Vermont Legislature SmartTranscripts:

[Rep. David Durfee (Chair)]: Steve Collier from the Agency Agriculture, etcetera. And we're gonna continue our conversation about the wraps. This is all context building so that we are in a good place when we start about when we start hearing requests and thinking about what might we do legislatively to address this dilemma that's now opened up. So we did hear this morning from our alleged counsel on some of the statutory background. I think Steve's got more to say there and then can help us with the rules themselves.

[Steve Collier (Agency of Agriculture, Food and Markets)]: Thank you so much, Mr. Chair. Good afternoon, members of the committee. Steve Collier from the Agency of Agriculture Food and Markets. It's great to see you all again. I didn't realize Mr. O'Grady had come in this morning to give you some of the history. I'm glad he did, but I did actually bring that same history because I think it's really elemental to helping understand why we are where we are now. So if you want, have a handout of four different copies of the statutes have as as they've evolved. It's not every change, but it's a significant change over time. And I also have a copy of the RAPs if anybody would like a copy. Yes. They're not there's some changes that are not in there, but not they're not very important.

[Rep. David Durfee (Chair)]: So what we're passing around here, this booklet is the '20 effective 2018. So do they you said there's not

[Steve Collier (Agency of Agriculture, Food and Markets)]: There were some we went through rulemaking last year. I believe that are some additions that are not in that booklet. They're not they're they're about they're really about training custom applicators. They're not relevant to the they didn't change the substantive requirements that firms have to follow, but those are not in that particular booklet. But other than that, it's it is accurate. It's just the booklet has not been amended to have those included yet. It's also on our website, the same copy of the rules. So the I I guess you had some history this morning, but I haven't heard what Mike said or mister O'Grady said, so I'll just quickly go through it. But as far as I know, and I've tried to find out, but it's unless you go to the library and look at all the old versions of the statutes that existed at the time, there's no quick and easy way to do that. I don't believe that I have no reason to believe that towns have ever had the authority to do to zone agriculture in the state of Vermont. I do know that when Act two fifty was enacted in 1970, one of the principal reasons to adopt, and that was the first statewide zoning law, one of the principal reasons to do that was because of a commission that Governor Hoff chaired in the 1960s. And one of the impetus for that or a large part of it is that I understand and reading the historical documents is was the concern of the loss of farming. Farming had gone from about 80% of the land in the 1930s to about 44% of the land in 1960s. The population was increasing. Farmland was we're losing farmland and Vermont, which had always been a farming state, was very concerned about that. So one of the primary drivers of Act two fifty was to try to protect farmland. So in 1970, when Act two fifty was passed, farming was exempt, and it's always been exempt from that statewide zoning exemption. Now interestingly, although Act two fifty was passed in 1970 and designed to protect farmland, we've lost another 56% of our harvested cropland since Act two fifty was passed. So whereas we had over 40%, 44%, I think, in the sixties of our land was in farmland. Now it's now it's about 20%, but more than half of that is forest. So now we only have about 9% of our land in Vermont, and this is 2022 statistics, so it's probably less than that. Only about 9% of our land is in harvested cropland now in Vermont. So we continue to hemorrhage farmland, which is just an important, I think, bit of a backdrop of why not subjecting agriculture to multiple potentially conflicting requirements is important. So that's the statewide Act two fifty zoning rubric. I'm not I'm not really familiar with how exactly zoning has evolved in Vermont. It largely started in New York City, as I recall, in the twenties and thirties and then expanded around the country. I don't I mean, a lot of towns in Vermont still don't have zoning, but, obviously, some towns have very extensive zoning, and I don't I'm not really familiar with. Yeah.

[Rep. David Durfee (Chair)]: I think I overheard representative Lipsky chime in this morning on the origins of municipal zoning in Vermont. Did I

[Rep. John O’Brien (Member)]: were you saying something? I won't say zone if you but in you could look in under Vermont statutes annotated in 1969 or early nineteen seventy, the legislature passed the Interim Planning and Development Act, it was known as enabling legislation, which enabled municipalities, particularly rural towns that had no boards of health, had no planning boards, had no zoning, to appoint plan boards, appoint boards of health, appoint

[Rep. John L. Bartholomew (Vice Chair)]: zoning misstep officers to write and adopt town plan bylaws and

[Rep. John O’Brien (Member)]: ordinances. I know because I turned 21 there and I because I could almost read and write, I became the chairman of the new planning board and that's because I didn't mind being a deputy constable, I was made to his army administrative office.

[Steve Collier (Agency of Agriculture, Food and Markets)]: Well, some people when they turned 21 were thinking of different things.

[Rep. David Durfee (Chair)]: So you

[Rep. John O’Brien (Member)]: were doing You were other things. Anyway, my point was all over rural Vermont, towns took this act and acted on it because of this threat of overdevelopment. And the biggest driver actually was Mount Snow in Dover, Vermont. People would buy up 300 acres and get Alpine Village in Warren, Vermont, and it's Stratton Mountain, and block off 10th of an acre lots, sell them for $50 at the county fair in Iowa City, Iowa. If you can get a piece of Vermont, here's it. For $15, you're $50. There was no road frontage. There was no it could've been solid rock or a 50 degrees of smoke. You know? So there's no place to drill a well. So it was creating chaos, And Vermont was transitioning from a forest based farming base with some mill town. You know? There were there were some milling in Bellows Falls and other you know what I'm saying? So it was go time. The legislature freaked out. People are showing up. Where's my date? I I wanna move to Vermont. It's not happening. Not false narrative. That's the way it happened. A few months after the interim planning and development act, act two fifty was passed, that was revolutionary. Maybe Oregon had a the only other state that had a statewide environmental control review board.

[Rep. David Durfee (Chair)]: So

[Rep. John O’Brien (Member)]: Interesting. That is Jed's take on history. He did last since.

