Ohio legislation
We’re back! We are excited to bring back our regular Ag Law Harvest posts, where we bring you interesting, timely, and important agricultural and environmental legal issues from across Ohio and the country. This month’s post provides you with a look into Ohio’s ongoing legal battle of some provisions in the recently enacted “Chicken Bill”, a brief dive into the U.S. Department of Labor’s new H-2A wage rules, a warning about conservation easement fraud, and an explanation of a court’s recent decision to release an insurance company from its duty to defend its insured in a lawsuit.
Battle of “Chicken Bill.”
Ohio House Bill 507 (“HB 507”), sometimes referred to as “the Chicken Bill” went into effect last month and was widely known for reducing the number of poultry chicks that can be sold in lots (from six to three). However, HB 507 contained other non-poultry related provisions that have caused quite a stir. Environmental groups have sued the State, seeking a temporary restraining order, a preliminary and permanent injunction to prevent HB 507 from going into effect, and a declaratory judgement that HB 507 violates Ohio’s Constitution. Two provisions within HB 507 have specifically caught the attention of the Plaintiffs in this case: (1) a revision to Ohio Revised Code § 155.33 that requires state agencies to lease public lands for oil and gas development (the “Mandatory Leasing Provision”); and (2) a revision to Ohio Revised Code § 4928.01 that defines “green energy” to include energy generated by using natural gas, so long as the energy generated meets certain emissions and sustainability requirements (the “Green Energy Provision”).
Plaintiffs argue that the Mandatory Leasing Provision will cause irreparable harm to their members’ “environmental, aesthetic, social, and recreational interests” in Ohio’s public lands. Additionally, Plaintiffs assert that the Mandatory Leasing Provision and Green Energy Provision violate Ohio’s Constitution by not following the “One-Subject Rule” and the “Three-Consideration Rule” both of which require transparency when creating and passing legislation in Ohio. The Franklin County Court of Common Pleas recently denied Plaintiffs’ request for a temporary restraining order, reasoning that no new leases would likely be granted until the Oil and Gas Land Management Commission adopts its rules (as required by Ohio law) and that there is “no likelihood of any immediate and irreparable injury, loss, or damage to the plaintiffs.” Since the hearing on Plaintiffs’ request for a temporary restraining order, the State of Ohio has filed its answer denying Plaintiffs’ claims and currently all parties are in the process of briefing the court on the merits of Plaintiffs’ request for a preliminary injunction.
New H-2A Wage Rules: Harvesting Prosperity or Sowing Seeds of Despair?
On February 28, 2023, the U.S. Department of Labor (the “DOL”) published a final rule establishing a new methodology for determining hourly Adverse Effect Wage Rates (“AEWR”) for non-range farm occupations (i.e. all farm occupations other than herding and production of livestock on the range) for H-2A workers. The new methodology has been in effect since March 30th. Late last month Rep. Ralph Norman and the Chairman of the House Committee on Agriculture, Rep. Glenn “GT” Thompson, introduced a resolution of disapproval under the Congressional Review Act, seeking to invalidate the DOL’s final rule. Similarly, the National Council of Agricultural Employers (“NCAE”) released a statement declaring that it has filed a Motion for Preliminary Injunction against the DOL’s new methodology.
Opponents of the new rule argue that the increased wages that farmers and ranchers will be required to pay will put family operations out of business. On the other hand, the DOL believes “this methodology strikes a reasonable balance between the [law’s] competing goals of providing employers with adequate supply of legal agricultural labor and protecting the wages and working conditions of workers in the United States similarly employed.” Producers can visit the DOL’s frequently asked questions publication to learn more about the new H-2A wage rule. As it stands, the new H-2A regulations remain in effect and producers should be taking all possible steps to follow the new rules. Make sure to speak with your attorney if you have any questions about compliance with H-2A regulations.
Conservation Easement Fraud – Protecting Land or Preying on Profits?
For a while now, conservation easements have been utilized by farmers and landowners to preserve their land while also obtaining a substantial tax benefit. But not all actors in the conservation easement sphere are good ones. Earlier this month, a land appraiser in North Carolina pled guilty to conspiring to defraud the United States as part of a syndicated conservation easement tax shelter scheme. According to a press release by the U.S. Department of Justice (“DOJ”), Walter “Terry” Douglas Roberts II of Shelby, North Carolina conspired with others to defraud the United States by inflating the value of conservation easements which led to $1.3 billion in fraudulent tax deductions. Roberts is guilty of inflating the value at least 18 conservation easements by failing to follow normal appraisal methods, making false statements, and manipulating or relying on knowingly manipulated data to achieve a desired tax deduction amount. Roberts faces a maximum penalty of five years in prison and could be forced to pay back a specified amount to the U.S. Government.
Conservation easement fraud is not new, however. The Internal Revenue Service (“IRS”) has been monitoring the abuse of the conservation easement tax deductions for some time. The IRS has included these fraudulent transactions on its annual “Dirty Dozen” list of tax avoidance scams. The IRS has seen taxpayers, often encouraged by promoters armed with questionable appraisals, take inappropriately large deductions for these types of easements. These promoters twist the law to develop abusive tax shelters that do nothing more than “game the tax system with grossly inflated tax deductions and generate high fees for promoters.” The IRS urges taxpayers to avoid becoming entangled by these dishonest promoters and that “[i]f something sounds too good to be true, then it probably is.” If you have questions about the tax benefits of a conservation easement, make sure to speak with your attorney and/or tax professional.
Alleged Intentional Acts Not Covered by Insurance.
An animal feed manufacturer is in hot water, literally. A city in Mississippi has accused Gold Coast Commodities, Inc. (“Gold Coast”), an animal feed manufacturer, of intentionally dumping hot, greasy wastewater into the City’s sewer system. Prior to the City’s investigation into Gold Coast’s alleged toxic dumping, Gold Coast purchased a pollution liability insurance policy from Crum & Forster Specialty Insurance Company (“Crum & Forster”). After an investigation conducted by the City and the Mississippi Department of Environmental Quality, the City filed a lawsuit against the feed manufacturer alleging that it intentionally dumped toxic waste into the City’s sewer system. Gold Coast then notified its insurance company of the potential claim. However, Crum & Forster denied coverage for Gold Coast’s alleged toxic dumping. According to the insurance policy, coverage exists for an “occurrence” defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Crum & Forster refused to provide a defense or coverage for Gold Coast in the City’s toxic dumping lawsuit because the City alleges multiple times that Gold Coast acted intentionally, and therefore, Gold Coast’s actions were not an accident and not covered by the policy.
In response, Gold Coast filed a lawsuit against Crum & Forster asking a federal district court in Mississippi to declare that Crum & Forster is required to defend and provide coverage for Gold Coast under the terms of the insurance policy. On a motion to dismiss, the federal district court in Mississippi dismissed Gold Coast’s lawsuit against the insurance company. The district court reasoned that in the underlying toxic dumping lawsuit, the City is not alleging an accident, rather the City asserts that Gold Coast intentionally dumped the toxic waste. Thus, Crum & Forster is not obligated to provide a defense or coverage for Gold Coast, under the terms of the policy. Gold Coast appealed to the Fifth Circuit Court of Appeals (which has jurisdiction over federal cases arising in Texas, Louisiana, and Mississippi).
