; amended 2011, No. 104 (Adj. Sess.), § 28d, eff. May 7, 2012; 2011, No. 139 (Adj. Sess.), § 51, eff. May 14, 2012; 2015, No. 39, § 8; 2017, No. 77, § 8; 2017, No. 77, § 12, eff. July 1, 2023; 2019, No. 64, § 9; 2021, No. 162 (Adj. Sess.), § 6, eff. June 1, 2022; 2023, No. 42, § 7, eff. July 1, 2023.)
§ 4829. Conservation Reserve Enhancement Program

(a) The Conservation Reserve Enhancement Program is created in the Agency of Agriculture, Food and Markets to provide the farms of Vermont with State or federal financial assistance for the implementation of alternative nutrient reduction practices that improve soil quality, improve nutrient retention, and reduce agricultural waste discharges. The Agency of Agriculture, Food and Markets may approve one or more of the following practices for participation in the Program:

(1) riparian forest buffers;

(2) grassed waterways;

(3) grassed filter strips; or

(4) other practices approved by the Secretary and administered through a memorandum of understanding with the Commodity Credit Corporation.

(b) Grant agreements entered into under this section shall at a minimum have a term of 15 years in duration and can include permanent easements.

(c)(1) The Agency of Agriculture, Food and Markets shall use capital funding available to the Agency and eligible for use for water quality programs or projects to provide financial assistance to Vermont farmers to complete practices approved by the Agency for participation in the Program under subdivisions (a)(1)-(3) of this section.

(2) The Agency shall use noncapital funds eligible for use for water quality programs or projects to provide financial assistance to Vermont farmers to complete practices approved by the Agency for participation in the Program under subdivision (a)(4) of this section. (Added 2019, No. 64, § 13.)
§ 4830. Agricultural Environmental Management Program

(a) The Agricultural Environmental Management Program is created in the Agency of Agriculture, Food and Markets to provide the farms of Vermont with State financial assistance to alternatively manage their farmstead, cropland, and pasture in a manner that will address identified water quality concerns that, traditionally, would have been wholly or partially addressed through federal, State, and landowner investments in BMP infrastructure, in agronomic practices, or both. The Agency of Agriculture, Food and Markets may approve one or more of the following practices for participation in the Program:

(1) conservation easements;

(2) land acquisition;

(3) farm structure decommissioning;

(4) site reclamation; or

(5) issue a grant as an in-lieu payment not to exceed $200,000.00 as an alternative to the best management practice program implementation to otherwise address the same conservation issues for an equivalent or longer term.

(b) The Agency of Agriculture, Food and Markets shall use funds available to the Agency and eligible for use for water quality programs or projects to provide financial assistance to Vermont farmers, provided that the Agency may use capital funds to provide financial assistance for practices approved under subdivisions (a)(1)-(4) of this section if the practice is:

(1) performed in conjunction with a term agreement of not less than 15 years in duration or a permanent easement protecting the investment; and

(2) abating a water quality resource concern on a farm.

(c) The Agency may use capital funds to provide financial assistance for a practice approved under subdivision (a)(5) of this section only upon the approval of the State Treasurer. (Added 2019, No. 64, § 14.)
§ 4831. Vermont Seeding and Filter Strip Program

(a) The Secretary of Agriculture, Food and Markets is authorized to develop a Vermont Critical Source Area Seeding and Filter Strip Program in addition to the federal Conservation Reserve Enhancement Program in order to compensate farmers for establishing and maintaining harvestable perennial vegetative grassed waterways and filter strips on agricultural cropland perpendicular and adjacent to the surface waters of the State, including ditches. Eligible acreage would include annually tilled cropland or a portion of cropland currently cropped as hay that will not be rotated into an annual crop for a 10-year period of time. Acreage that is currently managed as hay shall have a prior history of rotation as corn or other annual commodity crop.

(b) Incentive payments from the Agency of Agriculture, Food and Markets shall be made at the outset of a 10-year agreement to establish or maintain the acreage as harvestable grassed waterway or filter strip.

(c) The Secretary of Agriculture, Food and Markets may establish by procedure financial and technical criteria for the implementation and operation of the Vermont Critical Source Area Seeding and Filter Strip Program.

(d) Land enrolled in the Vermont agricultural buffer program shall be considered to be in “active use” as that term is defined in 32 V.S.A. § 3752(15). (Added 2005, No. 147 (Adj. Sess.), § 55; amended 2009, No. 110 (Adj. Sess.), § 10; 2015, No. 39, § 15; 2019, No. 129 (Adj. Sess.), § 12 (redesignated from 6 V.S.A. § 4900).)
§ 4832. Farm Agronomic Practices Program

The Farm Agronomic Practices Program is created in the Agency of Agriculture, Food and Markets to provide the farms of Vermont with State financial assistance for the implementation, including through education, training, or instruction, of soil-based practices that improve soil quality and nutrient retention, increase crop production, minimize erosion potential, and reduce agricultural waste discharges. The following practices may be eligible for assistance to farms under the Grant Program:

(1) conservation crop rotation;

(2) cover cropping;

(3) strip cropping;

(4) cross-slope tillage;

(5) zone or no-tillage;

(6) pre-sidedress nitrate tests; and

(7) additional soil-based practices that improve soil quality and nutrient retention, increase crop production, minimize erosion potential, and reduce agricultural waste discharges. (Added 2007, No. 112 (Adj. Sess.), § 1; amended 2009, No. 110 (Adj. Sess.), § 11; 2013, No. 83, § 12; 2015, No. 39, § 16; 2019, No. 129 (Adj. Sess.), § 12 (redesignated from 6 V.S.A. § 4951); 2021, No. 162 (Adj. Sess.), § 7, eff. June 1, 2022; 2023, No. 6, § 67, eff. July 1, 2023.)