[Rep. David Durfee (Chair)]: I was here at Representative O'Brien's stake. Thank

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

[Unidentified Committee Member]: Chair. Part of this whole discussion on test rate is about what is farming? And so I wondered, have you looked into active 50 at all as far as at that point, did the agency of ag define farming? Or was it just one of those, it's like pornography, you know it when you

[Rep. John O’Brien (Member)]: see it, that's farming, that's not fair.

[Steve Collier (Agency of Agriculture, Food and Markets)]: I think it was like that, only a little different. So I have looked at this before years ago, but when Act two fifty was passed in 1970, farming was not defined. Farming was exempt, but it wasn't defined. And if I remember correctly, it was 1985 when the quote unquote farming definition that's still an act two fifty today, that's sort of the standard farming definition of Vermont was first defined. It has evolved a little bit since then, but in '9 so it's around the same it's interesting because it's around the same time the zoning issues started to materialize too. So I think it's all interconnected, but I haven't gone to the law library to read every statute to see. But yes, it was farming was exempt, not defined in 1985. I'm sure they were having issues about, well, what's farming when they're going through the Act two fifty process. So it was defined in 1985. And interestingly, as far back as I could go without going to the law library was 1987. And if you look at the first page and maybe Mr. Brady already showed you this morning on this handout, pretty clear. This says 1989 because that's as far back as the online statutes go, but if you look at the statutory history, it says this language was added in 1987 and it's pretty clear. It says no plan or bylaw adopted under this chapter shall restrict accepted agricultural civil civil civil cultural practices. So that's the first known exemption that I'm aware of. There may have been one before. There may not have been needed to be one before, but at least since 1987 it's clear that towns could not adopt bylaws to regulate accepted agricultural practices. Now that begs the question of what did that mean? You know, what did accepted agricultural practices mean? And I'll try to get into that a little bit in a minute. But the next piece of the handout is from 2003. And I added that one just because that's the year right before 2004 when there were some substantial amendments to the to the bylaw. So if you look at that language, it hasn't changed. And if you look at 4495 b, it has the same language there about no plan or bylaw. And that's a plan also, not just a bylaw, but no plan or bylaw adopted under this chapter shall restrict accepted agricultural or farming practices. So that actually added farming, and then above, they had they had now the legislature has defined farm structure. So sometime between 1989 to 2003, farm structure was added to that definition. So that's clear. You can't I mean, it both says farming prac interestingly there, it actually says farming practices and accepted agricultural practices. Looks like you had a question.

[Rep. David Durfee (Chair)]: Yeah. Well, just since you called out plan there, can you are you qualified to tell us the difference between a plan and a bylaw?

[Steve Collier (Agency of Agriculture, Food and Markets)]: I'm I'm no municipal zoning expert, but a plan is essentially aspirational, and by bylaws are what determine the laws. So you can have a plan right now. You can have a plan that says we want agriculture here, residential here, industrial here, but that plan is not binding unless it's adopted in the bylaws. That's my understanding of how the municipal zoning structure works. So you can say so you can say you want an industry here, but that doesn't stop you from having a farm in that industrial area unless there's a specific bylaw that does that is my understanding. And I'm pretty sure that piece of it is right. Yeah.

[Rep. John O’Brien (Member)]: So a follow-up question on that. Is is an ordinance the same as a bylaw?

[Steve Collier (Agency of Agriculture, Food and Markets)]: No.

[Rep. John O’Brien (Member)]: What is the distinction?

[Steve Collier (Agency of Agriculture, Food and Markets)]: So municipalities like all govern well, in Vermont, municipalities only have the power that the state gives them. So that's specifically what you've given them. They don't have sort of inherent powers. They have the powers that are expressly given to them by the legislature. But every government has certain inherent police powers. So an ordinance could be for something like, you know, there's there's a lot of different things you can do, and police doesn't mean in that context. It doesn't mean law enforcement with guns and badges. It means the ability to regulate. And so, yes, there are ordinances that may there there's other powers that towns have that are different than zoning. And chairman Durfee, I do remember clearly one

[Rep. John O’Brien (Member)]: of the fur if it was the seventh or eighth criteria of the 10 criteria in the first iteration of act two fifty that no development could be approved unless it conformed to a duly adopted town plan. And a town plan was voted on at the annual town meeting. And if the municipality, if it had either two thirds or majority vote became a duly adopted. And I think that criteria still exists today. Mhmm. But that impacts development. The bylaws for what were written and also voted on, not by just the select board, but the town voting list. Yeah. Interesting.

[Steve Collier (Agency of Agriculture, Food and Markets)]: So so that's 2004. We're both sorry, 2003, where both farming and accepted agricultural practices are expressly exempt. And then if you look at the next one, that's 2004. And the first page is just a cover sheet of the bill, H 175, the Act 115. But if you go to the second page, you'll see the under subsection D. So it's 4,413 D or kind of in the middle of the page. It's again clear that a bylaw shall not regulate accepted agricultural and silvicultural practices. And it's also and now also says as those are defined by the Secretary of Agriculture, Food and Markets and farming is no longer there. Now it's just accepted agricultural practices and they're and they're as defined by the agency. So, it's still it's still consistent but the wording is is changing and actually the the last version also had those practices as defined by the agency. So, really, they just take the word farming out. It's now just using accepted agricultural activities, but it's still got the same clear municipal exemption. Then the next page of the handout is going to sorry, do have a question? Representative O'Brien?

[Rep. John O’Brien (Member)]: Yes, sir.

[Unidentified Committee Member]: On the silvicultural side, is silviculture under the jurisdiction of the agency of Ag? No. What's interesting is that the secretary of Ag gets to weigh in essentially on

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

[Steve Collier (Agency of Agriculture, Food and Markets)]: It's later on in the language, it says or the commissioner of forest parks. Yeah. Yeah. They've they've kind of broken those two things apart a little bit of kind of it was a run on sentence, and now it's been separated. But but it's always been we we have not had and there's some kinds of forestry, which Christmas trees, maple. There there are things that are within our regulation, but generally forestry is is forest parks and rec.