The Fifth Circuit affirmed the decision of the federal district court, rejecting Gold Coast’s claim that Crum & Forster is obligated to provide a defense and coverage for Gold Coast in the City’s toxic dumping lawsuit. Gold Coast argued that the City seeks to recover under the legal theory of negligence in the toxic dumping case, therefore Gold Coast’s actions are accidental in nature. The Fifth Circuit was unconvinced. The Fifth Circuit explained that when reading a complaint, the court must look at the factual allegations, not the legal conclusions. The Fifth Circuit found that the factual allegations in the City’s lawsuit all referred to Gold Coast’s intentional or knowing misconduct and any recovery sought under the theory of negligence is not a factual allegation, instead it is a legal conclusion. The Fifth Circuit concluded that using terms like “negligence” do not “transform the character of the factual allegations of intentional conduct against [Gold Coast] into allegations of accidental conduct constituting an ‘occurrence.’” Thus, the Fifth Circuit affirmed the federal district court’s decision to dismiss Gold Coast’s lawsuit against its insurer. Unless the Supreme Court of the United States decides to take up the case, it looks like Gold Coast is all on its own in its fight against the City. The lesson here is that although insurance is important to have, its equally as important to speak with your insurance agent to understand what types of incidents are covered under your insurance policy.
Tags: Ohio legislation, Oil and Gas, Environmental Law, H-2A, Labor and Employment, Insurance, Toxic Dumping, taxes, IRS, Conservation Easement Fraud
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February is bringing renewed activity down at Ohio’s Statehouse as both the House and Senate return to their regular committee schedules. The General Assembly began tending to several pieces of agricultural and resource legislation. Here’s the latest summary of our state’s legislative developments.
Newly introduced Ohio legislation
H.C.R. 41 – Repeal individual income tax. Rep. Tom Brinkman (R-Mt. Lookout) introduced a resolution on January 25, 2022 expressing an intent for the General Assembly to repeal the state personal income tax within ten years. The resolution matches S.C.R. 13, introduced in the Senate last December, and both resolutions cite negative impacts on Ohio’s business climate as justification for the repeal. The House Ways and Means Committee already held a first hearing on the resolution on February 15, 2022.
Legislation on the move
H.B. 30 – Slow-moving vehicles. One of the slowest moving bills on the move, a proposal to increase visibility of animal-drawn vehicles by changing marking and lighting requirements finally received a third hearing before the Senate Transportation Committee on February 16, 2022. No opponents testified against the bill. Readers may recall that the proposal passed the House on June 23, 2021.
H.B. 321– Auctioneers. The bill that passed the House on December 9, 2021 had its second hearing before the Senate Agriculture and Natural Resources Committee on February 15, 2022, with the Ohio Auctioneers Association testifying in support of the bill. It replaces the auctioneer apprenticeship requirement and replaces it with a course of study in auctioneering at an approved institution. The bill also eliminates the special auctioneer license, changes the auction firm license, removes the oral exam requirement, increases the number of written exams offered, allows auction firms to provide online or live auction services, and gives ODA authority over internet auctions.
H.B. 365 – Safe Drinking Water Act. Although introduced back in July, H.B. 365 just received its first hearing before House Agriculture & Conservation Committee House on February 15, 2022. The proposal requires Ohio EPA to adopt rules to establish water quality standards and maximum allowable contaminant levels in drinking water for PFAS (the “forever chemicals”), chromium-6, and 1-4 dioxane, and to annually review the standards. Sponsors Rep. Mary Lightbody and Rep. Allison Russo provided testimony at the hearing. The many questions and concerns about costs and impacts of setting standards for the chemicals raise doubts about whether it will receive another hearing.
H.B. 397 – Agricultural leases. The second hearing for H.B. 397 before the Senate Agriculture and Natural Resources Committee took place on February 15, 2022. The proposal passed the House on December 8, 2021, and would require a landlord who wants to terminate a crop lease that doesn’t address termination to provide a written notice of termination by September 1. The Ohio State Bar Association Agricultural Law Committee and Ohio Farm Bureau Federation testified in support of the bill.
H.B. 484 – Fish designation. Readers who like walleye will be happy to hear that H.B. 484’s proposal to name the Lake Erie Walleye as the state fish received its first hearing before the House Agriculture and Conservation Committee House on February 15, 2022. Sponsors Rep. Michael Sheehy and Rep. Lisa Sobecki testified that Ohio is one of only three states without a designated state fish despite sport fishing’s annual $1 billion economy, and that the walleye beat out yellow perch and smallmouth bass for the nomination in an online poll on NBC4 news.
H.B. 507 – Poultry chicks. This bill to reduce the minimum number for poultry chicks sold in lots from six to three received a first hearing before the House Agriculture and Conservation Committee on February 15. Committee chair and bill sponsor Rep. Kyle Koehler testified that the bill would reduce costs and challenges for 4-H members who must buy six turkey chicks to show one turkey and later struggle to find processors for the birds.
H.B. 515 – Income tax. Reps. James Hoops (R-Napoleon) and Craig Riedel (R-Defiance) are sponsors of this companion to S.B. 247, which appears stalled before the Senate Ways and Means Committee. Both proposals would allow a sale of an ownership interest in a business to be considered business income for Ohio income tax purposes if federal income tax law treats the sale as a sale of assets or the seller materially participates in the business activities during the taxable year in which interest was sold or any of preceding five taxable years. If passed, the legislation would apply to any audits, refund applications, petition for reassessments, and appeals pending on or after the bill’s 90-day effective date. H.B. 515 received a second hearing before the House Ways and Means Committee on February 15, 2022.
S.B. 210 – Postnuptial agreements. The proposal to allows spouses to modify pre-nuptial agreements and separation agreements had its first hearing before the House Civil Justice Committee on February 8, 2022. Sponsor Sen. Theresa Gavarone testified that the bill would bring Ohio into line with other states by allowing married couples to address life changes with options other than divorce or separation. The bill passed the Senate back in November of 2021.
S.B. 241 – Agricultural Linked Deposit Program. The Senate version of revisions to Ohio’s Agricultural Linked Deposit Program passed the Senate on January 26, 2022 with emergency provisions that would make the bill effective immediately. The proposal was referred to the House Financial Institutions Committee on February 15. Meanwhile, it’s counterpart in the House, H.B. 440, which passed the House on December 9, 2021, awaits a hearing before the Senate Financial Institutions & Technology Committee. The proposals expand the availability of Agricultural Linked Deposit Program loans to agricultural cooperatives and replaces the current $150,000 loan limit to amounts as determined by the Treasurer.
The weeks since Thanksgiving have been busy ones at Ohio's Statehouse, but not a creature is stirring now as the legislature enjoys its Christmas recess. While agriculture didn’t receive any final Christmas gifts from the General Assembly, a few bills advanced and may pass early next year. Here’s a rundown of agricultural legislation in Ohio.
Newly introduced Ohio legislation
S.C.R. 13 – Repeal Individual Income Tax. Sen. George Lang (R-West Chester) introduced a concurrent resolution on December 9, 2021 expressing an intention for the legislature to repeal the state personal income tax within ten years. The resolution cites disincentives to reside in Ohio, repeals by other states, and business climate impacts as justification for the intent to repeal the income tax. The Senate referred the measure to its Ways and Means Committee on December 15.
