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Here’s our gathering of recent agricultural law news you may want to know:
Ohio Department of Agriculture to hold hearing on produce safety rules. ODA will have a public meeting on March 8, 2018, to receive testimony on proposed produce safety rules. The proposed regulations closely resemble the federal FSMA regulations that establish standards for production, harvest and handling of fruits and vegetables. ODA is proposing the changes to ensure that Ohio farmers have to meet only one set of standards and that Ohio's standards will be accepted when Ohio produce is shipped to other states. The ODA’s public notice containing links to the rules package is here.
Report criticizes Ohio’s Beef Checkoff Program. The Organization for Competitive Markets and Ohio Farmer’s Union released a report claiming that Ohio’s Beef Checkoff Program is in need of reform because it lacks adequate oversight of the collection, administration and expenditure of checkoff dollars. The report is available here.
Understanding farm equipment trades under the new tax law. The federal Tax Cuts and Jobs Act eliminated like-kind exchange treatment for personal property, meaning that farm equipment trades will be treated as taxable events and there will be no tax deferral for §1231 gains or §1245 recapture. Our colleague Kristin Tidgren at Iowa State has written an excellent analysis of the impacts of this tax law change, available here.
Plaintiffs ask court to vacate EPA’s XTendiMax registration. In an opening brief filed by the National Family Farm Coalition and others against U.S. EPA and Monsanto, petitioners claim that the EPA violated the Federal Insecticide, Fungicide and Rodenticide Act by: failing to examine if the dicamba-based XTendiMax product’s use would significantly increase the risk of unreasonable adverse effects on the environment and create significant socioeconomic and agronomic costs to farmers; relying solely on label conditions to mitigate product harm even though the label did not address vapor drift by the product; and amending the label without any data or analysis of the new label conditions . The petitioners want the EPA to revoke the product’s registration.
WOTUS battles continue. It’s becoming more difficult to keep up with litigation as we await the Sixth Circuit Court of Appeals’ lift of the nationwide stay on the 2015 WOTUS rule. New York, California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington and the District of Columbia filed a lawsuit against the U.S. EPA and U.S. Army Corp. of Engineers for suspending the 2015 rule, delaying it for two years, and reinstating the previous rule. Several environmental groups filed a similar lawsuit challenging the agencies’ actions in federal court in South Carolina. The American Farm Bureau and several other agricultural groups and the states of Texas and Louisiana then each filed lawsuits in the Texas, seeking a nationwide injunction to keep the 2015 rule from going into effect. Now we wait. More on the rule here.
Ohio legislation on the move:
- Idle and orphan wells. House Bill 225 revises Ohio's idle and orphaned well program and increases funding for the program. Sponsored by Thompson (R-Marietta). Approved by the House on January 17, 2018; first hearing before the Senate Energy & Natural Resources Committee held on February 20, 2018.
- Hunting licenses. House Bill 272 would expand hunting and fishing license exemptions for grandchildren of landowners and partially disabled veterans. More information here. Sponsored by Householder (R-Glenford) and Kick (R-Loudonville). Second hearing proponent testimony heard on February 13 before the House Energy & Natural Resources Committee.
- Riparian buffers. House Bill 460 would exempt qualifying riparian buffers in the Western Basin of Lake Erie from property taxation, reimburse local taxing units for their consequent loss of income and require soil and water conservation districts to assist landowners with establishing and maintaining riparian buffers. Sponsored by Patterson, (D-Jefferson) and Sheehy (D-Oregon). Second hearing proponent testimony heard on February 13 before the House Energy & Natural Resources Committee.
- Township laws. House Bill 500 proposes several changes to township laws, including allowing limited zoning authority over agriculture in platted subdivision areas and requiring township approval before a county vacates a public township road. Introduced in the House by Cafagna (R-Genoa Township) on February 13 and referred to the State and Local Government Committee on February 20.
For other agricultural and food law updates from around the country, check out the National Agricultural Law Center’s Ag & Food Law Blog. The Ohio State University Agricultural & Resource Law Program is proud to be a partner in the National Agricultural Law Center's Agricultural & Food Law Consortium.
A bipartisan group of eight U.S. senators have introduced a bill to exempt agricultural producers from reporting requirements under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). We’ve reported previously on the new mandate that would require livestock operations to report air emissions, the result of a U.S. Court of Appeals decision last year that struck down the EPA’s rule that exempted agriculture from the reporting requirements. The U.S. EPA has repeatedly requested the court for a delay of the new reporting mandate, now delayed until after May 1, 2018. The proposed legislation would establish a new exemption that would protect farmers from the upcoming reporting mandate.
Senator Deb Fischer (R-Neb.), a primary sponsor of the legislation, stated that “[t]hese reporting requirements were designed to apply to industrial pollution and toxic chemicals, not animal waste on a farm or ranch.” Co-sponsor Joe Donnelly (D-Ind.) assured farmers that requiring them to “spend their time and money on reports that will go unused by EPA would be burdensome and needless.”
