A WHITE PAPER ON THE SENATE AND HOUSE AGRICULTURE COMMITTEES

HOUSEKEEPING BILLS

Every year, the Agency of Agriculture, Food & Markets reviews legislation previously passed and requests changes from the two Agriculture Committees to either update or clarify existing statute. These are known as the “housekeeping” bills and are often used to attach some language which is not going to become law on its own. That happened this year with the Right to Farm bill (S.268), which was introduced into Senate Judiciary but died there. Pieces of S.268 were added to S.258 (the Senate Housekeeping bill) and ultimately passed. Below is the analysis of both S.258 and H.709 (House Housekeeping bill).

ACT 174 (H.709) AN ACT RELATING TO MISCELLANEOUS AGRICULTURAL SUBJECTS

The following sections were requested by VAAFM and subsequently passed in Act 174:

·       Removal of the word “principally” when defining qualifying products produced on accessory on-farm businesses

·       Allowing the Secretary to use electronic mail as well as certified or personal mail to serve any person

·       Allow VAAFM to simultaneously evaluate pending applications and ongoing compliance concerns on any application or renewal of a license, permit, registration or other form of permission

·       Clarified the word “adulterated” when applied to produce

·       Authorize the Secretary to enforce the requirements of the Food Safety Modernization Act using the same or similar powers granted to the US Food and Drug Administration, including how to determine whether produce is adulterated

·       Removal of the requirement to pay for and provide adulticide application for mosquito control grant programs

·       Removal of the word “industrial” from marketing hemp; added the “manufacturing hemp products or hemp-infused products from hemp concentrate” to the processing of hemp; removed the word “shall” and replaced it with the word “may” regarding establishment and administration of a State Hemp Program; removed the requirement for the Secretary to destroy a hemp crop, product or infused product with a delta-9 THC level exceeding federal guidelines and requires the grower to destroy the crop; allow a person issued a “stop sale” order an appeal within 15 days after receipt. This section also repealed the ability to sell or transfer in interstate commerce any hemp meeting state or federal guidelines

·       Repeal of a notice of change of ownership or change of lease of a small farm

·       Amended statute to read that “a small farm that is subject to RAPs and is not required to certify as a small farm under Section 4 of the RAPs is not required to operate as a Medium Farm Operation and is not required to operate as a Large Farm Operation”

Vermont Farm Bureau reviewed the proposed changes and listened to the discussion but did not offer testimony on any part of H.709, as we agreed with the recommendations of VAAFM. We also did not have any specific policy on any of the changes.

ACT 162 (S.258) AN ACT RELATING TO AGRICULTURAL WATER QUALITY, ENFORCEMENT, AND DAIRY FARMING

The following sections were requested by VAAFM:

·       VAAFM clarified language regarding grant applications and now requires that applications not have an active enforcement violation that has reached a final order and is incompliance with all terms of a current grant agreement or contract with VAAFM; however, the Secretary has sole discretion to waive the grant prohibition if it is determined that the application is working constructively to resolve all issues OR all issues are minor OR it is in the interest of justice. The good standing requirement ONLY applies to grants exclusively awarded by the VAAFM.

·       Clarifies the definition of “waste” or “agricultural waste” to include material imported onto a farm

·       Requires the Secretary to pay the costs of any initial groundwater monitoring to determine whether a facility poses a threat to human health or the environment

·       Clarifies that “sewage” does not mean stormwater runoff

·       Notes the Secretary may require anyone transporting non-sewage waste to a farm to obtain approval prior to transportation

·       Repeals incentive grants for nutrient management planning

·       Clarifies the capital equipment assistance program to add “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”

·       Adds language in the Farm Agronomic Practices Program to “include education, training, or instruction” of soil based practices and “soil-based practices that improve soil quality and nutrient retention, increase crop production, minimize erosion potential, and reduce agricultural waste discharges”

·       Extends the Task Force to Revitalize the Vermont Dairy Industry through February 1, 2023 and codifies the per diem for non-legislative members

VTFB monitored the discussion of these issues and agreed they were acceptable. Again, we had no specific policies on the proposed changes and did not think them onerous to the industry.