H.B. 484 -- Walleye as Official State Fish. Representatives Michael Sheehy (D-Oregon) and Lisa Sobecki (D-Toledo) introduced a bill that would designate the walleye as Ohio’s official state fish. The bill was referred to the House Agricultural & Conservation Committee on November 16, 2021.
H.B. 507 -- Poultry Chicks. This bill to reduce the minimum number for poultry chicks sold in lots from six to three was introduced by Rep. Koehler (R-Springfield) on December 8, 2021.
Ohio legislation on the move
H.B. 440/S.B. 241– Agricultural Linked Deposit Program. Part of the “Ohio Gains Initiative,” these companion bills would make revisions to Ohio’s Agricultural Linked Deposit Program, which provides interest rate reductions of up to 3% on operating loans and lines of credit for farm operators and agribusinesses. The legislation would extend the program to agricultural cooperatives and replace the $150,000 loan maximum to amounts as determined by the State Treasurer. The House passed the bill on December 9, 2021. The Senate Financial Institutions and Technology Committee reported out its bill on December 15, 2021, so the bill should head to the Senate floor soon.
H.B. 397– Agricultural Leases. For agricultural crop leases that don’t address how and when to terminate the lease, H.B. 397 would require a landlord who wants to terminate the lease to provide a written notice of termination to the tenant by September 1. The termination would be effective December 31 of the year notice is provided or on the date harvest is complete, whichever comes first. The House passed the bill on December 8, 2021 and the Senate referred it to the Senate Agriculture & Natural Resources Committee on December 15, 2021.
H.B. 321– Auctioneers. The proposal makes several revisions to auctioneers licensing, including eliminating the apprentice requirement and replacing it with a course of study in auctioneering at an approved institution; removing the oral exam requirement ; increasing the number of written exams offered; removing the special auctioneer license; allowing auction firms to provide online or live auction services; and granting the Ohio Department of Agriculture authority over internet auctions, which are currently exempt from ODA oversight. The bill passed the House on December 9, 2021 and was referred to the Senate Agriculture & Natural Resources Committee December 15, 2021.
H.B. 95 -- Beginning Farmers. This legislation passed the House back on June 28, 2021 and finally received its second hearing before the Senate Ways and Means Committee on December 7, 2021. It proposes to allow individuals to be certified as beginning farmers and would establish income tax credits for certified beginning farmers who attend approved financial management programs and for owners who sell land and agricultural assets to certified beginning farmers.
S.B. 210 – Postnuptial Agreements. Spouses could agree to terminate or modify pre-nuptial agreements after marriage under this proposal, which would bring Ohio in line with many other states. The bill passed the Senate on November 16, 2021 and was assigned to the House Civil Justice Committee on December 7, 2021.
S.B. 246 – Income Tax. The goal of this bill is to avoid the federal State and Local Tax (SALT ) $10,000 deduction cap for federal income tax by allowing an electable individual income tax on a pass-through entity’s income apportioned to Ohio and a refundable income tax credit for tax paid. It received its third hearing with the Senate Ways and Means Committee on December 14, 2021.
S.B. 247 – Income Tax. The sale of an ownership interest in a business would be considered business income for Ohio income tax purposes if federal income tax law treats the sale as a sale of assets or the seller materially participates in the business activities during the taxable year in which interest was sold or any of preceding five taxable years. If passed, the legislation would apply to any audits, refund applications, petition for reassessments, and appeals pending on or after the bill’s 90-day effective date. The proposal had a third hearing with the Senate Ways and Means Committee on December 14, 2021.
Ohio legislation at a standstill
H.B. 175 – Water Pollution. This controversial legislation would exclude “ephemeral features”—those that result from surface water flowing or pooling in direct response to precipitation--from water pollution control programs. The bill passed the House in late September and received a second hearing in the Senate Agriculture & Natural Resources Committee on November 30 but has not received attention since that date.
S.B. 47– Overtime Pay. The proposal would exempt an employer from paying overtime for employer travel to and from a worksite, preliminary and postliminary activities, and minor tasks performed beyond scheduled work hours without authorization, such as checking email or phone messages. It passed the Senate in September and received a first hearing before the House Commerce and Labor Committee but no further action has occurred since October 26, 2021.
S.B. 257– Income Tax Credit for Donations to Townships. Qualifying donations of cash, property or services accepted by a township would receive a refundable state income tax credit of up to $5,000 under this proposal. The bill has not received a hearing since its referral to the Senate Ways and Means Committee on November 10, 2021.
S.J.R. 3 – Constitutional right to hunt and fish. If passed, the joint resolution would place a constitutional amendment before Ohio voters that would guarantee the right to hunt, fish, and harvest wildlife, subject only to laws and rules that promote wildlife conservation and management or preserve the future of hunting and fishing. No action has been taken on the resolution since it received a second hearing before the Senate Agriculture and Natural Resources Committee on November 16, 2021.
Cannons were firing down at the Statehouse recently in honor of Veteran’s Day and so were a few pieces of legislation. It’s time to check in with the Ohio legislature for a look at proposals that impact agriculture. Here’s our summary.
New proposals
S.B. 257– Income tax credit. Sen. Frank Hoagland (R-Adena) introduced this bill on October 27, 2021. It proposes a refundable income tax credit of up to $5,000 for qualifying donations of cash, services, real property, and personal property to a township, which must approve the donation. The bill was referred to the Senate Ways and Means Committee on November 10.
SJR 3 – Constitutional right to hunt and fish. Senator Sandra O-Brien (R-Ashtabula) is the primary sponsor of this proposal to amend Ohio’s Constitution introduced in late September. It proposes a constitutional right for the people of Ohio to hunt, fish and harvest wildlife and to do so using traditional methods, subject only to laws that promote wildlife conservation and management and preserve the future of hunting and fishing. The proposal also states that hunting and fishing shall be a preferred means of managing and controlling wildlife n Ohio and that the amendment would not limit trespass or property rights laws. SJR 3 received its second hearing before the Senate Agriculture and Natural Resources Committee on November 16, 2021. If it passes both the Senate and House, the measure would be placed on the general ballot in November 2022 for a vote by Ohio residents as is the required process for amending the Constitution.
Bills on the move
H.B. 440/S.B. 241– Agricultural Linked Deposit Program. Part of Ohio Treasurer Robert Sprague’s “Ohio Gains Initiative” is to make revisions to the Agricultural Linked Deposit Program (Ag-LINK) that provides loans to farm operators and agribusinesses at reduced interest rates. The bills would allow agricultural cooperatives to apply for the loans and would remove the $150,000 loan cap and allow the Treasurer to determine loan limits according to current conditions. The companion bills received a second hearing in the Senate Financial Institutions and Technology Committee on November 16 and in the House Financial Institutions Committee on November 17.
H.B. 397– Agricultural lease law. We expected this bill to be reported out of the House Agriculture and Conservation Committee in its fourth hearing on November 17, 2021, but the committee held off on a vote. The bill would establish a statutory notice of termination date for verbal and written crop leases that don’t address termination. It would require a landlord who wants to terminate the lease to provide written notice of termination of the next lease period by September 1 of the current lease period.
