Vermont Legislature SmartTranscripts:

[Rep. David Durfee (Chair)]: The next step in the conversation about the Supreme Court who wanted to be heard some background on the other day. Yeah. We Bradley was that was Bradley, I think, who was walking through that. And you will recall that we got to the point where the definition of wraps came up and to understand as we prepare to think more about what we might do moving ahead, what exactly are the required agricultural practices. We talk about them all the time. We have, I think, maybe a vague or a few bit of sense of what they are, but now it's come to a legal issue. We should probably be better informed. So we're gonna hear from Legis Council this morning, and then this afternoon, the agency is gonna come in. And you can tell me if this is a correct way of thinking about it or framing it, Mike, but there there's statute that addresses it. And then I think the results are ruled that addresses it. Are you live right now? Yes, you are.

[Michael Grady (Legislative Counsel)]: Okay. So this is this is Michael Grady with legislative council. Yes. The I'll work backwards. The required agricultural practices are currently rule, and they have been rule since they were first authorized in 1991. And that authorization is in statute. And for much of from from 1991 to 2015, the directive for the practices and I'm gonna call them practices because between 1991 and 2015, they were the accepted agricultural practices, the AAPs. Then when you did what people call the State Clean Water Act in 2015, the Senate specifically changed accepted to required. But it was by rule since 1991. And I'll I'll show you. I actually have the, you know, enabling authority for for that. So in 2015, you got very specific about what the RAPs needed to include. There are about 12 subdivisions that the RAPs needed to address as part of that state Clean Water Act. And those each of those subdivisions has its own additional provisions underneath the rules as the Agency of Agriculture adopted them. So it's a long standing requirement for the agency to have a rule defining the practices. First, they were accepted, then they were required. But the accepted term was something of a misnomer for several years because they were even though they said accepted, they were actually required. And, and that created some confusion in the farming sector. So that's one of the reasons why it was changed to required in 2015. Because it it didn't make sense to the chair of Senate Natural at that time to have a rule that was required to say accepted. So that's why it was changed to require.

[Rep. John O'Brien (Member)]: So, Mike, just to be clear, that this body directed AFM to come up with accepted I mean, we'll call them ratified account.

[Michael Grady (Legislative Counsel)]: Right. In rule. In rule. Uh-huh. And that's that's And I'll get into it in my presentation. That's something that I don't think the Supreme Court fully digested. When they looked at the Let's step back, and I'm sorry I didn't review Bradley's testimony to you, but the court implemented what's called a plain meeting interpretation. And and courts are supposed to affect the legislative intent. That's their primary goal. And if they can do that just by reading the language and its plain meaning, they will do that instead of going and looking at legislative intent for statutory history or the scope of the regulation itself. So they made their their they based their decision largely on the fact that required agricultural practices as authorized in statute are for agricultural water quality. They didn't look at the rule itself, which is broader than just agricultural water quality. And they didn't treat the references to required agricultural practices as a reference to the rule. They treated it as a reference to what the agency was supposed to adopt. And I think if they had gone back and looked at the legislative history of the municipal exemption and of the accepted slash required agricultural practices and the scope of the required agricultural practice, which they partly did. There's this really I'm getting ahead of myself, but there's this really interesting reference to farm structures and how farm structures have been determined to be exempt from municipal regulation by a Vermont Supreme Court decision. Farm structures are regulated under the required agricultural practices. So I don't know if farm structures are subject to municipal regulation now because the court said municipalities can only regulate those aspects of farming that are not agricultural water quality related as required agricultural practices. Well, the farm structures isn't water quality related. It's about building. It's about setbacks. What what happens with that? I don't know. And and maybe the agency can tell you more about that because it's my understanding that they are trying to reach something of a legislative resolution of some of these questions and reinstating, at least in part, the exemption for farming because because municipalities, if they can can't regulate water quality, they can regulate everything else. Location, citing, setbacks, hours of operation, noise, odor, solid waste. That's what they have authority to do in their general enumerated powers in '24 VSA two two ninety. Well, they have a lot of authority. They can even regulate animals underneath that authority. So so what do you want? What is your intent? Right? Because remember, the courts are supposed to affect that primary their primary goal is to affect legislative intent. I don't think that TAF decision affected your intent. I think that plain meaning analysis was either too limited or it was a results based decision. Because it was all around the exemption of cannabis cultivation from municipal regulation. I think you have to look at it. I'm not saying that the court did that. But I think that played into the court's analysis as to how they got to where they are, where they were. So I I read the decision. I'm like, this is a plain language decision, and it doesn't understand the regulatory structure. And I'll point out one of the ways that it doesn't understand the current regulatory structure.

[Rep. John O'Brien (Member)]: Just one more thing while we're in 1991. So it was it really began over water. Right? No.

[Michael Grady (Legislative Counsel)]: And so the exemption started before the accepted agricultural the exemption was in law before you directed the agency to adopt the accepted agricultural practice. And that's something that the court didn't address. The court said in 1991, there was the accepted agricultural practice and they refer water too. And so it has always been about water. Well, like, hey, but the municipal zoning exemption was in 1987. And it said according to accepted agricultural practices and silvicultural practices that were adopted by the Commissioner of Agriculture or the Commissioner of Forests and Parks.

[Rep. John O'Brien (Member)]: So the exemption is 1987.

