House Judiciary reviews S.45 changes that would limit nuisance suits against farms, debates flood thresholds

The House Judiciary Committee met April 9 to review draft 2.1 of S.45, a bill that would limit nuisance liability for agricultural activities and add a specified exception for flood-related claims when certain storm thresholds are met. Michael Grady, Office of Legislative Council, walked members through the changes and two alternative thresholds for when flooding would not be covered by the bill's nuisance protections.

The bill would preserve existing protections that allow recovery for damages caused by agricultural pollution of state waters, but add a flood-specific carve-out: no nuisance protection would apply if runoff causing flooding was not the result of either (a) a 25‑year, 24‑hour rainfall event as defined by the National Weather Service or (b) a flood with an annual exceedance probability (AEP) of 4% or lower. "An annual exceedance probability of 4% means it could occur once every 25 years," Michael Grady said, adding that AEP is not limited to a 24‑hour duration and is expressed as a percent by the U.S. Geological Survey or National Weather Service.

Why it matters: The choice of storm metric affects whether farms can claim statutory nuisance protection after a flooding event and aligns civil liability standards with, or apart from, existing agricultural regulatory permits such as concentrated animal feeding operation (CAFO) permits. The committee debated whether the judiciary should pick a technical hydrologic standard or defer to agriculture and environment committees that oversee runoff, permitting and related science.

Most important details

- Two alternative flood thresholds were discussed. Alternative 1 uses a "25‑year, 24‑hour" rainfall definition tied to National Weather Service methodology; Alternative 2 uses an annual exceedance probability (AEP) of 4% (equivalent to 1 in 25 chance per year) and is not limited to a 24‑hour window. Michael Grady noted the 1961 technical paper is often cited for the 25‑year/24‑hour metric and that AEP-based standards are scientific estimates produced by USGS, NWS or other federal/regional/state entities.

- The draft keeps existing references to required agricultural practices (RAPs) and the Agency of Agriculture's CAFO permitting standard. The Office of Legislative Council also retained the Agency of Agriculture rule for control of pesticides.

- Committee members raised litigation concerns: Representative Ken asked, "24 hour or larger. What happens if it stops in between that 24 hours for an hour or an hour and a half?" Members warned attorneys could select among competing data sources to support or oppose a claim, creating litigation risk.

- Several members argued the policy and technical details belong with Agriculture or Natural Resources committees. Committee leadership and other members proposed routing the bill to House Agriculture for technical input on RAPs, CAFO standards and hydrologic science, with the Judiciary Committee retaining final disposition after those committees report back.

- Some members asked for formal roll-call positions before sending recommendations. Committee Chair (speaking as chair) said his plan was to gather committee views and suggested a straw poll or roll call after input from Agriculture; other members insisted on roll calls now so "people need to be on the record" about removing barriers to suits against farms.

- Members discussed holding a joint or coordinated hearing so Judiciary members could hear the same witnesses the Agriculture committee would hear, then keep possession of the bill while Agriculture provides technical input.

What was not decided

No formal motions or roll-call votes were taken on S.45 during the session. The committee agreed in principle to seek input from the Agriculture committee and to consider a joint hearing or a drive‑by (shared witnesses) so both committees hear the same technical evidence before Judiciary records a position.

Context and background

S.45 deals with the interplay of nuisance law and agricultural operations. The bill as drafted retains language preserving a person's right to recover for pollution of state waters while narrowing the circumstances under which a nuisance action may proceed for flooding tied to certain storm magnitudes. The discussion repeatedly returned to the tension between judiciary-level legal standards and science/regulatory standards better handled by agencies and substantive committees.

Next steps

Committee members directed staff to arrange further technical input from Agriculture and environment experts, consider a joint session with House Agriculture, and return the bill to Judiciary with clearer technical recommendations. Members signaled they would either conduct a straw poll or a roll-call vote after receiving that additional input.

Ending

The committee left the bill in active deliberation, with plans to solicit technical testimony from Agriculture and environmental experts and to decide later whether to keep or formally transmit the committee's recommendations to the Agriculture committee.