Subchapter 004: Regulation of Large Farm Operations
§ 4849. Recycling animal waste nutrients

In order to best use the nutrients of animal waste generated by farm operations, the Agency of Agriculture, Food and Markets together with the Department of Public Service shall use available resources to inform farm operations of appropriate methods and resources available to digest and compost their animal wastes and to capture methane for beneficial uses. (Added 1997, No. 124 (Adj. Sess.), § 1, eff. April 21, 1998; amended 2003, No. 42, § 2, eff. May 27, 2003; 2015, No. 39, § 9.)
§ 4850. Definitions

As used in this subchapter:

(1) “Domestic fowl” means laying-hens, broilers, ducks, turkeys, or any other number or type of fowl that the Secretary deems domestic fowl.

(2) “Livestock” means cattle, mature cow/calf pairs, youngstock, heifers, bulls, swine, sheep, goats, horses, or any other number and type of domestic animal that the Secretary deems livestock. (Added 1995, No. 163 (Adj. Sess.), § 17, eff. May 15, 1996; amended 2005, No. 78, § 7, eff. June 24, 2005; 2015, No. 39, § 10.)
§ 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 Agriculture, Food and Markets, in consultation with the Secretary of Natural Resources, shall review any application for a permit under this section with regard to water quality impacts and, prior to approval of a permit under this subsection, shall issue a written determination regarding whether the applicant has established that there will be no unpermitted discharge to waters of the State pursuant to the federal regulations for concentrated animal feeding operations. If upon review of an application for a permit under this subsection, the Secretary of Agriculture, Food and Markets determines that the permit applicant may be discharging to waters of the State, the Secretary of Agriculture, Food and Markets and the Secretary of Natural Resources shall respond to the discharge in accordance with the memorandum of understanding regarding concentrated animal feeding operations under section 4810 of this title. The Secretary of Natural Resources may require a large farm to obtain a permit under 10 V.S.A. § 1263 pursuant to federal regulations for concentrated animal feeding operations.

(b) A person shall apply for a permit in order to operate a farm that exceeds 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 if the livestock or domestic fowl are in a barn or adjacent barns owned by the same person or if the barns share a common border or have a common waste disposal system. In order to receive this permit, the person shall demonstrate to the Secretary that the farm has an adequately sized manure management system to accommodate the wastes generated and a nutrient management plan to dispose of wastes in accordance with Required Agricultural Practices adopted under this chapter and current U.S. Department of Agriculture nutrient management standards.

(c) The Secretary shall approve, condition, or disapprove the application within 45 business days of the date of receipt of a complete application for a permit under this section. Failure to act within the 45 business days shall be deemed approval.

(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 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 the farm is intending to expand to; and a description of the manure management system to be used to accommodate agricultural wastes.

(e) The Secretary may condition or deny a permit on the basis of odor, noise, traffic, insects, flies, or other pests.

(f) Before granting a permit under this section, the Secretary shall make an affirmative finding that the animal wastes generated by the construction or expansion will be stored so as not to generate runoff from a 25-year, 24-hour storm event and shall be disposed of in accordance with the Required Agricultural Practices adopted under this chapter and current U.S. Department of Agriculture nutrient management standards.

(g) A farm that is permitted under this section and that withdraws more than 57,600 gallons of groundwater per day averaged over any 30 consecutive-day period shall annually report estimated water use to the Secretary of Agriculture, Food and Markets. The Secretary of Agriculture, Food and Markets shall share information reported under this subsection with the Agency of Natural Resources.

(h) The Secretary may inspect a farm permitted under this section at any time, but no less frequently than once per year.

(i) A person required to obtain a permit under this section shall submit an annual operating fee of $2,500.00 to the Secretary. The fees collected under this section shall be deposited in the Agricultural Water Quality Special Fund under section 4803 of this title. (Added 1995, No. 163 (Adj. Sess.), § 17, eff. May 15, 1996; amended 1997, No. 124 (Adj. Sess.), § 2, eff. April 21, 1998; 2003, No. 42, § 2, eff. May 27, 2003; 2003, No. 149 (Adj. Sess.), § 5, eff. June 3, 2004; 2005, No. 78, § 8, eff. June 24, 2005; 2007, No. 199 (Adj. Sess.), § 4, eff. June 9, 2008; 2015, No. 39, § 11; 2015, No. 64, § 6.)
§ 4852. Rules

The Secretary may adopt rules pursuant to 3 V.S.A. chapter 25 concerning program administration, program enforcement, appeals and standards for waste management and waste storage, setbacks or siting criteria for new construction or expansion, groundwater contamination, odor, noise, traffic, insects, flies, and other pests in order to implement this subchapter. The siting criteria adopted by the Secretary by rule shall be consistent with the standards for the quality of State waters and standards for Required Agricultural Practices pursuant to subchapter 2 of this chapter. The groundwater contamination rules adopted by the Secretary shall include a process under which the Agency shall receive, investigate, and respond to a complaint that a farm has contaminated the drinking water or groundwater of a property owner. (Added 1995, No. 163 (Adj. Sess.), § 17, eff. May 15, 1996; amended 1997, No. 124 (Adj. Sess.), § 3, eff. April 21, 1998; 2003, No. 42, § 2, eff. May 27, 2003; 2005, No. 78, § 9, eff. June 24, 2005; 2021, No. 162 (Adj. Sess.), § 8, eff. June 1, 2022.)
§ 4853. Informational meeting

(a) Upon receipt by the Secretary of a permit application for construction of a new barn under this subchapter, the Secretary shall establish an advisory group to assist in reviewing the application. The advisory group shall consist of, in addition to the Secretary, the Secretary of Natural Resources or his or her duly authorized representative, a farmer appointed by the Governor, and a representative of the legislative body of the municipality in which the proposed facility would be located. Such representative shall be appointed by the legislative body but need not be a resident of the municipality. The Secretary may establish the advisory group pursuant to this subsection upon receipt of a permit application for expansion of an existing barn under this subchapter.

(b) The Secretary shall conduct an informational meeting in a municipality when there is a proposal to construct a new barn, within the municipality, that would require a permit under this subchapter.

(c) The Secretary may conduct an informational meeting in a municipality in which a barn expansion is sought if the barn is already subject to permitting requirements under this subchapter.

