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The Ohio Specialty Crop Registry connects producers of specialty crops, beekeepers, and pesticide applicators to one another through free online registries. Producers of specialty crops and beekeepers may voluntarily report the boundaries of their specialty crops and beehives. The registry then compiles this information in a mapping tool that also provides the contact information of the registrant. In doing so, pesticide applicators are better able to avoid these areas and minimize spray drift.
The Old System: the Ohio Sensitive Crop Registry
The Ohio Department of Agriculture (ODA) first launched a registry for sensitive crops in 2014 so that pesticide applicators could know the locations of sensitive crops before spraying in a given area. The registry came about at a time when widespread demand for organic foods required more farmers to closely monitor what came into contact with their crops. The original tool allowed commercial producers of at least a half-acre of a single type of sensitive crop to register. Sensitive crops included just about any non-row crop such as fruits, vegetables, and herbs. Apiaries, outdoor aquaculture, brambles, certified organic farms, nurseries, greenhouses, and orchards also could be registered.
The New System: the Ohio Specialty Crop Registry
Now, ODA partners with FieldWatch, Inc. to operate the Ohio Specialty Crop Registry. FieldWatch, Inc. is a non-profit organization that operates three registries: DriftWatch for producers of specialty crops, BeeCheck for beekeepers, and CropCheck for producers of row crops. FieldWatch creates maps based on the information from these registries, and makes those maps available to pesticide applicators in another program called FieldCheck. In summary, the three registries are for the producers and beekeepers, and FieldCheck is for the pesticide applicators.
Ohio currently only uses the DriftWatch and BeeCheck registries. According to ODA, the list of sensitive crops under the old program is virtually the same under the new system, meaning that producers of any non-row crop may utilize DriftWatch. While beekeepers may report the location of their beehives in DriftWatch, ODA recommends that beekeepers with no specialty crops use BeeCheck.
FieldWatch, Inc. continues to update its tools to add features and indicators, and CropCheck represents one such development. New for 2019, this registry allows producers of row crops like corn, soybeans, and wheat to register their crops. Its development comes on the heels of the introduction of dicamba-tolerant seeds. Only Arkansas, North Carolina, Illinois, and Indiana have adopted CropCheck for 2019. Ohio has not yet adopted it.
Connecting the Dots between the Registry and Liability
At this point you may be asking yourself, why is this in the ag law blog? That’s a fair question, and the answer is simple: risk management. As more farmers adopt organic practices, as pesticides and seeds change, and as weather patterns evolve, the risk increases that pesticide drift may come into contact with and negatively impact specialty crops and beehives.
The law expects people to act reasonably and to exercise due care at all times, and this default duty applies to pesticide applicators. Common claims for drift include negligence, nuisance, and trespass. Each of these claims examine whether the parties acted reasonably and with due care. Most often, when a court decides that a pesticide applicator acted unreasonably, it is because he or she failed to apply the pesticide in a manner consistent with the label. Following the label is certainly an expectation, but it is not the only thing a court will consider.
When a pesticide applicator does not use FieldCheck, a perceptive attorney representing beekeepers and producers of specialty crops would likely argue that the use of FieldCheck is an industry standard. If an attorney could establish this, then the failure to use FieldCheck would mean that a pesticide applicator failed to act in a reasonable manner and exercise due care. While we have not seen an Ohio court consider this issue yet, as use of the program continues to grow, this argument will come to hold more weight when a case does arise.
When a pesticide applicator does use FieldCheck, he or she has a stronger argument that he or she acted in a reasonable manner. FieldCheck provides pesticide applicators with a way to know exactly where registered sensitive crops and beehives are located, and allows the applicator to buffer accordingly. FieldCheck provides a quick, cheap, and easy way to manage legal risk, alongside following the label. Applicators who use the program may want to document when they used the program and also how the maps impacted their application plan.
These scenarios presume that the beekeeper or producer of specialty crops has registered the locations of their bees or crop with a FieldWatch registry. When sued by a beekeeper or producer of specialty crops who did not register their locations, a pesticide applicator could use similar arguments as noted above in order to defend against the lawsuit. However, the applicator’s focus would likely regard the lack of notice. Again, these arguments alone would not likely determine the outcome of the case, but they would help the court determine whether the parties acted reasonably.
What about hemp?
Another question that some of our readers will also be asking is: which registry is for hemp? We made a call and left a message with FieldWatch. If or when hemp production becomes legal in Ohio, we’ll be sure to provide an update on which registry is proper for hemp. Ohio’s hemp bill is on the move, and the Ohio Senate Agriculture & Natural Resources Committee completed its third hearing of the bill this week. However, we can’t forget that growing hemp is not legal in Ohio unless and until the bill is passed into law and the regulatory system is created.
Agritourism continues to boom across the United States, with agritourism farms offering activities from apple picking to zip lining. Literally A to Z. Consumer interest in food and farming, along with an economic need to augment farm income through diversification, have combined to drive this boom. As more farms delve into agritourism, their liability risks change. Risk and liability are hard, if not impossible, to totally eliminate, but there are a number of steps that agritourism farms can take to reduce the chances of something bad happening.
Based upon the questions generated from our law bulletin on Ohio’s agritourism law, we wanted to take an in depth look at common legal issues and risks facing agritourism. Created as part of a project for the Agricultural & Food Law Consortium, our new factsheet series does just that. Specifically, these factsheets examine:
- Legal risks of animal and human interactions
- Selling food on the farm
- Agritourism immunity laws across the country
- Zoning laws across the country
- Insurance coverage for agritourism
Each factsheet addresses common considerations and questions about starting and operating an agritourism farm, and provides links to helpful resources. The factsheets are designed to have something for everyone in the industry. From those just thinking about implementing agritourism who need to think about the basic risks, to those agritourism farms that are already well established and want a risk refresher. Beyond the industry, those professionals who advise agritourism farms may find the considerations helpful.