H.B. 321– Revisions to auction law. The Ohio Auctioneers Association and Ohio Department of Agriculture collaborated on this bill, which updates Ohio’s laws regarding auctioneer licensing and auction regulation. The bill removes barriers to entry for new auctioneers by eliminating the apprenticeship requirement replacing it education at approved institution prior to sitting for the auction exam. It also allows the Ohio Department of Agriculture to have regulatory authority over internet auctions, currently exempt from regulatory oversight and makes changes to auctioneer licensing, testing, and continuing education requirements. The House Agriculture and Conservation Committee approved the bill on November 17.
H.B. 175 – Deregulate certain ephemeral water features. This highly controversial bill that passed the House largely along party lines on September 29, 2021, received its first hearing before the Senate Agriculture and Natural Resources Committee on October 26, 2021. The proposal would exclude “ephemeral features” from water pollution control programs and define an “ephemeral feature” as a surface water flowing or pooling only in direct response to precipitation, not including wetlands. Environmental interests are urging the Senate to drop the bill.
H.B. 95: Income tax credits for beginning farmers. In the “bill I’ve reported on the most this year” category, HB 95 is inching steadily forward. It would allow individuals to be certified as beginning farmers and create two income tax credits, one for owners who sell land and agricultural assets to certified beginning farmers and one for beginning farmers who attend approved financial management programs. The bill passed the House back in June, and finally received its first hearing before the Senate Ways and Means Committee on October 26, 2021.
S.B. 47– Overtime pay exceptions. This proposal passed the Senate September 22, 2021 and had its first hearing before the House Commerce and Labor Committee on October 26, 2021. It proposes two exceptions from employer overtime pay requirements: traveling to and from a worksite and preliminary and postliminary tasks performed outside of work hours that are not at the direction of the employer.
S.B. 210– Postnuptial Agreements. This proposal to allow spouses to voluntarily enter into a “postnuptial” agreement and to amend or terminate a prenuptial agreement passed the Senate on November 16, 2021. Ohio is one of only four states that does not recognize postnuptial agreements that change a couple’s legal relations, such as inheritance rights, property division, and spousal support. This bill would change that, and would also allow spouses to voluntarily agree to modify a prenuptial agreement.
Passed legislation
H.B. 215– Business Fairness Act. A response to COVID-19 closures, the Business Fairness Act would allow a business subject to Department of Health orders to limit or cease operations during a pandemic, epidemic, or bioterrorism event to remain open. To do so, the business must comply with all safety precautions required for “essential” businesses that are not ordered to close and must not be under an order to limit or cease operations that are based upon circumstances uniquely present at that business. The measure passed the House on May 6 by a wide margin and passed Senate on November 16, 2021 with a unanimous vote. It now goes on to Governor DeWine.
As it often goes with farming, the weather interfered a bit with Farm Science Review this year. We missed seeing farmers and students from across the state gather for the show on Wednesday. But even wind and rain didn’t stop our Farm Office team, above, from presenting Farm Office Live from the Review on Thursday. I gave an update on Ohio legislation, as Ohio’s legislature is back from its summer break. Here’s a summary of the legislation I discussed at our Farm Science Review program.
Bills passed and soon effective
S.B. 52 – Solar and wind facilities. S.B. 52 passed several months ago and will be effective on October 11, 2021. The new law will allow counties to designate “restricted areas” in a county where wind and solar projects may not locate and creates a county referendum process for a public vote on restricted area designation. The law will also require developers to hold a public meeting in the county where a facility is proposed at least 90 days before applying for project approval with the Ohio Power Siting Board. After the meeting, the county commissioner may choose to prohibit or limit the proposed project. Another provision of the new law appoints 2 local officials from the proposed location to serve on the OPSB board that reviews a project. And importantly for landowners, the new law requires a developer to submit a decommissioning plan to OPSB for approval with the application and to post and regularly update a performance bond for the amount of decommissioning costs. Watch for our new law bulletins on S.B. 52, which we’ll publish soon.
Bills on the move
H.B. 30 – Slow-moving vehicles. The bill passed the House on June 23, 2021, and just received its second hearing before the Senate Transportation on September 22, 2021. It proposes revisions to marking and lighting requirements for animal-drawn vehicles to make the vehicles more visible and reduce roadway accidents.
H.B. 95 – Beginning farmers. We’ve been hoping this bill aiding beginning farmers would continue to receive attention. It would allow individuals to be certified as beginning farmers and create income tax credits for owners who sell land and agricultural assets to certified beginning farmers and for beginning farmers who attend approved financial management programs. The bill passed the House on June 28, 2021 and was referred to the Senate Ways and Means Committee on September 8, 2021.
S.B. 47 – Overtime pay. The Senate passed S.B. 47 on September 22, soon after returning from break. It would exempt an employer from paying overtime wages for certain activities, including traveling to the workplace, actions before or after beginning principal work activities, or “de minimus” acts requiring insignificant time. The bill sponsors state that it will bring necessary clarity to overtime pay in the era of more employees working unsupervised from home.
Bills newly introduced
H.B. 397 – Termination of Agricultural Lease. A bill that aims to bring certainty to farmland leases was introduced in the House on August 24, 2021 and referred to the Agriculture and Conservation Committee. The proposal states that where a farm lease agreement does not provide for a termination date or a method for giving notice of termination, a landlord who wants to terminate that agreement must do so in writing by September 1. Unless otherwise agreed in writing, the termination date would be either the date harvest or removal of the crops is complete or December 31, whichever is earlier.
H.B. 385 – Municipal waste discharges to Lake Erie western basin Municipalities would be prohibited from discharging waste from treatment plants into Lake Erie under a new bill proposed by Rep. Jon Cross (R-Kenton). The bill would require the Ohio EPA to revoke all existing NPDES permits for municipal treatment works or sewerage systems to in the western basin and prohibit any additional permits for that purpose. It would also fine municipalities up to $250,000 per day for knowingly discharging waste into Lake Erie on the first offense and $1,000 per day for subsequent offenses, or to fine $100 million if the discharge amount exceeds 100 million gallons in a 12-month period. Introduced on August 6, 2021, the bill has been referred to the House Agriculture and Conservation Committee.
Catch a replay Farm Office Live from Farm Science Review at https://farmoffice.osu.edu/farmofficelive. Register at that site to join us for the next Farm Office Live on October 13 at 7 p.m. or a repeat on October 15 at 10 a.m., whern the Farm Office team will digest the latest news and information on agricultural law and farm management issues that affect Ohio’s farm offices.
Tags: Ohio legislation
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Following a flurry of activity before its break, the Ohio General Assembly can now enjoy a few lazy days of summer. While the legislature spent much of its energy passing the state budget, it also moved several bills affecting agriculture. Here’s the latest update on legislation that's moving down at the capitol.