(d) The Secretary shall upon request prepare in writing the response of the agency to matters raised during a meeting held pursuant to this section or submitted to the Secretary in writing. Such response shall pertain to considerations required under this subchapter. (Added 1995, No. 163 (Adj. Sess.), § 17, eff. May 15, 1996; amended 1999, No. 100 (Adj. Sess.), § 4c, eff. May 5, 2000; 2003, No. 42, § 2, eff. May 27, 2003; 2005, No. 78, § 10, eff. June 24, 2005.)
§ 4854. Repealed. 2015, No. 64, § 19.
§ 4855. Permit appeal

A person seeking a permit who is aggrieved by a final decision of the Secretary may appeal de novo to the Environmental Division within 30 days of the final decision of the Secretary. The only parties to the appeal shall be the person seeking the permit and the Secretary. (Added 1995, No. 163 (Adj. Sess.), § 17, eff. May 15, 1996; amended 2003, No. 42, § 2, eff. May 27, 2003; 2009, No. 154 (Adj. Sess.), § 236.)

Subchapter 005: Regulation of Medium and Small Farm Operations
§ 4856. Repealed. 2015, No. 39, § 12.
§ 4857. Definitions

As used in this subchapter:

(1) “Animal feeding operation” (AFO) means a lot or facility where the livestock or domestic fowl 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, or forage growth are not sustained in the normal growing season over any portion of the lot or facility. Two or more individual farms qualifying as an AFO that are under common ownership and that adjoin each other or use a common area or system for the disposal of 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 in subdivision (2) of this section.

(2) “Medium farm” is an AFO that houses 200 to 699 mature dairy animals; 300 to 999 cattle or cow/calf pairs; 300 to 999 veal calves; 750 to 2,499 swine weighing over 55 pounds; 3,000 to 9,999 swine weighing less than 55 pounds; 150 to 499 horses; 3,000 to 9,999 sheep or lambs; 16,500 to 54,999 turkeys; 9,000 to 29,999 laying hens or broilers with a liquid manure handling system; 25,000 to 81,999 laying hens without a liquid manure handling system; 37,500 to 124,999 chickens other than laying hens without a liquid manure handling system; 1,500 to 4,999 ducks with a liquid manure handling system; or 10,000 to 29,999 ducks without a liquid manure handling system.

(3) “Small farm” is an AFO that houses no more than 199 mature dairy animals; 299 cattle or cow/calf pairs; 299 veal calves; 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; 1,499 ducks with a liquid manure handling system; or 9,999 ducks without a liquid manure handling system.

(4) “Domestic fowl” means laying hens, broilers, ducks, turkeys, or any other number or type of fowl that the Secretary deems domestic fowl.

(5) “Livestock” means cattle, swine, sheep, goats, and horses, or any other number and type of domestic animal that the Secretary deems livestock. (Added 2003, No. 149 (Adj. Sess.), § 8, eff. June 3, 2004; amended 2015, No. 39, § 13.)
§ 4858. Medium farm operation permits

(a) Authorization to operation. No person shall operate a medium farm without authorization from the Secretary pursuant to this section. Under exceptional conditions, specified in subsection (d) of this section, authorization from the Secretary may be required to operate a small farm.

(b) Rules; general and individual permits. The Secretary shall establish by rule, pursuant to 3 V.S.A. chapter 25, requirements for a general permit and individual permit to assure 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 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, reporting, and monitoring provisions regarding such matters to ensure that the terms and conditions of the permit are being met. The groundwater contamination rules adopted by the Secretary under this section shall include a process under which the Agency shall receive, investigate, and respond to a complaint that a farm has contaminated the drinking water or groundwater of a property owner.

(2) The rules adopted under this section shall also address permit administration, public notice and hearing, permit enforcement, permit transition, revocation, and appeals consistent with provisions of sections 4859 and 4861 of this title and subchapter 10 of this chapter.

(3) Each general permit issued pursuant to this section shall have a term of no more than five years. Prior to the expiration of each general permit, the Secretary shall review the terms and conditions of the general permit and may issue subsequent general permits with the same or different conditions as necessary to carry out the purposes of this subchapter. Each general permit shall include provisions that require public notice of the fact that a medium farm has sought coverage under a general permit adopted pursuant to this section. Each general permit shall provide a process by which interested persons can obtain detailed information about the nature and extent of the activity proposed to receive coverage under the general permit. The Secretary may inspect each farm seeking coverage under the general permit at any time but no less frequently than once every three years.

(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 Required Agricultural Practices adopted under this chapter and current U.S. Department of Agriculture nutrient management standards. Any certification or notice of intent to comply submitted under this subdivision shall be kept on file at the Agency of Agriculture, Food and Markets. The Secretary of Agriculture, Food and Markets, in consultation with the Secretary of Natural Resources, shall review any certification or notice of intent to comply submitted under this subdivision with regard to the water quality impacts of the medium farm for which the owner or operator is seeking coverage, and, for farms that have never been permitted under the prior permit term, within 18 months of receiving the certification or notice of intent to comply, shall verify whether the owner or operator of the medium farm has established that there will be no unpermitted discharge to waters of the State pursuant to the federal regulations for concentrated animal feeding operations. If upon review of a medium farm granted coverage under the general permit adopted pursuant to this subsection the Secretary of Agriculture, Food and Markets determines that the permit applicant may be discharging to waters of the State, the Secretary of Agriculture, Food and Markets and the Secretary of Natural Resources shall respond to the discharge in accordance with the memorandum of understanding regarding concentrated animal feeding operations under section 4810 of this title.

(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. 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 Required Agricultural Practices, the use of an experimental or alternative technology or method to meet a State performance standard, 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 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 Required Agricultural Practices adopted under this chapter and current U.S. Department of Agriculture nutrient management standards, including setback requirements for waste application. An individual permit shall be valid for no more than five years. Any application for an individual permit filed under this subsection shall be kept on file at the Agency of Agriculture, Food and Markets. The Secretary of Agriculture, Food and Markets, in consultation with the Agency of Natural Resources, shall review any application for a permit under this subsection and, prior to issuance of an individual permit under this subsection, shall issue a written determination regarding whether the permit applicant has established that there will be no unpermitted discharge to waters of the State pursuant to federal regulations for concentrated animal feeding operations. If, upon review of an application for a permit under this subsection, the Secretary of Agriculture, Food and Markets that the permit applicant may be discharging to waters of the State, the Secretary of Agriculture, Food and Markets and the Secretary of Natural Resources shall respond to the discharge in accordance with the memorandum of understanding regarding concentrated animal feeding operations under subsection 4810(b) of this title. The Secretary of Natural Resources may require a medium or small farm to obtain a permit under 10 V.S.A. § 1263 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 10 V.S.A. § 1263.