Most of the new factsheets include a checklist. The checklists include questions that an agritourism farmer should ask their attorney, zoning inspector, insurance provider, local health department, and more. The checklists do not represent the only legal concerns that an agritourism farm must think about, but rather a starting point. Every agritourism farm is unique, and must be treated as such when examining liability and risk.
The reducing legal risk in agritourism project is available on our website HERE, as well as the National Agricultural Law Center’s website HERE. This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.
State lawmakers have been busy crafting new legislation since the 133rd General Assembly took shape in January. As promised, here are some highlights and summaries of the pending bills that relate to agriculture in Ohio:
- Senate Bill 57, titled “Decriminalize hemp and license hemp cultivation.” The Ohio Senate Agriculture and Natural Resources Committee held a second hearing about the bill on March 13th, and numerous farm organizations spoke in support of the bill. As of now the language of the bill has not changed since we last discussed Ohio’s hemp bill in a blog post, but some changes could be made when the bill is sent out of the committee. Click HERE for more information about the bill, and HERE for the current official bill analysis.
- Senate Bill 2, titled “Create state watershed planning structure.” The one sentence bill expresses the General Assembly’s intent “to create and fund a comprehensive statewide watershed planning structure to be implemented at the local soil and water conservation district level.” It further expresses the intent “to provide authorization and conditions for the operation of watershed programs implemented by local soil and water conservation districts.” Click HERE for more information about the bill.
- House Bill 24, titled “Revise humane society law.” The bill would make various changes to Ohio’s Humane Society Law, including changes to enforcement powers, appointment and removal procedures, training, and criminal law applicability. One of the significant changes would expand to all animals the seizure and impoundment provisions that currently apply only to companion animals. This change would allow an officer to seize and impound any animal that the officer has probable cause to believe is the subject of a violation of Ohio’s domestic animal law. At the same time, the bill would remove certain provisions from current law that pertain to harm to people, thereby focusing the new law solely on the protection of animals. Click HERE for more information about the bill, and HERE for the current official bill analysis.
- House Bill 124, titled “Allow small livestock on residential property.” Under this bill, counties and townships would no longer be allowed to restrict via zoning certain noncommercial agricultural activities on residential property conducted for an individual’s personal use and enjoyment. Instead, owners of residential property that is not generally agricultural would be allowed to keep, harbor, breed, and maintain small livestock on their property. Small livestock includes goats, chickens and similar fowl, rabbits, and similar small animals. Roosters are explicitly excluded from this definition. However, the owner would lose his or her rights to keep small livestock if the small livestock create a nuisance, are kept in a manner that causes noxious odors or unsanitary conditions, are kept in a building that is unsafe as defined under the statute, or if the number of animals exceeds a certain ratio of animals to acres as defined under the statute. The ratio may be modified by the local jurisdiction to allow for more animals per acre. Click HERE for more information about the bill.
- House Bill 55, titled “Require oil and gas royalty statements.” Owners of oil and gas wells would have to provide mandatory reports to holders of royalty interests under this bill. Current law only requires disclosure of the information upon request, but this bill would make the disclosure mandatory. The bill would expand the types of information that the reports must include, and allows the holder of royalty interests to sue to enforce the new rights. Click HERE for more information about the bill, and HERE for the current official bill analysis.
- House Bill 94, titled “Ban taking oil or natural gas from bed of Lake Erie.” The Ohio Department of Natural Resources handles oil and gas permitting in Ohio, and this bill would bar the agency from issuing permits or making leases “to take or remove oil or natural gas from and under the bed of Lake Erie.” Click HERE for more information about the bill.
- House Bill 95, titled “Revise Oil and Gas Law about brine and well conversions.” The bill would ban the use of brine in secondary oil and gas recovery operations. It would also ban putting brine, crude oil, natural gas, and other fluids associated with oil and gas exploration in ground or surface waters, on the ground, or in the land. This restriction would apply even if the fluid received treatment in a public water system or other treatment process. Further, brine disposal permits would not be allowed to utilize underground injection or disposal on the land or in surface or ground water. Click HERE for more information about the bill.
- House Bill 100, titled “Revise requirements governing abandoned mineral rights.” Ohio has a statute that governs when a surface owner can take the mineral rights held or claimed by another by operation of law, essentially because of the passage of time. The bill would require a surface owner to attempt to give notice to a holder of mineral rights by personal service, certified mail, or if those are unsuccessful then by publication. Currently, if a holder of mineral rights believes that his or her interest remains valid, he or she may file an affidavit that complies with Ohio Revised Code (ORC) § 5301.56(H)(1) in the county property records. If the holder of mineral rights fails to file an affidavit, the surface owner may then file an affidavit under ORC § 5301.56(H)(2) that effectively vests the mineral rights in the surface owner. The new law would allow the surface owner to challenge a holder of mineral rights’ ORC § 5301.56(H)(1) affidavit. This process would require the surface owner to obtain a court determination that the affidavit is invalid. Then the surface owner would be able to file the new ORC § 5301.56(H)(3) affidavit to obtain the mineral rights. Click HERE for more information about the bill.
There are also some bills that could have some indirect implications in the agricultural and natural resources sectors. These indirect effects make this next set of bills noteworthy, or at least interesting.
- Senate Bill 1, titled “Reduce number of regulatory restrictions.” The bill would require each state agency to count its total number of regulatory restrictions, and then reduce the number of restrictions based on that baseline by 30% by 2022. Once an agency meets its reduction target, it would not be able to increase the number of regulatory restrictions without making additional cuts elsewhere. The bill would target agency rules that require or prohibit specific acts. Click HERE for more information about the bill, and HERE for the current official bill analysis.
