Judiciary Committee reviews amendment to S.45 on nuisance protection for agricultural activity

The Judiciary Committee on April 8, 2025 continued a walkthrough of draft amendments to S.45, a proposed statute that would modify nuisance-protection rules for agricultural activities.

The committee spent most of the session on definitions and limits: what counts as a nuisance; whether particulate matter should be named; how a person proves "good standing" to claim nuisance protection; and whether flooding should be excluded from protection except for extreme storms (discussed as a "25‑year, 24‑hour" standard). Michael Grady of Legislative Council summarized the bill and the proposals under review and noted the committee planned to circulate revisions and consult the Agriculture Committee before final action.

Why it matters: The amendments would change when farm operations can invoke statutory "nuisance protection" against neighbor claims, and they would clarify exceptions tied to public health, negligent operation, and extreme weather. Those changes affect farmers, downstream landowners, and enforcement agencies that administer water‑quality and clean‑water rules.

Key points discussed

- Definitions and scope: Staff reviewed proposed language that would reference generally accepted agricultural practices and incorporate regulatory standards where concentrated animal feeding operations (CAFOs) operate under an active permit.

- Substantial adverse effect on public health: Committee members discussed inserting language that would remove nuisance protection when the alleged nuisance "results in a substantial adverse effect on public health, safety, or welfare," a phrase modeled on existing Arizona and Vermont precedents cited by staff.

- Flooding and "act of God": Members debated whether to exclude flooding-related claims from nuisance protection, and whether to define an "act of God" numerically (members suggested a 25‑year, 24‑hour or 50‑year storm standard). One committee member described the practical difficulty of applying a strict 24‑hour metric given recent multi‑day rainfall patterns.

- Proof of good standing and mediation: The draft would require a showing of good standing — proposed to be proven by a letter from an agency — before asserting nuisance protection. The bill also would require parties to attempt mediation before filing suit, with parties sharing mediation costs unless another arrangement or USDA assistance applies.

- Effective date and retroactivity: The committee reviewed language to make the act prospective and to state explicitly that it would not affect judgments, orders, rights, liabilities, or pending suits before July 1, 2025; members debated whether the specified anti‑retroactivity language was necessary or unusually specific.

Committee process and next steps

Committee staff and counsel said they will draft alternatives on the floods/"act of God" language (including numeric thresholds such as 25‑year/24‑hour or 50‑year standards) and other clarifying changes. The committee agreed to send the draft to the House Agriculture Committee for technical input on "generally accepted agricultural practices," then reconvene to review updated language; staff noted the committee will meet again at 10:30 a.m. the following day to consider further edits.

"So this is Michael Grady with Legislative Council," Grady said at the start of his presentation, framing the items the committee would revisit.

Ending

No formal vote occurred. Committee members directed staff to circulate alternate drafting choices on the flooding threshold and to forward the draft to the Agriculture Committee for advice on technical agricultural definitions before the Judiciary Committee considers final action.