(e) Operating fee. A person required to obtain a permit or coverage under this section shall submit an annual operating fee of $1,500.00 to the Secretary. The fees collected under this section shall be deposited in the Agricultural Water Quality Special Fund under section 4803 of this title. (Added 2003, No. 149 (Adj. Sess.), § 8, eff. June 3, 2004; amended 2005, No. 78, § 11, eff. June 24, 2005; 2015, No. 39, § 14; 2015, No. 64, § 7; 2017, No. 113 (Adj. Sess.), § 37; 2021, No. 174 (Adj. Sess.), § 9, eff. July 1, 2022.)
§ 4859. Public notice and hearing

The Secretary shall issue public notices and conduct public hearings regarding the issuance of general or individual permits under this subchapter consistent with the requirements set forth in 40 C.F.R. Part 124. (Added 2003, No. 149 (Adj. Sess.), § 8, eff. June 3, 2004.)
§ 4860. Repealed. 2015, No. 64, § 20.
§ 4861. Appeal

A person aggrieved by a permit decision of the Secretary under this subchapter may seek de novo review by the Environmental Division within 30 days of the decision of the Secretary. A person aggrieved by a final ruling of the Secretary on an application for coverage under a general permit adopted pursuant to this section may appeal to the Environmental Division; provided, however, that the appeal shall be limited in scope to whether the medium farm complies with the terms and conditions of the general permit. For purposes of this section, “a 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 this subchapter and the injury can be redressed by the Environmental Division or the Supreme Court. (Added 2003, No. 149 (Adj. Sess.), § 8, eff. June 3, 2004; amended 2009, No. 154 (Adj. Sess.), § 236.)

Subchapter 005A: Small Farm Certification
§ 4871. Small farm certification

(a) Small farm definition. As used in this section, “small farm” means a parcel or parcels of land:

(1) on which 10 or more acres are used for farming;

(2) that house not more than the number of animals specified under section 4857 of this title; and

(3)(A) that house at least the number of mature animals that the Secretary of Agriculture, Food and Markets designates by rule under the Required Agricultural Practices; or

(B) that are used for the preparation, tilling, fertilization, planting, protection, irrigation, and harvesting of crops for sale.

(b) Required small farm certification. Beginning on July 1, 2017, a person who owns or operates a small farm, as designated by the Secretary consistent with subdivision 4810a(a)(1) of this title, shall, on a form provided by the Secretary, certify compliance with the Required Agricultural Practices. The Secretary of Agriculture, Food and Markets shall establish the requirements and manner of certification of compliance with the Required Agricultural Practices, provided that the Secretary shall require an owner or operator of a farm to submit an annual certification of compliance with the Required Agricultural Practices.

(c) Certification due to water quality threat. The Secretary may require any person who owns or operates a farm to submit a small farm certification under this section if the person is not required to obtain a permit or submit a certification under this chapter and the Secretary determines that the farm poses a threat of discharge to a water of the State or presents a threat of contamination to groundwater. The Secretary may waive a small farm certification required under this subsection upon a determination that the farm no longer poses a threat of discharge to a water of the State or no longer presents a threat of contamination to groundwater.

(d) Rulemaking; small farm certification. The Secretary of Agriculture, Food and Markets shall maintain by rule requirements for a small farm certification of compliance with the Required Agricultural Practices. The rules required by this subsection shall be adopted as part of the Required Agricultural Practices under section 4810 of this title.

(e) Small farm inspection. The Secretary may inspect a small farm in the State at any time for the purposes of assessing compliance by the small farm with the Required Agricultural Practices and determining consistency with a certification of compliance submitted by the person who owns or operates the small farm. The Secretary may prioritize inspections of small farms in the State based on identified water quality issues posed by a small farm. The Secretary shall adopt by rule, as part of the Required Agricultural Practices, the required frequency of inspection of small farms.

(f) [Repealed.]

(g)(1) Identification; ranking of water quality needs. During an inspection of a small farm under this section, the Secretary shall identify areas where the farm could benefit from capital, structural, or technical assistance in order to improve or come into compliance with the Required Agricultural Practices and any applicable State water quality permit or certification required under this chapter.

(2) Notwithstanding the priority system established under section 4823 of this title, the Secretary annually shall establish a priority ranking system for small farms according to the water quality benefit associated with the capital, structural, or technical improvements identified as needed by the Secretary during an inspection of the farm.

(3) Notwithstanding the priority system established by subdivision (2) of this subsection, the Secretary may provide financial assistance to a small farm at any time, regardless of the priority ranking system, if the Secretary determines that the farm needs assistance to address a water quality issue that requires immediate abatement. (Added 2015, No. 64, § 3; amended 2015, No. 105 (Adj. Sess.), § 2, eff. May 12, 2016; 2019, No. 129 (Adj. Sess.), § 14; 2021, No. 174 (Adj. Sess.), § 10, eff. July 1, 2022.)

Subchapter 006: Vermont Critical Area Seeding and Filter Strip Program
§ 4900. Repealed. 2019, No. 129 (Adj. Sess.), § 13(1).

Subchapter 006A: Surface Water Withdrawals for Farming
§ 4926. Definitions

As used in this subchapter:

(1) “Surface water” means all rivers, streams, creeks, brooks, reservoirs, ponds, lakes, and all bodies of surface waters that are contained within, flow through, or border upon the State or any portion of it. “Surface water” does not include the following:

(A) groundwater as defined in 10 V.S.A. § 1391;

(B) artificial waterbodies as defined under section 29A-101(d) of the Vermont Water Quality Standards;

(C) treatment ponds, lagoons, or wetlands created solely to meet the requirements of a permit issued for a discharge; and

(D) constructed off-stream farm ponds or other off-stream impoundments that are used for irrigation for farming or watering of livestock.