- Senate Bill 21, titled “Allow corporation to become benefit corporation.” Much like the LLC merged the principles of a corporation and a partnership, the benefit corporation merges the principles of a corporation and a non-profit. A benefit corporation must follow the formalities of a corporation, but the articles of incorporation can designate a social purpose for the business to pursue, such as promoting the environment through sustainable practices. One of the unique traits of benefit corporations is that benefit corporations cannot be held liable for damages for failing to seek, achieve, or comply with their beneficial purpose, or even obtain a profit; however, certain individuals may seek a court ordered injunction to force the company to pursue those interests. In a sense, the benefit corporation reduces the traditional fiduciary duties expected in general corporations. The bill purports to maintain the traditional fiduciary duties, but by allowing a social purpose other than profit to guide decisions, the traditional fiduciary duties are in effect modified. Click HERE for more information about the bill, and HERE for the current official bill analysis.
- House Bill 33, titled “Establish animal abuse reporting requirements.” Under the bill, veterinarians and social service professionals would have to report their knowledge of abuse, cruelty, or abandonment toward a companion animal. Social service professionals would include licensed counselors, social workers, and marriage or family therapists acting in their professional capacity. Companion animals include non-wild animals kept in a residential dwelling, along with any cats and dogs kept anywhere. These individuals would be required to report the neglect to law enforcement, agents of the county humane society, dog wardens, or other animal control officers. Further, dog wardens, deputy dog wardens, and animal control officers would become mandatory reporters of child abuse. Lastly, the bill explains the information that must be reported, the timing, and the penalties for failure to comply. Click HERE for more information about the bill, and HERE for the current official bill analysis.
- House Bill 48, titled “Create local government road improvement fund.” The bill proposes to deposit into a new local government road improvement fund some of the surplus funds generated when the state spends less than it appropriates in the general revenue fund. Under current law, this surplus is split between the budget stabilization fund, also known as the “rainy day fund,” and the income tax reduction fund, which would redistribute remaining surplus to taxpayers. Click HERE for more information about the bill.
- House Bill 54, titled “Increase tax revenue allocated to the local government fund.” The bill would increase the proportion of state tax revenue allocated to the Local Government Fund from 1.66% to 3.53%. Click HERE for more information about the bill.
- House Bill 74, titled “Prohibit leaving junk watercraft or motor uncovered on property.” The bill would allow a sheriff, chief of police, highway patrol officer, or township trustee to send notice to a landowner to remove a junk vessel or outboard motor within 10 days. The prohibition applies to junk vessels, including watercraft, and outboard motors that are three years or older, apparently inoperable, and with a fair market value of $1,500 or less. Failure to cover, house, or remove the item in ten days could result in conviction of a misdemeanor. Click HERE for more information about the bill, and HERE for the current official bill analysis.
As more bills are introduced, and as these bills move along, stay tuned to the Ag Law Blog for updates.
When we are not on the road presenting, in the classroom teaching, or keeping up with the news for the blog, our team is busy working on large scale research projects for the Agricultural & Food Law Consortium. One of our recent projects looked at how states assess farmland for property tax purposes, and we then created a compilation of every state’s laws on this topic. Based upon the research, we found that property taxes are a fact of life for virtually all landowners in the United States, but that each state uses a “differential tax assessment” for agricultural lands.
What exactly is a differential tax assessment? Many Ohio farmers know about and use Ohio’s special property tax assessment known as CAUV, which is short for Current Agricultural Use Valuation. Instead of assessing property taxes on the basis of the market rate for developable land, CAUV uses a different formula that assesses the land on its value for agricultural production. CAUV is a form of differential tax assessment.
While each state utilizes differential tax assessments for agricultural lands, they use different definitions of agriculture, different formulas, and different application processes. Some areas of law utilize model acts that states may adopt in order to make it easier to do business across state lines. Differential tax assessments of agricultural land do not have a model act, so each state’s language reflects the culture, norms, and conditions of the respective state at the time the state adopted or amended its differential tax assessment.
An example close to home illustrates what this means. Under Ohio Revised Code § 5713.30(A), agricultural use means commercial animal or poultry husbandry, aquaculture, algaculture, apiculture, the commercial production of field crops, tobacco, fruits, vegetables, nursery stock, ornamental trees, and sod. Commercial timber qualifies, but non-commercial timber only qualifies if it located on or next to land that otherwise would qualify for CAUV. Exclusive use requires just that: the land is exclusively used for an activity listed as an agricultural use. Lands of more than 10 acres that are exclusively devoted to agricultural uses qualify, but lands of less than 10 acres only qualify if the average yearly gross income exceeds $2,500 over the preceding three years. That is an example of a definition of what qualifies as agriculture for the purposes of the differential tax assessment.
The differential tax assessment project compiled the approaches taken by all fifty states, and the compilations are available on the National Agricultural Law Center website HERE. This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.
Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program
Toledo’s Lake Erie Bill of Rights (LEBOR) has been in the headlines a lot lately, and certainly on the minds of farmers in the Lake Erie watershed. So far, the Ag Law Blog has focused attention on what LEBOR is, why it was on the ballot, and what types of defenses agricultural producers can raise if sued. Because voters approved the ballot measure, the focus now shifts to how LEBOR will be treated in the courts.
On February 26th, Toledo held a special election, with one of the ballot questions being whether to amend the City of Toledo’s charter to adopt LEBOR. While less than 9 percent of Toledo’s registered voters cast a ballot, the majority of those who did voted in favor of amending the city’s charter to include LEBOR.