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

[Unidentified Committee Member]: up earlier today. It's so interesting how wraps never bled into forest side of things. They had AMPs, but they didn't have wraps. And so now there's this sort of that while they were both exempted, now they seem to be going down different roads.

[Steve Collier (Agency of Agriculture, Food and Markets)]: I think they're both supposed to be exempt. It's all in how you define it. So the next change, I think, the key one for why the Supreme Court landed where it did. If you look, so in 2015, the Vermont's Clean Water Act was passed, which significantly changed the water quality requirements for farms in the state. And that's where the RAPs that I handed out that most a lot of that came from this Act 64 in 2015. So if you go to the next page where the language is for '24 near the top of the page where it says 4,413 D is amended in that language because everything that broadly speaking, everything used to be called accepted agricultural practices. And I think because I wasn't around then, but I've been fooled because we wanted to be clear that these are requirements, they're not voluntary. They're required they were there already were requirements, but they didn't like the fact that it was accepted. They wanted to be clear that these are things you must do. They're mandated. So they changed the word accepted to required. And that's what happened. The exemption didn't go away, but the language was changed to a bylaw in this chapter shall not regulate required agricultural practices as defined by the agency. So in my opinion, I think the Supreme Court got hung up on that word because required does mean and it's and it's in just an ordinary parlance, it means you have to do something. It doesn't normally just describe farming broadly. But the what the legislature was doing was renaming the rules and accepted agricultural practices. And this is part of the history too. It was back in the eighties, I think 1986, when the agency of ag was first asked by the legislature to define accepted agricultural practices. So at that time is when the definition start and that was because of water quality requirements in title 10, ANR, some of their work for discharges, ag accepted agricultural practices were exempted. So in order to know what's exempt, you've got to define it. And so the agency of AG was directed to do that. So accepted agricultural practices just became the parlance for essentially farming. That's what it is. The things that are listed the REPs for practices are farming practices. But this word required and the first time I read the word, I had the same take. What does this mean? Like, the things that are required are exempt. And I had to go back through the history and talk to the people at the agency and understand the developments and now, okay, they just changed the name. So now all of the things that are defined by the agency are exempt just like they've always been. And that was the common understanding. That's nothing changed in practice. We talked to towns all the time about it. Nobody nobody protested it until this one neighbor in Essex decided to challenge it. The Supreme Court ended up agreeing with, you know, the neighbor instead of with with the interpretation that everyone else had, including the environmental court when they decided that they they they wrote an opinion that I thought was spot on. And then the supreme court took a different look and just and I understand why because the wording was less than clear. But if you know the whole history of how it developed, I think it's I think it's pretty clear that the exemption was always intended to be there. And actually, if you look at your RAP's booklet that I gave you in section 3.2 so I think that's on page

[Rep. John O’Brien (Member)]: it's on page 12.

[Steve Collier (Agency of Agriculture, Food and Markets)]: If you look at this right at the bottom of page twelve, three point two, I think this is the key language that the supreme court may be overlooked, is that the agricultural practices on farms meeting the minimum threshold criteria set forth in section 3.1, and here's the key language, that are governed by this rule. So it's always been our interpretation. The reason the rule was written this way was all of the following practices. And when you look at those following practices, those are all that's what farming is. That's what the accepted agricultural practices were when they were first defined. They expanded over time, but all of those things. It's a bottom of page 12, and then all the practices are on page 13. Like these these this list of things on page 13, these were the accepted agricultural practices. They used to be defined as the accepted agricultural practices. But then when we had to rewrite the rule to be the required agricultural practices, the language changed a little bit, but we said all of these practices are governed by this rule. And since the legislature gave exempted all of the required agricultural practices as those practices were defined by our agency, we always believe that we define these practices as governed by the agency. They're therefore exempt.

[Rep. David Durfee (Chair)]: And you know So I'm having a moment of revelation here, maybe. Just tell me if this is correct. So the practices are not rules. They are more like methods for areas of, like we talk about areas of practice in another context. Is that Are you getting that right?

[Steve Collier (Agency of Agriculture, Food and Markets)]: Yes. The way that accepted agricultural practices started out was describing what farms can do and covered provided they met the other requirement, like the water quality requirements that were there. There was always this balance of these are all farming practices and this is what you have to do to meet the to meet the water quality requirements. But yeah, it's a list of farming practices. It was not a list of prohibitions. And that's what the, I think, Court understandably got hung up on is it didn't mean these are the legal requirements that a farm has to do. These are the things that are encompassed within farming. And if you do these things, you have to follow these rules. So it's a two part.

[Rep. David Durfee (Chair)]: It's confusing.

[Steve Collier (Agency of Agriculture, Food and Markets)]: It is. It is. It was not. I mean, it I would have written it. I think everyone would have written it differently if it started out differently. But sometimes when you're you're changing the laws and act 64 was huge and had a lot of different changes. And one of the mandates was that you change the name from accepted required. So everywhere in the statute that said accepted was changed to changed to required. And it makes sense, but when you start breaking it down, it's confusing. I was confused myself the first time I read it. I like, what is this? But when you dig into it, it's actually pretty clear when you look at the evolution of the history and you look at that these are not the yeah. The list of agricultural activities, those are not requirements. Those are things that are farming. So we so that's that's, I think, how we got where we are. I'm very confident. I don't I haven't talked to anyone who disagrees that the legislature never made a choice to try to enable municipalities to write to to use zoning bylaws to regulate farming. It just it never happened. There was supreme court made a decision, which is understandable, but it was never the legislature's intent to enable towns to zone to zone farms and they never have. So it's so so the question now is, you know, where do we go from here? Because we're in this new

[Rep. David Durfee (Chair)]: But I'll get to that. Just on this same list here of practices then, just thinking about what is your understanding anyway of practices that are not affected by this decision? What should we not be worrying about?