ADDITIONAL LANGUAGE IN ACT 162 REGARDING RIGHT TO FARM

When it became clear Senate Judiciary was not supportive of passing S.268 (Changes to Right to Farm) out of committee, advocates for the bill requested the language be amended to S.258, which was being discussed in House Agriculture. After much debate, the following sections were added to the Senate Housekeeping bill (S.258):

1)    “Agricultural activities” means the operation and management of an entity engaged in farming, including all those activities defined as “farming” in 10 V.S.A. Section 6001(22), “agricultural activity” in 12 V.S.A. Section 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 of agricultural activities to other farming practices of agricultural activities on a farm

m) The employment, use and housing of farm labor

There was also a cross reference between the definition of farming in the statutes (in the Agriculture section as well as the Judicial section), as well as the continuation of entitlement to the rebuttable presumption that they do not constitute a nuisance.

The rebuttable presumption (which is in current Right to Farm statute) was slated to be removed in S.268 as introduced.

VTFB was not aware of S.268 until we were contacted to support the language just before it was introduced into the Legislature. We had several concerns, including the timing (there was an active lawsuit in Addison County between a dairy farmer and a neighbor accusing the farmer of polluting her land and the waterways) and the removal of the rebuttable presumption. VTFB was worried that if this language was passed and it didn’t address the results of the lawsuit, the entire discussion would have to begin again in 2023 to make adjustments. We were also worried about a list that described activities defining acceptable farming practices, since lists always leave something out. (In fact, line l above was added by House Judiciary which was concerned about agritourism activities, even though that had been vetted and not added by House Ag). A last minute attempt to add “homesteaders” to the bill was not supported by VTFB, as there is no definition of the word in Vermont Law and the impending end of the session did not allow ample time for debate.

The current Right to Farm laws are decades old and could probably be reviewed for updates; the challenges are always opening laws that seem to be working (there have only been 1 or 2 lawsuits in Vermont in all these years surrounding right to farm) and arguing with other groups about why they should be loosened rather than strengthened.

VTFB has extensive policy on Right to Farm and Practice Forestry:

           Vermont Farm Bureau supports:

1.    The right of Vermont private property owners to produce and market agricultural products

2.    A farmer’s right to choose agricultural methods including modern technologies, providing that RAPs and AMPs are practiced

3.    Actions to ensure farmers are protected from undue liability and nuisance suits when carrying out such practices

4.    Informing all purchasers of Vermont property of a private property owner’s fundamental “right to farm” within RAPs

5.    VAAFM establishing a variance process in regards to RAP regulations.

VTFB supports a right to practice forestry that will relieve landowners from lawsuits for injury from normal forest operations.

VTFB supports only the Secretary of VAAFM – not towns or other municipalities – setting the standards for nuisance issues of noise, odor, traffic, flies and other pests on all agricultural operations.

VTFB supports the introduction of legislation requiring homebuyers who move next to farms be informed that agriculture can be noisy, odoriferous, dusty and farmers have a right to farm. Furthermore, developers and real estate agents should be required to inform potential buyers about Vermont’s Right to Farm whenever property changes hands.

VTFB supports continuation of the LFO, MFO and CSFO laws with an appropriate level of review by the VAAFM of all livestock operations and the impacts these have on the environment and the community. Furthermore, we will do whatever is necessary to keep all agriculture oversight within the VAAFM.

VTFB resolves commercial farms encroached on by suburban areas should not be subject to regulation under nuisance or noise laws and all existing regulatory exemptions for on-going farm operations should be maintained.

VTFB will continue to have an active role in protecting the Right to Farm Law specifically by requesting all water quality laws be based on solid science.

VTFB supports legislation to protect farm animal owners from being held criminally liable for any accident caused by their roaming animals having escaped confinement.

VTFB will ask the legislature to strengthen Vermont’s Right to Farm Law to protect farmers and farmland whose use has been modified yet still stays within Vermont’s definition of farming (10 V.S.A. Section 6001(22).

Questions to ask candidates:

1.    Do you understand the Right to Farm Law in Vermont?

2.    Do you think it gives too much protection to farmers?

3.     What do you think the definition of “homesteader” is? Should homesteaders under any definition be covered under Right to Farm? If so, why?

4.    Do you think there are any other types of agricultural activity that is missing from the list?

5.    Do you think there are types of agricultural activity that should not be on the list?

(Obviously when chatting with candidates, you will need to either have the list available or read it to them).

And to all VTFB members – what is missing from our policy regarding right to farm? Do you believe homesteaders should be included? (We have heard that at least one other group will be working to include homesteaders in the Right to Farm statute next year.) Do you think we are missing something? This is an important policy for agriculture – please spend time talking about this issue in your county meeting and with other farmers.