On February 27th, the Drewes Farm Partnership filed a complaint and initiated a lawsuit in federal court against the City of Toledo. Family owned and operated, this Wood County based grain farm operates wholly within the Lake Erie watershed. Drewes Farm utilizes both manure and commercial fertilizers, and states in its complaint that it follows industry best practices, scientific recommendations, and all legal requirements such as keeping records and not applying fertilizer on snow covered ground. Two of the family members obtained Fertilizer Applicator Certificates, and the Ohio Department of Agriculture certified the farm under its Ohio Agricultural Stewardship Verification Program.
The complaint specifically alleges violations of Drewes Farm’s rights under the First Amendment, Equal Protection Clause, and Due Process Clauses of both the Fifth and Fourteenth Amendments. Further, the complaint argues that LEBOR exceeds the City of Toledo’s authority by intruding on state and federal powers by attempting to meddle with international relations, invalidate state and federal permits, invalidate state law, alter the rights of corporations, and create new causes of action in state courts. Drewes Farm requests that the court 1) grant it a preliminary and permanent injunction to prevent LEBOR’s enforcement, 2) invalidate LEBOR, and 3) grant the plaintiff an award for costs and fees.
The following day, Drewes Farm filed a motion for a preliminary injunction. Parties use preliminary injunctions as a way to enforce the status quo and prevent the other parties from acting in a way that would cause further harm. If granted, the preliminary injunction would prevent the enforcement of LEBOR against the Drewes Farm Partnership during the course of the litigation. At the end of the case, there would be a determination of whether Drewes Farm should receive a permanent injunction, which would prevent LEBOR from being enforced against it after the case has ended.
The party who brings the motion must argue and prove four elements in order for the court to grant the motion for a preliminary injunction:
First, that the movant has a likelihood of success on the merits, meaning that it is likely that the movant will win the underlying case. Drewes Farm’s motion examines each of the grounds that it believes violates its constitutional rights and state and federal law. Drewes Farm argues that it can win on each of the dozen grounds it examines, and that it need only show a likelihood of success on one ground to satisfy this element.
Second, that the movant could suffer irreparable harm without a preliminary injunction, meaning that without a preliminary injunction, the other party may take action to harm the movant in a way that it will not be able to recover. Here, Drewes Farm cites court cases explaining that the loss of one’s constitutional rights for any amount of time constitutes irreparable harm, and that a likelihood of success also demonstrates irreparable harm.
Third, that the issuance of an injunction will not cause greater harm. This element balances the previous element to see whether the injunction is fair. Where the second element looks at the harm to the movant, the third element looks at whether a preliminary injunction will harm others. Here, Drewes Farm argues that others will not be harmed by the granting of a preliminary injunction because it will merely allow the farm to continue operating as required under the law and its permits using best practices. Further, Drewes Farm mentions that the other farms in the watershed will actually experience a benefit from the prevention of LEBOR’s enforcement.
Fourth, that the issuance of a preliminary injunction would serve the public interest. Here, Drewes Farm cites additional court cases explaining that the enforcement of constitutional rights is inherently in the public interest. Further, it argues that the State of Ohio holds its portion of Lake Erie in trust “for all Ohio citizens, not just those residing in a single municipality.”
If the court is satisfied that Drewes Farm has established each of the four elements, it may grant a preliminary injunction.
At this time, the City of Toledo has not filed any responses to the complaint or motion; however, procedural rules require it to respond in a timely manner. Because it has not filed anything with the court, it is unclear how the City of Toledo intends to defend or respond. However, since enforcement of LEBOR had not been commenced against the Drewes Farm Partnership, it is possible that Toledo will challenge the plaintiff’s standing to sue at the present time.
The case is cited in court records as Drewes Farm Partnership v. City of Toledo, Ohio, 3:19-cv-00343 (N.D. Ohio). Stay tuned to the Ag Law Blog for updates about the case.
Whether producing crops, livestock, or other agricultural products, it can be challenging if not impossible for a farmer to completely prevent dust, odors, surface water runoff, noise, and other unintended impacts. Ohio law recognizes these challenges as well as the value of agricultural production by extending legal protections to farmers. The protections are “affirmative defenses” that can shield a farmer from liability if someone files a private civil lawsuit against the farmer because of the unintended impacts of farming. A court will dismiss the lawsuit if the farmer successfully raises and proves an applicable affirmative legal defense.
In our latest law bulletin, we summarize Ohio’s affirmative defenses that relate to production agriculture. The laws afford legal protections based on the type of activity and the type of resulting harm. For example, one offers protections to farmers who obtain fertilizer application certification training and operate in compliance with an approved nutrient management plan, while another offers nuisance lawsuit protection against neighbors who move to an agricultural area. Each affirmative defense has different requirements a farmer must meet but a common thread among the laws is that a farmer must be a “good farmer” who is in compliance with the law and utilizing generally accepted agricultural practices. It is important for farmers to understand these laws and know how the laws apply to a farm’s production activities.
To learn more about Ohio’s affirmative defenses for agricultural production activities, view our latest law bulletin HERE.
Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program
Ten of Ohio’s thirty-three state senators have introduced and sponsored legislation that would decriminalize licensed hemp cultivation and production in the state of Ohio. These senators represent a bipartisan mix of seven Republicans and three Democrats. After the passage of the Farm Bill, we sent out a blog post that explained how current Ohio law does not distinguish hemp from marijuana, meaning that hemp is currently just as illegal under Ohio law as marijuana. Senate Bill 57 would change that, if passed.
What Senate Bill 57 would change.
Senate Bill 57, if passed in its current form, would effectively decriminalize hemp cultivation and the production and sale of hemp products, so long as the activities are conducted under a license. The bill establishes definitions for cannabidiol and hemp under Ohio law. Specially, hemp would be defined as:
“the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, sales, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths per cent on a dry weight basis.”