[Steve Collier (Agency of Agriculture, Food and Markets)]: So the way that I interpret the current state of affairs, and I I think there's pretty broad consensus on this, is that the Supreme Court has said that anything that is required in here so it's an actual mandated legal rule that farms have to follow. Anything that's required in here, towns can't also regulate. And so that includes all basically, it's water quality. There's we can go through them as much as you'd like, but it's a series of requirements that farms have to follow to protect water quality. In addition, in the RAPs is farm structures. The agency of agriculture regulates the citing of farm structures. So it's part of that, and part of this is in statute, part of it's in the rule. Farms have to give towns notice of the intent to build the farm structure, but but the agency of agriculture regulates its location. So and and we require farms to honor town setbacks unless they have a really good reason why they can't. So they can request a variance from us and there's a litany in here. There are a series of factors that we evaluate about whether or not a farm should be allowed a variance from town setbacks, but otherwise they have to follow the setbacks. So towns still cannot regulate anything that's required in here, which is so they can't regulate how farms manage manure as an example. They can't regulate the, you know, the how the farms conduct whether they get water quality training. They can't regulate anything that's already required in here or farm structures, but anything else that they're allowed to use zoning for, they can now regulate. So they could have a whole towns could have zoning for for, you know, for noise, for for lighting, for any number of a litany of kind of nuisance type factors that towns currently are allowed to do. So as a cloud a really like a good example is recently a town, we found out that a town was telling a farm they can't can't remember if it was plant. It was recent, so it was probably spread manure, at night. And that I mean, that the town was telling the farm you can't do this. So they wanted to have an like, I don't know if it was a noise ordinance they were thinking about or if it was zoning, I don't know what they were thinking about, but they were trying to tell a farm you can't do this at night. That's impossible. I mean, farms like there are limited windows and representative Burtt knows, but limited windows in the season when you can plant, limited windows when you can spread, limited windows when you can harvest. And if you're told that you have to do it in certain hours of the day, I mean, that would just put farms out of business potentially. And it's not just the farms, but often farms rely on others. They contract with others to do the work, some of the work at least. So like to have the idea that a farm would have to go through this whole other layer and not be able to make noise after 6PM or something, it would just completely change the rubric of farming.

[Rep. David Durfee (Chair)]: When was this time recently?

[Steve Collier (Agency of Agriculture, Food and Markets)]: It was in the last two or three months.

[Rep. David Durfee (Chair)]: And was the town was the municipality asserting that it had the, you know, the right to do that because of this ruling?

[Steve Collier (Agency of Agriculture, Food and Markets)]: I don't know. We were last I knew we were going to reach out to the town, which we do a lot and we always have. I don't I don't know, but I doubt it because I don't think they've had time to enact a zoning bylaw that would apply that was but but maybe they were interpreting it as well now it can apply. So that's I had the same thought. I don't I don't know. But that's the kind of, I mean, zoning can be, if you look at like South Burlington's zoning regulations or Burlington zoning regulations, they can be very comprehensive. And if farms started to have to follow those, it's just it's a it's a brave new world for them. And and, you know, town farms in Essex County would probably not be impacted. Farms in a lot of other areas really would be. And I don't think most towns from our discussions, like we weren't hearing from towns that they wanted to regulate farms. Know, towns get complaints just like we do about activities and they want to be responsive to their citizens just like we do. A lot of the time, though, government, part of the assessment is who's responsible for what? Right now that's us. So we get the blame. If there's something within our scope and we get a complaint, we have to address it. That's our job. So I think towns get some comfort being able to say that's the agency of agriculture, not us, not always, but what we want to do and what's been important with our work with the league in particular is we a space for everybody to be able to coexist peacefully. We really want farming to be able to happen wherever it reasonably can. You know, we know you can't have 100 cal dairy in Downtown Burlington, just doesn't work. So it's got to be reasonable, But we also want for any place that you can farm, we want farms to be able to do it and be subject to the same regulations no matter where you are in the state. And a lot of that is based on what we talked about at the beginning, which is we just keep losing farmland. So we're and and there's much more to it, including that for for we're having trouble getting new farmers. And oftentimes farming is so expensive, the land, the equipment, it's very hard for somebody who isn't born into farming to start farming. And they can't start it on a thousand acre parcel if they're going to do it. They necessarily have to start small. So sometimes when you're starting small, you have to do it developed neighborhood. And if you have a half an acre of land, there's only so much you can do. What you can do is surprisingly a lot, especially with produce vegetables on four acres or three acres. So we don't want to discourage anyone who wants to farm and grow food for us from being able to do it. And so what we've, we'll talk, I mean, I can talk more about our thoughts now, but next week I think I'm going to be, we'll be sharing language that we're actually proposing and talk about the specifics. But I think we've got a nice balance of if you can do it without undue interference with your neighbors, then you should be able to farm. And livestock is the tricky one. So, you know, we want to treat growing food, growing plants a little differently than livestock because if you're going to have livestock, you need to have enough land to reasonably manage it. And so we think if we can protect growing food, we can make sure that you have an adequate land base for any livestock that you have, then we can really do a lot to make sure that we're protecting farming without while we still allow towns to be able to regulate as necessary. And one important facet of that is in the RAPs, you look at section 3.1, and we've talked about this quite a bit in the committee before.

[Rep. David Durfee (Chair)]: Was going to ask you to.

