Environmental
Written by: Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program
Update: On January 25, 2017, the Sixth Circuit Court of Appeals granted a motion to hold the WOTUS litigation in the Sixth Circuit in abeyance (putting an issue on hold) while the Supreme Court reviews whether the Sixth Circuit has proper jurisdiction to hear the WOTUS litigation.
The Supreme Court of the United States has accepted a petition to hear an appeal from a Waters of the United States (WOTUS) ruling from the Sixth Circuit Court of Appeals. As discussed in our February 2016 blog post (available here), the Sixth Circuit Court of Appeals ruled that it had jurisdiction to hear challenges to the Clean Water Rule (WOTUS Rule). Proposed by the U.S. EPA and the Army Corps of Engineers, the controversial WOTUS Rule attempts to expand the geographic extent of waterways considered to be “waters of the United States” that are subject to the Clean Water Act.
A background on the WOTUS Rule in the Sixth Circuit
On April 21, 2016, the Cincinnati-based Sixth Circuit Court of Appeals determined that federal courts of appeal, and not federal district courts, have proper jurisdiction to hear cases involving the WOTUS Rule. In that case, numerous states argued that federal district courts should have jurisdiction to hear WOTUS Rule cases. However, the Sixth Circuit Court of Appeals held that federal appeals courts had exclusive jurisdiction over the review of the WOTUS Rule. Now that ruling is being challenged before the Supreme Court of the United States.
Challenging the ruling by the Sixth Circuit Court of Appeals
A private manufacturing association—the National Association of Manufacturers, is bringing the case before the Supreme Court. The association previously challenged the WOTUS Rule in federal district court and in the court of appeals. The question presented to the Supreme Court by the National Association of Manufacturers is whether the Sixth Circuit incorrectly decided that the federal courts of appeal have the exclusive jurisdiction under federal law to review the WOTUS Rule. The Supreme Court could decide that the federal appeals courts do not have exclusive jurisdiction to hear cases involving the WOTUS Rule, in which case the WOTUS Rule could be challenged in federal district courts instead of only in federal courts of appeal.
Implications
The upcoming change of administration may lead to uncertainty for the future of the WOTUS Rule. The incoming Trump Administration has proposed eliminating the WOTUS Rule altogether. The U.S. EPA and U.S Army Corps of Engineers may be directed to dismantle the WOTUS Rule if the executive branch chooses to eliminate it. That would cause the question before the Supreme Court to become a moot point. The Supreme Court may not even rule on the jurisdictional issue brought by the National Association of Manufacturers, if the incoming administration eliminates the WOTUS Rule quickly.
Some legislators in Washington agree with the incoming Trump administration’s position on the WOTUS Rule. Members of the Senate introduced Senate Resolution 12 (SR 12) on January 12, 2017. SR 12 expresses the position that the U.S. Senate formally requests that the Administrator of the EPA and the Chief of Engineers of the Army Corps of Engineers eliminate the WOTUS Rule altogether. However, SR 12 has not passed in the U.S. Senate and is currently pending. While SR 12 may not force any official action to repeal the WOTUS Rule, it shows support for the incoming administration’s plans to repeal the rule. We can expect WOTUS issues to remain hotly debated in 2017 as either the executive or the judicial branch addresses the WOTUS Rule.
U.S. Senate Resolution 12 is available here. Read the Sixth Circuit’s opinion issued February 22, 2016: U.S. Dep’t of Defense & U.S. Envtl. Protection Agency Final Rule: Clean Water Rule at http://www.ca6.uscourts.gov/opinions.pdf/16a0045p-06.pdf.
Written by: Ellen Essman and Chris Hogan, Law Fellows, OSU Agricultural & Resource Law Program
Part Two
Below is the second of our two-part series regarding bills related to agriculture that failed to pass during Ohio’s 2015-2016 legislative session.
Animal Welfare
Requirements for Humane Society Agents and House Bill 45
House Bill 45 was introduced February 10, 2015 and would have amended existing law to impose additional requirements upon those people hoping to be appointed as humane society agents. A number of changes and additions would have been implemented through the passage of HB 45. The bulk of the proposed legislation concerned training for humane society agents and filing evidence of completing that training with the county recorder. HB 45 would have required county recorders to record “[p]roof of successful completion of training by humane society agents,” as well as “notices of revocation of agents’ appointment” in the official records (emphasis added). According to the bill, proof of completion of training would have had to been signed by the CEO of the organization that provided training, the chief officer of the county humane society, and either the mayor or probate judge in the county.
House Bill 45 was referred to the Local Government Committee on February 11, 2015. No further action was taken, rendering the proposed legislation dead when the 131st General Assembly ended.
To read HB 45, visit this page. The Ohio Legislative Service Commission’s analysis of HB 45 is available here.
Tethering Animals and House Bill 94
House Bill 94 was introduced March 2, 2015 and would have enacted language that would have made it illegal to negligently tether an animal outside in certain situations. The bill would have imposed time limits on tethering and a prohibition on tethering animals in certain weather conditions. Furthermore, a prohibition on tethering would have been imposed if the tethers were unsafe, under a certain length, allowed the animal to touch fences or cross property lines, or were inappropriate for the animal’s size. HB 94 also would have prohibited tethering if the surrounding area was unsanitary, or if the owner of the premises was not present. Finally, the bill would have amended the current law to include punishment for violating the proposed tethering language. The bill, however, was referred to the House Agriculture and Rural Development Committee and afterwards, no action was taken on it.
To read HB 94, visit this page. The Ohio Legislative Service Commission’s analysis of HB 94 is available here.