[Michael Grady (Legislative Counsel)]: No. 1987. And so it didn't get tied to the rule adopted by the agency until after until 2003.

[Rep. John O'Brien (Member)]: Well, I just wondered at what point on the agency of ag side did they sort of come to a conclusion that we need to define what farming is? That's whether it's 15 goats or 14 goats.

[Michael Grady (Legislative Counsel)]: Yes. And I want to talk about that because I think that's one of the parts of the regulatory structure that the TAF decision didn't understand. It said it would be anomalous to interpret the RAPs as applying or farming practices or farming in general to apply to only 15 or more goats when it should apply to all goats. Well, you made that decision in 2035 or 2016 to say, no, not every ownership of an animal is farming. And I I have a little headline from 2009. There was the very homeowner who had three roosters and four chickens, and the roosters were boisterous. And the town wanted to regulate them and the homeowner said, no, I'm farming. I'm I'm selling my my eggs. And so the agency was getting a lot of those requests from towns. Is this farming? The agency didn't want to do that. The agency doesn't want to go to a backyard in Burlington and say you're farming. And so they set those thresholds for what is farming. And the Taft issue really kinda that that property owner, that farmer plus cannabis, cannabis goes for he really he really understood what he was doing.

[Rep. David Durfee (Chair)]: He did a lot there. He knew what he thought about.

[Michael Grady (Legislative Counsel)]: Yeah. And and he he manipulated it to his advantage. But, you know, that's like criticizing people for taking tax deductions. I mean, yeah, maybe billionaires shouldn't take tax deductions, but the law allows it. They they are allowed to do it. You might not like it, but it's allowed. People didn't like what he was doing, but it was allowed. So I'm like a little afield now.

[Rep. David Durfee (Chair)]: Oh, you wanna to bring you back to the presentation. So

[Michael Grady (Legislative Counsel)]: let's talk about the required agriculture practices. As I stated, they are required by statute, and they shall be management standards to be followed by all persons engaged in farming in the state. And they shall address activities that have potential for causing agricultural pollutants to enter the groundwater and waters of the state. And they shall 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, etcetera. And as I said before, they have been around. This is a 1991 law, act number two sixty one. And it's you can see that they are directed again by rule to to adopt and implement and enforce agricultural land use practices in order to reduce the amount of agricultural pollutants entering the waters. And they were called one category would be accepted agricultural practices, and one would be best management practices. Now, then the accepted agricultural practices were deemed to be the required practices. And the best management practices were things that the secretary could require you to do, if necessary to meet water quality requirements. So CEPTED was everybody, BMPs, something that the secretary could require for individual property owners, farmers, etcetera.

[Rep. John O'Brien (Member)]: Just a quick note, Dave, on what we're talking about, neonics. That's a really interesting line there that it says the secretary can require BMPs.

[Rep. David Durfee (Chair)]: Yeah, yeah, relevant to that. Topical. We're looking at something printed in 1991. And that's when the original practices came into place.

[Michael Grady (Legislative Counsel)]: This is the initial enabling authority for what became the RAP.

[Rep. David Durfee (Chair)]: And and then you mentioned a moment ago that the, exemption existed even earlier. So this is

[Michael Grady (Legislative Counsel)]: the statute from 1992, And you will see 4495, no plan or bylaw adopted under this chapter shall restrict accepted agricultural silviculture practices as defined by the Commissioner of Agriculture or the Commissioner of Forest and Parks. And you will see that it was added in 1987. So this predated that 1991 law. But then in 2015, there was act, number 64, often commonly referred to as the State Clean Water Act, which I don't like, but that's what people do. And you will see that the required agricultural practice, that term was added in 2015, and it replaced accepted agricultural practices. And you can see it kind of divvied up that subsection from how it was drafted in in 1991, and and it broke out what a required agricultural practice is. And you don't see it on the slide, but there was now a subdivision C, which is the best management practices. So directive for land use practices that will identify and implement the off point sources. The first is going to be required agricultural practices and then it's best management practices. So this is where the terminology of RAPs initiated. This is where it was born. And it was partly because of the kind of intuitive, like why should accepted agricultural practices not why required accepted agricultural practices not be referred to as required. So practices had been required all along.

[Rep. David Durfee (Chair)]: So just renaming the category or the group. Okay.

[Michael Grady (Legislative Counsel)]: And remember that there are additional requirements for medium farms and large farms that that go beyond the required agricultural practices. So the the the agency regulates water quality in many ways other than the required agricultural practice.

[Rep. David Durfee (Chair)]: Representative Nelson, thank you.

[Rep. Richard Nelson (Ranking Member)]: Would but would accepted and required required means we have to do it. Accepted would be you can milk cows on a tight stall or you

[Michael Grady (Legislative Counsel)]: can milk cows on a milk environment.

[Rep. Richard Nelson (Ranking Member)]: You can make dry hay or you could chop silage.

[Michael Grady (Legislative Counsel)]: Right, but remember, this is a rule. This was a rule and what you had to do under that rule, what was mandatory under the rule was in the rule. You could parse the plain meaning of what a required agricultural practices versus an accepted agricultural practice versus just an agricultural land management practice. And that's kind of what the Taft Court did. They kind of was like, well, we're not gonna look at the reference to require agricultural practices as a universe defined by a rule. We're gonna look at the plain meaning of what that means and how the statute is saying that it just is about nonpoint source water pollution. And So if you define it as the rule that the exemption that municipalities shall not regulate required agricultural practices, it's everything in that rule, which includes farm structures.