(2) “Withdrawal” means the intentional diversion from a surface water by pumping, gravity, or other method for the purpose of being used for irrigation for farming, livestock watering, or other uses for farming. “Withdrawal” does not include direct consumption of surface water by livestock. (Added 2021, No. 135 (Adj. Sess.), § 5, eff. July 1, 2022.)
§ 4927. Report of surface water withdrawals for irrigation, livestock watering, or other farming use

(a) Report of withdrawal. Beginning on January 15, 2023 and annually thereafter, any person who withdrew 10,000 gallons or more of surface water within a 24-hour period in the preceding calendar year or 150,000 gallons or more of surface water over any 30-day period in the preceding calendar year shall file a report with the Secretary of Agriculture, Food and Markets. The report shall be made on a form provided by the Secretary and shall include all of the following information:

(1) an estimate of the total amount of water withdrawn in the preceding calendar year;

(2) the location of the withdrawals;

(3) the daily maximum withdrawal for each month;

(4) the date of each daily maximum withdrawal; and

(5) any other information related to surface water withdrawal required by the Secretary of Agriculture, Food and Markets.

(b) Sharing of data. Beginning February 1, 2023 and annually thereafter, the Secretary of Agriculture, Food and Markets shall submit to the Secretary of Natural Resources the data collected under this section for the purposes of the report to the General Assembly required by 10 V.S.A. § 1045. (Added 2021, No. 135 (Adj. Sess.), § 5, eff. July 1, 2022.)

Subchapter 007: Farm Agronomic Practices Program
§ 4951. Repealed. 2019, No. 129 (Adj. Sess.), § 13(2).

Subchapter 007A: Regenerative and Innovative Agriculture
§ 4961. Purpose

The purposes of this subchapter are to:

(1) enhance the economic viability of farms in Vermont;

(2) improve the health and productivity of the soils of Vermont;

(3) encourage farmers to implement regenerative farming practices;

(4) reduce the amount of agricultural waste entering the waters of Vermont;

(5) enhance crop resilience to rainfall fluctuations and mitigate water damage to crops, land, and surrounding infrastructure;

(6) promote cost-effective farming practices;

(7) reinvigorate the rural economy; and

(8) help the next generation of Vermont farmers learn regenerative farming practices so that farming remains integral to the economy, landscape, and culture of Vermont. (Added 2019, No. 64, § 11.)
§ 4962. Definitions

As used in this subchapter:

(1) “Certified Vermont Environmental Steward” means an owner or operator of a farm who has achieved the thresholds for the Vermont Environmental Stewardship Program to be certified as a farm that improves soil health and contributes to improving water quality.

(2) “Regenerative farming” means a series of cropland management practices that:

(A) contributes to generating or building soils and soil fertility and health;

(B) increases water percolation, increases water retention, and increases the amount of clean water running off farms;

(C) increases biodiversity and ecosystem health and resiliency; and

(D) sequesters carbon in agricultural soils. (Added 2019, No. 64, § 11.)
§ 4963. Regenerative farming; Vermont Environmental Stewardship Program

(a) Establishment of Program. There is created within the Agency of Agriculture, Food and Markets the Vermont Environmental Stewardship Program (VESP) to provide technical and financial assistance to Vermont farmers seeking to implement regenerative farming practices to achieve certification as a Certified Vermont Environmental Steward.

(b) Program standards; application. The Secretary of Agriculture, Food and Markets shall establish by procedure standards for certification as a Certified Environmental Steward. Application for certification shall be made in the manner required by the Secretary of Agriculture, Food and Markets.

(c) Program services. The VESP shall provide the following services to farmers voluntarily seeking to transition to achieve certification as a Certified Vermont Environmental Steward:

(1) information and education regarding the requirements for certification, including the method, timeline, and process of certification;

(2) technical assistance in completing any required application for certification;

(3) technical assistance in developing plans and implementing practices to achieve certification from the VESP; and

(4) technical assistance in complying with the requirements of the VESP after a farm is certified.

(d) Financial assistance; eligibility. An owner or operator of a farm participating in the VESP shall be eligible for financial assistance from existing Agency of Agriculture, Food and Markets financial assistance programs for costs incurred in implementing any of the practices required for certification as a Certified Environmental Steward.

(e) Revocation of certification. The Secretary may, after due notice and hearing, revoke a certification issued under this section when the owner or operator of a certified farm fails to comply with the standards for certification established under subsection (b) of this section.

(f) Administrative penalty; falsely advertising. The Secretary may assess an administrative penalty of up to $1,000.00 against the owner or operator of a farm who knowingly advertises as a Certified Environmental Steward when not certified by the Secretary. (Added 2019, No. 64, § 11.)
§ 4964. Agricultural Innovation Board

(a) Creation. There is created the Agricultural Innovation Board that shall:

(1) Review historic recommendations for pesticide reduction in the State and coordinate with existing work groups to avoid submitting to the General Assembly conflicting policy recommendations on the regulation of pesticides and farming.

(2) Recommend practices that reduce the use of and exposure to pesticides and synthetic fertilizers in order to protect soil biology, human health, and environmental health, including recommended targets to achieve the State goal of an overall reduction in the use of pesticides consistent with sound pest or vegetative management practices.

(3) Advise the Executive Branch and the General Assembly with respect to legislation concerning the use of agricultural pest control measures and integrated pest management.

(4) Recommend to the Secretary of Agriculture, Food and Markets policies, proposed rules, or legislation for the regulation of the use of treated articles when the Board determines that use of a treated article will have a hazardous or long-term deleterious effect on the environment in Vermont, presents a likely risk to human health, or is dangerous.

(5) Recommend practices to reduce the use and generation of waste associated with plastic in farming.

(6) Incentivize farming practices that are looking to reduce the use and dependence on pesticides in their practices.

(7) Advise the Agency with regard to the regulation of plant biostimulants.

(8) Recommend studies necessary for the performance of its functions as established under this section.

(9) Explore methods and standards for transitioning farmers to practices that reduce pesticide usage.

