fertilizer applicator certification
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.
The Ohio Legislature is one step closer to creating a unique fertilizer applicator certification program for Ohio agriculture. The Ohio House of Representatives recently approved the measure in S.B. 150, which had already passed the Senate in January (see our related post.) The legislation aims to reduce fertilizer runoff into Ohio's waters in response to recent problems with algae blooms in Lake Erie and Grand Lake St. Mary's. Other states with fertilizer applicator certification programs focus on professional, turf or urban applications of fertilizer, but Ohio's program would require farmers applying fertilizers on their own land to complete the knowledge-based certification program.
An amendment by the House extends the certification requirement to anyone applying fertilizer for agricultural production on more than 50 acres of land, rather than on more than 50 "contiguous" acres as approved by the Senate. The amendment will likely expand the program to more smaller-acreage farmers. Although urged to do so, neither the House of Representatives nor the Senate agreed to extend the proposal even further by including "manure" in the definition of "fertilizer."
The Senate must now approve the House-amended version when it reconvenes in early May. Upon Senate approval, the legislation would move to the Governor by mid-May. If enacted, the bill gives the Ohio Department of Agriculture three years to establish and implement the fertilizer applicator certification program. The bill also contains provisions for voluntary nutrient mangement plans, operation and management plans for animal feeding operations, and a few changes to Ohio's fertilizer license laws.
Watch for our final analysis of S.B. 150 as it continues the legislative process next month.
The Ohio Senate has approved a bill directing the Ohio Department of Agriculture (ODA) to establish a fertilizer applicator certification program in Ohio. The sponsors of Senate Bill 150, Senator Cliff Hite and Senator Bob Peterson, designed the legislation to address agricultural nutrient runoff into Ohio waterways and the algae problems in Grand Lake St. Marys and Lake Erie. According to Senator Hite, the bill hinges on a new education and certification program that will give farmers additional information about fertilizer and nutrient use best practices.
Here are answers to a few basic questions farmers might have about the proposed program:
When would the program begin? If the bill is passed by the Ohio House of Representatives, the fertilizer application certification program would begin on September 30 on the third yearsfollowing the law’s effective date.
Who would have to be certified? Someone who applies “fertilizer” for agricultural production on land more than 50 acres in size would have to be certified by ODA as a fertilizer applicator, or would have to be acting under the instruction of a certified fertilizer applicator.
Would there be any exemptions from the program? Those who would make applications of fertilizer on land parcels of 50 acres or less would be exempt from the certification requirement. The bill would also allow the ODA director to establish additional exemptions for certain persons or certain “types of cultivation.”
What fertilizers would the program cover? Under the bill, “fertilizer” means any substance containing nitrogen, phosphorus, or potassium or any recognized plant nutrient element or compound that is used for its plant nutrient content or for compounding mixed fertilizers. The definition of fertilizer does not include lime, manure and residual farm products such as bedding, wash waters, waste feed, silage drainage and certain dead animal composts, unless those are mixed with fertilizer materials or distributed with a guaranteed analysis.
What would the certification program involve? The Senate’s bill directs that the program must educate applicants on the time, place, form, amount, handling, and application of fertilizer—commonly referred to as the "4-Rs" of nutrient stewardship (right fertilizer source at the right rate, at the right time and in the right place). The bill also states that the program must "serve as a component of a comprehensive state nutrient reduction strategy addressing all sources of relevant nutrients" and must "support generally practical and economically feasible best management practices."
Would there be a certification fee? The bill allows the ODA to establish a fee for applicants who seek certification, but the fee may not exceed the fee charged for the state’s pesticide applicator certification program. Additionally, the bill exempts persons who hold an Ohio commercial or private pesticide applicator’s license from paying an additional application fee if they also seek fertilizer application certification.
Other important provisions in Senate Bill 150 include:
Recordkeeping requirements. Certified applicators would have to maintain fertilizer application records for at least three years from the date of a fertilizer application. The records must include the date, place and rate of application, an analysis of the fertilizer and the name of the person applying the fertilizer. Applicators would not be required to submit the records to ODA on a regular basis, but would have to make the records available upon a request by the agency.
Emergency revocation and suspension powers. The bill would allow the ODA director to immediately deny, suspend, revoke, refuse to renew or modify a fertilizer applicator certificate if there is "substantial reason to believe the certificate holder recklessly applied fertilizer in such a manner that an emergency exists that presents a clear and present danger to human or animal health."
Voluntary Nutrient Management Plans. The bill would allow a person who owns or operates agricultural land to develop a voluntary nutrient management plan in collaboration with Ohio State University, the Soil and Water Conservation District or the Natural Resource Conservation Service or its certified providers and submit the plan for approval by the Soil and Water Conservation District. A voluntary nutrient management plan would be an important critieria for immunity from civil liability, discussed below.
Legal Defense against Civil Actions. Under the bill, a person sued in a claim involving liability for an application of fertilizer would have a legal defense that would prevent liability upon showing these three criteria:
- The person is a certified fertilizer applicator or under the control of a certified applicator;
- The person properly maintained fertilizer application records as required by the certification program;
- The fertilizer was applied according to and in substantial compliance with an approved voluntary nutrient management plan.
Watch now for the agricultural nutrient management bill to be introduced in the Ohio House of Representatives for final approval. More information about S.B. 150 is available here.