[Rep. Richard Nelson (Ranking Member)]: But it that's not what the court said. Yeah. But how could the court go against the forty four ninety five from 1987 when it said that farming was exempt from zoning and whatnot because it was changed after?

[Michael Grady (Legislative Counsel)]: It was changed after, and I don't know if I have the change in my slides. But let me get to that in a minute. Yeah. Just

[Rep. John O'Brien (Member)]: quickly, at this point, since you were here on the silviculture side, why didn't they accept RAPs? Did they at that same time, did they develop the AMPs? I mean, it's interesting that in the beginning, right, they're tied together as far as exemption goes.

[Michael Grady (Legislative Counsel)]: No. You didn't get to the the specifics about the silvicultural exemption until '20 it was the big year, 2017 or 2018. It's in that time frame when commissioner Snyder came forward with just a total proposal to to restructure the laws regarding harvesting. That's when they came forward with a proposal for required notice of harvest, required trip tickets, etcetera. And the trip tickets and harvest notification failed, but the right to forest did not fail. And that was amended in 04/2013. Because 4495 became forty four thirteen in 2003. And that's when the subsection was was, reorganized, and then it was reorganized again in 2017, maybe, when the to forest came in. And the right to forest is different. It says municipality shall not regulate by bylaw accepted silvicultural practices or forestry operations. So it has that Not just the practices or what's defined in the practices, which are water quality, but also how forestry operation is defined at statue, which is pretty much. Most everything that you can think of as far as tree operations. It's really it's kind of curious now that the municipality can regulate farming except for water quality, but they can't regulate forestry operations. Just curious as that's not how it was intended in 1987. Remember, in 1987, they were together as exempt from municipal regulation.

[Rep. David Durfee (Chair)]: You just showed

[Rep. John O'Brien (Member)]: us there. So,

[Michael Grady (Legislative Counsel)]: but what what do the to the RAPs include? So remember I said in 2015, you got really specific about what they were required to include. You you said they had to have requirements for prohibiting or stacking piling manure. They had to have setbacks for that. They had to have You had to have standards for nutrient management and to have standards for construction and management of barnyards and waste management system. You had to have soil loss requirements, the T requirements. You needed to have standards for buffer zones. Needed to have flood hazard area requirements. You needed to have standards for exclusion of livestock and standards for cover cropping. And it goes on. Not very much further, but you, the general assembly, was very, very specific about what those RAPs were to include. And they did. And the agency went through a pretty long and, you know, it was a very involved process because there were so many people that were interested and they adopted the RAPs. This is just a screenshot of their table of contents. And so they have requirements for agricultural water quality training because there are requirements that farmers get trained in agricultural water quality requirements. So that's part of the rule. They have requirements or prohibition on direct discharges from a farm because that's part of the statute. And so that's in the rule. They have requirements about storage of ag waste and agricultural impacts. They have that's directed in the statute. They had to have concrete pads or be set back or the silos for your inputs to And be set so that's in the rule. There's requirements for nutrient management planning, which is how you deal with your manure and your inputs and how you apply them to your field according to site specific conditions. That's in the rule. There's soil health management and cover crop requirements. The T requirement and how you do cover crop. That's in the rule. Manure and waste application, when you can apply manure, where you can apply manure, because there are some setbacks for where you apply manure. You don't apply manure right next to

[Rep. David Durfee (Chair)]: a public water system, for example. There's buffer zone. Excuse me. Wait. I'm wondering, Patricia, if you can can you minimize or eliminate that view of our room? We don't need to see that, and it's blocking the

[Patricia (Committee Staff/Assistant)]: Okay. Let me it's here. Thanks. Sorry.

[Rep. David Durfee (Chair)]: If we have the power to do that.

[Patricia (Committee Staff/Assistant)]: Let's see, I think there's a couple of options. So that one doesn't help. Let's see. Nope. I just have to cycle through them and see

[Rep. John O'Brien (Member)]: what's You want gonna that look interesting, yeah, because you had that same view.

[Patricia (Committee Staff/Assistant)]: Yeah. Well, we have So that's where we started, right? I'm sorry about this, but shared content view, what would that look like? To speak, no. No.

[Rep. David Durfee (Chair)]: Okay, well we can Yeah,

[Patricia (Committee Staff/Assistant)]: I'm so sorry about that. Slide at least to the Yes, I think I can just move it to the top. Let's see if that works.

[Rep. John O'Brien (Member)]: Or is it actually on mic screen?

[Patricia (Committee Staff/Assistant)]: Maybe that's it.

[Rep. Richard Nelson (Ranking Member)]: You.

[Rep. John O'Brien (Member)]: Okay.

[Michael Grady (Legislative Counsel)]: So there's buffer zone requirements, the setback between the surface water and your cropland or a ditch and cropland. There's animal mortality management requirements like how you deal with your mortalities, how you compost those mortality, how

[Rep. John L. Bartholomew (Vice Chair)]: you

[Michael Grady (Legislative Counsel)]: compost imported food processing residuals, which is not a water quality requirement. Right? That's how you deal with the waste, the compost food residuals that come in and how you manage that. Because there was literally something called the composting wars about how to allow for composting on farm. That's part of the RAPs. And that's not a water quality requirement. That's a compostingsolve waste requirement.