Animal Abusers and House Bill 177
House Bill 177 was introduced on April 28, 2015. HB 177 would have required people who either were “convicted of or pleaded guilty to” a number of animal abuse violations to submit certain information, along with a fee, to the Attorney General within 30 days of “being convicted or pleading guilty.” HB 177 also tasked the Attorney General with creating and keeping a registry of animal abuse violators.
Law enforcement officers, humane society agents, and dog wardens would have been responsible for notifying the Attorney General of animal abuse violations. Animal shelters would have been prohibited from allowing a person on the registry from adopting a dog, cat, or any animal kept in a home.
The bill was referred to the Agriculture and Rural Development Committee on May 5, 2015, where no further action was taken.
To read HB 177, visit this page.
Sale of Dogs and House Bill 573
House Bill 573 was introduced on May 17, 2016. This bill focused on the sale of dogs both from pet stores and from other entities. The bill would have added or changed a number of definitions in the Ohio Revised Code. Most notably, the law would have made it illegal for a pet store to “negligently…offer for sale” or otherwise “transfer” a dog unless it came from an animal rescue, an animal shelter, a humane society, a dog retailer, or a qualified breeder, all of which were defined elsewhere in the bill.
Additionally, according to HB 573, both dog retailers and pet stores would have been forbidden from selling or otherwise transferring a dog under a number of conditions. Under the bill, they could not have sold dogs less than eight weeks old, dogs that had not been inspected by a veterinarian, and dogs without a microchip, among other conditions. However, none of these requirements would have been applicable to a dog sold or otherwise “transferred from the premises where the dog was bred and reared.” Finally, the bill included language stating that it would preempt local laws regulating the sale of dogs. House Bill 573 was referred to the Finance Committee on May 23, 2016 and no further action was taken.
To read HB 573, visit this page. The Ohio Legislative Service Commission’s analysis of HB 573 is available here.
Natural Resources
Invasive Species and House Bill 396
House Bill 396 was introduced on November 16, 2015. This bill dealt with restricting and prohibiting certain species in Ohio. HB 396 would have added a number of definitions to the Ohio Revised Code, including a lengthy list of “prohibited species.” Species of birds, crayfish, fish, insects, and mollusks were included in the list. Additionally, “restricted species” was defined as including the quagga mussel, the zebra mussel, and their eggs. In addition, HB 396 would have given the Chief of the Division of Wildlife, with advice from Ohio Director of Agriculture, the power to designate other restricted and prohibited species subject to a number of considerations. One of these considerations would have been whether or not the species could cause severe harm to agricultural resources. The bill would have made it illegal to possess, introduce, sell, or offer to sell restricted and prohibited species.
The bill was referred to the Agricultural and Rural Development Committee on January 20, 2016 and ultimately did not leave the Committee.
To read HB 396, visit this page. The Ohio Legislative Service Commission’s analysis of HB 396 is available here.
Deer Rehabilitation and House Bill 267
House Bill 267 was introduced on June 22, 2015 and would have changed the Ohio Revised Code to allow licenses to run deer sanctuaries, permits to rehabilitate deer, and training for law enforcement. During the training, law enforcement officers were supposed to learn how to determine whether they needed to humanely euthanize injured deer or transfer them to someone permitted to rehabilitate the deer.
The bill was referred to the House Committee on Energy and Natural Resources on October 1, 2015, and was ultimately stranded there.
To read HB 267, visit this page. The Ohio Legislative Service Commission’s analysis of HB 267 is available here.
Labeling Nursery Stock and House Bill 566
House Bill 566 was introduced on May 12, 2016 and would have made it illegal for a person to “recklessly label or advertise nursery stock as beneficial to pollinators” if the nursery stock had been “treated with a systemic insecticide.” It would also have been illegal for a person to “recklessly label” stock as beneficial if the stock included the U.S. EPA warnings of “pollinator protection box[es]” and “pollinator, bee, or honey bee precautionary statement[s] in the environmental hazard section of an insecticide product label” on its packaging.
The bill was referred to the Agriculture and Rural Development Committee on November 11, 2016 and never made it any further.
To read HB 566, visit this page. The Ohio Legislative Service Commission’s analysis of HB 566 is available here.
Taxation
Adjusting Current Agricultural Use Value formulas: Senate Bill 246 and House Bill 398
During the 131st General Assembly, the Senate considered Senate Bill 246. SB 246 addressed how current agricultural use value, otherwise known as CAUV, is calculated. CAUV permits land to be valued at its agricultural value rather than the land’s market or “highest and best use” value. SB 246 was a companion bill. That means that a version of the bill was introduced in both the Ohio House and the Ohio Senate. The companion house bill to SB 246 was House Bill 398.
Both bills were intended to alter the current formula used to calculate CAUV values across Ohio. According to the Ohio Legislative Service Commission, the changes proposed by the bill would “have a uniformly downward effect on the taxable value of CAUV farmland.” Thus, the likely effect would have been a lower tax bill for farmers who are taxed on a CAUV basis.
The Senate referred its bill, SB 246, to the Senate Ways and Means Committee on December 9, 2015 and HB 398 was referred to the House Government Accountability and Oversight Committee on January 20, 2016. Neither committee acted on its bill. Therefore, neither bill was passed into law during the 131st General Assembly.
To read SB 246, visit this page. The Ohio Legislative Service Commission’s analysis of SB 246 is available here. To read HB 398, visit this page. The Ohio Legislative Service Commission’s analysis of HB 398 is available here.
Nonrefundable Tax Credits for Rural Businesses and Senate Bill 209
The 131st General Assembly considered a nonrefundable tax credit for insurance companies that invest in certain rural business growth funds. According to the Ohio Legislative Service Commission, qualifying rural business growth funds include special purpose rural businesses that contribute capital to certain kinds of businesses with substantial operations in rural areas of Ohio.