Importantly for hemp cultivators and producers, this bill would remove hemp from Ohio’s Controlled Substances Act. We previously noted in a blog post that Senate Bill 229 from the last General Assembly was set to remove Ohio’s controlled substances schedules from the Ohio Revised Code, and instead would allow the Ohio Board of Pharmacy to create the schedules by rule. That bill passed, and would have allowed sales of CBD oils that had obtained approval from the U.S. Food and Drug Administration. However, if Senate Bill 57 passes the Ohio General Assembly, the Ohio Board of Pharmacy would no longer be able to adopt rules designating hemp and hemp products as controlled substances.
The (potential) Ohio Hemp Cultivation Program.
The Director of the Ohio Department of Agriculture (ODA) would be required to establish a program to monitor and regulate hemp cultivation consistent with the requirements of the Farm Bill that Congress passed last year. The Farm Bill authorizes the cultivation of hemp and the production of hemp products through state licensing programs. Ohio’s program would include a licensing program. Licenses will be valid for five years. ODA and universities would not be required to obtain a license, but their activities would be limited to certain activities listed in the bill. Hemp cultivation would still be illegal without a license, and could result in criminal misdemeanor charges.
The bill authorizes ODA to adopt regulations regarding:
- What the license application looks like
- What information the license application requires
- How much a license costs
- How background check will be conducted, and what they will examine
- How ODA will issue, renew, deny, suspend, and revoke hemp cultivation licenses
- How ODA will keep track of the lands where hemp is grown
- How ODA will test for delta-9 tetrahydrocannabinol concentration
- How hemp products must be labeled
- How ODA will enforce the rules and conduct inspections
- “Any other requirements or procedures necessary to administer and enforce” Ohio’s hemp cultivation program
The bill would deny licenses to any person who has pleaded guilty to or been convicted of a felony relating to controlled substances in the ten years before submitting their application, along with any person found to have falsified information on their application.
To administer the program, the bill would create a Hemp Cultivation Fund in the Ohio Treasury. Application fees, fees collected from program operations, money appropriated to the program by the General Assembly or ODA, and any gifts or grants may be deposited into the fund for use in program administration.
At this time, the bill has only been introduced and referred to the Ohio Senate Agriculture Committee. Bills are often subject to amendment, so stay tuned to the Ag Law Blog for updates on Senate Bill 57. For the text of the bill, click HERE, or visit the Ohio General Assembly’s Senate Bill 57 webpage HERE.
The 133rd Ohio General Assembly and 116th United States Congress have released their committee assignments for the upcoming legislative terms. Chamber leaders like the House Speaker or party leaders generally select committee chairs and members, but the members themselves often have an opportunity to preference their assignments. Below are the lists of representatives and senators on each of the agriculture-related committees, with brief biographies of committee leaders included. Ohio readers may note that the agriculture committees for the U.S. House and U.S. Senate only have one member each from Ohio: Representative Marcia Fudge and Senator Sherrod Brown.
Here are the names to know for agriculture:
Ohio House of Representatives Agriculture and Rural Development Committee
- Chairman J. Kyle Koehler (R-Springfield). Representative Koehler is a third term member of the Ohio House, and received a Bachelor’s of Science in Computer Science from Wright State University. He worked for a number of years as a software engineer for government contractors, as well as working for his family business, K.K. Tool Company.
- Vice-Chair J. Todd Smith (R-Germantown). Representative Smith is entering his first full term as a member of the Ohio House, and is a pastor in his home community.
- Ranking Member Juanita O. Brent (D-Cleveland). Representative Brent is a first term member of the Ohio House, and has experience in non-profit and community engagement work.
- Rep. Jack Cera (D-Bellaire)
- Rep. Randi Clites (D-Ravenna)
- Rep. Paula Hicks-Hudson (D-Toledo)
- Rep. Don Jones (R-Harrison County)
- Rep. Darrell Kick (R-Loudonville)
- Rep. Mary Lightbody (D-Westerville)
- Rep. Susan Manchester (R-Lakeview)
- Rep. Don Manning (R-New Middletown)
- Rep. John Patterson (D-Jefferson)
- Rep. Jena Powell (R-Arcanum)
- Rep. Tim Schaffer (R-Lancaster)
- Rep. Bill Seitz (R-Cincinnati)
- Rep. Reggie Stoltzfus (R-Minerva)
- Rep. Casey Weinstein (D-Hudson)
Ohio Senate Agriculture Committee
- Chairman Frank Hoagland (R-Mingo Junction). Senator Hoagland is a first term member of the Ohio Senate. He owns a small business, and has nearly 30 years of experience as a Navy SEAL.
- Vice-Chair Brian Hill (R-Zanesville). Senator Hill is entering his first full term in the Ohio Senate. He holds a Bachelor’s Degree in Animal Science and an Associate’s Degree in Applied Science from Ohio State. Senator Hill raises beef cattle and grows crops on his family farm, and previously served as a Muskingum County Commissioner. Before entering the Ohio Senate, Senator Hill served in the Ohio House, where he chaired the House Agriculture and Rural Development Committee.
- Ranking Member Sean J. O’Brien (D-Bazetta). Senator O’Brien is a first term member of the Ohio Senate, and previously served three terms in the Ohio House. He holds a law degree from the University of Akron, and served as a prosecuting attorney for a number of years.
- Sen. Teresa Fedor (D-Toledo)
- Sen. Bob Hackett (R-London)
- Sen. Stephen Huffman (R-Tipp City)
- Sen. Stephanie Kunze (R-Hilliard)
- Sen. Tina Maharath (D-Canal Winchester)
- Sen. Rob McColley (R-Napoleon)
- Sen. Bob Peterson (R-Washington Court House)
- Sen. Joe Uecker (R-Miami Township)
United States House of Representatives Agriculture Committee
- Chairman Collin Peterson (D-Minnesota). Representative Peterson represents the western portion of Minnesota, which is predominantly rural and agricultural. He grew up on a farm, and was a Certified Public Accountant. He has many years of legislative experience at the state and federal level, and takes a keen interest in federal tax policy and conservation as it pertains to agriculture.