[Rep. David Durfee (Chair)]: So my under to the extent that you understand it anyway, under the court's ruling, do municipalities now have the ability to regulate the composting?

[Michael Grady (Legislative Counsel)]: I don't know. I don't know. And I'll I'll show you why I don't know because I I I because it really depends on if they meant that municipalities can't regulate required agricultural practices. If they meant the rule and the confines of the rule or the plain meaning of that term, the agricultural land management practices for nonpoint source pollution. And I say, I don't know because because alright. Let me just preface that. The the wraps are more than water. The wraps are about construction of farm structures and setbacks for farm structures and how to comply to the best of the farm's ability with the municipal setback as approved by the Secretary of Agriculture, not as approved by your municipality. And there's a variance process in the RAPs for how you go about not complying with the municipal backs. Again, in the RAPs, it's not the municipality that governs the variance process. It's the secretary that does. And that's in the RAPs. And in Taft, they said forty four thirteen D one a, which is the municipal exemption, does not prohibit all municipal regulation of farming if that farming is subject to the RAP's rules and the landowners duck raising operation is not exempt from municipal zoning solely because its activities are subject to the RAP's rule. Rather, 4,413 D1A prohibits municipal regulation of required agricultural practices. All right. We're like, it's not the rule. It's that term for the agricultural land management standards intended to protect Vermont's waters established by the RAP rules and imposed on certain composting is not something that's there to protect Vermont's waters. So is that still exempt?

[Rep. John L. Bartholomew (Vice Chair)]: I've got that song. So this is

[Rep. John O'Brien (Member)]: the decision?

[Michael Grady (Legislative Counsel)]: This this is, an excerpt from that decision. So let's look at forty four thirteen because it it says a bylaw under this chapter. This is the municipal authority 24 VSA forty eight thirteen. A bylaw shall not regulate required agricultural practices, including the construction of farm structures as those practices are defined by the Secretary of Agriculture. So required agricultural practices, we looked at that enabling authority. It did say it was about controlling non point source pollution, water pollution, etcetera. But the rule and this exemption say that required agricultural practices include construction of farm structures. And farm structure is buildings, enclosures, fence, fence, raising horticulture or agronomic plants, carrying out other practices associated with accepted agricultural farming practices, including a silo. But it excluded dwelling, which makes sense.

[Rep. David Durfee (Chair)]: So

[Rep. Richard Nelson (Ranking Member)]: this is all well and good. You know, we can put up our barns and put our animals in it and contain our waste.

[Michael Grady (Legislative Counsel)]: But if you're driving your tractor after 08:00 at night in the summertime Or

[Rep. Richard Nelson (Ranking Member)]: after 05:00.

[Rep. John L. Bartholomew (Vice Chair)]: Right.

[Rep. Richard Nelson (Ranking Member)]: Whatever they decide or before 05:00, 07:00 in the morning, feeding their couch.

[Michael Grady (Legislative Counsel)]: Existing municipal noise ordinance might now apply to you.

[Rep. Richard Nelson (Ranking Member)]: Exactly. So this is and again, it gets to accepting agricultural practices. Now if you're a good neighbor and you have a lot of exhaust on your vacuum pump and you milk cows pretty much around the clock, and someone says, Nelson, do you muffle that better? You ought to muffle it better, and we have. But, you know, that's being a good neighbor and working with your neighbors. But I can't control when I have to put in feed. You have to put in feed when the sun shines. Or harvest your corn. Yeah. Exactly.

[Michael Grady (Legislative Counsel)]: You know if freeze is coming and it's October or late September, and you're like, you've gotta work through the night. Mhmm.

[Rep. Richard Nelson (Ranking Member)]: So this is the the crux of the issue is getting back that the accepted practices are exempt.

[Michael Grady (Legislative Counsel)]: And I also want to make the point that last year you strengthened the right to farm. And you were clear that you wanted farmers to have additional protections and additional activities to be protected under that nuisance protection. This subverts that because why do you even bring a nuisance claim? You just go to your municipality and say to your municipality, they're violating the noise ordinance. They're violating the traffic requirements.

[Rep. Richard Nelson (Ranking Member)]: You know, like You need to change your zoning laws to protect us.

[Michael Grady (Legislative Counsel)]: You need to cite them away. Yes.

[Rep. Richard Nelson (Ranking Member)]: And even if you owe $10,000,000 to the bank, you need to

[Rep. David Durfee (Chair)]: put them out of business. Representative Lipsky.

[Rep. Jed Lipsky (Clerk)]: I'm trying to I'm inquiring about a path to a solution to this. Would this committee draft work on an amendment to the bill or the rules or whatever that would clarify and protect the intent of original act, which might then

[Unidentified Committee Member]: null and void this decision?

[Michael Grady (Legislative Counsel)]: Oh, definitely. That's my question. Definitely. You you have the authority, especially in in with decisions of this kind where you don't believe they met the legislative intent to to clarify what the legislative intent is and to effectively override the court's decision. But but there's an entire body of advocates out there that are probably important to you, and I mean your municipalities, who are looking at this and saying, well, what are we going to get out of this? And and I respect that. I respect that. You know? It's it's something that they have the opportunity right now to say that things that they don't like should be addressed. And that that, I think, is part of this dynamic right now.

