This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By Kristen Mae Rodgers, Note Editor, Vermont Journal of Environmental Law

Vermont is leading the nation in the local, sustainable food movement and the new food economy. In fact, Vermont is the frontrunner in farm stands, community supported agriculture (CSA) programs, and farmers’ markets per capita across the entire United States. According to the USDA, Vermont is one of few states to see a boom in new farms. In 2014, Vermont bucked national trends showing growth in large-scale agricultural operations, and instead favored growth in small-scale agricultural operations. These small-scale farms make up the real strength in the local food movement for the state and highlight Vermont’s community-based approach to agriculture.

The rise of new farms coupled with already well-established operations makes agriculture one of the most important facets to Vermont’s economy. Agriculture and other food related activities grew from $6.9 billion in 2007 to $8.6 billion in 2014. According to the 2014 VT Farm to Plate Annual Report, over 60,000 jobs within the state can be attributed to Vermont’s food system. Roughly 12,000 businesses in Vermont partake in the food system. Overall, Vermont is set to continue its agricultural growth into the future.

Vermont owes its booming agricultural economy to one of its most precious natural resources – soil. Soil is a finite resource in the state. Farmland with viable soils are in high demand statewide due to the growth of new farms and continuation of existing farm operations. This demand has especially impacted dairy farmers, who now have to travel substantial distances to grow enough forage for their animals. Soil integrity will play an even larger roll in the demand for farmland in the future, as climate change alters the viability of soils worldwide.

The importance of Vermont’s soils, and thus agriculture, is reflected in Vermont’s signature land use legislation. Act 250, formally named Vermont’s Land Use and Development Law (10 V.S.A. Chapter 151), ensures that development in Vermont will coincide with natural resource conservation. Act 250 specifically calls out for special consideration of “Primary Agricultural Soils”, also known as PAS. PAS as defined by 10 V.S.A. section 6001 are “. . . important farmland soils map unit[s] that the Natural Resources Conservation Service of the U.S. Department of Agriculture (NRCS) has identified and determined to have a rating of prime, statewide, or local importance.” PAS make up the backbone of Vermont’s agricultural economy.

Criterion 9(b) of Act 250 ensures that any development on farmland will be well thought out and least likely to damage PAS. Under Criterion 9(b) exist four subcriteria. The subcriteria of 9(b) call for: (1) any development to not impinge on abutting agricultural operations; (2) no other lands owned or controlled by the applicant be reasonably suited for development; (3) the development plans minimize the reduction of agricultural potential of PAS through compact development patterns; and (4) suitable mitigation will be provided for any reduction of PAS in accordance with 10 V.S.A. section 6093. Section 6093 deals with the flexibility of soil mitigation and whether onsite or offsite mitigation can occur for certain projects. Section 6093 allows for the District Commission to decide if “appropriate circumstances” exist that warrant offsite mitigation measures. The offsite mitigation decision must be consistent with local and regional plans, as well as Vermont’s codified Smart Growth Principals. Overall, this means that any development in Vermont must first and foremost protect the economic and agricultural viability of the land and surrounding villages.

In a series of recent District Commission hearings, Criterion 9(b) is going through the wringer. Act 250 allows for partial review of its 10 criteria to ensure that development plans meet specific criterion before applying for full Act 250 review. As proposed, the Green Mountain Center would create over 1 million square feet of development on rural Vermont countryside in Randolph, Vermont. The Green Mountain Center applicant is currently seeking review of Criteria 9(b) and 10. The hearings regarding Criteria 9(b) and 10 have spanned more than 6 months with no formal decision made by the District 3 Commission yet. Conservation groups like the Conservation Law Foundation and Vermont Natural Resources Council oppose the project due to its impact on farmland. The main issue at the hearings is if the Green Mountain Center developer’s plans will qualify for requested offsite mitigation. Offsite mitigation can only be allowed by the District Commission if appropriate circumstances exist. Current case law and documents from the Natural Resources Board, who oversee Act 250, give little guidance as to what appropriate circumstances mean. However, it is clear that offsite mitigation should only be favored in situations where development occurs in one of six state-designated growth centers. Because the Green Mountain Center is outside a designed growth center, the Commission is entering new territory for offsite mitigation under Act 250. One thing is for certain, the District 3 Commission’s decision will shape the way development in Vermont will occur in years to come.

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