Written by Ellen Essman, Sr. Research Associate
Over the last several months, three nuisance cases have been decided against Smithfield Foods in federal court in North Carolina. The juries in the cases have found Smithfield’s large farms, with thousands of hogs, and the odor, traffic, and flies that come along with them, to be a nuisance to neighboring landowners. Smithfield has been ordered to pay hefty damages to the neighbors, and more cases against the company remain to be decided. Given the outcomes of the cases that have been decided thus far, farmers and landowners in Ohio might be wondering how Ohio law compares to North Carolina law as pertains to agricultural nuisances.
Ohio’s Right-to-Farm law
Many states, including both Ohio and North Carolina, have “right-to-farm” legislation, which in part is meant to protect agriculture from nuisance lawsuits such as those filed against Smithfield. While nearly every state has a right-to-farm statute, they do differ in language and how they go about protecting agriculture.
Ohio farmers have right-to-farm protection in two parts of the Revised Code. ORC Chapter 929 establishes “agricultural districts.” Generally, in order to place land in an agricultural district, the owner of the land must file an application with the county auditor. Certain requirements must be met in order for an application to be accepted. Slightly different rules apply if the land in question is within a municipal corporation or is being annexed by a municipality. If the application is accepted, the land is placed in an agricultural district for five years. The owner may submit a renewal application after that time is up.
Being part of an agricultural district in Ohio can help farmers and landowners to defend against civil lawsuits. ORC 929.04 reads:
In a civil action for nuisances involving agricultural activities, it is a complete defense if:
- The agricultural activities were conducted within an agricultural district;
- Agricultural activities were established within the agricultural district prior to the plaintiff’s activities or interest on which the action is based;
- The plaintiff was not involved in agricultural production; and
- The agricultural activities were not in conflict with federal, state, and local laws and rules relating to the alleged nuisance or were conducted in accordance with generally accepted agriculture practices.
The ORC’s chapter on nuisances provides additional protection for those “engaged in agriculture-related activities.” Under ORC 3767.13, people who are practicing agricultural activities “outside a municipal corporation, in accordance with generally accepted agricultural practices, and in such a manner so as not to have a substantial, adverse effect on public health, safety, or welfare” are typically exempt from claims of nuisance due to farm noise, smells, etc.
North Carolina’s Right-to-Farm law
Much like Ohio, North Carolina farm land can be part of an “agricultural district.” North Carolina’s preservation of farmland law is available here. This program is meant to protect agricultural land—land that is part of an agricultural district is must be used for agriculture for at least 10 years. However, unlike Ohio’s law, North Carolina does not specifically spell out that land in agricultural districts will be protected from nuisance suits when the landowner follows the rules of the agricultural district. North Carolina’s law does state that one of the purposes of agricultural districts is to “increase protection from nuisance suits and other negative impacts on properly managed farms,” but unlike Ohio, it does not explicitly state that being part of an agricultural district is a defense to a nuisance lawsuit.
North Carolina also has a statute which specifically spells out the right-to-farm. In response to the recent jury decisions, however, North Carolina has changed its right-to-farm law. The original law read:
- No agricultural or forestry operation or any of its appurtenances shall be or become a nuisance, private or public, by any changed conditions in or about the locality outside of the operation after the operation has been in operation for more than one year, when such an operation was not a nuisance at the time the operation began.
(a1) The provisions of subsection (a) of this section shall not apply when the plaintiff demonstrates that the agricultural or forestry operation has undergone a fundamental change. A fundamental change does not include any of the following:
- A change in ownership or size.
- An interruption of farming for a period of no more than three years.
- Participation in a government-sponsored agricultural program.
- Employment of new technology.
- A change in the type of agricultural or forestry product produced.
The original law did not protect agricultural operations if their actions were negligent or improper. The original law is available here.
Following the first decision against Smithfield, the North Carolina legislature overrode the Governor’s veto to implement amendments to the state’s right-to-farm law. In the amendments, available here (sections 106-701 and 106-702), the legislature substantially changed the language of the law, making what constitutes a nuisance much more explicit and dependent on certain factors. What is more, the new version of the law places limits on when plaintiffs can recover punitive damages for a private nuisance action.