(10) Explore methods and standards for farmers to engage in carbon sequestration or mitigation.

(11) Review the seed traits of a new genetically engineered seed proposed for sale, distribution, or use in the State.

(12) Study and issue recommendations regarding the feasibility of the use of biodegradable plastics in agriculture and the promotion of the use of and production of biodegradable plastics and similar products in Vermont.

(b) Organization of the Board.
(1) The Secretary of Agriculture, Food and Markets shall convene the Agricultural Innovation Board. Members of the Board who are not serving in an ex officio capacity shall be appointed by the Secretary of Agriculture, Food and Markets, and the Secretary shall designate a chair from among the members of the Board. The Agricultural Innovation Board shall consist of the following 13 members:

(A) the Secretary of Agriculture, Food and Markets or designee;

(B) an active farmer who is a member of an organization representing the organic farming community;

(C) a member from the University of Vermont Center for Sustainable Agriculture;

(D) the Director of the Agency of Agriculture, Food and Markets, Agrichemical Program or designee;

(E) the Director of the Agency of Agriculture, Food and Markets, Water Quality Program or designee;

(F) the Commissioner of Health or a designee with expertise in the effects of pesticides on human health;

(G) the Secretary of Natural Resources or designee;

(H) a certified crop consultant;

(I) an active farmer who is a member of an organization representing the conventional dairy industry in Vermont;

(J) an active farmer who is a member of an organization representing fruit or vegetable farmers in Vermont;

(K) an active farmer who is a member of an organization representing grass-based, non-dairy livestock farming in Vermont;

(L) a soil biologist; and

(M) a member of an environmental organization that advocates for policy regarding the management or reduction of toxic substances in the State.

(2) Members of the Agricultural Innovation Board shall be appointed for terms of three years, except initially, appointments shall be made such that one member shall serve for a term of one year and one for a term of two years. Members other than ex officio members shall be allowed to serve not more than three consecutive terms.

(3) Members of the Agricultural Innovation Board other than ex officio members and those compensated for their participation on the Board shall be entitled to per diem compensation authorized under 32 V.S.A. § 1010(b) for each day spent in the performance of their duties, and each member shall be reimbursed for his or her actual and necessary expenses incurred in carrying out his or her duties. These payments shall be made from the Pesticide Monitoring Revolving Fund under section 929 of this title.

(4) The Board shall meet no fewer than four times a year.

(c) Powers and duties of the Board. The Agricultural Innovation Board shall:

(1) issue a report annually to the General Assembly on or before January 15 that recommends policy solutions to assist farmers in:

(A) reducing the use of and exposure to pesticides; and

(B) the use of innovative or alternative practices;

(2) propose an annual budget report that provides ideas for funding sources for any new programs recommended in the annual report; and

(3) survey farmers from every county in the State to help better understand how agricultural inputs, such as pesticides, synthetic fertilizers, and plastics, are currently used as well as current challenges farmers face in reducing these inputs in order to better inform recommendations to be provided in the annual report required under subdivision (1) of this subsection.

(d) Seed review. The Agricultural Innovation Board shall advise the Secretary regarding the sale, distribution, or use of genetically engineered seed in the State and may recommend to the Secretary limits or conditions on the sale, distribution, or use of a genetically engineered seed or seeds or recommend a limited period of time for sale of a genetically engineered seed or seeds. (Added 2021, No. 49, § 1, eff. Jan. 1, 2022.)

Subchapter 008: Agricultural Water Quality Training
§ 4981. Agricultural Water Quality Training

(a) On or before July 1, 2016, as part of the revisions of the Required Agricultural Practices, the Secretary of Agriculture, Food and Markets shall adopt by rule requirements for training classes or programs for owners or operators of small farms, medium farms, or large farms certified or permitted under this chapter regarding:

(1) the prevention of discharges, as that term is defined in 10 V.S.A. § 1251(3); and

(2) the mitigation and management of stormwater runoff, as that term is defined in 10 V.S.A. § 1264, from farms.

(b) Any training required under this section shall address:

(1) the existing statutory and regulatory requirements for operation of a large, medium, or small farm in the State;

(2) the management practices and technical and financial resources available to assist in compliance with statutory or regulatory agricultural requirements;

(3) the land application of manure or nutrients, methods or techniques to minimize the runoff of land-applied manure or nutrients to waters of the State, and identification of weather or soil conditions that increase the risk of runoff of land-applied manure or nutrients to waters of the State; and

(4) standards required for nutrient management, including nutrient management planning.

(c) The Secretary shall include the training required by this section as a condition of a large farm permit, medium farm permit, or small farm certification required under this chapter. The Secretary may phase in training requirements under this section based on farm size, permit or certification category, or available staffing. On or before July 1, 2017, the Secretary shall establish a schedule by which all owners or operators of small farms, medium farms, or large farms shall complete the training required by this section.

(d) The Secretary may approve or authorize the training required by this section to be conducted by other entities, including the University of Vermont Extension Service and the natural resources conservation districts.

(e) The Secretary shall not charge the owner or operator of a large, medium, or small farm for the training required by this section. The Secretary shall pay for the training required under this section from funds available to the Agency of Agriculture, Food and Markets for water quality initiatives. (Added 2015, No. 64, § 15.)

Subchapter 009: Certification of Custom Applicators of Manure or Agricultural Waste
§ 4987. Definitions

As used in this subchapter, “custom applicator” means a person who is engaged in the business of applying manure or agricultural waste to land and who charges or collects other consideration for the service. Custom applicator shall include full-time employees of a person engaged in the business of applying manure or agricultural waste to land when the employees apply manure or agricultural waste to land. A certification fee of $30.00 will be charged annually to all persons meeting this definition. (Added 2015, No. 64, § 16; amended 2015, No. 149 (Adj. Sess.), § 23; 2021, No. 47, § 7.)
§ 4988. Certification of custom applicator

(a) On or before July 1, 2016, as part of the revision of the Required Agricultural Practices, the Secretary of Agriculture, Food and Markets shall adopt by rule a process by which a custom applicator shall be certified to operate within the State. The certification process shall require a custom applicator to complete eight hours of training over each five-year period regarding:

(1) application methods or techniques to minimize the runoff of land-applied manure or agricultural waste to waters of the State; and

(2) identification of weather or soil conditions that increase the risk of runoff of land-applied manure or agricultural waste to waters of the State.

