SB 393 — Protecting right to farm

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Red = new code to be enacted WEST virginia legislature regular session Enrolled Committee Substitute for Senate Bill 393 Senators Sypolt, Azinger, Baldwin, Blair, Boso, Clements, Hamilton, Jeffries, Maynard, Hardesty, Rucker, Smith, Takubo, Tarr, Plymale, Beach, Cline, Roberts, Swope, and Trump, original sponsors [Passed[Originating Marchin 5,the 2019;Committee on the Judiciary;

inReported effecton 90February days12, from2019] passage]     ANA ACTBILL to amend and reenact §19-19-2 of the Code of West Virginia, 1931, as amended;

and to amend said code by adding thereto twoa new sections,section, designated §19-19-7§19-19-7, and §19-19-8, all relating to the right to farm;

providing for an amended definitionsdefinition of “agriculture”“agriculture”; and “agricultural land”;

definingproviding for protections to agriculture operations from nuisance litigation if the termfacility “agriculturalhas operation”;been in operation for more than one year;

limiting persons who may file a nuisance action against an agricultural operation;

providing for protections to agricultural operations from nuisance actions under certain circumstances;

prohibiting state and local agencies from bringing actions against agricultural operations for activities that are in material compliance with applicable state and federal laws, regulations, and permits;

exempting agricultural operations from municipal requirements under certain circumstances;

providing that protections from nuisance actions do not apply under certain circumstances;

permitting that the protected status of an agricultural operation is assignable, alienable, and inheritable;

making a person who brings a nuisance action against a protected agricultural operation liable for the costs and expenses of the agricultural operation in defending the action;

limiting total damages to the diminished value of the subject property;

providing that the combined recovery of any claimant or claimant’s successor in interest against an agricultural operation shall not exceed the fair market value of his or her property;

(a) “Agriculture” or “agricultural operation” shall mean any facility for the production of food, fiberfiber, and woodland products, by means of cultivation, tillage of the soilsoil, and by the conduct of animal, livestock, dairy, apiary, equineequine, or poultry husbandry, and the practice of forestry, silviculture, horticulture, harvesting of silviculture products, packing, shipping, milling, and marketing of agricultural products conducted by the proprietor of the agricultural operation, or any other legal plant or animal production and all farm practices.

(b)the “Agriculturalpacking, land”shipping shalland meanmarketing, anybut amountnot ofincluding landany andmanufacturing, themilling, improvements thereupon, used or usableprocessing in the production of food,such fiber or woodland products of an annual value of $1,000 or more, by theother conductthan of the businessproducer ofthereof. agriculture, as defined in subsection (a) of this section.

(c)(b) “Agricultural operation”land” shall mean not less than five acres any facilityamount utilizedof forland agriculture.and the improvements thereupon, used or usable in the production of food, fiber, or woodland products of an annual value of $1,000 or more, by the conduct of the business of agriculture, as defined in subsection (a) of this section.

§19-19-7.§19-19-7.  Additional limitations on nuisance actions.

Additional(a) In addition to the limitations on actions brought against an agricultural operation in §19-19-4 of this code, this section shall also apply to any nuisance actions.action brought against an agricultural operation in any court of this state.

(a) The provisions of this section are in addition to the limitations on actions brought against an agricultural operation in §19-19-4 of this code, and shall also apply to any nuisance action brought against an agricultural operation in any court of this state.

(2) He or she owns property adversely affected by agricultural operations within oneone-half half mile of the agricultural operation;

and (3) The agricultural operation has materially violated a federal, state, or local law applicable to agriculture.

