Debate over 'S 45' right-to-farm bill focuses on trespass language and water protections

A Senate Judiciary Committee hearing on S 45, a proposed revision to Vermont—s right-to-farm law, drew sharply divided testimony April 1 over whether the bill should extend the statute—s protections to trespass claims and how the measure treats water pollution and compliance with required agricultural practices.

The bill would expand rights currently used to limit nuisance lawsuits against farms. Supporters including farmers and Agency of Agriculture officials told the committee the measure would protect farm families from costly suits and help stabilize agricultural operations. Opponents from environmental organizations said adding trespass would create an additional legal barrier for neighbors harmed by discharges such as pesticide or manure runoff and would rely on state regulatory determinations that are currently inconsistent.

Bill Groban, policy and water program director at the Vermont Natural Resources Council, said the bill as written would improperly expand the law and urged lawmakers to remove trespass protections. "I urge you to remove trespass from the bill," Groban said, arguing that trespass claims raise distinct issues — physical entry, discharges and contamination — that differ from classic nuisance claims about odor and noise. Groban warned that adding trespass protection would put Vermont out of step with most neighboring states and could block a neighbor who finds pesticides or other contaminants in a drinking well from accessing the courts without an extra procedural hurdle.

Justin Rich, a produce farmer in Huntington and president of the Vermont Vegetable and Berry Growers Association, told the committee farmers need protections too and described the financial risk of weather-driven losses. "Could I have then been sued by a neighbor downstream because something definitely left my farm and crossed onto their property?" Rich asked, recounting a year with extreme flood levels and crop losses. He said many farmers follow the required agricultural practices regularly and that the bill helps newer and smaller operations who now locate closer to nonfarm neighbors.

Harold, a dairy farmer from Fairfield, said farm operations routinely face trespassing and other interactions with nonfarm neighbors and asked that courts treat farms the same as other property owners. "Trespassing can come in many forms," he said, pointing to hunters, snowmobilers and other examples. He reported his family partnership runs roughly 1,400 dairy cows and farms about 3,400 acres in Franklin County.

Steve Collier of the Agency of Agriculture defended the bill—s policy choices and the concept of providing farms a limited statutory protection. "Farmers are in a very unique class of people and they feed us," Collier said. He cited the public interest in keeping farms viable and argued that a clearer statutory framework would reduce uncertainty for farmers and courts.

Environmental witnesses pressed a different set of concerns focused on water enforcement and regulatory clarity. Groban and other environmental advocates described records showing disagreement between the Agency of Natural Resources (ANR) and the Agency of Agriculture about whether particular farm discharges require permits or enforcement. Groban said he and partners filed a petition with the U.S. Environmental Protection Agency alleging that Vermont—s delegation under the Clean Water Act was not being properly implemented in some farm discharge cases; EPA issued a preliminary finding that corrective action was needed. "In the water context, there—s not clarity," Groban said, and that lack of clarity counsels against using compliance with the state-required agricultural practices as a legal shield in private tort actions.

Several committee members and witnesses discussed the bill—s presumption structure: under current draft language a farmer would have a presumption of protection if the operation complied with applicable laws and generally accepted practices, shifting some burdens in litigation. Critics said the presumption and the accompanying negligence framework would force plaintiffs to overcome procedural thresholds before asserting trespass or nuisance claims; backers said it would deter meritless suits and give farmers a predictable defense if they comply with regulatory standards.

Committee counsel and the agency lawyers agreed to draft alternative language for the committee to consider, including options to (1) keep trespass but limit it to particulate, odor or similar invasions rather than water contamination, (2) carve water contamination out of the statutory protection entirely, (3) clarify the presumption and the evidentiary showing a farmer must make, and (4) require a demonstrable agency "good standing" or lack of active enforcement actions as an initial, objective showing. Counsel also said he would draft an amendment clarifying that any change in law would not affect ongoing litigation.

The committee left the hearing with plans to continue the S 45 discussion Thursday and to consider related amendments. Multiple witnesses urged the committee to pursue a stakeholder process and further drafting to avoid unintended consequences and to bring technical clarity to the interaction of the right-to-farm law with water rules, enforcement and federal Clean Water Act authorities.

What—s next: the committee asked staff to prepare alternate drafting options and to return the bill for further testimony and amendment. No formal vote was taken during the hearing.

(Attributions: Bill Groban; Justin Rich; Harold (dairy farmer); Steve Collier.)

Ending note: Committee members signaled they will weigh possible compromises — tightened definitions, explicit exceptions for water contamination or a narrower trespass definition — as they continue work on S 45 in coming hearings.