[Steve Collier (Agency of Agriculture, Food and Markets)]: Yeah. Not everyone is subject to these rules. So you have to be a farm of a certain size to be subject to the required agricultural practices, and the supreme court found that to be anomalous. That it was intentional. The the point was we were not trying to say if you have two chickens, then the town can't regulate you. We were trying to say if you are farming at a certain threshold, then you are subject to these rules, and you can't be regulated by municipalities. So there's long been discussion, including within our agency, or what are the right thresholds for that? And the the current thresholds are in they're listed in 3.1. There's no magic formula for this. We're trying to compromise to so we call the people that are subject to the RAPs to be, you know, pharm subject to the RAPs. The ones who are smaller than that, we often refer to as subjurisdictional, just meaning we don't have jurisdiction. So towns can't I have always had the ability to regulate those, at least since these rules have been enacted. So there's always been a demarcation line. And a lot of the discussion is what is the proper line? And the threshold that we the principal threshold that we had in the rule is you need four contiguous acres of land. So if you have four contiguous acres that you're farming, you're subject to the rule with some, and we can go through all of these if you want, but that's kind of the big threshold. But then there was this one part of it where if you have $2,000 of ag product sales a year, or you file a schedule F with the federal government, which just means that you have agricultural income and you have to report that to the federal government for your tax purposes. My understanding of schedule F is it can be even lower than $2,000 I think it can be really any amount of income. So basically the four acre threshold was sort of not obliterated, but it was undermined by the $2,000 threshold. So in in the example with a case that went to the supreme court, you had a gentleman in Essex with a half an acre and some ducks, and he was selling over $2,000 of duck eggs. And so he was farming and subject to the REPs and should have been exempt from municipal zoning. We we didn't have a that was just the way it was, and we didn't have a problem with that judgment, but it's a a reasonable, I think, policy discussion about what is the right size of farm to be exempt from zoning and what is what should be subject to zoning. And that's where I think, you know, the league and us agree on that farming should be exempt almost in almost all of the state. The league believes that they should have the authority to to regulate farm to regulate quote unquote farming, you know, doesn't they think it shouldn't they should have the authority for to regulate all farming in downtowns, village centers, and planned growth areas. So that's kind of the area where at least the league and and and us differ, and downtowns and village centers are less of a concern from our perspective, but it's pretty vague. Like a village center is not the same everywhere. And again, what we want to focus on is not where you're located, it's whether you have a land base that's adequate for farming. So rather than saying, you know, if you just happen to be in something that's called the village center, you can't farm without zoning. We'd rather say, well, wait a second, let's look at what you have and whether or not it's viable for you to farm in that area. So I hope that we've worked really hard with the league and they were wonderful and cooperative. I really want us to be exactly together because I thought that would be better for everyone and we're not. But I think it's a manageable area of disagreement, a legitimate policy discussion for all of you. And then a lot of the farm groups want to go farther back to where we were to the $2,000 threshold which is totally understandable we understand that and but we decided that it was we wanted to be in partnership with the league to at least create the parameters so that we weren't we didn't want to be diametrically opposed on two opposite sides where you where you are all are kind of left with nobody agrees about anything. So what do we do? Because that's not true. We do agree farming should be exempt mostly. The question is how do you define farming and in those limited areas, whether you allow towns to zone farms in those areas or whether you maintain the exemption that they had. So it's, I think it's going to be a very interesting discussion. And just on the $2,000 threshold, just because this has kind of been the one that mitigates the four acre requirement for a long time, where we've settled is we think it's reasonable to up that to $5,000 The league is, at one point they wanted it to be $10,000 but in our continued negotiations they eventually agreed that $5,000 was okay. I think some of the farm groups are going to ask you to keep it at $2,000 or maybe even make it less, I don't know, which is perfectly understandable. But still that seems like a reasonable it's not a huge from my perspective, that's not a huge disagreement. You know, it's a navigable change.

[Rep. David Durfee (Chair)]: President Bartholomew, I shouldn't have the answer

[Rep. John L. Bartholomew (Vice Chair)]: to this, but can you remind me what's what's involved in adopting the these RAPs for amending? Sure. So well. I mean, I'm looking at the 2,000 as well, like, thousand dollars used to be a lot of money. Right. Right. How hard is

[Rep. David Durfee (Chair)]: it to change that?

[Steve Collier (Agency of Agriculture, Food and Markets)]: Well, so here's what we're going to propose to you is that you actually buy through your bill, we're going to ask you to amend the RAPs because normally the agency drafts its own rules and drafts its, you know, through ICAR and LCAR and the public process. But the legislature, you all have the authority and you've done it before and not that long ago to actually amend existing rules that are so rather because the rule making process takes a year, it's very time consuming. And rather than you could alternatively give us the authority to go back in and change the rules, but we'd rather get a consensus. It's just a couple of lines that we'd be changing. And so we're going to ask you as part of changing the statutory framework to be clear that farming is exempt to also change the RAP's criteria. This is technically a rule of thumb, right? Yes. And so, and you can change them, it's a long process, but we can change them legislatively you're saying? Correct. So we're hoping to create that package so it's not left to the future. Oh, what's the agency going do with the rules and how are you or you could specify us to make the rules a certain way, but it's a lot more streamlined to just say, if you think it should be $2,500, okay. It's $2,500. You think

[Rep. John L. Bartholomew (Vice Chair)]: it should be what? You know? Or 16 goats.

[Rep. David Durfee (Chair)]: Yeah. Let's get

[Rep. John O’Brien (Member)]: certain There's vocabulary stuff, and I apologize. It's obvious, but what is this survives?

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

[Rep. John O’Brien (Member)]: I asked that two years ago.

[Steve Collier (Agency of Agriculture, Food and Markets)]: I probably gave you a different answer then.

[Unidentified Committee Member]: Oh, it's Rabbits. Rabbits. Rabbits.

[Steve Collier (Agency of Agriculture, Food and Markets)]: Rats are like oh, yeah.

[Rep. David Durfee (Chair)]: Yeah. Yeah. Thank you. That I mean,

[Rep. John O’Brien (Member)]: I know you're all interested in all.

[Unidentified Committee Member]: You probably traveled on a ratite.

[Rep. John L. Bartholomew (Vice Chair)]: Might have. Was the

[Rep. David Durfee (Chair)]: duck farmer in the business of selling eggs or duck meat or ducks for somebody else to My

[Steve Collier (Agency of Agriculture, Food and Markets)]: recollection was just eggs. I think he had the it's a more complicated story because cannabis and so I think the cannabis was probably more of the neighbors concern, but their cannabis is regulated differently than ducks because cannabis is cannabis control board and ducks are farming. And I think he was using the manure from the ducks in part for for nutrients for his cannabis. But it got all wrapped. I mean, it was a neighbor dispute.

[Rep. John O’Brien (Member)]: And, yeah.