- Vice-Chair Alma Adams (D-North Carolina). Representative Adams’ district includes much of Charlotte, North Carolina and the surrounding areas. She taught art for over 40 years, and received her Ph.D. in Art Education and Multicultural Education from the Ohio State University in 1981. She has many years of legislative experience at the local, state, and federal level, and takes a keen interest in nutrition and education.
- Ranking Member K. Michael Conaway (R-Texas). Representative Conaway represents much of central Texas. He has a business background, having worked with former-President George W. Bush as the chief financial officer for Bush Exploration, an oil company.
- Rep. David Scott (D-Georgia)
- Rep. Jim Costa (D-California)
- Rep. Marcia Fudge (D-Ohio)
- Rep. Jim McGovern (D-Massachusetts)
- Rep. Filemon Vela (D-Texas)
- Rep. Stacey Plaskett (D-U.S. Virgin Islands)
- Rep. Abigail Spanberger (D-Virginia)
- Rep. Jahana Hayes (D-Connecticut)
- Rep. Antonio Delgado (D-New York)
- Rep. TJ Cox (D-California)
- Rep. Angie Craig (D-Minnesota)
- Rep. Anthony Brindisi (D-New York)
- Rep. Jefferson Van Drew (D-New Jersey)
- Rep. Josh Harder (D-California)
- Rep. Kim Schrier (D-Washington)
- Rep. Chellie Pingree (D-Maine)
- Rep. Cheri Bustos (D-Illinois)
- Rep. Sean Patrick Maloney (D-New York)
- Rep. Salud Carbajal (D-California)
- Rep. Al Lawson (D-Florida)
- Rep. Tom O’Halleran (D-Arizona)
- Rep. Jimmy Panetta (D-California)
- Rep. Ann Kirkpatrick (D-Arizona)
- Rep. Cindy Axne (D-Iowa)
- Rep. Glenn ‘GT’ Thompson (R-Pennsylvania)
- Rep. Austin Scott (R-Georgia)
- Rep. Rick Crawford (R-Arkansas)
- Rep. Scott DesJarlais (R-Tennessee)
- Rep. Vicky Hartzler (R-Missouri)
- Rep. Doug LaMalfa (R-California)
- Rep. Rodney Davis (R-Illinois)
- Rep. Ted Yoho (R-Florida)
- Rep. Rick Allen (R-Georgia)
- Rep. Mike Bost (R-Illinois)
- Rep. David Rouzer (R-North Carolina)
- Rep. Ralph Abraham (R-Louisiana)
- Rep. Trent Kelly (R-Mississippi)
- Rep. James Comer (R-Kentucky)
- Rep. Roger Marshall (R-Kansas)
- Rep. Don Bacon (R-Nebraska)
- Rep. Neal Dunn (R-Florida)
- Rep. Dusty Johnson (R-South Dakota)
- Rep. Jim Baird (R-Indiana)
- Rep. Jim Hagedorn (R-Minnesota)
United States Senate Agriculture, Nutrition, & Forestry Committee
- Chairman Pat Roberts (R-Kansas). Senator Roberts has served in both houses of Congress since the 1980s, and was the first person to have been the chair of both the House and Senate agriculture committees. His educational background is in journalism, and he served in the U.S. Marine Corps.
- Ranking Member Debbie Stabenow (D-Michigan). Senator Stabenow has served in both houses of Congress, and began her career in public service at the county and state level in the late 1970s. She has long taken an interest in agricultural issues, and serves as a co-chair of the U.S. Senate Great Lakes Task Force.
- Sen. Sherrod Brown (D-Ohio)
- Sen. Mitch McConnell (R-Kentucky)
- Sen. Patrick Leahy (D-Vermont)
- Sen. John Boozman (R-Arkansas)
- Sen. John Hoeven (R-North Dakota)
- Sen. Amy Klobuchar (D-Minnesota)
- Sen. Joni Ernst (R-Iowa)
- Sen. Michael Bennet (D-Colorado)
- Sen. Cindy Hyde-Smith (R-Mississippi)
- Sen. Kirsten Gillibrand (D-New York)
- Sen. Mike Braun (R-Indiana)
- Sen. Robert P. Casey Jr. (D-Pennsylvania)
- Sen. David Perdue (R-Georgia)
- Sen. Tina Smith (D-Minnesota)
- Sen. Chuck Grassley (R-Iowa)
- Sen. Richard Durbin (D-Illinois)
- Sen. John Thune (R-South Dakota)
- Sen. Deb Fisher (R-Nebraska)
As these committees take action over the next two years, we will do our best to keep you in the know. Stay tuned to the Ohio Ag Law Blog for updates.
As our readers can probably tell by now, there has been a lot happening in the agricultural law world over the past couple of weeks. From the Lake Erie Bill of Rights going on the ballot in Toledo to a new court decision on wedding barns, we’ve done our best to keep you in the know. While the legislative sessions in Congress and the Ohio General Assembly have started to shift into a higher gear, covering those bills will take up a lot of space, so be on the lookout for a legislative update soon.