Enacted bills
Solar and wind facilities. We wrote earlier about S.B. 52, the wind and solar facility siting bill the legislature passed in late June. Despite pressure to veto the bill, Governor DeWine signed the legislation on July 12; its effective date is October 9, 2021. The new law requires developers to hold a public meeting in a community at least 90 days prior to applying for project approval, allows counties to designate restricted areas where wind and solar projects may not locate, sets up a referendum process for county residents to have a voice in restricted area designations, adds two community officials to the project review process at the Power Siting Board, and establishes rules for decommissioning of projects, including performance bonds.
Natural gas services. While communities will have a say in siting wind and solar facilities after S.B. 52’s passage, the opposite will be true for natural gas services. H.B. 201 guarantees that persons have a right to obtain natural gas and propane services, subject to municipal home rule authority and regulatory oversight. The bill prohibits political subdivisions from limiting or preventing gas and propane services within its boundaries. Governor DeWine signed the bill on July 1 and it becomes effective on September 28, 2021.
State budget. It took a good while, but the governor signed the state budget bill, H.B. 110, on June 30 and it took effect on July 1. Highlights of agricultural provisions in the bill include:
- H2Ohio. Requires state agencies that prepare the already mandated annual report on the H2Ohio fund to present the report to the Senate and House finance committees each year. ORC 126.60(D).
- Ohio Proud. Allows the Ohio Department of Agriculture (ODA) to sell merchandise that promotes the Ohio Proud program, and to use proceeds for the Ohio proud, international, and domestic market development fund. ORC 901.171(B) and (C).
- Liming inspections. Allows the ODA director to enter into agreements with private parties for the inspection, sampling, and analysis of liming material and allows those parties to enter onto private and public land for inspections. ORC 905.59.
- OSU Extension. Establishes a farm production, policy, and financial management institute in OSU Extension to address the integration of farm production practices, agricultural marketing, farm policy, and financial management challenges for farm owners and managers, lending agencies, ag teachers, and OSU professionals and provides the institute $250,000 each year for two years. ORC 3335.38.
- Farmers market inspections. Removes the option for a farmers market to register and be inspected as a farm market with ODA. ORC 3717.221(A) and (B).
- Wine taxes. Makes the 2 cents per gallon wine tax revenue credited to the Ohio Grape Industries Fund permanent. R.C. 4301.43.
- Southern Ohio Agricultural and Community Development Foundation. At the end of 2021, abolishes the foundation and its board, which was established in 1998 through the Tobacco Master Settlement Agreement with tobacco manufacturers. Any remaining funds will transfer to the Ohio Proud Marketing Fund.
- H2Ohio. Appropriates $49.3 million each year to the H2Ohio program for 2022 and 2023.
- Farmland preservation. Allocates $500,000 for the purchase of agricultural easements in 2022 and 2023.
- Soil and water phosphorus program. Allocates $10.7 million in 2022 and 2023 for programs to assist in reducing phosphorus in the Western Lake Erie Basin.
- SWCDs in Western Lake Erie Basin. Allocates $3.85 million to support Soil and Water Districts in the Western Lake Erie Basin in complying with former S.B. 1 and assisting with soil testing, nutrient management plan development, manure management technologies, filter strips and water management.
Bills on the move
Beginning farmers. H.B. 95 finally passed the House on June 28, 2021—it was introduced in February and lagged in the last legislative session. The proposal allows individuals to be certified as beginning farmers either through USDA or a certification program by ODA, Ohio State or Central State. Certification criteria includes: farming in Ohio less than 10 years, having a net worth of less than $800,000, providing a majority of labor and management for the farm, demonstrating adequate knowledge of farming, submitting projected earning and profits, demonstrating that farming will be a significant source of income, and participation in an approved financial management program. The bill would establish two income tax credits, one for owners who sell land and agricultural assets to certified beginning farmers and another for beginning farmers that attend a financial management program. The bill now requires Senate approval.
Slow-moving vehicles. H.B. 30 had its first hearing before the Senate Transportation committee on June 23. The proposal passed the House in April. The bill aims to increase visibility of animal-drawn vehicles by changing marking and lighting requirements. The vehicles would have to display either an SMV emblem or reflective micro prism tape rather than reflective tape on the rear, a flashing yellow lamp at the top and rear, in addition to current lighting requirements.
Earning statements. A bill passed by the House on June 16 has been referred to the Senate Small Business and Economic Opportunity Committee. H.B. 187 would require all employers to provide employee with a written or electronic statement of the employee’s earnings and deductions for each pay period, to include total hours worked and hourly rate, total gross wages, amounts and purposes of addition or deductions from wages, and total net wages. The bill also establishes a request and violation reporting system for employers who fail to provide the statements.
New bills
Moratorium on animal feeding facilities. A bill introduced by two representatives from northwestern Ohio would affect new and expanding animal feeding facilities in the Maumee watershed. H.B. 349 would not allow the Ohio Department of Agriculture to approve a permit for a new construction or expansion of a “regulated animal feeding facility” if it is in the Maumee watershed and the director of ODA has determined that the spring load of total phosphorus for the Maumee River exceeded 860 metric tons and total dissolved reactive phosphorus exceeded 186 metric tons in the preceding calendar year. Regulated animal feeding facilities are those housing over 250 dairy cattle; 300 beef cattle; 3,000 piglets; 750 hogs; 25,000 egg layers; 37,500 meat chickens; 9,000 egg layers and meat chickens if on liquid manure handling system; 16,500 turkeys; 3,000 sheep and 150 horses. H.B. 349 was referred to the House Agriculture and Conservation committee on June 16, 2021.
Tags: Ohio legislation
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Ohio’s planting season will hopefully soon be as busy as its legislative season. There’s a lot of activity down at the capitol these days and many legislative proposals are on the move. Here’s a summary of bills that could impact agriculture and rural communities. Note that the summary doesn't include the budget bill, which we'll address in a separate article.
Water quality bonds. A joint resolution recently offered in the Senate supports amending Ohio’s Constitution to create permanent funds for clean water improvements. S.J.R. 2, a bipartisan proposal from Theresa Gavarone (R-Bowling Green) and Kenny Yuko (D-Richmond Hts.) would place a ballot issue before voters in November. The issue proposes amending the Constitution to allow for the issuance of general obligation bonds to fund clean water improvements. Up to $1 billion over 10 years would be permissible, with no more than $100 million allocated in any fiscal year. Bond funds would create a permanent source of funding for the H2Ohio program, which is now dependent upon the state budget process.
Animal-drawn vehicles. A bill to increase the visibility of animal-drawn vehicles has passed the House this session after failing to make it through the legislature in the last session. H.B. 30, sponsored by Scott Wiggam (R-Wooster) and Darrell Kick (R-Loudonville), would require animal-drawn vehicles at all times to display a flashing yellow light on top that is visible from all sides of the vehicle, along with an SMV emblem and/or reflective micro-prism tape on the rear of the vehicle. The bill now awaits introduction in the Senate.
Regulations. Senate Republicans reintroduced a proposal from last session to reduce administrative regulations and the Senate has already passed the measure. S.B. 9, sponsored by Kristina Roegner (R-Hudson) and R. McColley (R-Napoleon), mandates that each state agency must reduce its regulatory restrictions 10% by 2023, 20% by 2024 and 30% by June of 2025. The bill establishes criteria for reviewing rules and restrictions for elimination and would place a statewide cap on regulatory restrictions in 2024, to be determined by the Joint Committee on Agency Rule Review. Each agency must also prepare an inventory and annual reports of its progress. The bill has not been introduced in the House.