[Rep. David Durfee (Chair)]: The, the state wasn't so the state was not a party in this lawsuit. It was neighbor against neighbor or against It

[Steve Collier (Agency of Agriculture, Food and Markets)]: was neighbor against neighbor. I'd I I know that the I don't think that Essex was directly involved, but there but they I I could be wrong about that. I could look at it in a minute. But they the the initial decision by their DRB was that farming was exempt, then the town disagreed. But then I I don't remember if they were a party before the court or not. They were certainly involved, but I don't think they actually appealed it. I think it was the neighbor who appealed. The state participated all, but they asked to comment or could you offer whatever it's called? Amicus. So we did talk to the town of Essex. They knew our position. We also talked to the neighbor farmer. He knew our position. We not, we told them both and they both understood exactly where we were coming from. And then with the environmental court's decision we agreed with and thought it was spot on. The sadly, probably if the if the environmental court had decided otherwise, we might have chosen to ask to get involved in front of the Supreme Court and and amicus brief, but it all seemed pretty clear in retrospect. We made an error and should have. I made an error and including, but it's all sort of trying to evaluate time constraints and and and it all seemed fairly clear and the trial court got it right. So we thought the Supreme Court would follow suit and they did not. But no, no one asked that. Like, the Supreme Court did not reach out to us and say, what do you think about this? But but in retrospective, of course, I now wish that we had I don't know if it would have made any difference or not. But, yeah, I wish we'd weighed in now.

[Unidentified Committee Member]: Just a comment going back earlier. I think starting with Act two fifty and then the wraps, and it seems the Supreme Court sort of even missed this, is that when Vermonters now, since there's so few of us actually farming, hear that farming is exempt from municipal regulation or Act two fifty permitting. They think, oh, they get to be sort of libertarian Wild West when in fact, it's just a different jurisdiction and they're not exempt at all from rulemaking. It's all a history of ag.

[Steve Collier (Agency of Agriculture, Food and Markets)]: It's just who does what. It's confusing even when you understand the laws and the rules because there's still, it all depends on what you're doing. Yes, farming is exempt. Many people don't know what that means and it's reasonable. They don't know what it means because it's hard to follow. But you've got, you know, we've had these conversations in here before, got Act two fifty, which is, you know, one extra layer, but you also have municipal zoning, which is now totally different than it was intended to be, but you also have accessory on farm business, which is right, which where towns can regulate, but they can't prohibit. And there's every layer, there's different definitions, and that's just one part of it. Then you start talking about buildings and whether you're meeting safety codes. And then you start talking about wastewater, which is regulated by ANR and depending on the circumstances. But there's so many people just don't know what to do and it's, it's hard. So part of that is we need, I think, we need to be as clear as possible about who does what and what's expected of you. I get frustrated by that regularly. When somebody calls and says, what do I have to do? I'm a lawyer, and I don't know. I mean, I know what our agency requires, but I often can't even begin to understand what other people are also requiring. So the point is, in so many different areas, you really need to be an expert to know what's applicable. And we're asking our citizens to be experts on a lot of different things all at the same time while they're trying to actually make a living. So it's a challenge. It really is. People who want to do everything right, it's not easy to figure out how to do that. I mean, reading through the RIPs, I mean, there's a lot of things that you have to do in here and where you're violating the law and they're all good things. They're all designed for the right outcomes and they're and they're effective but they also raise costs a lot, take a lot of land out of production. So you you have to but clarity ought to be that to me clarity is number one. So if you start adding municipal zoning on if in my opinion, if the if farming needs to do something different, it should be in here, you know, or somewhere in the agency. If towns are gonna start doing something different, that's just another layer that we don't we don't need to add on. And I don't think in towns, I think at least the league agrees with that except for in those limited areas. And they have, you know, reasonable perspective for why they want that. They're worried about how the towns are going to grow and they're worried about how they're going to be able to use their wastewater infrastructure. And they, you know, they want to be able to prioritize those areas for development, which makes perfect sense. It's just, we believe that if farming is viable, we don't want to drive it out of an area just because it could be used for something else. It's already happening. We're already losing farm fields to solar. We're already losing farm fields to, I mean, problem with farm fields is they're flat and cleared for the most part. So they're the easiest to develop. You know, you can't touch a wetland. You can't touch like river porters. There's only so much available land where you can build without having to do a lot of different things. So farmland is incredibly vulnerable for that reason. And because you can't create more farmland, it just keeps, you know, it's shrinking and we don't have the capacity to change it. And so the question is, how do we protect it as best we can? And, you know, in another fifty years, we're going to have lost at least another 50% of it. So then where does that leave us? We're really the only state left in New England that has any real farmland other than Maine. New Hampshire, I mean, you look at their farm stats, they're nothing like Vermont. Really don't have a lot of farming left. And are we going to go that way or are we going to remain a farming state is very much an open question, I think.

[Rep. David Durfee (Chair)]: Anything else that you want to highlight in the wraps that just just just for, you know, again, for context to the work.

[Steve Collier (Agency of Agriculture, Food and Markets)]: I mean, I can go through them if you like, but I think it's kinda I mean, there if you look at the sections, there's a lot all of those areas in section six is kind of where the big of the big ones are. You can't discharge, you know, can't discharge the water, you can't discharge across your neighbor's property, you have to follow a nutrient management plan. I mean, lot of the big requirements are in section six. And so those things are all covered and towns can't do that. Waste storage, manure spreading, animal mortality management, how you make sure that you stabilize your surface waters on, I'm sorry, your banks on your surface waters, composting, like those things are within our jurisdiction or our requirements. Towns still can't zone those things. So that's good, but they can do a whole litany of things that they do for residences or they do for other businesses that are never applied to farming and then now could. As an example, they can have hours of operation for a farm. That'd be nice for the farmer, but then they wouldn't be able to do it.

[Rep. David Durfee (Chair)]: So are you concerned that there might be so so if we did nothing now, if if we didn't do anything statutorily and if nothing else would change in the rule, that there might be that there's there's still some ambiguity and that in another case related to somehow related to agriculture and zoning, a town might think, oh, I can impose hours of operation, so on spreading. The Supreme Court said so. The Supreme Court said the town can do that. Are you are you concerned at all about ambiguity that goes even farther than what I think may have been saying?