A comparison of the Ohio and North Carolina’s sections of legislation promoting the “right-to-farm” shows how different the two states are. Ohio’s legislative language makes it obvious that the meaning of the law is to protect agriculture from nuisance suits—by specifically stating that being in an agricultural district is a complete defense to nuisance, and that otherwise, agriculture is generally exempt from nuisance suits. North Carolina’s law concerning agricultural districts does not specifically state that being in such a district is a defense to nuisance, instead, it simply expresses the hope that districts will “increase protection from nuisance suits.” Furthermore, while North Carolina’s original right-to-farm law stated that agricultural operations do not “become a nuisance” due to changed conditions in the community, that language is not very specific. Ohio’s agricultural district language lays out exactly what must be done to have a complete defense against a nuisance lawsuit; North Carolina’s language in multiple parts of the General Statutes does not have the same degree of specificity.
Permit as a defense to nuisance
In addition to the right-to-farm law, under ORC 903.13, those owning, operating, or responsible for concentrated animal feeding facilities in Ohio have an affirmative defense to a private civil action for nuisance against them if the CAFO is in compliance with best management practices established in the installation permit or permit to operate and the agricultural activities do not violate federal, state, and local laws governing nuisances. North Carolina does not appear to have similar language protecting permitted farms in its General Statutes.
Other factors that may come into play
In the lawsuits against Smithfield farms, the lawyers for the plaintiffs (neighboring landowners) have continuously asserted that Smithfield has “means and ability” to “reduce the nuisance from existing facilities” by ending the use of “lagoon and sprayfield” systems at their farms. Plaintiffs stress that not only is Smithfield Foods, Inc. a large, wealthy, multinational company, but that they have also changed their lagoon and sprayfield practices outside of North Carolina. In lagoon and sprayfield systems, all waste is collected in an open-air lagoon and then sprayed on fields as fertilizer. The practice was first banned for new construction in North Carolina in 1997, and in 2007, the state permanently banned the practice for newly constructed swine facilities. Although many of the facilities in question were opened before any ban on the construction of lagoon and sprayfield facilities, the plaintiffs contend that changes made in other states mean Smithfield can afford to change in North Carolina. The ban on new lagoon and sprayfield systems in North Carolina, and evidence that Smithfield has used different practices to reduce the smell from the farms in other states, likely helped the juries in the cases that have been tried to date find that the farms are a nuisance to their neighbors. The above argument is something operators of livestock facilities in Ohio should be aware of. Although Ohio has not specifically banned lagoon and sprayfield systems like North Carolina has, the ability to change the system could still potentially be used to argue nuisance. Ohio operators are supposed to follow best management practices and the Natural Resources Conservation Service’s Field Office Technical guide when applying and storing manure, which include ways to reduce odor from manure and other applications, as well as reducing other types of nutrient pollution. Following such guidelines would likely help operators in any argument against nuisance.
Written by Ellen Essman, Sr. Research Associate
Readers of the Ag Law Blog will recall our previous posts regarding Governor Kasich’s “watersheds in distress” executive order and the rules proposed to accompany the order. The proposed rules were recently filed and the Ohio Soil and Water Conservation Commission continues to hold meetings about which watersheds will actually be designated as “distressed.”
“Watersheds in Distress” rules are filed and hearing is scheduled
On October 15, 2018, the Ohio Department of Agriculture (ODA) filed the proposed watersheds in distress rules in the Register of Ohio, which would make changes to Ohio Administrative Code Sections 901:13-1-11, 901:13-1-19, and 901:13-1-99. A hearing on the proposed amendments will be held on November 20, 2018 at 9:00 a.m. in the Ohio Department of Agriculture, Bromfield Administration Building, Auditorium 141, 8995 East Main Street, Reynoldsburg, Ohio, 43068-3399. Interested members of the public are invited to attend and participate. Written comments are also welcomed, and information about where to send such comments can be found here. Below, we will outline the proposed changes to each rule in turn.
- OAC 901:13-1-11
OAC 901:13-1-11 currently only applies to land application of manure in watersheds in distress. The proposed changes to the rule would also make it applicable to the land application of “nutrients,” or “nitrogen, phosphorous, or a combination of both,” in watersheds in distress. Under the proposed amendments, those responsible “for the land application of nutrients on more than fifty acres” of agricultural land would not be allowed to “surface apply nutrients:”
On snow-covered or frozen soil;
When the top two inches of soil are saturated from precipitation; and
In a granular form when the local weather forecast for the application area contains greater than a fifty per cent chance of precipitation exceeding one inch in a twelve-hour period.