Fair funds. A bill directing $300 million to help businesses recover from COVID-19 includes funds for Ohio’s fairs. S.B. 109, sponsored by Nathan Manning (R-N. Ridgeville) and Michael Rulli (R-Salem) includes an allocation of $4.7 million from the General Revenue Fund to the Ohio Department of Agriculture to provide financial support to county and independent fairs. The funds would be in addition to the $50,000 allocated per junior fair for the 2020 fair season from the federal CARES Act. The bill has passed the Senate and been introduced in the House, where it has received a hearing before the Economic and Workforce Development committee.
Broadband services. There is definite interest in expanding broadband access in Ohio, but the House and Senate have different proposals for doing so. Two different bills would create a grant program in the Development Services Agency to fund eligible broadband expansion projects and enable access to electric cooperative poles for distribution purposes. S.B. 8, proposed by Rob McColley (R-Napoleon), allocates $20 million for the program in 2022, while H.B. 2, sponsored by Rick Carfagna (R-Genoa Twp.) and Brian Stewart (R-Ashville) proposes $170 million of funding for fiscal years 2021 to 2023. Both bills have passed their respective chambers and are under consideration in the Senate Financial Institutions and Technology committee and the House Finance committee. Amendments under consideration in those committees include expanding the grant program to government providers and electric distribution utilities and further defining adequate broadband speeds.
Eminent domain. A House bill proposed by Al Cutrona (R-Canfield) and Reggie Stoltzfus (R-Paris Township) would amend Ohio’s eminent domain law in relation to recreational trails. H.B. 63 would allow a municipality or township to veto the use of eminent domain for a recreational trail in its jurisdiction upon request by a property owner subjected to the eminent domain action. In two hearings before the Civil Justice committee, over a dozen landowners affected by a bike path in Mahoning County testified in support of the bill. The bill has stalled however, with no further hearings on the proposal currently scheduled.
Beginner farmer credits. A bipartisan bill to help beginning farmers has passed out of committee and awaits a vote in the House. H.B. 95, sponsored by Susan Manchester (R-Waynesfield) and Mary Lightbody (D-Plain Township) establishes a tax credit for businesses that sell or rent land, animals, facilities, or equipment to a beginning farmer. Individuals with a net worth of less than $800K who are seeking entry into farming or have been farming less than ten years, will provide daily labor and rely upon farming income, demonstrate profit potential, and have sufficient knowledge and financial training can be certified by the Ohio Department of Agriculture as a beginning farmer. Income tax credits for businesses that sell or rent assets to beginning farmers would be 5% of the sale price of an agricultural asset, 10% of the annual gross rental income on a cash lease, or 15% of the gross rental income on a share lease. Additionally, beginning farmers who attend an approved financial management program can receive a tax credit for the cost of the program.
Wind farms and solar facilities. Sponsors are reconsidering controversial twin proposals that would allow citizens to use the referendum process to reject proposed wind and solar energy developments in their communities. Senators Bill Reineke (R-Tiffin) and Rob McColley (R-Napoleon) and Representatives Craig Reidel (R-Defiance) and Dick Stein (R-Norwalk) announced they will redraft their proposal after completing three hearings a piece on S.B. 52 and H.B. 118. In the hearings, opponents argued the bill would dampen the growing renewable energy industry in Ohio, be costly to project developers, and cost jobs. Supporters claimed the bill protects property rights and gives property owners and local communities a necessary voice in the siting of large-scale wind and solar developments. An alternative proposal under consideration by the sponsors would create a process for communities that want wind and solar developments to signal their interest early while still allowing those that don’t want the development to use a referendum process. A substitute bill is expected soon.
OSU Farm Financial Management Institute. Companion bills S.B. 128 sponsored by Bob Peterson (R-Washington Court House) and H.B. 239 sponsored by Rodney Creech (R-West Alexandria) would revise an existing law that establishes a Farm Financial Management Institute at OSU. The Institute purpose would be to “train interested and qualified persons to assist farmers in addressing integration of farm production practices, agricultural marketing, farm policy, and financial management challenges.” The bill proposes funding of $250K per year for fiscal years 2022 and 2023, renaming the Institute to the “OSU Farm Production, Policy, and Financial Management Institute,” and adding farm owners and managers as priority participants. The Senate bill is up for a possible vote by the Workforce and Higher Education Committee on April 21 and H.B. 239 will receive its first hearing with the Agriculture and Conservation Committee on April 20.
Two bills that have already passed this session include:
State and federal tax conformity. S.B. 18 conforms the state tax code with recent changes to the Internal Revenue Code made in the federal Consolidated Appropriations Act. It also exempts forgiven Paycheck Protection Program second draw loan proceeds and Bureau of Workers Compensation dividend rebates from the Commercial Activity Tax. The bill was effective upon passage so that its provisions would apply to the 2020 tax season.
Contract limitations. S.B. 13 will become effective June 16, 2021. After that date, the period of time for filing a legal action on a written contract will reduce from 8 to 6 years and the verbal contract limitations period will also reduce by two years, from 6 to 4 years.
The Ohio General Assembly is off and running in its new session. Many bills that affect agriculture in Ohio are already on the move. Here’s a summary of those that are gaining the most momentum or attention.
Tax Conformity Bill – S.B. 18 and H.B. 48. The Senate has already passed its version of this bill, which conforms our state tax code with recent changes to the Internal Revenue Code made in the latest COVID-19 stimulus provisions of the Consolidated Appropriations Act. Both the Senate and the House will also exempt forgiven Paycheck Protection Program second-draw loan proceeds from the Commercial Activity Tax. The Senate version additionally exempts Bureau of Workers Compensation dividend rebates from the Commercial Activity Tax beginning in 2020, but the House bill does not. Both bills include “emergency” language that would make the provisions effective in time for 2020 tax returns.
Beginning farmers tax credits – H.B. 95. A slightly different version of this bill is returning after not passing in the last legislative session. The bi-partisan bill aims to assist beginning farmers through several temporary income tax credits:
- Businesses that sell or rent agricultural assets such as land, animals, facilities or equipment to certified beginning farmers can receive a 5% income tax credit for sales, a 10% of gross rental income credit for cash rents, and 15% of gross rental income for share rents.
- Certified beginning farmers can receive an income tax credit equal to the cost of participating in a certified financial management program.
Beginning farmers, among other requirements, are those in or seeking entry into farming in Ohio within the last ten years who are not a partner, member or shareholder with the owner of the agricultural assets and who have a net worth of less than $800,000 in 2021, which adjusts for inflation in subsequent years. Beginning farmers must be certified by the Ohio Department of Agriculture or a land grant institution. The House Agriculture and Conservation Committee will discuss the bill at its meeting on February 16.
Wind and solar facilities – S.B. 52. In addition to revising setback and safety specifications for wind turbines, this proposal would amend Ohio township zoning law to establish a referendum process for large wind and solar facility certificates. The bill would require a person applying for a certificate for a large wind or solar facility to notify the township trustees and share details of the proposed facility. That notification sets up opportunities for the township trustees or residents of the township to object to the application and submit the proposed application to a vote of township residents. A certificate would not take effect unless approved by a majority of the voters. A first hearing on S.B. 52 will be held on Tuesday, February 16 before the Senate Energy and Public Utilities Committee.