SB 209 passed in the Ohio Senate. But, the bill did not pass the Ohio House. Therefore, the bill was not passed into law during the 131st General Assembly.
To read SB 209, visit this page. The Ohio Legislative Service Commission’s analysis of SB 209 is available here.
Written by: Ellen Essman and Chris Hogan, Law Fellows, OSU Agricultural & Resource Law Program
Part One
Ohio’s 131st General Assembly came to a close in December of 2016. In Ohio, a legislative session (also known as a General Assembly) lasts for two years. A bill fails to become law if that bill was introduced during a legislative session but did not pass by the end of the session. Below is a summary of bills related to agriculture that failed to pass during Ohio’s 2015-2016 legislative session. Time will tell whether our legislators will revive and reintroduce any of these proposals in the new 2017-2018 legislative session.
Nutrient Management
Application of Fertilizer and Manure and Senate Bill 16
Nutrient management remained a topic of discussion in Ohio throughout 2015 and 2016. Most notably, in July of 2015, SB 1 passed and became law. SB 1 placed restrictions on the application of nutrients in the Lake Erie Basin. For example, SB 1 placed restrictions on the application of manure under certain weather conditions.
The 131st assembly considered a similar bill, Senate Bill 16, in February of 2015. SB 16 sought to regulate many of the issues that SB 1 now regulates. SB 16 failed to pass and did not become law. Notwithstanding SB 16’s failure to pass, nutrient management was a popular topic for the 131st General Assembly.
To read SB 16, visit this page. The Ohio Legislative Service Commission’s analysis of SB 16 is available here.
House Bill 101 and the Response to Algal Blooms
House Bill 101 was introduced on March 4, 2015. The bill would have enacted a number of sections into the Ohio Revised Code that would have addressed algal blooms in Ohio waterways. First of all, under the language of HB 101, owners or operators of public water systems in areas at risk for harmful algal blooms, together with the directors of the Ohio EPA and ODNR, would have had the ability to develop emergency plans to combat the algal blooms. Secondly, the Directors of the Ohio EPA and the Department of Natural Resources were tasked with developing and circulating an early warning system for harmful algal blooms. Thirdly, the Ohio EPA would have had the responsibility to provide training to publicly owned treatment works and public water systems relating to monitoring and testing for “harmful algae and cyanotoxins in the water.” Finally, under HB 101, the Director of the Ohio Department of Natural resources would have had to study and report on the economic and environmental impacts of Canada geese and zebra mussels on Lake Erie.
The bill was referred to the House Committee on Agriculture and Rural Development on March 4, 2015 and was never acted upon.
To read HB 101, visit this page. The Ohio Legislative Service Commission’s analysis of HB 101 is available here.
Agricultural Operation and Management Plans and Senate Bill 224
Currently, operation and management plans are a voluntary measure for Ohio farmers. In Ohio, an owner or operator of agricultural land or an animal feeding operation may implement a plan which incorporates pollution abatement practices and best management practices for the operation. But, the 131st General Assembly considered a bill which would make such plans mandatory for operators who operate farms of 50 acres or more.
The proposed bill, otherwise known as Senate Bill 224, would have required operation and management plans to include certain standards for applying fertilizer or manure. The bill also gave the Ohio Director of Agriculture authority to enforce corrective actions against farm operations and to assess civil penalties for non-compliance. However, SB 224 did not pass in the Senate and was not signed into law.
To read SB 224, visit this page. The Ohio Legislative Service Commission’s analysis of SB 224 is available here.
Business
Series LLCs and House Bill 581
Ohio permits the formation of Limited Liability Companies, otherwise known as LLCs. LLCs offer many attractive benefits for a farming operation. Namely, LLCs provide liability protection to the members or owners of that LLC.
Some LLC farming operations have become more complex in recent years. As a result, some farming operations choose to have multiple LLCs across an entire farming operation. For example, a farm operation may have one LLC which owns only farm property and a second and entirely separate LLC that owns only farm machinery. But, multiple LLCs create additional complexity which may complicate a farming operation.
One proposed solution is the series LLC. The 131st General Assembly proposed the introduction of series LLCs in House Bill 581. A series LLC would allow a single LLC to create multiple series within the LLC without the need to create an entirely new LLC for each series. Under HB 581, a LLC organized as a series LLC would be able to limit the power of managers or members in different series within the series LLC. A series LLC would also be able to place different assets and obligations into different series within the LLC.
Under HB 581, the debts and obligations of a particular series within an LLC would have been limited to that series only. But, HB 581 did not pass during the 131st General Assembly. Therefore, series LLCs remain non-existent in Ohio.
To read HB 581, visit this page. The Ohio Legislative Service Commission’s analysis of HB 581 is available here.
Food
Donation of Food and House Bill 111
House Bill 111 was introduced on March 10, 2015. This bill would have allowed food service operations to apply for a rebate from the Director of Health if they donated the food to a nonprofit organization. The rebate would have been ten cents per pound of perishable food donated. HB 111 was referred to the House Ways and Means Committee on March 16, 2015 and no further action was taken.
To read HB 111, visit this page. The Ohio Legislative Service Commission’s analysis of HB 111 is available here.
Tags: Ohio legislation, Ohio 131st General Assembly
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A landowner may immediately appeal an agency’s determination that property contains “waters of the United States” that is subject to the federal Clean Water Act, according to a decision issued today by the United States Supreme Court.
The court’s holding in Army Corps of Engineers v. Hawkes Co. centered on a decision by the U.S. Army Corps of Engineers (the Corps) that property in Minnesota owned by the Hawkes Company (Hawkes) contained wetlands that were subject to the Clean Water Act. Hawkes planned to mine peat on the property, and would have to comply with Minnesota regulations. The Corps decided that Hawkes must also comply with federal Clean Water Act regulations, based on its “jurisdictional determination” that the property contained waters of the United States because its wetlands had a “significant nexus” to the Red River of the North, located 120 miles away.