(b) A custom applicator shall not apply manure or agricultural waste unless certified by the Secretary of Agriculture, Food and Markets.

(c) A custom applicator certified under this section shall train seasonal employees in methods or techniques to minimize runoff to surface waters and to identify weather or soil conditions that increase the risk of runoff. A custom applicator that trains a seasonal employee under this subsection shall be liable for damages done and liabilities incurred by a seasonal employee who improperly applies manure or agricultural waste.

(d) The requirements of this section shall not apply to:

(1) an owner or operator of a farm applying manure or agricultural waste to a field that he or she owns or controls; or

(2) application of manure or agricultural waste by a farm owner or operator on a field of another farm owner or operator when the total annual volume applied is less than 50 percent of the annual manure or agricultural waste by volume generated on the farm where the manure or agricultural waste is spread, provided that the Secretary may approve the application of more than 50 percent of the annual manure or agricultural waste generated on a farm by another farm operator when circumstances require and application of the manure or agricultural waste would not pose a significant potential of discharge or runoff to State waters.

(e) The Secretary may require any person applying manure or agricultural waste under subdivision (d)(2) of this section to comply with the requirement for certification of a custom applicator. (Added 2015, No. 64, § 16; amended 2019, No. 129 (Adj. Sess.), § 15; 2021, No. 47, § 7.)
§ 4989. Certification of nutrient management plan technical service providers

(a) The Secretary of Agriculture, Food and Markets shall adopt by rule a process by which a nutrient management technical service provider shall be certified to operate within the State. The certification process shall require a nutrient management technical service provider to complete eight hours of training over each five-year period regarding:

(1) calculating manure and agricultural waste generation;

(2) taking soil and manure samples;

(3) identifying and creating maps of all natural resource features;

(4) use of erosion calculation tools;

(5) reconciling plans using records;

(6) use of nutrient index tools; and

(7) requirements within the Required Agricultural Practices, Medium Farm Operation rules and general permit, and Large Farm Operation rules.

(b) Beginning 45 days after the effective date of the rule adopted by the Secretary of Agriculture, Food and Markets under subsection (a) of this section to regulate nutrient management technical service providers, a nutrient management technical service provider shall not create a nutrient management plan for a farm unless certified by the Secretary of Agriculture, Food and Markets. (Added 2017, No. 194 (Adj. Sess.), § 5a, eff. May 30, 2018; amended 2019, No. 64, § 10.)

Subchapter 010: Enforcement
§ 4991. Purpose

The purpose of this subchapter is to provide the Secretary of Agriculture, Food and Markets with the necessary authority to enforce the agricultural water quality requirements of this chapter. When the Secretary of Agriculture, Food and Markets determines that a person subject to the requirements of the chapter is violating a requirement of this chapter, the Secretary shall respond to and require discontinuance of the violation. The Secretary may respond to a violation of the requirements of this chapter by:

(1) issuing a corrective action order under section 4992 of this title;

(2) issuing a cease and desist order under section 4993 of this title;

(3) issuing an emergency order under section 4993 of this title;

(4) revoking or conditioning coverage under a permit or certification under section 4994 of this title;

(5) bringing a civil enforcement action under section 4995 of this title;

(6) referring the violation to the Secretary of Natural Resources for enforcement under 10 V.S.A. chapter 201; or

(7) pursuing other action, such as consulting with a farmer, within the authority of the Secretary to ensure discontinuance of the violation and remediation of any harm caused by the violation. (Added 2015, No. 64, § 17; amended 2021, No. 105 (Adj. Sess.), § 146, eff. July 1, 2022.)
§ 4992. Corrective actions; administrative enforcement

(a) When the Secretary of Agriculture, Food and Markets receives a complaint and determines that a farmer is in violation of the requirements of this chapter, rules adopted under this chapter, or a permit or certification issued under this chapter, the Secretary shall notify the farmer of the complaint, including the alleged violation. The Secretary shall not be required to identify the source of the complaint.

(b) When the Secretary of Agriculture, Food and Markets determines that a person is violating the requirements of this chapter, rules adopted under this chapter, or a permit or certification issued under this chapter, the Secretary may issue a written warning that shall be served in person or by certified mail, return receipt requested. A warning issued under this subsection shall include:

(1) a description of the alleged violation;

(2) identification of this section;

(3) identification of the applicable statute, rule, or permit condition violated;

(4) the required corrective actions that the person shall take to correct the violation; and

(5) a summary of federal and State assistance programs that may be utilized by the person to assist in correcting the violation.

(c) A person issued a warning under this section shall have 30 days to respond to the written warning and shall provide an abatement schedule for curing the violation and a description of the corrective action to be taken to cure the violation.

(d) If a person who receives a warning under this subsection fails to respond in a timely manner to the written warning or to take corrective action, the Secretary may act pursuant to section 4993 or section 4995 of this section in order to protect water quality. (Added 2015, No. 64, § 17.)
§ 4993. Administrative enforcement; cease and desist orders; emergency orders

(a) Notwithstanding the requirements of section 4992 of this title, the Secretary at any time may pursue one or more of the following enforcement actions:

(1) Issue a cease and desist order in accordance with the requirements of subsection (b) of this section to a person the Secretary believes to be in violation of the requirements of this chapter.

(2) Issue emergency administrative orders to protect water quality when an alleged violation, activity, or farm practice:

(A) presents an immediate threat of substantial harm to the environment or immediate threat to the public health or welfare;

(B) is likely to result in an immediate threat of substantial harm to the environment or immediate threat to the public health or welfare; or

(C) requires a permit or amendment to a permit issued under this chapter and a farm owner or operator has commenced an activity or is continuing an activity without a permit or permit amendment.

(3) Institute appropriate proceedings on behalf of the Agency of Agriculture, Food and Markets to enforce the requirements of this chapter, rules adopted under this chapter, or a permit or certification issued under this chapter.