Grants for broadband services – H.B. 2 and S.B. 8. The Senate passed its version of this bill last week, which sets up a $20 million competitive grant program for broadband providers to extend broadband services throughout the state. The proposal would also allow broadband providers to use electric cooperative easements and poles, subject to procedures and restrictions. The bill had its second hearing before the House Finance Committee last week.
Eminent domain – H.B. 63. Based on a similar bill that didn’t pass last session, this bill changes eminent domain law in regard to property taken for the use of recreational trails, which include public trails used for hiking, bicycling, horseback riding, ski touring, canoeing and other non-motorized recreational travel. H.B. 63 would allow a landowner to submit a written request asking a municipality or township to veto the use of eminent domain for a recreational trail within its borders. The bill would also allow a landowner to object to a use of eminent domain for any purpose at any time prior to a court order for the taking, rather than limiting that time period to ten days as in current law. The bill had its first hearing before the House Civil Justice Committee last week.
Minimum wage increases. S. B. 51 and H.B. 69. Bills on each side of the General Assembly propose gradually increasing the state minimum wage to $15, but have different paths for reaching that amount. S.B. 51 proposes increasing the wage to $12/hour in 2022, followed by $1/hour increases each year and reaching $15 by 2025, which is when a federal bill proposes to establish the $15 minimum wage. H.B. 69 begins at $10/hour in 2022 with $1/hour increases annually, reaching $15 in 2027. S.B. 51 was referred last week to the Workforce and Higher Education Committee and H.B. 69 was referred to the Commerce and Labor Committee.
Tags: Ohio legislation, beginning farmer, solar energy, wind energy, township zoning, eminent domain, minimum wage, broadband, COVID, Paycheck Protection Program, commercial activity tax
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The year is still fairly new, and 2020 has brought with it some newly-introduced legislation in the Ohio General Assembly. That being said, in 2020 the General Assembly also continues to consider legislation first introduced in 2019. From tax exemptions to CAUV changes, to watershed programs and local referendums on wind turbines, here is some notable ag-related legislation making its way through the state house.
New legislation
- House Bill 400 “To authorize a nonrefundable income tax credit for the retail sale of high-ethanol blend motor fuel”
HB 400 was introduced after our last legislative update in November, so while it was first introduced in 2019, it still technically qualifies as “new” to us. Since its introduction, the bill has been discussed in two hearings in the House Ways & Means Committee. The bill would give owners and operators of gas stations a tax rebate of five cents per gallon for sales of ethanol. To apply, the fuel would have to be between 15% and 85% ethanol (E15). If passed, the tax credit would be available for four years. The bill is meant to encourage gas station owners in Ohio to sell E15, which is much more readily available in other states. The bill is available here.
- House Bill 485 “To remove a requirement that owners of farmland enrolled in the CAUV program must file a renewal application each year in order to remain in the program”
Introduced on January 29, 2020, HB 485 would make it easier for farmers to stay enrolled in the Current Agricultural Use Valuation (CAUV) program. CAUV allows agricultural land to be taxed at a much lower rate than other types of land. If HB 485 were to pass, the initial application for CAUV on land more than 10 acres would automatically renew each year but the landowner must notify the auditor if the land ceases to be devoted exclusively for agricultural use. Owners of agricultural land less than 10 acres in size, who can qualify for CAUV if gross income from the land exceeds $2,500, would have to submit documentation on the annual gross income of the land to the county auditor each year rather than filing the renewal application. The CAUV bill can be found here.
Legislation from 2019 still being considered
- House Bill 24 “Revise Humane Society law”
In November, we reported that HB 24 passed the House unanimously and was subsequently referred to the Senate Committee on Agriculture & Natural Resources. Since that time, the committee has held two hearings on the bill. The hearings included testimony from the bill’s House sponsors, who touted how the bill would improve humane societies’ public accountability. The bill would revise procedures for humane society operations, require humane society agents to successfully complete training in order to serve, and would establish procedures for seizing and impounding animals. It would also remove humane societies’ current jurisdiction over child abuse cases and make agents subject to bribery laws. Importantly, HB 24 would allow law enforcement officers to seize and impound any animal the officer has probable cause to believe is the subject of an animal cruelty offense. Currently, the ability to seize and impound only applies to companion animals such as dogs and cats. You can read HB 24 here.
- House Bill 109 “To authorize a property tax exemption for land used for commercial maple sap extraction”
HB 109 was first introduced in February of 2019, but has recently seen some action in the House Ways & Means Committee, where it was discussed in a hearing on January 28, 2020. The bill would give owners of “maple forest land” a property tax exemption if they: (1) Drill an average of 30 taps during the tax year into at least 15 maple trees per acre; (2) use sap in commercially sold maple products; and (3) manage the land under a plan that complies with the standards of reasonable care in the protection and maintenance of forest land. In addition, the land must be 10 contiguous acres. Maple forest land that does not meet that acreage threshold can still receive a tax exemption if the sap produces an average yearly gross income of $2,500 or more in the three preceding years, or if evidence shows that the gross income during the current tax year will be at least $2,500. You can find the text of the proposed bill here.
- House Bill 160 “Revise alcoholic ice cream law”
Have you ever thought, “Gee, this ice cream is great, but what could make it even better?” Well this is the bill for you! At present, those wishing to sell ice cream containing alcohol in Ohio must obtain an A-5 liquor permit and can only sell the ice cream at the site of manufacture, and that site must be in an election precinct that allows for on- and off-premises consumption of alcohol. This bill would allow the ice cream maker to sell to consumers for off-premises enjoyment and to retailers who are authorized to sell alcohol. HB 160 passed the House last year and is currently in Agriculture & Natural Resources Committee in the Senate. Since our last legislative update, the committee has had three hearings on the bill. In the hearings, proponents testified in support of the bill, arguing that it would allow their businesses to grow and compete with out of state businesses. Senators asked questions about how the ice cream would be kept away from children, how the bill would help business, and about other states with similar laws. To read the bill, click here.
- Senate Bill 2 “Create watershed planning structure”
In 2019, SB 2 passed the Senate and moved on to the House Energy and Natural Resources Committee. If passed, this bill would do four main things. First, it would create the Statewide Watershed Planning and Management Program, which would be tasked with improving and protecting the watersheds in the state, and would be administered by the ODA director. Under this program, the director of ODA would have to categorize watersheds in Ohio and appoint watershed planning and management coordinators in each watershed region. The coordinators would work with soil and water conservation districts to identify water quality impairment, and to gather information on conservation practices. Second, the bill states the General Assembly’s intent to work with agricultural, conservation, and environmental organizations and universities to create a certification program for farmers, where the farmers would use practices meant to minimize negative water quality impacts. Third, SB 2 charges ODA, with help from the Lake Erie Commission and the Ohio Soil and Water Conservation Commission, to start a watershed pilot program that would help farmers, agricultural retailers, and soil and water conservation districts in reducing phosphorus. Finally, the bill would allow regional water and sewer districts to make loans and grants and to enter into cooperative agreements with any person or corporation, and would allow districts to offer discounted rentals or charges to people with low or moderate incomes, as well as to people who qualify for the homestead exemption.
