It’s no secret that regulation, especially regulation pertaining to land and land development, is rapidly changing in Rhode Island. While being a farmer, developer, open space cultivator, or general owner of property in the state comes with its unique challenges, there are certain privileges available to landowners if they are willing to follow the advice of their legal counsel versed in land use regulations.
One of the major limitations placed on landowners in Rhode Island comes from the Department of Environmental Management’s Freshwater Wetland Regulations. Prior to July 1, 2022, the Freshwater Wetlands Regulations reflected some of the most stringent regulations pertaining to maintenance, development, and general activity on those areas within and surrounding freshwater wetlands. However, on July 1, 2022, the Department of Environmental Management passed new changes to the Freshwater Wetlands Regulations that limit property owners, developers, and other classes of individuals substantially in the activities they are permitted to conduct on their property.
However, despite the draconian regulation applicable to most people, there remains one distinct class who is provided an extraordinary amount of freedom and leeway from the strict requirements of the Freshwater Wetlands Regulations, if they follow several very simple steps. Those people are “Farmers” engaged in “Normal Farming Activity”.
What Activities Are Not Allowed If I Am Not A Farmer?
The Freshwater Wetlands Regulations prohibit excavation, draining, filling, diverting water, constructing in, adding to, or taking from the character of any wetland, buffer floodplain, area subject to flooding, etc., without first obtaining a permit. Further, the wetlands regulations which went into effect on July 1, 2022 prohibit any of these activities within the “jurisdictional area” of a Freshwater Wetland, which even includes the area of land within 100 feet past the edge of a wetland. The jurisdictional area is a substantial portion of most people’s property if they have wetlands existing on their property. Conversely, even if you do not have wetlands located on your property, wetlands on an abutting property may extend their jurisdictional area well into your property, making things very difficult for the average landowner.
Simply put, there are no real activities or improvements anyone can make within the jurisdictional area without first obtaining a permit from the Department of Environmental Management.
Additionally, citations for any wetlands violations are extraordinarily expensive, with many exceeding thousands of dollars, and incidental legal fees for defending against a freshwater wetlands violation.
What Is a Farmer?
The Freshwater Wetlands Regulations specifically define a “Farmer” as 1) an individual, partnership or corporation that operates a farm; and 2) has filed a Form 1040F or comparable instrument with the U.S. Internal Revenue Service, 3) has a State of Rhode Island farm tax number; and 4) has earned $10,000 gross income on “farm products” in each of the preceding 4 years.
Keep in mind, examples of “farm products” are wide ranging, and are not limited to those products which require serious expenditures of time or capital. In fact, farm products can include the sale of timber harvested from the property, sale of livestock and animal products (eggs, milk, beef, poultry, etc.), crops, horticultural products grown in a greenhouse, etc. In sum, the options for what “farm products” someone may wish to sell are wide ranging, and the minimum bar of $10,000 is a very minimal amount to meet within the calendar year.
What Are Considered Normal Farming Activities?
Normal Farming Activities are those projects and activities carried out by Farmers (as previously defined) including plowing, seeding, cultivating, land clearing for routine agricultural purposes, harvesting of agricultural products, pumping of existing farm ponds for agricultural purposes, upland soil and water conservation practices, and maintenance of existing farm drainage structures, existing farm roads and ponds, and any other activity determined by the Division of Agriculture to constitute a normal farming activity. The list is not inclusive, so long as the Division of Agriculture declares your proposed activity to be agricultural in nature. In the past, the Division of Agriculture has been extremely reasonable on what they consider to be within the scope of agricultural activities, and promotes the rights of property owners to conduct reasonable activities within wetlands on their property.
What Privileges Are Farmers Provided That Others Are Not?
As a general communication of policy, the State of Rhode Island and its agencies (such as the Department of Environmental Management) enact exemptions to many regulations that make it easier for farmers to operate their farm. Farming is a very important aspect of our society, and increased land costs and dramatic decreases in profit from farm production has forced state agencies to provide a substantial amount of leeway to farmers.
As such, a “Farmer” is permitted to engage in any activity that can be considered a “Normal Farming Activity” and it will be classified as an insignificant alteration to wetlands, providing a complete exemption from the requirement to first get a permit for any alteration to wetlands from the Department of Environmental Management. For example, if an individual who is considered a “Farmer” wishes to clear brush, trees, or other matter from within the wetland or the wetland buffer, the farmer is not required to first seek a permit.
The only instances where a farmer would be required to seek some kind of approval, would be for three specific instances, those being 1) construction of new farm ponds; 2) construction of new drainage structures; and 3) construction of new farm roads. Even then, a Farmer is subject to a much more relaxed standard of review than the average person. The Division of Agriculture (under DEM) will review a farmers application, and send a notice of determination no later than 30 days of whether the Division of Agriculture views the application as a significant or insignificant alteration. So long as the proposed application does not cause significant adverse impacts on flow and circulation patterns of the wetlands, and so long as those impacts are minimized, the Department of Agriculture will deem the proposal to be an Insignificant Alteration, to which no applicant may be held liable for any criminal, civil, administrative or other fines or restoration costs from the construction of such projects.
Taking Advanced Measures
Establishing yourself as a “farmer” can bring substantial benefits if done properly. However, it is important that you are taking proactive steps to become established as a farmer in order to reap the benefits of the designation.
Experienced land use attorneys can help you move toward achieving the designation and ensuring the proper tax forms are filed, and the income from farm products is documented. These steps will ensure that you have the greatest possible protection from any costly freshwater wetlands violations that otherwise would be unrestricted if you achieved the farmer designation.
If you are currently operating a farm and wish to seek legal counsel to ensure you take the steps necessary to benefit from the farmer designation, or if you are simply a landowner seeking to engage in activities on your property that otherwise would not be permitted for non-farmers, feel free to call us at 401-453-1200 to speak with one of our knowledgeable agricultural attorneys.