The same restrictions would apply for manure. If either manure or nutrients are “injected into the ground,” “incorporated within twenty-four hours of surface application,” or “applied to a growing crop,” however, the above restrictions would not apply.
The proposed changes would also alter and remove some language currently in the rule. The new rule would also remove the date restrictions on the surface application of manure that currently exist, as well as the requirement that the responsible party keep records of the local weather forecast. A document with the proposed amendments can be found here.
- OAC 901:13-19
Proposed changes to OAC 901:13-19 would require those who apply nutrients to more than fifty acres annually in a watershed in distress to “develop and operate in conformance with a nutrient management plan.” The original rule only applies to those applying manure. The new rule would also require “an attestation to the completion” of nutrient management plans to be “submitted” to the Director of ODA. The Director would also be given the power to “establish a deadline for all NMPs to be completed,” which would have to happen twelve to thirty-six months after the designation of a watershed in distress. The Director would also have the power to request NMPs from producers. The new rule would further require ODA to audit at least five percent of the attestations every year. Attestations would have to be completed each time an NMP is updated.
As for the content in the NMPs, the proposed rule would remove date prohibitions on manure application. The proposed rule also prescribes the form that NMP plans for nutrient application must take, as well as the information that must be included. The proposed rule would also change some language around so that parts that once only applied to manure would apply to nutrients, as well. The proposed changes to OAC 901:13-19 can be found here.
- OAC 901:13-1-99
OAC 901:13-1-99 contains the civil penalties for violating any of the rules in 901:13-1. The proposed changes to this section would reflect the changes to the other sections discussed above by including penalties for violating the new rule provisions.
More meetings will be held to determine which watersheds are “distressed”
In addition to the proposed rules for watersheds in distress, activity is also taking place on which particular watersheds within the Western Lake Erie Basin will actually be designated “distressed.” To this end, the Ohio Soil and Water Conservation Commission has held several public meetings throughout the summer and fall to examine the question. Today, November 1, 2018, the Commission will hold yet another public meeting, where a vote on which watersheds are designated “distressed” may occur.
Stay tuned to the Ag Law Blog for updates on watershed in distress designations and the accompanying proposed rules!
In an ongoing attempt to carry out Governor Kasich's executive order to establish nutrient management requirements for agricultural nutrients within "watersheds in distress," the Ohio Department of Agriculture (ODA) has made a second revision to its proposed rule package. According to ODA, the proposed watersheds in distress rules "create a uniform, state-wide standard that governs the application of manure and fertilizer on frozen, snow-covered and rain-soaked ground" within areas designated as "watersheds in distress." pursuant to Ohio Admin. Code 1501:15-5-20. Those proposed standards include the following:
- Manure and nutrient application restrictions. Owners, operators and applicators shall not surface apply manure and nutrients (nitrogen and phosphorus) on more than 50 acres of land used for agricultural production on snow covered, frozen and saturated soil or when there's a greater than 50% chance that precipitation would exceed one-half inch in 24 hours, unless the manure or nutrients are injected, incorporated with 24 hours or applied to a growing crop.
- Compliance with 590 standards. Owners, operators and applicators must follow the conservation practices in USDA's “Field Office Technical Guide,” also known as the “590 standards.”
- Nutrient management plan (NMP) requirements. Owners and operators within watersheds in distress must develop and comply with NMPs if applying nutrients on more than 50 acres or producing, applying, or received more than 350 tons or 100,000 gallons of manure annually by deadlines established by ODA, must submit an attestation of NMP completion to ODA, and must produce a copy of the plan within five days of a demand by ODA. The rule outlines the requirements and standards for NMPs.
- Ongoing compliance. Owners and operators must update NMPs and attestations once every three years or when conditions change.
- Enforcement. The rule includes penalities for failure to comply with rule provisions.