[Rep. David Durfee (Chair)]: After we have heard from Ledge Council and the agency late this afternoon were going to take some testimony from farmers with their perspective on how we could fix this. Probably their perspective is closely aligned to what you're imagining we could do that. But then we're also going to hear from the League of Cities and Towns, which represents the municipalities and has a different perspective. And the agency has yet a third perspective. This is a political question. This is gonna be an interesting exercise in the way democracy superimits because there are different interests. And we, as representative, have constituents who will have possibly different interests. But I think we're hearing that the intent of the legislation, which hasn't been questioned for twenty five or thirty five years or whatever it's been, seems to be different from what the court's reading of the last week.

[Michael Grady (Legislative Counsel)]: Well, let's let's talk about that. So we're talking about how farm structures are are regulated under the RAPs. I think we've already went over that. But the RAPs are used throughout statute to refer to the activity that the agency will regulate as farming. Because this is the headline I referred to, Barrytown Roosters were issue. And the minimum animal thresholds or criteria for application of the wraps are intentional. The court said that would have been anomalous. The court said it was anomalous to think that farming was defined as something where one to 14 goats is not farming, but 15 or more is farming. That's not that wasn't anomalous. That was fully intention. It was fully intentional. It's done only in the RAPs, but it was done with the consent of the legislature. The agency brought the RAPs to you with that proposal and told you why and told you how they were spending resources. Because the agency has to respond to every complaint. The agency has to respond in some way to every complaint. And what they were doing, they were sending people out to people's backyards to see if their roosters were farming. Like, that's not what I think you want them to be doing. And that's why those thresholds were set, And it wasn't announced. It was intentional.

[Rep. John O'Brien (Member)]: So the Supreme Court essentially said, like, one chicken is farming, one tomato plant is farming. Otherwise otherwise

[Michael Grady (Legislative Counsel)]: I don't know this You

[Rep. John O'Brien (Member)]: don't need a bright line. This is farming. This is not I

[Michael Grady (Legislative Counsel)]: I don't know what their intent was, the court's intent was, the scope of what this decision will. I I really it's it's I don't know if you remember. This came out on the last day of the session. I was running around like a chicken with my head coming around. Right? And I was like, you gotta you gotta do something. And I'm like because I was really unconcerned about what this means. I don't know the scope of how this will be applied. If you're a if you're a municipality with with issues, you now have authority to address those issues. And I think you might even have authority to allow things that aren't allowed. Like, what kind of farm structures built? And, you know, I I don't know. I don't know. I wish I could tell you. And let's look at that, like Representative O'Brien?

[Rep. John O'Brien (Member)]: So so potentially, my like, the manure spreading ban, This is saying like a municipality couldn't

[Michael Grady (Legislative Counsel)]: It can't regulate the manure spreading ban.

[Rep. John O'Brien (Member)]: It can't enforce like, oh, Richard's spreading on Christmas, so we're gonna shut him down.

[Michael Grady (Legislative Counsel)]: They can regulate when he's operating or the noise from his tractors when he is operating.

[Rep. John O'Brien (Member)]: If they like ordinance wise. Right? Did they just do a complete ban, like no spreading manure in our town?

[Michael Grady (Legislative Counsel)]: I don't think they could do that because that's allowed under both statute and rule. Okay. But I think they could get at that through through certain ways.

[Rep. David Durfee (Chair)]: Okay. Representative Bartholomew? Very early on,

[Rep. John L. Bartholomew (Vice Chair)]: you gave a list of things that included things like setbacks, and I think you said it was stuff that municipalities could regulate to very like, one of the early things first in your Sure.

[Michael Grady (Legislative Counsel)]: Under general?

[Rep. John L. Bartholomew (Vice Chair)]: Is that was that after this ruling or before the ruling?

[Michael Grady (Legislative Counsel)]: That's that's

[Rep. John L. Bartholomew (Vice Chair)]: Did I understand it correctly that it was a municipalities can regulate all that stuff?

[Michael Grady (Legislative Counsel)]: They can't regulate it. Before the ruling, they could not regulate that for farming, subject to the RAPs.

[Rep. John L. Bartholomew (Vice Chair)]: Could saying they can do that.

[Michael Grady (Legislative Counsel)]: They can do that now.

[Rep. John L. Bartholomew (Vice Chair)]: Can you give me that list again? Hope setback was one. It was a whole bunch of stuff.

[Rep. John O'Brien (Member)]: Title or municipality powers.

[Unidentified Committee Member]: It's an old, but in 1969 or '70, legislature passed the Interim Planning Development Act, enabled and empowered municipalities to adopt land use regulations of the zoning districts, included road funded setbacks, ride setbacks, years so back. I I that was a lie of an act. From

[Rep. John O'Brien (Member)]: both sides. Right.

[Rep. John L. Bartholomew (Vice Chair)]: Oh, yeah. So

[Michael Grady (Legislative Counsel)]: this is what the authority under zoning includes. Location, size, height, building, bulk, yards, court, setbacks, density of buildings, off street parking, loading facilities, traffic noise, lighting, landscaping, and screening requirements. But municipal bylaws also include anything that's authorized under 24 BSA twenty two ninety one. That includes things such as the operation and use of vehicles, location installation, repair of utility poles, wires, water pipes, erection of signs or displays, keeping of dogs. The one that's The what constitutes a public nuisance? These are now getting very specific parking lots, screening requirements. So that's what their authority is.