For now, here’s our latest gathering of agricultural law news that you may want to know:
Yep, more WOTUS. The U.S. EPA has announced new public hearings regarding its proposed revised definition of Waters of the United States. The hearing will be held on Wednesday, February 27th and Thursday, February 28th at the Reardon Convention Center in Kansas City, Kansas. For those who wish to provide input, but are unable to make the trip, the U.S. EPA will accept written comments from the public online at http://www.regulations.gov with the docket ID number: EPA-HQ-OW-2018-0149. The online comment portal will accept new submissions until April 14th. The text of the proposed rule, which the U.S. EPA released just in time for Valentine’s Day, is available on the online comment portal page as well as in the Federal Register. For more information about either attending the meeting or submitting a comment to the U.S. EPA, visit the Federal Register’s webpage here. For more information about WOTUS rulemaking, see our most recent WOTUS blog post, or visit the U.S. EPA’s webpage here.
Conservation funding for federal lands could be restored under U.S. Senate bill. In a sign of bipartisanship, the U.S. Senate passed the National Resources Management Act by a vote of 92-8. If the House approves and it receives the President’s signature, the bill would modify a number laws addressing the management and conservation of federal lands, and would also restore funding to the Land and Water Conservation Fund, which had expired last fall. This fund primarily supports the protection of federal public lands and waters, but it also promotes voluntary conservation on private lands and awards grants to states for the acquisition and development of parks and outdoor recreation sites. Also in the bill are two specific changes of note for Ohio. First, section 6004(c) of the bill would increase the cap on total spending for the Ohio & Erie National Heritage Canalway from $10 million to $20 million. Second, section 2502 of the bill would extend the Lewis and Clark National Historic Trail from Illinois to Pennsylvania, which will include portions in Ohio. You can read the full text of the bill and see the official analyses on Congress’s website here.
FFA charter amendments approved by Congress and the President. Citing issues arising from the U.S. Department of Education’s not filling seats on the National FFA Board of Directors, the National FFA sought an amendment to its charter. Congress originally granted the charter in 1950, and any changes to the charter must be done so by an act of Congress. One of the major changes sought by National FFA was a reduction in the number of seats on the board of directors that must be appointed by the Department of Education. By not filling all of the seats on the Board of Directors, the National FFA faced difficulty making decisions because it often could not meet its quorum for meetings. The new amendments reduce the organization’s reliance on an appointment to its board of directors by the U.S. Department of Education, which increases the organization’s ability to self-govern. You can read the text of the bill on Congress’s website here, or visit the National FFA’s webpage on frequently asked questions about the charter revision here.
The PACT Act is back. The Prevention of Animal Cruelty and Torture Act has been reintroduced into the U.S. House of Representatives. The act would allow for significant fines and up to seven years in prison for those convicted of animal crushing, creating animal crushing videos, or distributing animal crushing videos. The bill defines crushing as “actual conduct in which one or more living non-human mammals, birds, reptiles, or amphibians is purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury.” However, the bill does contain exceptions for conduct that is related to “customary and normal veterinary, agricultural husbandry, or other animal management practice[s];” “the slaughter of animals for food;” legal hunting, trapping, and fishing activities; research; defense of a human; and euthanizing an animal. Many in the agriculture community have opposed the bill, arguing that it is duplicative in light of animal protections created by the states and that it risks courts and juries interpreting the language too broadly. At this time, the bill has only been introduced in the U.S. House and referred to the Judiciary Committee.
Nebraska wind farms sue to enforce contract and keep utility from flying off into the sunset. Three Nebraska windfarms in a power supply contract with the Nebraska Public Power District (NPPD) have filed suit to prevent the utility from backing out of the contract. The wind farms filed a complaint in federal court in Nebraska on January 30th, alleging that NPPD expressed its intention to terminate a power purchase agreement, and that doing so would be wrongful. The complaint explains NPPD’s position that the wind farms materially violated the contract by investing in other businesses and operations. The plaintiffs disagree that there was a breach, but say that even if there was, NPPD cannot terminate the contract because it knew of the transactions. The plaintiffs also note that NPPD has eminent domain power. They argue that by terminating the contract, NPPD knows that the wind farms will likely enter default with creditors. This could allow NPPD to acquire the rights of the wind farms through a foreclosure sale or eminent domain. To prevent NPPD from terminating the contract, the parties requested, and were granted, a temporary restraining order until March 1st that requires NPPD to honor the contract. The case is cited as Laredo Ridge Wind, LLC v. Nebraska Pub. Power Dist., No. 8:19-cv-45 (D. Neb.).
Wisconsin Supreme Court asked to decide scope of agency power to regulate agriculture. A Wisconsin court of appeals has certified two cases to the Wisconsin Supreme Court, asking the court to determine the extent of the Wisconsin Department of Natural Resource’s authority to regulate agriculture in order to protect groundwater. A certification represents a lower court seeking guidance on an issue that the lower court believes it is not in the best position to decide without knowing what the higher court thinks. These cases are important for Wisconsin because they pertain to a law passed in 2011 that restrained authority of state agencies to act beyond express grants of authority by the state legislature. Specifically, the cases ask whether the Wisconsin DNR can impose conditions on issuing a permit beyond the conditions stated in a statute. The affected parties in the cases range from dairy farms to manufacturers and from food processors to municipal water utilities. Environmental groups hope that state agencies may take a more expansive look at environmental impacts when reviewing permit applications. The two certification orders are available here and here.
Well, it’s been a while since we’ve written about the Waters of the United States (WOTUS), so everyone had to know we were overdue for WOTUS news!
On December 11, 2018, the Environmental Protection Agency (EPA) and the Army Corps of Engineers announced the Trump Administration’s so-called “straightforward” new definition of WOTUS under the Clean Water Act (CWA). Publication of the proposed rule was delayed due to the federal government shutdown in December and January. The proposed rule was finally published in the Federal Register on February 14, 2019. Interested parties can comment on the proposed WOTUS rule until April 15, 2019. Information on how to comment can be found here, and the proposed rule in its entirety can be found here.