ODA proposed the first rule package in July, accepted public comments on the rule, and published a revised rule package for public comments. In response to the second round of comments, ODA has made another revision to the rule. The agency states that it is now amending the rule "to require the Department to conduct an audit of at least 5% of the attestations submitted to determine compliance regarding completion of nutrient management plans." Explaining the purpose of the revision, ODA states that "support was voiced from certain stakeholders regarding the flexibility of farmers to apply manure and nutrients during the winter months when conditions were favorable and safe to apply. In contrast, other stakeholders raised concerns that agricultural operations would no longer have any restrictions on the application of manure and nutrients. Stakeholders also raised concerns regarding the Department’s ability to enforce the new proposals."
The proposed watersheds in distress rule package is here and the business impact analysis for the rules is here. The public may submit comments on the proposal to ODA at AGReComments@agri.ohio.gov until October 5, 2018.
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.
Although long considered a natural fertilizer that can benefit our soils, manure has a history of increased regulation in recent years based on potential impacts to water quality. The following explains how state and federal law regulates the production, storage and application of animal manure in Ohio.
Livestock Environmental Permitting Program
The Ohio Department of Agriculture’s Division of Livestock Environmental Permitting (ODA) administers a permit program for Ohio’s largest confined livestock operations, or Concentrated Animal Feeding Facilities (CAFFs). Ohio Revised Code Chapter 903 and Ohio Administrative Code 901:10 contain the program’s legal provisions.
An owner must obtain a “permit to install” and a “permit to operate” from ODA before operating a CAFF. The permit requirement applies to a CAFF that houses any of the following, at a minimum:
- 700 mature dairy cows
- 2,500 hogs over 55 pounds
- 10,000 baby pigs under 55 pounds
- 82,000 laying hens
- 125,000 pullets or broilers
- 1,000 head of beef animals of any size
- 500 horses
- 10,000 sheep or lambs
- 55,000 turkeys
Related to manure, obtaining the “permit to install” requires a CAFF owner to submit information on:
- Maps indicating CAFF boundaries, manure storage facility dimensions, location and siting distances and locations of subsurface drains within 100 feet of manure storage.
- Geological study results with information on soil; groundwater sampling and analysis; hydrology; geology and topography of land used for manure storage.
- Listing of the type, amount and nutrient content of manure from the facility.
For the permit to operate, the CAFF must submit a Manure Management Plan that outlines the Best Management Practices the CAFF will implement to minimize water impacts from the storage and use of manure. The Manure Management Plan must include:
- A nutrient budget.
- Manure and soil characterizations.
- Manure distribution and utilization methods
- Methods for minimizing odor.
- Inspection, maintenance and monitoring practices.
- Land application methods.
Land Application of Manure for Permitted CAFFs
Land application of manure by a permitted CAFF or by a Certified Livestock Manager working with the CAFF must be in accordance with ODA regulations, which include requirements for:
- Soil and manure tests.
- Crop yields and rotations to determine nutrient needs.
- Setbacks from streams, neighbors and wells
- Limitations on amounts of nitrogen, phosphorus and liquid applied.
- Weather predictions.
- Examination of soil condition for cracks, earthworm burrows and plant root pathways to tile or tile blowouts in the field.
- Monitoring of tile outlets during and after application.
- Restrictions against runoff or ponding of manure.
- Recordkeeping requirements.
- Inspection requirements.
If a local farmer uses manure from a permitted CAFF for application on another farm, the CAFF must provide the farmer with the ODA’s application requirements and a current manure test. The farmer must certify when and how much manure was taken from the CAFF. The farmer’s land application of manure then falls under the Agricultural Pollution Abatement Program, described below.
National Pollutant Discharge Elimination System (NPDES) Permits
The federal Clean Water Act requires livestock operations defined as “Confined Animal Feeding Operations” (CAFOs) to obtain a federal NPDES permit if they discharge or propose to discharge a pollutant to surface waters, even if the operation has obtained a permit from ODA. The Ohio EPA administers the NPDES permit process, which requires operators to control spills and runoff from their facilities and from the land application of manure. To obtain a permit, a CAFO must develop and implement a Manure Management Plan that addresses:
- Practices to ensure adequate manure storage capacity and proper maintenance and operation of storage facilities.
- Practices to divert clean storm water away from production areas.
- Practices to ensure that animals and manure in the production area do not come into direct contact with waters of the State.
- A land application plan that includes:
- A nutrient budget.
- Manure and soil characterizations.
- Application methods and timing.
- Agronomic application rates.
CAFO owners must also meet ongoing monitoring, recordkeeping and reporting requirements and are subject to enforcement actions for violations.