Hawkes challenged the Corps’ jurisdictional determination in federal district court. The Corps requested dismissal of the case, arguing that its jurisdictional determination was not a "final agency action" that Hawkes could appeal in court. Rather, the Corps asserted that Hawkes should apply for a Clean Water Act permit and challenge the results of the permit request if dissatisfied or should proceed without a permit and challenge the jurisdictional determination in a likely enforcement action.
The federal district court agreed with the Corps and dismissed the case. Hawkes then appealed to the Eighth Circuit Court of Appeals, which reversed the district court’s decision. The Corps requested review of the appeal by the United States Supreme Court, which accepted the case.
The Supreme Court concluded that the Corps’ jurisdictional determination is appealable according to the federal Administrative Procedures Act, which allows an aggrieved party to appeal a “final” agency action. An action is final if it determines legal consequences,“marks the consummation of the agency’s decision making process,” and when there are no adequate alternatives for relief other than judicial review. All three circumstances existed in the Hawkes case, said the Court, stating that parties should not have to await enforcement proceedings that carry the risk of criminal and civil penalties before challenging a jurisdictional determination or be forced through a lengthy and costly permitting process before being able to challenge the Corps’ jurisdictional determination.
Read the decision in Army Corps of Engineers v. Hawkes Co. here.
Tags: wetlands determination, Clean Water Act, Hawkes, waters of the United States
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A legislative proposal to address manure infrastructure costs introduced by Rep. Brian Hill (R-Zanesville) is moving once again, receiving its third hearing before the House Ways and Means Committee on Tuesday, April 26. The bill proposes a refundable personal income tax credit for livestock owners in Ohio who invest in facilities or equipment for manure storage, treatment, application, handling or transportation. Rep. Hill introduced the measure last August, but it has not been on the committee's agenda since its second hearing in February. Here are the details of the proposed legislation:
- The tax credit would apply only to taxpayers who own livestock in Ohio on the bill’s effective date and for the entire taxable year in which claiming the credit. The credit would not apply to former livestock owners, those who obtain livestock after the effective date or those who do not own livestock for the entire year in which claiming the credit.
- Eligible investments would include those made between January 1, 2005 and January 1, 2020 for any costs incurred to:
- Acquire manure handling or transportation equipment, which means any machinery, device, equipment, tool, motor vehicle, system or infrastructure improvement used primarily to move manure to or from a manure storage or treatment facility or other location, or to clean or decontaminate land or surfaces on or in which manure is deposited or stored.
- Acquire manure application equipment, which includes any machinery, device, equipment, motor vehicle or system used to apply or inject manure into or onto soil for agricultural purposes;
- Plan, design, excavate, construct or install a manure storage or treatment facility anywhere in Ohio, which includes any excavated, diked or walled structure or combination of structures designed to stabilize, hold or store manure.
- The investments made must assist the taxpayer in complying with NRCS Nutrient Management Code 590 regarding manure application anywhere in the state or complying with state laws regarding the application of manure in Lake Erie’s western basin.
- The amount of the tax credit would be 50% of the total eligible investment, and the taxpayer would be required to spread the credit amount equally over a five year period.
- If the taxpayer’s credit would exceed the income tax due, the taxpayer would be entitled to a refund of the excess amount.
- The tax commissioner would be responsible for adopting rules for the tax credit, which could require the taxpayer to substantiate the amount of the investment, identify the location of the livestock or describe how the investment helps the taxpayer comply with laws regarding manure storage and application.
Several dairy farmers, the Ohio Soybean Association and the Ohio Farm Bureau testified at the April 26 committee hearing in support of the bill, highlighting the financial strains on livestock operators who install new manure storage and separation equipment. Committee members expressed several concerns with the proposal, including the retroactivity to investments made since 2005, its application to owners of Confined Animal Feeding Operations and the Legislative Service Commission’s projected loss of tens of millions of dollars per year in state revenue due to the credit.
Read and follow HB 297 on the Ohio General Assembly website, here.
Update: On April 21, 2016, the Sixth Circuit Court of Appeals denied a request for en banc (full court) review of this decision made by agricultural groups and several states.
In a case successfully argued by Ohio’s Solicitor Eric Murphy, the Sixth Circuit Court of Appeals based in Cincinnati has determined that it has jurisdiction to hear challenges to the Clean Water Rule (WOTUS Rule) proposed by the U.S. EPA and Army Corps of Engineers. The Rule expands the geographic extent of the “waters of the United States” (WOTUS) that are subject to the Clean Water Act.
A brief background
When the agencies published the final WOTUS Rule last summer, dozens of parties and 31 states, including Ohio, filed challenges in nine federal district courts and eight federal courts of appeal. The filings raised an immediate uncertainty about whether federal district courts or federal courts of appeal have jurisdiction to review the Rule. Despite this uncertainty, the U.S. District Court for the District of North Dakota issued a temporary injunction that prevented the Rule’s application in the 13 states that were involved in that district’s litigation. Other district courts in West Virginia and Georgia declined to issue injunctions and instead ruled that they did not have jurisdiction to review the Rule. A federal panel consolidated the cases filed before the Sixth Circuit Court of Appeals, which includes the challenge by the State of Ohio. The Sixth Circuit first issued a nationwide stay of the WOTUS Rule last October before turning to the jurisdictional challenges raised by the EPA and Army Corps.