The text of the senators’ proposed Fair Agricultural Reporting Method (FARM) Act, S. 2421, is available here. The proposal includes:
- A statement that CERCLA reporting does not apply to air emissions from animal waste, including decomposing animal waste, at a farm.
- A definition for “animal waste,” which means feces, urine, or other excrement, digestive emission, urea, or similar substances emitted by animals (including any form of livestock, poultry or fish), and including animal waste that is mixed or commingled with bedding, compost, feed, soil, or any other material typically found with such waste.
- A definition of “farm,” which means a site or area (including associated structures) that is used for the production of a crop or the raising or selling of animals (including any form of livestock, poultry, or fish) and under normal conditions, produces during a farm year any agricultural products with a total value equal to not less than $1,000.
- A statement that maintains the current exemption from CERCLA reporting for applications, storage and handling of registered pesticide products.
Senator Fischer introduced S.2421 on February 13 and the Senate has referred the bill to the Committee on Environment and Public Works.
Here's a gathering of recent agricultural law news from OSU's Agricultural & Resource Law Program:
CERCLA air emissions reporting further delayed. The Circuit Court that ruled that farms are not exempt from air emissions reporting under CERCLA has delayed the starting date for farms to begin reporting until at least May 1, 2018. Hopefully, the additional time will bring more clarity to livestock operations that could be subject to the reporting requirements about how to determine ammonia and hydrogen sulfide emissions, two substances that could trigger the reporting requirement. Read more in our previous post or on the US EPA’s website.
WOTUS rule also delayed. The U.S. EPA and U.S. Department of Army finalized a new rule on January 31, 2018 that would delay the effective date of the WOTUS rule to 2020. The rule, revised by the EPA in 2015 and tied up in litigation since then, has been on hold due to a stay ordered by the Sixth Circuit Court of Appeals. That stay could be lifted as a result of last week’s U.S. Supreme Court holding that courts of appeal are not the proper forum for challenges to the rule. More on the court’s decision here and on the WOTUS rule here.
National Organic Program proposed rule comment period open. Amendments to the National List of Allowed and Prohibited Substances allowed for organic production or handling are under consideration. USDA’s Agricultural Marketing Service is taking comments on the proposed rule until March 19, 2018. More information is here.
Ohio invasive plants list revised. The Ohio Department of Agriculture has finalized a revised list of invasive plants that may not be sold or distributed in Ohio. The list of 36 plants is available here.
Agricultural fertilizer applicator certification exam now available. As a result of regulatory revisions, a producer who applies fertilizer to 50 acres of more of land in agricultural production may now meet Ohio’s certification requirement by passing a written exam rather than attending educational sessions. Exam locations and registration are here and OSU’s training manual is here.
Ohio legislation on the move:
- Wind turbine setbacks. Senate Bill 238 proposes changes to the application process and setbacks for “economically significant” wind farms capable of generating five megawatts or more. Sponsored by Dolan (R-Chagin Falls). First hearing before the Senate Energy & Natural Resources Committee.
- Riparian buffers. House Bill 460 would exempt qualifying riparian buffers in the Western Basin of Lake Erie from property taxation, reimburse local taxing units for their consequent loss of income and require soil and water conservation districts to assist landowners with establishing and maintaining riparian buffers. Sponsored by Patterson, (D-Jefferson) and Sheehy (D-Oregon). First hearing on January 30 before the House Energy & Natural Resources Committee.
- Poultry and livestock on residential property. House Bill 175 would prevent county and township zoning authorities from prohibiting the keeping and breeding of chickens, fowl, goats, rabbits and similar small animals for noncommercial purposes on any residential property and would establish housing standards for such animals. Sponsored by Brinkman (R-Cincinnati). First hearing on January 30 before the House Agriculture and Rural Development Committee.
- Apiary immunity. House Bill 392 would provide persons who register their apiaries with immunity from personal injuries resulting from bee stings. Read our post. Sponsored by Stein (R-Norwalk). Reported out of House Economic Development, Commerce & Labor Committee on January 23.
- Alfalfa products. Senate Resolution 382 recognizes the existence of two alfalfa products in accordance with the Ingredient Definition Committee of the Association of American Feed Control Officials. Sponsored by LaRose (R-Hudson). Second hearing before the Senate Agriculture Committee scheduled for February 6.
- Barn as official state structure. House Bill 12 proposes designating the barn as the official historical architectural structure of Ohio. Passed House on 3/22/17, second hearing before the Senate Agriculture Committee scheduled for February 6.
- Idle wells. House Bill 225 revises Ohio’s idle and orphaned oil and gas well program. Read our post. Sponsored by Thompson (R-Marietta). Passed House on January 17, introduced in Senate on January 22.
- Labor camps. House Bill 490 proposes to exempt certain residential buildings from agricultural labor camp laws. Introduced in the House by Stein (R-Norwalk) on January 30.
- Energy resources. House Concurrent Resolution 22 expresses support for the importance of Ohio’s energy resources and infrastructure in furthering Ohio’s economic development. Introduced in the House by Hill (R-Zanesville) on January 16.
For other agricultural and food law updates from around the country, check out the National Agricultural Law Center’s Ag & Food Law Blog.