Certified Livestock Manager Certification
Ohio law requires Ohio’s largest CAFFs and every manure broker or manure applicator who handles more than 4,500 dry tons or 25 million liquid gallons of manure per year to obtain the Certified Livestock Manager (CLM) certification from ODA. The applicant must complete core classes on nutrient management standards, manure storage and handling and Ohio manure regulations and must also complete three elective classes on water quality, soil testing, stockpiling, emergency action plans, spill reporting, value of manure nutrients, recordkeeping, biosecurity, liability or applying manure to growing crops. CLMs must complete ten hours of continuing education every three years to maintain their certification.
Ohio Agricultural Pollution Abatement Program
Ohio’s Agricultural Pollution Abatement Program (APAP) applies to agricultural operations that are not subject to the above state and federal permit programs for CAFFs and CAFOs. As stated in Ohio Revised Code 1511 and Ohio Administrative Code 1501:15-5, APAP provides state standards for management and conservation practices that aim to abate water pollution resulting from animal manure. The Ohio Department of Natural Resources Division of Soil and Water Resources (ODNR) administers APAP in cooperation with local Soil and Water Conservation Districts (SWCD).
Ohio’s APAP regulations establish Best Management Practices (BMPs) for livestock operators. The standards encourage operators to:
- Operate and maintain animal manure collection, storage or treatment facilities to prevent seepage, overflow or discharge of animal manure into waters of the state.
- Prevent the discharge of manure-contaminated runoff from animal feedlots and animal manure management facilities.
- Prevent pollution caused by flooding; construct animal feeding operations so that animal manure will not be inundated by a 25 year frequency flood.
- Minimize pollution from land application of manure by adopting manure application practices that consider the characteristics of the animal manure, available land, topography, cropping system, method of application, weather, time of the year, condition of the soil, other nutrients applied and nutrient status of the soil.
Technical expertise and cost-share assistance is available through APAP to help operators install and implement BMPs and develop Operation and Management Plans. The law provides a complaint-driven process for suspected pollution incidents that can result in an investigation by ODNR or SWCD. Farms that cause pollution and fail to adopt the recommended BMPs to address pollution abatement must develop and implement modifications to their facilities as approved by ODNR or SWCD, or face enforcement actions.
Watershed in Distress Regulations
The Ohio APAP regulations also contain rules that apply to certain producers of manure within areas designated as “watersheds in distress,” located in Ohio Administrative Code 1501:15-5-19 to 20. The chief of ODNR’s Division of Soil and Water Resources, with approval of the Ohio Soil and Water Conservation Commission, may designate a watershed to be in distress when aquatic life and health is impaired by nutrients or sediment from agricultural land uses and where there is a threat to public health, drinking water supplies, recreation, or public safety and welfare. Within the boundaries of a designated watershed in distress, these additional regulations apply to animal facility owners and operators and manure applicators:
- No land application of manure may occur between December 15 and March 1 without prior approval from the agency; before and after these dates, applications of manure on frozen ground or ground covered in more than one inch of snow may occur only if injected into the ground or incorporated within 24 hours of surface application.
- No land application of manure if the local weather forecast shows more than a 50% chance that precipitation would exceed one-half inch of rain in the 24 hours after the proposed application.
- Restrictions on the application of snowpack manure.
- An operation must ensure a minimum of 120 days of manure storage as of December 1 of each year and keep records of manure storage volumes.
- Anyone who produces, applies or receives more than 350 tons or 150,000 gallons of manure per year must have an approved Nutrient Management Plan that addresses the methods, amount, form, placement, cropping system and timing of all nutrient applications, unless the farm is already operating under a permit from ODA’s DLEP or an NPDES permit from OEPA.
For more information on the regulation of animal manure in Ohio, refer to these resources:
ODA Livestock Environmental Permitting and Certified Livestock Manager Programs - www.agri.ohio.gov/divs/DLEP/dlep.aspx
Ohio EPA Confined Animal Feeding Operations - www.epa.ohio.gov/dsw/cafo/index
Ohio DNR Agricultural Pollution Abatement - www2.ohiodnr.com/soilwater/water-conservation/agricultural-pollution-abatement
Ohio Revised Code - http://codes.ohio.gov/orc
Ohio Administrative Code - http://codes.ohio.gov/oac