[Steve Collier (Agency of Agriculture, Food and Markets)]: On something is like manure spreading where we have very expressed requirements for farms. I think it would be hard for towns to be able to say they could duplicate that because it's something we require. The Supreme Court did say in the statute says required agricultural practices are exempt. So I'm sure some town could do that, but that's not really not worried about that. I am worried about a lot of things that we don't want, you know, when you can plant, when you, you know, when we don't have a regulation on when you can plant, you know, you we we we have a regulation on how much fertilizer you can use or how much what pesticides you can use Like we have regulations on planting, but not on when or where. So there are, you know, there are a lot of land use like areas where towns could get involved. Hours of, I mean, there's plenty of things, lighting, hours of operation, noise, all kinds of things that farmers have not had to be, you know, other than good neighborly relations, which are always important, but they haven't been regulated in those areas. And yeah, they I mean, two fifty permits, if you look at those, they can be very prescriptive about when you can do what and if towns could do that. And I don't think they would do that in really small rural towns, but you know, neighbors in Charlotte complain about farms as is. Neighbors can complain anywhere, but there's some some there's people who have an idea of Vermont, which does not include farming. And so or at least farming that bothers them.

[Rep. David Durfee (Chair)]: What about a town that has an existing noise ordinance? Like, now, it says, you know, you can't have noise above a certain decibel limit in these areas. And and now somebody says, well, he's operating this farm equipment. It's clearly too loud. Tomorrow, could that be shut down by the town?

[Steve Collier (Agency of Agriculture, Food and Markets)]: That's a great question. I'm sorry that you asked it because that one I've no. No. It's I've I've grappled with that one myself. What the what the exemption says is that you cannot use zoning bylaws to regulate required agricultural practices. In practice, in our experience, towns have considered farming to be exempt, and so they have not regulated farms for making noise. But I think there's a gray area when it comes to noise ordinance. And one issue that comes up is sound cannons. And we've had, you know, we had a neighbor who, I think it was in Berlin, but there was somebody who was telecommuting, working in New Jersey, I think, but telecommuting from up here. And there was a farmer who put out sound cannon to scare the birds away off the produce in August. And this guy's working in his house and he's not that far from the Southern Canada and he was not very happy and the town called us and we talked about it. And we always ask farmers and neighbors to try to work out a solution, you know, as much as you can, but you can't compel that if there's not a requirement. So I think that's an open question and it does worry me whether a town could, but towns haven't had the appetite that we've known of to do that. But sound cannons is the one that has come up a few times that, and it can be, I mean, depending on the circumstances, we don't want a sound cannon right outside someone's bedroom window going off all night. So the circumstances like that could have ordinance apply. My guess is that a court would look at that and say, probably. But if you look at 3.2, the agricultural practices that are listed in here and they're therefore covered by the rule include protecting your crops. There's So absolutely an argument that this is governed by the agency of ag. You can't you can't. I think you couldn't touch it by zoning bylaws, but the police power noise ordinance, it's little been always been a little gray in my opinion. And and that's a, you know, maybe we should be clearer that ordinances can apply too, but I don't know. Sometimes you don't want to invent a problem where there isn't one. And if someone is being really obnoxious about noise and it's not actually necessary, like, I don't know that you want to take away the town's ability depending on the circumstances. And we haven't had a, more importantly, we haven't had a big problem, I don't think. But there was also a blueberry farmer that was having trouble with a neighbor with sound cannons a couple years ago, and the department of and the health officer was thinking about having a noise ordinance apply, and I don't remember exactly how that shook up.

[Unidentified Committee Member]: Steve, would this ruling potentially open the door to I was just thinking of a hypothetical of, say, the Vermont town bans glyphosate from farming. At some point it's maybe not in the wraps, but it gives a town quality, a certain amount of power to regulate

[Steve Collier (Agency of Agriculture, Food and Markets)]: Yeah, certainly. I'm pausing only because that whole rubric is defined by federal law, FIFRA, and also Vermont law pesticide rules and also the rule of the pesticide rule and statute. And so I can't remember off the top of my head if if that's already precluded by federal and state law. But I actually think there might be some gray there as well. I can't remember. So, yes, bottom line is if towns start thinking they can regulate some pieces of farming, then yes, that could be a challenge. There may be a clear legal answer there. I'm just not sure.

[Unidentified Committee Member]: Those sort of floor ceiling debates too of like, can the town go further than say, perhaps?

[Steve Collier (Agency of Agriculture, Food and Markets)]: Right. Yeah. Right. Right. And we really, you know, a big part of our position on this is of course farms should be regulated. Of course they should be reasonably regulated, but if we're going to do that, let's please do it statewide so that all farms are treated the same. Let's do it by an agency that actually understands farming, which doesn't necessarily include me, a lawyer, but it does include people in our agency. And so let's try to make sure we have consistent standards across the state so that all farms are being treated as similarly as possible.

[Unidentified Committee Member]: Yeah, imagine the Nelson Farm, like, you know, Orleans allows manure being spread at four in the morning, but the next town over where they're farming doesn't. Right. Right.

[Steve Collier (Agency of Agriculture, Food and Markets)]: Was it I think it was in your committee last year when Heather Darby testified about she has a produce. She works at UVM, she's an incredible resource, but I think she was testifying, I think it was in here about she has a produce farm on Grand Isle and her neighbors throwing things at her tractor and yelling at her when she was spreading manure because it stinks for a day or two. And she said, and she's an, I think she's even an organic farmer, but she has produce and people don't want it. You know, they're up here to enjoy their lake home in summer. And she said they all come to her farm stand and buy her produce. But when she's out with her tractor making noise and spreading manure, they're yelling at her. And I mean, that's so so so we just need we need to have authority so that we know who gets to say what even no matter what they think. You know?

[Rep. David Durfee (Chair)]: Representative Burtt.