The Sixth Circuit’s fractured opinion
The decision on jurisdiction issued by the Sixth Circuit’s three judge panel is not harmonious. Judge McKeague wrote the court’s opinion and based jurisdiction on two of seven provisions in the Clean Water Act that grant appellate court jurisdiction to review EPA actions: subsection 1369 (b)(1)(E) for actions “approving or promulgating any effluent limitation or other limitation” under certain sections of the Act and subsection 1369(b)(1)(F), for actions issuing or denying National Pollutant Discharge Elimination System (NPDES) permits. Judge McKeague relies on a U.S. Supreme Court decision that interprets the “other limitations” language in 1369 (b)(1)(E) to include limitations that “indirectly” produce limitations on point source operators and permit issuing authorities. He also cites the Sixth Circuit’s earlier decision in National Cotton Council v. U.S. EPA to conclude that agency actions “issuing or denying” an NPDES permit under 1369(b)(1)(F) include actions creating “regulations governing the issues of permits” and “rules that regulate NPDES permitting procedures,” such as the WOTUS Rule.
A concurring opinion written by Judge Griffin agrees only with the requirement to follow the Sixth Circuit’s previous decision in National Cotton Council. Judge Griffin clarifies that he is bound by but does not agree with the court’s reasoning in that case, and would not otherwise accept jurisdiction under subsections 1369(b)(1)(E) or (F). In a dissenting opinion, Judge Keith agrees with the concurring opinion that neither subsection 1369(b)(1)(E) or (F) grants an appeals court jurisdiction in regards to the WOTUS Rule. Judge Keith also argues that Judge McKeague mistakenly relies upon and overly broadens the National Cotton Council decision, which he believes does not apply to the WOTUS Rule.
Implications
Despite the disagreements between the Sixth Circuit Court judges, the decision means that the nationwide stay of the WOTUS Rule remains in effect and the court will proceed to hear the circuit’s consolidated cases that challenge the WOTUS Rule. The court’s decision on jurisdiction applies only to the states within the Sixth Circuit—Ohio, Michigan, Kentucky and Tennessee. Given the range of reasoning in the Sixth Circuit’s decision, other federal courts could reach differing decisions on the question of which court has jurisdiction over the cases. If so, we can expect a request for the United States Supreme Court to review the jurisdictional issue. As we expected, the WOTUS Rule challenges will be with us for quite some time.
Read the Sixth Circuit’s opinion for In re: U.S. Dep’t of Defense & U.S. Envtl. Protection Agency Final Rule: Clean Water Rule at http://www.ca6.uscourts.gov/opinions.pdf/16a0045p-06.pdf.
Ohio's newest legislation addressing water quality concerns became effective on July 3, 2015. The new law, enacted by the Ohio legislature earlier this year as Senate Bill 1, affects Ohio agriculture with the following provisions:
1. Fertilizer application restrictions in the western basin. In the western basin of Lake Erie, a person may not apply fertilizer (defined as nitrogen or phosphorous) under these conditions:
- On snow-covered or frozen soil
- When the top two inches of soil are saturated from precipitation
- In a granular form when the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one inch in a twelve-hour period
Exceptions—the above restrictions do not apply if the fertilizer is:
- Injected into the ground
- Incorporated within 24 hours of surface application
- Applied onto a growing crop
2. Manure application restrictions in the western basin. In the western basin of Lake Erie, a person may not surface apply manure (defined as animal excreta) under these conditions:
- On snow-covered or frozen soil
- When the top two inches of soil are saturated from precipitation
- When the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding 1/2 inch in a 24 hour period
Exceptions—the above restrictions do not apply if the manure is:
- Injected into the ground
- Incorporated within 24 hours of surface application
- Applied onto a growing crop
- Or if, in the event of an emergency, the chief of the division of soil and water resources provides written consent and the application is in accordance with NRCS practice standard code 590.
3. Exemptions for small and medium operations. Small and medium agricultural operations in the western basin, defined by number of species using the same criteria as Ohio Department of Agriculture's (ODA's) livesock environmental permitting program, may apply to the chief of the division of soil and water resources for a temporary exemption from the restrictions on manure applications.
- A medium agricultural operation may be exempt for one year, up to July 3, 2016.
- A small operation may be exempt for two years, up to July 3, 2017.
- An exempt operation will not be subject to civil penalties for violations if working toward compliance and may request technical assistance to reach compliance standards.
4. Certification requirements for any persons using manure from CAFFs anywhere in Ohio. On 50 acres or more used in agricultural production anywhere in Ohio, no person may apply manure from a concentrated animal feeding facility regulated under a permit from ODA's Division of Livestock Environmental Permitting unless:
- The person has obtain Certified Livestock Manager (CLM) certification by ODA.
- The person has been certified by ODA through Ohio's fertilizer applicator certification program.
Complying with the new law
To ensure compliance with Senate Bill 1's fertilizer and manure restrictions that are now effective in Ohio, producers should consider these questions before making an application of manure or fertilizer:
1. Will the application of fertilizer or manure occur in the western basin of Lake Erie? If so, the new restrictions may apply to the application. A map that outlines the 11 watersheds and all or parts of 25 counties that comprise the western basin is available here.
- Does the application involve a restricted nutrient? The new restrictions apply to any application that involves nitrogen, phosphorous or any type of animal manure.
- Will the restricted nutrient be injected into the ground, incorporated within 24 hours, applied onto a growing crop or made with permission of the chief of soil and water resources due to an emergency involving manure applications? If so, the application is permissible as an exception to the restrictions.
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If one of the above exceptions does not apply to the application, do weather conditions prohibit the application?
- Is the ground frozen, snow covered or saturated two inches deep or more? If so, the application is prohibited.
- Is there a greater than 50% chance that precipitation will exceed one inch in the next 12 hours for the area where the application will occur? If so, an application of granular fertilizer is prohibited.
- Is there a greater than 50% chance that precipitation will exceed one-half inch in the next 24 hours for the area where the application will occur? If so, an application of manure is prohibited.