(c) NoAn agricultural operation within this state which has been in operation for a period of more than one year shall not be considered a nuisance, either public or private, as the result of a changed condition in or about the locality where such agricultural operation is located.located.  In any nuisance action, public or private, against an agricultural operation or its principals or employees, proof that the agricultural operation has existed for one year or more is an absolute defense to the nuisance action if the operation is in compliance with all applicable state and federal laws, regulations, and permits.  If the operation is in compliance with all applicable state and federal laws, regulations, and permits, it shall be presumed to be conducted in a manner consistent with commonly accepted agricultural practice.  A state or local law-enforcement agency may not bring a criminal or civil action against an agricultural operation for an activity that is in compliance with all applicable state and federal laws, regulations, and permits.  (d) So long as the agricultural operation meets the requirements of §19-19-7(c) of this code, an agricultural operation shall not be or become a private or public nuisance if the operators are conducting the agricultural operation in a manner consistent with commonly accepted agricultural practice.  (e) So long as the agricultural operation meets the requirements of §19-19-7(c) of this code, an agriculture operation shall not be considered a nuisance, private or public, if an agricultural operation expands, in terms of acres or animal units, so long as the operation is in compliance with all applicable state and federal laws, regulations, and permits:

InProvided, anyThat nuisance action, public or private, against an agricultural operation or its principals or employees proof that the agriculturalexpansion operationdoes hasnot: existed for one year or more is an absolute defense to the nuisance action, if the operation is in compliance with all applicable state and federal laws, regulations, and permits.

(d)(1) NoCreate state or local agency may bring a criminalsubstantially oradverse civileffect actionupon againstthe anenvironment; agricultural operation for an activity that is in material compliance with all applicable state and federal laws, regulations, and permits.

(e)(2) NoCreate agricultural operation shall be or become a privatehazard orto public nuisancehealth ifand thesafety; operators are conducting the agricultural operation in a manner consistent with commonly accepted agricultural practice.

If(3) theCreate operationa ismeasurably insignificant materialdifference compliancein withenvironmental allconditions applicablethat stateexceed andminimum federalrecommendations laws,of regulations,reasonably andacceptable permits,management itpractices shallfor bestoring, presumedprocessing, toremoving, beor conductedapplying inanimal awaste; manner consistent with commonly accepted agricultural practice.

(f)or No(4) agriculturalFundamentally operationchange shalloperations, beincluding, consideredbut anot nuisance,limited privateto, orcomplete public,relocation ifof thean agricultural operation makesby athe reasonableowner expansion,within soor longwithout as the operationpresent isboundaries inof materialthe complianceagricultural withoperation. all applicable state and federal laws, regulations, and permits.

(1)(f) For the purpose of this section, a reasonable expansion includes, but is not limited to:

(A)(1) TransferSale of the agricultural operation;

(B)(2) PurchaseIntroducing oftechnology additionalto landan forexisting agricultural operation including, but not limited to, new activities, practices, equipment, and procedures consistent with technological development within the agricultural operation;industry;

(C)(3) IntroducingApplying technologya toNatural anResources existingConservation agriculturalService operationprogram including,or butother notUnited limitedStates to,Department newof activities,Agriculture practices,program equipment,to andan proceduresexisting consistentor withfuture technological development within the agricultural industry;operation;

(D)or Applying(4) aAny Naturalother Resourceschange Conservationthat Serviceis programrelated orand otherapplied Unitedto Statesan Departmentexisting ofagricultural Agricultureoperation programso tolong anas existingthe orchange futuredoes not affect the agricultural operation;operation’s compliance with applicable state and federal laws, regulations, and permits.

or (E) Any other change that is related and applied to an existing agricultural operation, so long as the change does not affect the agricultural operation’s compliance with applicable state and federal laws, regulations, and permits.

(2) The reasonable expansion exemption provided by this subsection cannot apply to an expansion that:

(A) Creates a substantially adverse effect upon the environment;

or (B) Creates a hazard to public health and safety.

(h) An agricultural operation is not, nor shall it become, a private or public nuisance after it has been in operation for more than one year, if suchthe operation was not a nuisance at the time the operation began, and the conditions or circumstances complained of as constituting the basis for the nuisance action exist substantially unchanged since the established date of operation.operation.  The established date of operation is the date on which an agricultural operation commenced.

The established date of operation is the date on which an agricultural operation commenced.