Since SB 2 moved on to the lower chamber, the House Energy and Natural Resources Committee has held multiple hearings on the bill, and has consented to two amendments. The first amendment would keep information about individual nutrient management plans out of the public record. Similarly, the second amendment would keep information about farmers’ agricultural operations and conservation practices out of the public record. The text of SB 2 is available here.
- Senate Bill 234 “Regards regulation of wind farms and wind turbine setbacks”
SB 234 was introduced on November 6, 2019. Since that time, the bill was assigned to the Senate Energy & Public Utilities Committee, and three hearings have been held. The bill would give voters in the unincorporated areas of townships the power to have a referendum vote on certificates or amendments to economically significant and large wind farms issued by the Ohio Power and Siting Board. The voters could approve or reject the certificate for a new wind farm or an amendment to an existing certificate by majority vote. The bill would also change how minimum setback distances for wind farms might be measured. The committee hearings have included testimony from numerous proponents of the bill. SB 234 is available here. A companion bill was also introduced in the House. HB 401 can be found here.
Tags: legislation, Ohio legislation, tax credit, ethanol, cauv, humane society, property tax, water quality
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The OSU Extension Farm Office team has returned from the National Farm Business Conference in Wisconsin. We gained some fresh perspective on events beyond Ohio’s borders, but are happy to be back in slightly warmer weather. Our colleagues from across the nation presented on a variety of farm management topics, and we had a chance to discuss some of our recent projects. We also toured a number of dairy and agritourism farms, and of course ate lots of cheese curds. The fresh perspective means that it is time for a fresh Ag Law Harvest.
Here’s our latest gathering of agricultural law news that you may want to know:
OSU Extension Ag Law Team featured on Agronomy and Farm Management Podcast. Recently we had a chance to talk with OSU Extension Educators Amanda Douridas and Elizabeth Hawkins, who together moderate the bi-weekly Agronomy and Farm Management Podcast for OSU Extension. We discussed the status of Ohio’s hemp bill and what we expect to happen in the near future with hemp regulation and production. Then we provided an update on the Drewes Farm Partnership v. City of Toledo lawsuit, which grapples with the legality of the Lake Erie Bill of Rights. Click HERE to listen to the podcast, and look for episode 28.
Minnesota focuses new commercial nitrogen fertilizer regulations on drinking water quality. In an effort to protect public drinking water sources, the Minnesota Department of Agriculture has chosen to regulate the commercial application of fertilizer. The state has long regulated the application of manure, but not commercial nitrogen. The regulations focus on two types of geographic areas: regions with vulnerable soil (coarse soils, karst geology, or shallow bedrock) and farms located in Drinking Water Supply Management Areas. These management areas are designated based upon nitrate levels found in the drinking water. Starting in 2020, the state will ban the application of commercial nitrogen in these areas during the fall months and on frozen ground. Farms in any of the 30 Drinking Water Supply Management Areas would have to follow best management practices to start, but if nitrate levels continue to exceed state limits, then the state may impose additional restrictions in an area to reduce nitrogen pollution. For more information on Minnesota’s Groundwater Protection Rule, click HERE.
Federal court puts a hold on Bud Light’s “100 percent less corn syrup” ads. If they missed seeing it live during the Super Bowl, most people in the agricultural industry have at least seen the recent Bud Light advertising campaign that claims the beer uses no corn syrup while its competitors do. Shortly after the initial release of the ad, MillerCoors sued Anheuser-Busch, which makes Bud Light. MillerCoors wants a permanent injunction that would stop Bud Light from continuing its corn syrup advertising campaign, arguing that the advertisements are false and misleading to consumers. The first step to a permanent injunction is often a preliminary injunction, which makes a party act or not act in a certain way only while the case is pending. The judge presiding over the lawsuit granted MillerCoors’ motion for a preliminary injunction in part. The judge ordered Anheuser-Busch to temporarily stop using ads mentioning corn syrup if those ads do not contain language explaining that Bud Light does not use corn syrup in the brewing process. The judge’s act does not ban the ad that premiered during the Super Bowl. Rather it only blocks ads released later that claim Bud Light uses 100 percent less corn syrup than competitors like MillerCoors. Click HERE to view the complaint, and HERE to view the judge’s order.
It’s (mostly) official: USDA’s ERS and NIFA are headed to Kansas City. U.S. Secretary of Agriculture Sonny Perdue announced the USDA’s selection of the Kansas City, Missouri region as the new headquarters for the Economic Research Service and National Institute of Food and Agriculture. The location changed caused a great deal of controversy as some viewed it as a political move. However, the USDA has maintained that relocation will save millions of dollars over the next few years and put the agencies closer to a number of other USDA offices in Kansas City, such as the Farm Service Agency’s Commodity Operations Office. The Secretary reduced some of the controversy by scrapping plans to place the agencies under the USDA’s Chief Economist, who is a political appointee. Before we call the move a done deal, we must note that Congress could stop the plans. The U.S. House of Representatives might block the move via a Department of Agriculture-FDA spending bill currently under consideration. Click HERE to read Secretary Perdue’s press release.
Bayer announces multi-billion dollar hunt for glyphosate replacement. Somewhat buried in a press release titled “Bayer raises the bar in transparency, sustainability and engagement,” Bayer recently announced a substantial investment in its weed management research. Over the next ten years, the company plans to spend 5 billion euros, or roughly 5.6 billion U.S. dollars, to develop weed control products as alternatives to glyphosate. The announcement comes at a time with thousands of plaintiffs across the United States have claimed that the widely-used glyphosate caused their cancer. As we have previously discussed in the Ag Law Blog, the first three juries have in total awarded plaintiffs billions of dollars in damages. Bayer continues to fight the allegations and defend its product, but the press release marks the first time that Bayer has publically announced a search for an alternative to glyphosate. It remains to be seen whether the press release could have an impact in the lawsuits, but Bayer will likely try to keep the press release out of the trials by using court rules of evidence.
Ohio House passes amusement ride safety bill. County fair season has officially kicked off in Ohio, and some state lawmakers want to make sure that amusement rides at those fairs are safe. House Bill 189 seeks to heighten Ohio’s amusement ride safety inspection standards and impose additional duties on amusement ride owners. The bill would require the Ohio Department of Agriculture to adopt ride classification rules that identify types of rides needing more comprehensive inspection, along with the minimum number of inspectors and number of inspections for each ride. Further, the bill would require amusement ride owners to keep a manual for each amusement ride, and make it available upon request of an inspector. Amusement ride owners would also have to keep records, including documents and photographs, of all major repairs along with all locations where the owner stored or operated each ride. The bill includes an emergency clause, which would allow it to take effect as soon as the Governor signs it. Lawmakers named the bill “Tyler’s Law” after the young man who died following an equipment breakdown at the Ohio State Fair in 2017. Click HERE for more information about the bill.
Tags: ag law harvest, hemp, LEBOR, Lake Erie Bill of Rights, water quality, nitrogen fertilizer, glyphosate, Ohio legislation
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