(4) Order mandatory corrective actions, including a requirement that the owner or operator of a farm sell or otherwise remove livestock from a farm or production area when the volume of waste produced by livestock on the farm exceeds the infrastructure capacity of the farm or the production area to manage the waste or waste leachate and prevent runoff or leaching of wastes to waters of the State or groundwater, as required by this chapter.

(5) Seek administrative or civil penalties in accordance with the requirements of section 15, 16, 17, or 4995 of this title. Notwithstanding the requirements of section 15 of this title to the contrary, the maximum administrative penalty issued by the Secretary under this section shall not exceed $5,000.00 for each violation, and the maximum amount of any administrative penalty assessed for separate and distinct violations of this chapter shall not exceed $50,000.00.

(b) A person may request that the Secretary hold a hearing on a cease and desist order or an emergency order issued under this section within five days of receipt of the order. Upon receipt of a request for a hearing, the Secretary promptly shall set a date and time for a hearing. A request for a hearing on a cease and desist order or emergency order issued under this section shall not stay the order. (Added 2015, No. 64, § 17.)
§ 4994. Permit or certification; revocation; enforcement

The Secretary may, after due notice and hearing, revoke or condition coverage under a general permit, an individual permit, a small farm certification, or other permit or certification issued under this chapter or rules adopted under this chapter when the person subject to the permit or certification fails to comply with a requirement of this chapter or any term, provision, or requirements of a permit or certification required by this chapter. The Secretary may also seek enforcement remedies and penalties under this subchapter against any person who fails to comply with any term, provision, or requirement of a permit or certification required by this chapter or who violates the terms or conditions of coverage under any general permit, any individual permit, or any certification issued under this chapter. (Added 2015, No. 64, § 17.)
§ 4995. Civil enforcement

(a) The Secretary may bring an action in the Civil Division of the Superior Court to enforce the requirements of this chapter, or rules adopted under this chapter, or any permit or certification issued under this chapter, to ensure compliance and to obtain penalties in the amounts described in subsection (b) of this section. The action shall be brought by the Attorney General in the name of the State.

(b) The court may grant temporary and permanent injunctive relief and may:

(1) Enjoin future activities.

(2) Order corrective actions to be taken to mitigate or curtail any violation and to protect human health or the environment, including a requirement that the owner or operator of a farm sell or otherwise remove livestock from the farm or production area when the volume of wastes produced by livestock exceeds the infrastructure capacity of the farm or its production area to manage the waste or waste leachate to prevent runoff or leaching of wastes to waters of the State or groundwater as required by the standards in this chapter.

(3) Order the design, construction, installation, operation, or maintenance of facilities designed to mitigate or prevent a violation of this chapter or to protect human health or the environment or designed to ensure compliance.

(4) Fix and order compensation for any public or private property destroyed or damaged.

(5) Revoke coverage under any permit or certification issued under this chapter.

(6) Order reimbursement from any person who caused governmental expenditures for the investigation, abatement, mitigation, or removal of a hazard to human health or the environment.

(7) Levy a civil penalty as provided in this subdivision. A civil penalty of not more than $85,000.00 may be imposed for each violation. In addition, in the case of a continuing violation, a penalty of not more than $42,500.00 may be imposed for each day the violation continues. In fixing the amount of the penalty, the court shall apply the criteria set forth in subsections (e) and (f) of this section. The cost of collection of penalties or other monetary awards shall be assessed against and added to a penalty assessed against a respondent.

(c)(1) In any civil action brought under this section in which a temporary restraining order or preliminary injunction is sought, relief shall be obtained upon a showing that there is the probability of success on the merits and that:

(A) a violation exists; or

(B) a violation is imminent and substantial harm is likely to result.

(2) In a civil action brought under this section in which a temporary restraining order or preliminary injunction is sought, the Secretary need not demonstrate immediate and irreparable injury, loss, or damage.

(d) Any balancing of the equities in actions under this section may affect the time by which compliance shall be attained but not the necessity of compliance within a reasonable period of time.

(e)(1) In determining the amount of the penalty provided in subsection (b) of this section, the court shall consider the following:

(A) the degree of actual or potential impact on public health, safety, welfare, and the environment resulting from the violation;

(B) the presence of mitigating circumstances, including unreasonable delay by the Secretary in seeking enforcement;

(C) whether the respondent knew or had reason to know the violation existed;

(D) the respondent’s record of compliance;

(E) the deterrent effect of the penalty;

(F) the State’s actual costs of enforcement; and

(G) the length of time the violation has existed.

(2) In determining the amount of the penalty provided in subsection (b) of this section, the court may consider additional relevant factors.

(f) In addition to any penalty assessed under subsection (b) of this section, the Secretary may also recapture economic benefit resulting from a violation. (Added 2015, No. 64, § 17; amended 2021, No. 105 (Adj. Sess.), § 147, eff. July 1, 2022.)
§ 4996. Appeals; enforcement

(a) Any person subject, under this subchapter, to an administrative enforcement order, an administrative penalty, or revocation of a permit or certification who is aggrieved by a final decision of the Secretary may appeal to the Civil Division of Superior Court within 30 days of the decision. The Chief Superior judge may specially assign an Environmental judge to the Civil Division of Superior Court for the purpose of hearing an appeal.

(b) If the Secretary issues an emergency order under this chapter, the person subject to the order may request a hearing before the Civil Division of Superior Court. Notice of the request for hearing under this subsection shall be filed with the Civil Division of Superior Court and the Secretary within five business days after receipt of the order. A hearing on the emergency order shall be held at the earliest possible time and shall take precedence over all other hearings. The hearing shall be held within five business days after receipt of the notice of the request for hearing. A request for hearing on an emergency order shall not stay the order. The Civil Division of the Superior Court shall issue a decision within five business days from the conclusion of the hearing and not later than 30 days from the date the notice of request for hearing was received by the person subject to the order.

(c) The Civil Division of the Superior Court shall review appeals under this section on the record pursuant to Rule 74 of the Vermont Rules of Civil Procedure. (Added 2015, No. 64, § 17; amended 2017, No. 11, § 2; 2021, No. 105 (Adj. Sess.), § 148, eff. July 1, 2022.)

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