- Refer to OSU Extension's C.O.R.N. newsletter for guidance on how to obtain important precipitation information prior to an application.
2. Is a temporary exemption from the manure restrictions available? If manure applications will be made by a "small" or "medium" animal feeding facility in the western basin, the facility may request the temporary exemption from the restrictions. Refer to ODA's explanation of what qualifies as a small or medium animal feeding facility on its website, here.
3. Is the manure or fertilizer obtained from a confined animal feeding facility regulated by ODA's Division of Livestock Environmental Permitting and to be applied on more than 50 acres of land in agricultural production anywhere in Ohio? If so, the person applying the manure or fertilizer must be certified by ODA as a Certified Livestock Manager or agricultural fertilizer applicator. A tool to search for concentrated animal feeding facilities operating under permit is available on ODA's website, here, as is information about CLM certification and the agricultural fertilizer certification program.
Non-compliance risk
ODA has authority to investigate potential violations of the new fertilizer application restrictions and the Division of Soil and Water Resources has similar authority over potential violations of manure application restrictions. The agencies may investigate upon receiving a complaint from any person or receiving any information that suggests a potential violation. If a violation has occurred or is occurring, the law grants the agencies rulemaking authority to establish penalty amounts for violations, which may not exceed $10,000 per separate violation. To date, the agencies have not yet initiated proposed rules for the penalty amounts. The agencies may not assess penalties until after providing an alleged violator opportunity for a hearing.
Due to the risk of non-compliance with the new law, producers should review insurance policies and determine whether insurance coverage exists or is available for a mishap under the new law.
Tags: fertilizer application, manure application, manure regulation, Lake Erie
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Ohio’s Senate and House of Representatives have agreed upon a final bill intended to control algae production in Lake Erie and its western basin. Senate Bill 1, as amended by the House, passed both chambers on March 25 and now awaits Governor Kasich’s signature. (Post note: Governor signed the bill on April 2, 2015; its effective date is July 3, 2015).
The law will regulate manure and fertilizer applications in the western basin of Lake Erie, require monitoring of phosphorous for certain publicly owned treatment works, regulate the placement of dredged materials in Lake Erie and its tributaries, change how the Healthy Lake Erie Fund may be used and establish agency coordination and research on harmful algae management and response.
In regards to fertilizer and manure applications, the legislation includes two new amendments that were not part of the original bills passed earlier by the Senate and House:
- Certification requirements for persons using manure from CAFFs. To utilize manure from a concentrated animal feeding facility that is regulated under ODA’s Division of Livestock Environmental Permitting, a person must hold either a Certified Livestock Manager license or certification under Ohio’s new fertilizer applicator certification program. The provision pertains only if applying the manure for agricultural production on more than 50 acres. This language closes the proclaimed “loophole” that allowed persons to receive and apply manure from a livestock facility without being subject to the same regulations as the facility. ORC 903.40.
- Exemptions for small and medium operations. Small and medium agricultural operations may apply for a temporary exemption from the law’s restrictions on manure applications. The chief of the division of soil and water resources may grant an exemption of up to one year for a medium agricultural operation and up to two years for a small operation, if the operation is working toward compliance. An exempted operation may request technical assistance to reach compliance, and will not be subject to civil penalties for violations. The law defines small and medium agricultural operations in the same way as the Livestock Environmental Permitting program, based on the number of livestock according to species. ORC 1511(D).
Other changes to the final bill include a removal of a five-year sunset provision and attempts to address lead contamination. The final bill contains the following provisions:
Fertilizer application restrictions in the western basin
For applications of fertilizer in the western basin, a person may not apply fertilizer, defined as nitrogen or phosphorous, under these conditions:
(1) On snow-covered or frozen soil, or
(2) When the top two inches of soil are saturated from precipitation, or
(3) In a granular form when the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one inch in a twelve-hour period,
unless the fertilizer is injected into the ground, incorporated within 24 hours of surface application or applied onto a growing crop.
Small and medium operations may apply for a temporary exemption from the restrictions, as explained above. The ODA will have authority to investigate complaints of potential violations and to assess penalties for violations, which may not exceed $10,000 for each violation.
Manure application restrictions in the western basin
A person may not surface apply manure in the western basin under any of the following circumstances:
(1) On snow-covered or frozen soil;
(2) When the top two inches of soil are saturated from precipitation;
(3) When the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one-half inch in a 24 hour period.
unless the manure is injected into the ground, incorporated within 24 hours of surface application, applied onto a growing crop, or if in the event of an emergency, the chief of the division of soil and water resources or the chief's designee provides written consent and the manure application is made in accordance with procedures established in the United States department of agriculture natural resources conservation service practice standard code 590 prepared for this state.
Small and medium operations may apply for a temporary exemption from the restrictions, as explained above. The ODA will have authority to investigate complaints of potential violations and to assess penalties for violations, which may not exceed $10,000 for each violation.
Applications of sewage sludge
In issuing sewage sludge management permits, the director of Ohio EPA may not allow the placement of sludge on frozen ground.
Agency responsibilities for harmful algal management and response
- The law appoints the director of the Ohio EPA or his/her designee to serve as the coordinator of harmful algae management and response.
- Requires the Director of Environmental Protection to consult with specified state and local officials and representatives to develop actions that protect against cyanobacteria in the western basin and public water supplies and that manage wastewater to limit nutrient loading into the western basin.
- Requires the Director to develop and implement protocols and actions regarding monitoring and management of cyanobacteria and other agents that may result in harmful algal production.