[Rep. John L. Bartholomew (Vice Chair)]: Isn't before it is. That was your point earlier?

[Michael Grady (Legislative Counsel)]: Right. Because forty four thirteen says a municipal bylaw, whether it's a zoning bylaw or another enumerated authorized bylaw, shall not regulate required agricultural practices. And the court said, well, required agricultural practices are only those water quality control practices. Not not the I think I lost a slide somewhere. Oh, no. Here it is. So in the decision, they said that they previously had examined the question of whether farm structures were exempt from municipal regulation, and they said that they were. And we further acknowledge that this conclusion was bolstered by the fact that forty four thirteen reflects recognition by the legislator that in order to survive, Vermont farms must enjoy the freedom to diversify and engage in reasonable agricultural activities. We did not, however, address the meaning of required agricultural practices in that prior Supreme Court decision. And our interpretation of the term farm structures, a term specifically defined by the legislature, has no bearing on how secretary has defined required agricultural practices. Except the rule that's called required agricultural practices has requirements for farm structures in. So how does that have no bearing? So I don't know if farm structures regulated under the RAPs are exempt, but the rest of the RAPs are not except maybe composting's not is still exempt. Does the RAP variance process still apply? Think I don't. I don't know. The court didn't answer these questions. How this is going to be implemented is either going to take years more of litigation or some legislation. And I also wanna point out That the wraps are used to define the scope of other laws. The they define whether water discharge law and our water discharge law applies to a farm or not. They determine, you know, whether the phosphorus, the deferred phosphorus fertilizer ban applies to farms or not. They determine whether or not municipal storm water fees apply to farms or not. There's more. You know? So if this is only about agricultural land use management practices and not what is an activity regulated by them. And I will say in the in the municipal municipality shall not charge an impervious service fee or other storm water fee on property regulated under the required agricultural practices. So not just the I mean, I think that's that's type of language, that type of conditioning is potential for you to resolve this issue.

[Rep. David Durfee (Chair)]: Yeah.

[Michael Grady (Legislative Counsel)]: And so but I don't know where the league falls on that. I mean, the league is probably going to be very involved. So the General Assembly enacted the RAP requirements to address water quality. The court is right about that. But they have been used to define the scope of farming activities more broadly than just water quality. And the ag exemption for regulation has existed since 1987, which we codified and restructured in it was first restructured in 2003 and then in 2023. And, Mike, is this consistent with your intent? So I I don't opine on intent because I'm not a legislator, and different legislators have different intents. But I don't know what this decision means for the regulation of farming.

[Rep. David Durfee (Chair)]: Is there any significance, either in the court's reading of the law or in how we should be thinking about the solution here, resolution, to capitalizing are a those those three words? I

[Michael Grady (Legislative Counsel)]: Yes. And I have gone back and forth with the editors about this for years. And I was, like, kicking myself yesterday about why didn't we capitalize that? Why aren't they capitalized? So to denote that it's something specific, something of a certain universe. And I thought about that. I mean, would that have made a difference? I don't know. We're fully defining required agricultural practices by the agency of agricultural's adopted rules known as X, being and everything within it or every practice or every, every person subject to that. And I think I didn't draft. I mean, I've been here for a long time, but I didn't draft the 1987 or the 2003 loss. But I thought they were artfully done. But apparently they gave the courts opportunity to interpret.

[Rep. David Durfee (Chair)]: If you go back to slide 10, it's the current existing 24 VSA. Yeah. We were looking at this yesterday or day before yesterday. I just was wondering about, a, so a bylaw shall not regulate required agricultural practices, etcetera, etcetera, as defined by the secretary. Naively, I'm sitting here wondering, why can't the secretary then just define more explicitly what those practices are to address and solve the problem? Because

[Michael Grady (Legislative Counsel)]: the court says the RAPs are standards for causing agricultural pollutants to enter the groundwater and the waters of the state. And so that's the difference, that kind of distinction of treating the RAPs as a rule or universe defined by what the agency adopted or interpreting it to mean what the pre meaning of this is and only about water pollution control. And think I the agency could try what you just proposed. They could, but it would probably, at some point, inspire litigation as to whether or not This is not like constitutional law. You need where just the fact that it violates the constitution gives someone, most people, some sort of standing to sue. You need to have a right at interest in order to sue for application of this law or non application of this law. And so just if you passed something or the agency did what you proposed, Chair, somebody would have to have a particularized interest that was affected by what the agency adopted. And that takes time. Takes time in most instances to arise. And so

[Rep. John O'Brien (Member)]: Mike, is there case law on the whole sort of farming threshold that this farmer with 12 goats ran into impotence problems because of that threshold?

[Michael Grady (Legislative Counsel)]: Not not that I know of. There

[Rep. John L. Bartholomew (Vice Chair)]: are

[Rep. David Durfee (Chair)]: anecdotally, I feel like there are some towns regulate roosters, for example, that here you can't have three roosters or Yeah. Or but but if you have enough roosters Or ducks. Let's use roosters as but, yes, it could be ducks. But there so we talked about the 14 versus 15 goats. Right. There's a similar number. Maybe you know how many roosters you can have or how many chickens. But

[Michael Grady (Legislative Counsel)]: The number for chickens is pretty high from my recollection.

