Revisions will be made to the SADC’s draft regulations limiting soil disturbance on preserved farmland

By Nicole L. Voigt, Esq., Attorney at Law

On Friday, March 15, 2024, I attended the State Agriculture Development Committee’s special meeting regarding its proposed Soil Disturbance on Preserved Farmland and Supplemental Soil Disturbance Standards. In late 2023 and early 2024, the SADC accepted public comments on the proposed rule. I objected to the proposed regulations on numerous grounds, as did many County Agriculture Development Boards, the New Jersey Farm Bureau, and others. For background, read my prior articles: Voigt January 2024 Comments on SADC Soil Disturbance Standards and Voigt October 2023 Comments on SADC Soil Disturbance on Preserved Farmland and Supplemental Soil Disturbance Standards. At its March 15, 2024, special meeting, the SADC soil protection standards subcommittee provided a high-level overview of the comments and recommended changes. The SADC unanimously voted to accept the recommendation and will be revising the proposed regulations. A new proposed regulation will be republished, and the public will again have an opportunity to comment. The SADC expects this to occur in late spring, early summer.

SADC Proposed Changes

I have not seen the proposed revisions and must reserve judgment pending review. The SADC’s overview was at the macro level and did not get into the micro details of the proposed changes.  Reportedly, existing disturbance as of 2023 mapping will no longer be counted towards the 12%/4-acre limit.  Exempt activities continue to not be counted as new disturbance. Additionally, the innovation waiver will be streamlined to mirror a conservation planning process that will also not be counted as new disturbance.  All other new disturbance will be counted towards the maximum of 12%/4-acre limit.

The innovation waiver was described as a misnomer that was not intended to be a “waiver” so much as a conservation planning option that allows a project to proceed without being counted as disturbance.   Again, until the proposed rule is published, we cannot be certain that conservation planning will be adequately reflected and streamlined in the rules. Assuming it is, I would consider the proposed changes a substantial improvement with respect to the planning options available to farmers in need of agricultural infrastructure.

The production waiver will be eliminated. The SADC considers the production waiver unnecessary if all existing disturbance as of 2023 will not be counted.

The limitation on future disturbance is still retroactive, which is a serious concern of many commenters, including myself. Keep in mind that the recently permitted Special Occasion Events on Preserved Farms law is a retroactive permission granted to preserved farm owners.  Also, conceptually, there is a point where the magnitude of agricultural disturbance is great enough that it tips the scales and violates the preservation deed of easement. In the State of New Jersey, State Agriculture Development Committee v. Quaker Valley Farms, LLC, 235 N.J. 37 (2018), the New Jersey Supreme Court found the degree of disturbance so extreme that any reasonable person should have known the deed of easement, which requires conservation of soil, did not permit that degree of disturbance, even for greenhouses. I do not know if allowing all preserved farm owners an additional 12%/4 acres of non-exempt, non-waiver disturbance is the point that any reasonable farmer should have known is the limit. The SADC subcommittee emphasized the point that non-exempt, non-conservation planned activities that increase a farm’s disturbance by an additional 12% would be of such great impact that the limitation would be appropriate. We must receive and read the revised regulations and hear from a variety of farmers and industry leaders on this question.

Changes to Exemptions

We did not hear from the subcommittee regarding the “micro-level” changes.  I am particularly concerned about irrational and limited definitions of exempt activities. For example, under existing New Jersey laws, certain tents are temporary structures not subject to permitting or stormwater requirements if they are in place for 180 days or less. In the past, the SADC has approved the use of such tents on preserved farmland provided they do not remain in place for greater than 180 days. However, the proposed standards count tents as disturbance if they are in place for more than 120 days. I raised this point at the March 15 meeting. In a brief discussion, Executive Director Payne reasoned that 120 days was selected so that the tents will not interfere with a growing season.  In my opinion, this reasoning is inherently biased towards plant production. Temporary tents are critical to certain forms of equine production and marketing and are used as shelter related to certain marketing activities during the growing season, such as pick-your-own.

Other exemptions have problematic language as well, such as the definition of an unimproved travel lane, which technically does not allow intersections. Additionally, house relocations and residual dwelling site opportunities are not exempt. I am unable to understand the SADC’s proposed definition of non-exempt tillage due to human activities. Certain exemptions are conditional, such as temporary overflow parking. However, the conditions on temporary overflow parking are subjective and are not readily ascertainable in the regulations. I provided many comments such as these in my October 2023 comments and hope to see revisions to the regulations that address these concerns.

The Next Steps

Upon receipt of the proposed rules, I encourage every farmer to submit comments after calculating their hypothetical disturbance limitation and evaluating all foreseeable, long-term plans for agricultural practices and development. Consider whether your practices and development will be exempt, approvable through conservation planning, or counted as new disturbance.

The New Jersey State Board of Agriculture will be discussing the Soil Protection Standards at a special meeting this Friday, March 22, 2024, at 9 a.m. New Business also includes the nomination of a new Secretary of the New Jersey Department of Agriculture.

The SADC’s next meeting is scheduled for March 28, 2024, and we might get our first view of the proposed revisions at that time.

THE INFORMATION CONTAINED HEREIN IS GENERAL INFORMATION, IS NOT LEGAL ADVICE, AND DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. YOUR SPECIFIC FACTS AND CIRCUMSTANCES MUST BE CAREFULLY REVIEWED WITH A RETAINED ATTORNEY PRIOR TO REACHING LEGAL CONCLUSIONS.

You may contact Nicole at (908)801-5434 or info@nlvlegal.com. For more information, visit www.voigtlawoffice.com.