Healthy Lake Erie Fund
The fund shall now be used in support of conservation measures in the western basin as determined by the director of ODNR; for funding assistance for soil testing, winter cover crops, edge of field testing, tributary monitoring and animal waste abatement; and for any additional efforts to reduce nutrient runoff as the director may decide. The director must give priority to recommendations that encourage farmers to adopt agricultural production guidelines commonly known as 4R nutrient stewardship
Phosphorous monitoring for publicly owned treatment works
- Requires certain publicly owned treatment work to begin monthly monitoring of total and dissolved phosphorous by December 1, 2016.
- Requires a publicly owned treatment works that is not subject to a specified phosphorous effluent limit on the bill's effective date to complete and submit an optimization study that evaluates its ability to reduce phosphorous to that limit.
Dredged material in Lake Erie and tributaries
- Beginning on July 1, 2020, prohibits deposits of dredged material from harbor or navigation maintenance activities in Ohio’s portion of Lake Erie and direct tributaries of the lake unless authorized by the Director of Ohio EPA.
- Allows the Ohio EPA Director to authorize a deposit of dredged material for confined disposal facilities; beneficial use; beach nourishment; placement in the littoral drift; habitat restoration and projects involving amounts of dredged material of less than 10,000 cubic yards.
- Requires the Ohio EPA Director to endeavor to work with the U.S. Army Corps of Engineers on long-term planning for the disposition of dredged materials.
Implementation review
The final version of the legislation requires a review three years after the law’s effective date by the appropriate House and Senate committees, who must assess the results of implementing the new measures and issue a report of their findings and recommendations for revisions of repeal to the Governor.
Transfer of Agricultural Pollution Abatement Program
The law declares that the legislature intends to enact legislation to transfer the Ohio Agricultural Pollution Abatement Program from ODNR to ODA by July 1, 2015.
The bill is now awaiting action by Governor Kasich. The final version of the legislation and accompanying documents are available here.
Tags: algae, algae legislation, fertilizer application, manure application, Lake Erie, western basin
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Senate and House bills on algae control differ
On March 10, the Ohio House of Representatives passed H.B. 61, a proposal to address Ohio’s toxic algae issues. Last month, the Ohio Senate approved a bill on the same issue, but with several points of difference. The two must now reconcile these differences and agree upon a plan for reducing the occurrence of toxic algae in Lake Erie, which they have stated they will soon accomplish. The House already began its hearings on the Senate bill on March 11.
Here's a summary of the similarities and variations between the two proposals.
Prohibitions of surface applications. Both bills prohibit the surface application of manure and fertilizer, defined as nitrogen or phosphorous, in the western Lake Erie basin on frozen ground, saturated soil, and when the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one inch in a 12-hour period. The Senate version also prohibits the application of granular fertilizer with regard to weather conditions, and the House bill also prohibits reckless violation of EPA rules regarding the surface application of sewage sludge.
Exemptions from prohibitions. Both bills exempt a person from the above prohibitions for manure and fertilizer applications that are injected into the ground or applied on a growing crop. Each also contains an exemption for fertilizer that is incorporated into the soil within a certain time period; the House allows a 24-hour time period while the Senate allows 48 hours for incorporation of the fertilizer.
Exclusion from enforcement. The House bill allows a potential violator of the manure prohibitions to request assistance from ODNR, SWCD or other qualified persons on the development of technically feasible and economically reasonable measures that would cease or prevent violations; requires ODNR to assist with the request and set a schedule for implementing the measures; and prevents ODNR from enforcing violations if a person has made such a request, is receiving assistance or is implementing the measures. The Senate bill does not include these or similar exclusions from enforcement.
Enforcement of violations. If a person violates the prohibition against manure applications, the Senate authorizes ODNR to assess a civil penalty as determined by rulemaking and after allowing opportunity for a hearing. The House takes a "corrective action" approach, allowing ODNR to notify a violator and propose corrective actions within a specified time period, then to inspect for continued violations after the specified time period and determine whether violations are still occurring and a civil penalty should be assessed, with an opportunity for a hearing.
Review and sunset. The House bill requires a joint legislative committee review of the results of the prohibitions against fertilizer and manure applications and a report to the Governor of their findings and recommendations on whether to repeal or revise the prohibitions. The Senate version requires a joint review and report to the Governor after four years, but states that the prohibitions on fertilizer and manure applications will sunset after five years unless the committees jointly recommend continuing the prohibitions.
Agency coordinator. The Senate bill requires the EPA director to serve as the coordinator of harmful algae management and response and to develop plans, protocols and coordinated efforts to address harmful algae. The House proposal does not contain this or a similar provision.
Studies. In the Senate bill, the EPA is authorized to conduct studies of nutrient loading from point and nonpoint sources in the Lake Erie and Ohio River basins. The House bill does not contain this or a similar provision.
Healthy Lake Erie Fund. The House would not change the existing Healthy Lake Erie Fund, but the Senate proposes eliminating most current uses of the fund and revising it to allow the fund to be used for financial assistance with winter cover crops, edge of field testing, tributary monitoring and animal waste management and conservation measures in the western Lake Erie basin and for reduction of nutrient runoff as determined by ODNR’s Director.
Phosphorous monitoring. Both bills require certain publicly owned treatment works (POTWs) to conduct monthly monitoring of total and dissolved phosphorous by the end of 2016 and other POTWs to complete a study of their ability to reduce phosphorous, but the House bill would also require the Ohio EPA to modify NPDES permits to include these requirements.
Dredging. Both bills prohibit the deposit of dredged materials beginning July 1, 2020; the Senate applies the prohibition to Ohio’s entire portion of Lake Erie and its direct tributaries, while the House would limit the prohibition to the Maumee River basin.
Lead contamination. The House does not address lead contamination, but the Senate version prohibits the use in public water systems or water consumption facilities of certain plumbing supplies and materials that are not lead free and prohibits other actions related to lead pipes and fittings.