[Rep. Greg Burtt (Member)]: What about a central process? I know there's already I'm not sure how it all works, but registering farms that are a process for having registered farms in place so that it's unclear from the agency that if you're a registered farm, you're part of this, you're under our jurisdiction and not a municipality. Seems like the anomalous sort of argument could go away pretty quickly if it's like, well, yeah, they're a registered farm. And then if you're below this, then you can't register. You get 14 goats that qualifies unregistered farm. I mean, seems like that's a spot where we could break clear definition right away. And then anything registered with the agency bag falls under your jurisdiction, including having a list of activities that go under that and also auxiliary Farm. On farm businesses as well, unless you're doing Anyway, that would be a problem. There's more to that, but first those criteria just having registering process And then it's like, if you wanna make sure you're under the umbrella of the agency bag, then you need to be registered. If you're not, then you follow-up, potentially follow your municipal.

[Steve Collier (Agency of Agriculture, Food and Markets)]: So that, I mean, that's a really interesting point. Essentially we have that, but by default. So registration is a politically thorny issue because a lot of people don't want to be registered with the state. Doesn't mean that you can't do it, but it's politically thorny. But we have an an it's really an informal process where anybody who's farming who wants to can come to us and it's on our it's on our website and there's forms you can fill out and we call it a farm determination. So they can come and they can say, you assess my operation and determine whether I'm a farm? And the whole point of that is to see whether or not they are governed by the RAPs. And that's what we tell them. We tell them, yes, you meet the criteria. So you're governed by the RAPs and we tell the town too. So the point of that is telling telling the farmer and the town they're covered by us and the default is you don't regulate them as well because they're covered. We I would be reluctant to do that for everyone because even though, I mean, we're losing farmland and farms, we still have 6,500 farms. Many of those are tiny, Even the threshold for that determination is $1,000 a year. That's the federal determination. But it very would cumbersome to go and look at each one of those operations when there isn't a dispute. So and some are obvious. If you've got, you know, 50,000, twenty, fifty acres, you're a farm. Like, you don't really need to do a lot more than that. It's the ones that are close that are, you know, it's the duck farm in Essex where you need the individual analysis. So but if you if we had to go look at every one of those operations and make that determination, that would be So

[Rep. Greg Burtt (Member)]: that part of that process right now is you actually have somebody from The US to verify that it is a firm?

[Steve Collier (Agency of Agriculture, Food and Markets)]: We typically, we will rely on their self assessment unless there's but we say we've relied on your self assessment. If it turns out this isn't accurate, we reserve the right to change our assessment. But sometimes if a town is saying to us, this isn't true, we'll go look. Or if we need to see it because we can't tell from what they're telling us, we'll go look. But typically, we'll rely on what they tell us. But even then, if it's 6,500 people and what happens if you sell three goats? It's a good idea. I'm just hesitant because of the

[Rep. Greg Burtt (Member)]: I guess I could see it doing it in the same fashion that is currently in place right now, except the statute would say, if you are registered, then you are under, you're not under the authority of municipality, but under the authority of the agency. Make that clear delineation for future action. Then I don't see why it couldn't be a similar process to where if there actually is a complaint brought out, you go to the farm, which would be the same thing. And then you assess and if they happen to have sold three goats at that time, then it's like, well you're not a farm.

[Rep. John O’Brien (Member)]: Right, right, right. So

[Rep. Greg Burtt (Member)]: you're not gonna allow you

[Rep. John O’Brien (Member)]: to be registered as well.

[Rep. Greg Burtt (Member)]: Just let it be complaint driven, but it creates that clear delineation.

[Steve Collier (Agency of Agriculture, Food and Markets)]: Yeah understood.

[Rep. Greg Burtt (Member)]: And I would see more people signing up for pretty quickly, given the scenario.

[Steve Collier (Agency of Agriculture, Food and Markets)]: No it's an interesting idea.

[Rep. Greg Burtt (Member)]: It doesn't increase your workload obviously it's increased the number of books that are registered. Don't know how much workbook but not necessarily having to go out and

[Steve Collier (Agency of Agriculture, Food and Markets)]: get Yeah, no it's an interesting point. I would say we do that informally now and then the question is to make it And we do send a letter if we find that they're subject to the RIPs. So so it is but it's subject to review as always. Yeah.

[Rep. David Durfee (Chair)]: We should we should wrap this up. Let's file that thought for next week or or as we're continuing the conversation. Did you have

[Unidentified Committee Member]: a question? Just a follow-up to this. How many Vermont farms return The US ag census survey? Yeah.

[Steve Collier (Agency of Agriculture, Food and Markets)]: The survey is I mean, it's it's a representative survey. So the it's an estimate of 6,508 farms, I think it was from USDA. I don't know what percentage.

[Unidentified Committee Member]: I know, like we get a, you know, in the mail survey, I'm sure you do too.

[Steve Collier (Agency of Agriculture, Food and Markets)]: So I wondered how many responders. It probably says in USDA census, you know, they do it every five years of the formal one every five years. But the latest data we have is 2022 that wasn't published until 2024. So it's always kind of behind. Yeah. It's, I'm sure it's nothing close to 100%. I have in my head maybe 30%, but that's, that could be, that could be way off.

[Rep. David Durfee (Chair)]: Thank you, Steve. We may have more questions about definitions and the existing rules, but we'll look forward to having you back in next week to

[Steve Collier (Agency of Agriculture, Food and Markets)]: hear.

[Rep. David Durfee (Chair)]: I think what we'll have you do is walk through or at least introduce us to. We don't have to have you walk it through. We may have our alleged counsel then walk through and that's the way we would with the Ms. William Will. Anyway, we'll have you in next week to look at some language. You're not quite ready for that, we can roll up till you are.

[Steve Collier (Agency of Agriculture, Food and Markets)]: I appreciate that. Thank you so much all of you for your time. Do think this is a really important issue for us to figure out. So thank you.

[Rep. David Durfee (Chair)]: Okay. So our next witness just walked in, but let's take a five minute