[Rep. David Durfee (Chair)]: So let's see.

[Michael Grady (Legislative Counsel)]: It's a 100 laying hens, 50 geese, 50 turkeys,

[Rep. David Durfee (Chair)]: a 100 ducks. So if if you had 99 ducks currently or I mean, last year before the court ruled, you you could the town could regulate your

[Michael Grady (Legislative Counsel)]: The town could regulate that.

[Rep. David Durfee (Chair)]: So so presumably then in the case, there were more than 90 there were a 100 or more ducks living in that.

[Michael Grady (Legislative Counsel)]: I I have not talked to anybody at the agency who actually went and made the determination. But when you look at the background documents on that, the the property owner has a determination by the secretary that he constituted farming. Oh, there are other ways, to like, you don't

[Rep. John O'Brien (Member)]: make money.

[Rep. David Durfee (Chair)]: Yeah. We could be Yeah. Be Yeah. Yeah. So something like

[Rep. John O'Brien (Member)]: the rooster thing, is it is it under noise ordinance, like a subchapter of noise ordinance?

[Rep. David Durfee (Chair)]: Where where towns do Yeah. Regulate that? It would

[Michael Grady (Legislative Counsel)]: be a town probably could either regulate the number of roosters that you own or even prohibited underneath the threshold prior to this decision. Or, yes, say that roosters are a noise violation. I will note that the general assembly state statutes, one of the things you generally don't regulate is noise. You generally leave that to municipalities, not like winter vines and some other things you've gotten into that, but noise is usually a municipal authority.

[Rep. David Durfee (Chair)]: Representative Nelson? Yeah.

[Rep. John L. Bartholomew (Vice Chair)]: Certain.

[Rep. Richard Nelson (Ranking Member)]: As much as we like to certain things go on in certain places where they shouldn't go on. But the LFO permit MFO permit that all stemmed from back from the chicken farm went in up in,

[Michael Grady (Legislative Counsel)]: you know Partly. Yeah. Partly.

[Rep. Richard Nelson (Ranking Member)]: Before that, everybody was happy. Everybody was doing their thing. In Highgate network? Yeah. Yeah. And, you know, this stemmed from a duck and marijuana grow operation. I I don't know where it was in Essex. Sounds like it was right in a

[Michael Grady (Legislative Counsel)]: And and that and that's I mean, it's it's like an endless kind of circle here. It's like, would this have been an issue if the cannabis control board had denied his his application for a license? Probably not. But did the cannabis control board have authority to deny his license? They say no. And so it's a little bit of a wonder wheel here.

[Rep. Richard Nelson (Ranking Member)]: Are you farming in Orleans?

[Michael Grady (Legislative Counsel)]: Closer to my home.

[Rep. John L. Bartholomew (Vice Chair)]: Better. Wanna make sure that I understand correctly. So these thresholds that are set, if you're below the threshold, you're not farming. You're not farming. And the required agriculture practices do not apply to you.

[Michael Grady (Legislative Counsel)]: That's right. Well, I don't know anymore. Don't know. The required agricultural practices don't find don't define the universe of what's farming, do do you need to set back your composting pile from your site or surface water? Do you need to control water that comes off of your impervious surface? I don't I don't know. I

[Rep. John L. Bartholomew (Vice Chair)]: get to the question that I I have is that are there farming operations that are there loopholes where people the reps should apply, but they don't? Do we have loopholes in this?

[Michael Grady (Legislative Counsel)]: I you know, there's probably people that would agree that there are certain instances that should apply, but I can't think of any particular case.

[Rep. John L. Bartholomew (Vice Chair)]: Sounds like it's pretty clear, clearly defined, or used to be clearly defined. It used to be. Okay. Thank you.

[Rep. David Durfee (Chair)]: So it's and this is it's confusing. It's a little hard for me to get my head around just because of that the seem to be introduced. But what we know is that there has been a decision that overturned one instance in one community. Are you aware any other, Mike, other Has there been any other

[Michael Grady (Legislative Counsel)]: Not that I'm aware of. And this is a question for the league. I don't know who's coming in from the league. Is it Ted or is it someone else?

[Rep. David Durfee (Chair)]: I'm not sure. We haven't actually established that.

[Michael Grady (Legislative Counsel)]: I mean, one of the questions to them is, are municipalities exercising their authority under this decision. And to what extent. If I were the league, I would probably advise municipalities to tread a little carefully. Because if they start doing things like prohibiting certain practices that are necessary for the operation of a farm, especially a long standing farm. Then then you'll. Raise the ire of the farming community and that's something that is

[Unidentified Committee Member]: recommend you avoid.

[Rep. John O'Brien (Member)]: Like I was thinking what Richard and you were just talking about was part of the problem with this. The bit about cannabis growing that we put into law, I think it's from Bobby Star. Right?