Out with the old WOTUS…
The new definition would replace the 2015 definition of WOTUS promulgated under the Obama Administration. The 2015 definition is codified at 33 CFR 328. The 2015 definition defined waters of the United States as:
- All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
- All interstate waters including interstate wetlands;
- All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
- Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
- From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
- Which are used or could be used for industrial purpose by industries in interstate commerce;
- All impoundments of waters otherwise defined as waters of the United States under the definition;
- Tributaries of waters identified in paragraphs (a) (1) through (4) of this section;
- The territorial seas;
- Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) (1) through (6) of this section.
- Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with the EPA.
The 2015 definition also noted that “[w]aste treatment systems, including treatment ponds or lagoons designed to meet requirements of CWA…are not waters of the United States” (emphasis added).
...In with the new WOTUS
The Trump Administration’s new proposed definition of WOTUS would make significant changes to the definition listed above. Under the new proposed rule, section (a) of §328.3 would define waters of the United States as:
- Waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including the territorial seas and waters which are subject to the ebb and flow of the tide;
- Tributaries of waters identified in paragraph (a)(1) of this section;
- Ditches that satisfy any of the conditions identified in paragraph (a)(1) of this section, ditches constructed in a tributary or that relocate or alter a tributary as long as those ditches also satisfy the conditions of the tributary definition, and ditches constructed in an adjacent wetland as long as those ditches also satisfy the conditions of the tributary definition;
- Lakes and ponds that satisfy any of the conditions identified in paragraph (a)(1) of this section, lakes and ponds that contribute perennial or intermittent flow to a water identified in paragraph (a)(1) of this section in a typical year either directly or indirectly through a water(s) identified in paragraphs (a)(2) through (6) of this section or through water features identified in paragraph (b) of this section so long as those water features convey perennial or intermittent flow downstream, and lakes and ponds that are flooded by a water identified in paragraphs (a)(1) through (5) of this section in a typical year;
- Impoundments of waters identified in paragraphs (a)(1) through (4) and (6) of this section; and
- Adjacent wetlands to waters identified in paragraphs (a) (1) through (5) of this section.
Every other type of water in this proposed definition relates back to the waters described in (1), which the EPA describes as “traditional navigable waters.” For example, tributaries that are WOTUS would be those bodies of water that empty into or connect to traditional navigable waters. Similarly, lakes and ponds are WOTUS under the definition if they are traditional navigable waters themselves, or if they flow regularly into traditional navigable waters. An EPA fact sheet, available here, is very helpful in understanding what is included under the proposed WOTUS definition. It describes the six proposed categories of WOTUS in layman’s terms, and provides examples of bodies of water that fall under each category.
The newly proposed rule also greatly expands the list of waters that are not waters of the United States in section (b):
- Waters or water features that are not identified in paragraphs (a) through (6) of this section;
- Groundwater, including groundwater drained through subsurface drainage systems;
- Ephemeral features and diffuse stormwater run-off, including directional sheet flow over upland;
- Ditches that are not identified in paragraph (a)(3) of this section;
- Prior converted cropland;
- Artificially irrigated areas, including fields flooded for rice or cranberry growing, that would revert to upland should application of irrigation water to that area cease;
- Artificial lakes and ponds constructed in upland (including water storage reservoirs, farm and stock watering ponds, and log cleaning ponds) which are not identified in paragraph (a)(4) or (a)(5) of this section;
- Water-filled depressions created in upland incidental to mining or construction activity, and pits excavated in upland for the purpose of obtaining fill, sand, or gravel;
- Stormwater control features excavated or constructed in upland to convey, treat, infiltrate or store stormwater run-off;
- Wastewater recycling structures constructed in upland, such as detention, retention and infiltration basins and ponds, and groundwater recharge basins; and
- Waste treatment systems.
Notable differences between 2015 rule and proposed rule
Just glancing at the two rules, it is obvious that there are major differences in how WOTUS is defined. EPA has a useful fact sheet (highly recommended reading) outlining the “key proposed changes” and how they compare to the 2015 WOTUS rule, as well as to the pre-2015 WOTUS rule. Overall, it appears that the number of water bodies considered WOTUS would decrease under the proposed rule. EPA argues that limiting the number of waters classified as WOTUS would give more power to the states to regulate waters as they see fit.
One major change is that under the proposed rule, tributaries that are “ephemeral” (meaning they’re not around for a great deal of time, and/or may be there because of rainfall or snowmelt, etc.), are not considered to be WOTUS. Similarly, the number of ditches considered to be WOTUS would decrease under the new rule. Upland ditches and ephemeral ditches would no longer fall under WOTUS. The number of wetlands considered WOTUS would also take a hit under the new rule. Wetlands would either have to “abut” other WOTUS or “have a direct hydrological surface connection” to WOTUS in a “typical year” to fall under the new definition. Furthermore, wetlands would no longer be considered to be “adjacent,” and therefore connected to WOTUS, if they are “physically separated from jurisdictional waters by a berm, dike, or other barrier.” Finally, you guessed it— the number of lakes and ponds considered WOTUS would also be reduced, since they would no longer connect through “adjacent” wetlands.
It’s important to remember that this new WOTUS rule is not currently effective—they are just proposed rules, open to public comment. In the meantime, due to litigation, what qualifies as WOTUS depends on which state you live in, as we discussed in Harvest posts here and here. EPA has a map depicting which definition of WOTUS currently applies where—in some states, the 2015 rule applies, and in others the pre-2015 rule applies. Obama’s 2015 rule applies in Ohio at this time. If the proposed rule makes it through the rulemaking process and goes into effect, it will replace the 2015 and pre-2015 rules, and barring any other lawsuits, will apply nationwide. The ultimate implementation of this rule is anything but certain; changes and challenges to the rule are likely to occur. The Ag Law Blog will keep readers updated on all the WOTUS discussion yet to come.