Emergency. The Senate version declares an emergency, allowing the legislation to be effective immediately upon passage, while the House bill does not declare an emergency.
To review H.B. 61, visit this link. The Senate's bill, S.B. 1, is availble at this link.
Tags: agricultural nutrient management, fertilizer application, manure application
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Legislation intended to reduce the occurrence of harmful algae blooms in Ohio passed the Ohio Senate on February 18 after a fast track through the Senate Agriculture Committee. The enacted version of Senate Bill 1 varies somewhat from the original bill introduced on February 2 by Senators Randy Gardner and Bob Peterson, but maintains a primary goal of prohibiting certain types of fertilizer and manure applications in Ohio's western basin in winter and rainfail weather conditions along with addressing other potential contributors to the algae problem.
Revised from the original SB 1 were proposals to transfer the Ohio Agricultural Pollution Abatement Program to the Ohio Department of Agriculture, create a new Office of Harmful Algal Blooms and prohibit all open lake disposal of dredge material in Lake Erie and its tributaries. The committee also tabled several attempts to amend the bill before sending it to the full Senate. Those proposals included extending the bill's fertilizer and manure application prohibitions to the entire Lake Erie watershed, establishing a daily fine for violators of $333, removing the five year sunset, changing certification requirements for anyone using manure from a facility regulated by Ohio's Livestock Environmental Permitting Program and requiring standards for testing water for microcystin.
The legislation passed by the Senate includes the following provisions:
Application of fertilizer and manure
- Prohibits the surface application of fertilizer or manure in the western basin of Lake Erie on frozen or snow-covered soil or when the top two inches of soil are saturated from precipitation.
- Prohibits the application of fertilizer in the western basin in granular form when the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one inch in a 12-hour period.
- Prohibits the application of manure in the western basin when the local weather forecast contains greater than a 50% chance of precipitation exceeding one-half inch in a 24-hour period.
- Provides exceptions from the prohibition for applications of fertilizer or manure that are injected into the ground, incorporated within 24 hours of surface application or applied onto a growing crop.
- Provides an exception from the prohibition for applications of manure made in the event of an emergency with written consent of the chief of the division of soil and water resources and in accordance with procedures established in the USDA natural resources conservation service practice standard code 590.
- Clarifies that the prohibition on fertilizer or manure applications does not apply to or affect any restrictions for facilities permitted under Ohio’s concentrated animal feeding facilities law.
- Defines “fertilizer” as nitrogen or phosphorous.
- Defines the “western basin” as the St. Mary’s, Auglaize, Blanchard, Sandusky, Cedar Portage, Lower Maumee, Upper Maumee, Tiffin, St. Joseph, Ottawa and River Raisin watersheds.
- Grants investigation and enforcement authority for potential violations to the Director of Agriculture for fertilizer applications and the Chief of the Division of Soil and Water Resources for manure applications and allows each agency to establish by rule the civil penalty amounts for violations.
- Requires a “sunsetting” of the above prohibition in five years, but requires the agriculture committees of the Ohio House and Senate to jointly review the effectiveness of the prohibitions, determine whether to prevent the sunset and to submit a report of findings to the Governor of Ohio.
Ohio Agricultural Pollution Abatement Program
- Declares that it is the intent of the General Assembly that legislation transferring the administration and enforcement of the Agricultural Pollution Abatement Program from the Department of Natural Resources to the Department of Agriculture shall be enacted not later than July 1, 2015.
Harmful Algae Management
- Appoints the Director of the Ohio Environmental Protection Agency or his/her designee as the coordinator of harmful algae management and response.
- Requires the Director of Environmental Protection to consult with specified state and local officials and representatives to develop actions that protect against cyanobacteria in the western basin and public water supplies and that manage wastewater to limit nutrient loading into the western basin.
- Requires the Director to develop and implement protocols and actions regarding monitoring and management of cyanobacteria and other agents that may result in harmful algal production.
Nutrient loading to Ohio watersheds
- Authorizes the Director of Environmental Protection to study, calculate and evaluate nutrient loading to Ohio watersheds from point and nonpoint sources and to determine the most environmentally beneficial and cost-effective mechanisms to reduce nutrient loading.
- Requires the Director or the Director's designee to report and update the study's results to coincide with the release of the Ohio Integrated Water Quality Monitoring and Assessment Report.
Phosphorous monitoring for publicly owned treatment works
- Requires certain publicly owned treatment work to begin monthly monitoring of total and dissolved phosphorous by December 1, 2016.
- Requires a publicly owned treatment works that is not subject to a specified phosphorous effluent limit on the bill's effective date to complete and submit an optimization study that evaluates its ability to reduce phosphorous to that limit.
Dredged material in Lake Erie and tributaries
- Beginning on July 1, 2020, prohibits deposits of dredged material from harbor or navigation maintenance activities in Ohio’s portion of Lake Erie and direct tributaries of the lake unless authorized by the Director of Ohio EPA.
- Allows the Ohio EPA Director to authorize a deposit of dredged material for confined disposal facilities; beneficial use; beach nourishment; placement in the littoral drift; habitat restoration and projects involving amounts of dredged material of less than 10,000 cubic yards.
- Requires the Ohio EPA Director to endeavor to work with the U.S. Army Corps of Engineers on long-term planning for the disposition of dredged materials.
Lead contamination
- Revises the definition of "lead free" and prohibits using or selling certain plumbing supplies and materials that are not lead free for public water systems or in a facility providing water for human consumption, with stated exceptions.
Emergency declaratation
- The bill declares an emergency and would be effective immediately.
Visit this link to review SB 1. The Ohio House of Representatives is currently considering its proposal to address algal blooms, with action expected on the proposal in the next few weeks.
Tags: algae, algae legislation, SB 1, senate bill 1, fertilizer application, manure application
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