[Michael Grady (Legislative Counsel)]: That that John, this is representative Brian. That that you don't get to undoing that unless you undo the RAPs and the exemption under the RAPs because the cannabis language was that they will receive the same exemption as afforded to those activities regulated under the required agricultural practices. And so the court, in order to say municipality gets to regulate that cannabis cultivation, they have to say the municipality gets to regulate the farming under the rule. That's why I think that it might have been a results based decision. And

[Rep. John O'Brien (Member)]: that was the duck part. It's like, look, I'm farming. I'm under the RITs. And so I get the benefits of a small cannabis grow that the legislature

[Michael Grady (Legislative Counsel)]: I you could have looked at it either way. He was a small cannabis grow, and you said he gets the same exemption as he did as a farmer. And therefore, he was exempt either way. And now the court said, no, he's not exempt either way. Do you know what was this a unanimous court? That's a great question because it's not signed, and I can't find it on the Vermont Supreme Court website. I'm getting it off of of of the the legal service, legal documents providers. I I don't know. I can't tell you who it all was. Well,

[Rep. David Durfee (Chair)]: you say you can't find it, was that It's not there.

[Michael Grady (Legislative Counsel)]: And should it be there? It should. I mean, can double check. I haven't looked in a couple of haven't looked in a couple of models, actually. So I can I can check again?

[Rep. John O'Brien (Member)]: Doesn't Supreme Court hear work like the national the federal one where, you know, they're dissenting opinions sometimes? Yes.

[Michael Grady (Legislative Counsel)]: There wasn't in this opinion.

[Rep. David Durfee (Chair)]: Oh, okay. We we know that much anyway. There was no

[Michael Grady (Legislative Counsel)]: At least of what was published, there was not a dissent.

[Rep. David Durfee (Chair)]: Right. Any other questions that we have, Mike, on this issue? The definitions of agriculture may come up again in this conversation. We talked about the number of animals that qualifies you, but then also your income qualifies you as farming and the size of your

[Michael Grady (Legislative Counsel)]: operation, acreage. Acreage plays into it as well. And remember that that's only one way you've defined farming in statute. One of 24 ways or whatever. One of 20 ways that farming's defined.

[Rep. David Durfee (Chair)]: Is it relevant to this discussion? That way of defining?

[Michael Grady (Legislative Counsel)]: Yes, think it is very much relevant to this discussion because you want to define the universe that's legitimately farming versus the universe that is, I own a cow and chickens. It's not legitimately Well, that will be up to you. That will be up to you if that's legitimate.

[Rep. David Durfee (Chair)]: We've

[Rep. John O'Brien (Member)]: done a lot of work on accessory on farm businesses. So they're connected to the reps too, right?

[Michael Grady (Legislative Counsel)]: Yes. They're connected more to Act two fifty than they are to the reps. Because farming under Act two fifty is not defined by the animals or your income. It's defined by if you're engaged in one of the listed practices. And so that I honestly don't think accessory off farm is gonna be affected that much. Would that that be a question for the agency, what they think? I'm just curious about how the agency would propose to resolve the issue.

[Rep. David Durfee (Chair)]: They they are working on that. I think we'll hear from them next week. So

[Michael Grady (Legislative Counsel)]: you've already passed the threshold for individual content or individual requests for a bill. Your content is now the fifteenth. But but I don't know what vehicle you would use for this. So

[Rep. David Durfee (Chair)]: good question. Do we have a do we have the authority, though, to do a committee bill?

[Michael Grady (Legislative Counsel)]: We do until in the senate, the January. I think for you, it's the February, but I will double check that. I

[Rep. David Durfee (Chair)]: always wonder about the title and whether we can do a committee bill in a title that isn't our title,

[Michael Grady (Legislative Counsel)]: That's a question for the clerk. I think this is very much related to agriculture, And it may involve amending, Title VI and the authority for the RAPs. So I think depending on what the resolution is, I think you can definitely argue germane. You amended the right to farm in Title 12, which is judiciary. You have jurisdiction over Title IX and parts of Title XX. So

[Rep. David Durfee (Chair)]: This is 24. It's 24. Do you know, just as an aside, speaking of deadlines, the question has come up about the December 1 deadline for requesting bills. That was the deadline. And yesterday or the day before, passed a rule. We approved a change to the rules that I understand takes effect next looking ahead. But the question has come up as to whether there may be some leeway on this year for bills that were introduced after that or or requested rather after that.

[Michael Grady (Legislative Counsel)]: It was my understanding that the rules committee wasn't going to provide leeway for the bills and requested, but would for content and bill introduction.

[Rep. John L. Bartholomew (Vice Chair)]: Okay.

[Michael Grady (Legislative Counsel)]: But I can double check on that for you.

[Rep. John L. Bartholomew (Vice Chair)]: Page out for content. That deadline also passed already before the resolution was adopted. So it's only introduction. That's not my understanding.

[Michael Grady (Legislative Counsel)]: That's what I know you're on the rules committee.

[Rep. John L. Bartholomew (Vice Chair)]: That's what Brynn said at the meeting.

[Michael Grady (Legislative Counsel)]: That's what Brynn told me.

[Rep. John L. Bartholomew (Vice Chair)]: Okay. What's the intent?

[Michael Grady (Legislative Counsel)]: I will ask because I am

[Rep. John L. Bartholomew (Vice Chair)]: Well, that's what I said on the floor yesterday.

[Michael Grady (Legislative Counsel)]: I am drafting based on the content standard being the fifteenth?

[Rep. David Durfee (Chair)]: Why don't we take a break? So we can go off live streaming. So we'll be back at eleven with Bradley to walk us through the list of reports that were