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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:”

  1. On snow-covered or frozen soil;

  2. When the top two inches of soil are saturated from precipitation; and

  3. 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!   

By: Evin Bachelor, Friday, October 12th, 2018

Written by: Evin Bachelor, Law Fellow, and Ellen Essman, Sr. Research Associate

Here's a gathering of recent agricultural law news from OSU's Agricultural & Resource Law Program:

FDA seeks comments, asking “what is milk?”  The Food and Drug Administration recently posted a request for public comment in the Federal Register regarding the labeling of plant-based products that use terms associated with dairy in their names.  The FDA explains that it wants to know how consumers use products like soy milk and whether such labels provide enough clarity to consumers.  The press releases can be viewed here.  The public may submit comments here until November 27th, 2018.

Sixth Circuit says Clean Water Act does not cover discharges into ground water.  The U.S. Court of Appeals for the Sixth Circuit, which includes Ohio, published an opinion on September 24th that seems to limit the extent of the Clean Water Act.  At issue in Tennessee Clean Water Network v. Tennessee Valley Authority was whether the TVA violated the Clean Water Act by dumping coal ash into a pond that was leaking into ground water that eventually would reach the Cumberland River.  The Fourth and Ninth Circuits previously published opinions saying that an underground “hydrological connection” between protected navigable Waters of the United States and unprotected ground water was enough to require a Clean Water Act permit.  In rejecting this approach, the Sixth Circuit creates a split that may send this question to the Supreme Court.  For now, the law in the Sixth Circuit, and therefore Ohio, is that a discharge into an underground water source that has a hydrological connection to a federal navigable water is not a discharge from a point source that triggers Clean Water Act protections.  The Sixth Circuit’s opinion is available online here.

Water Infrastructure Bill Headed to the President’s Desk.  After a bipartisan effort, Congress passed “America’s Water Infrastructure Act of 2018” on Wednesday with a 99-1 vote in the Senate.  The House had approved the bill by a voice vote in mid-September.  If signed by the President, the law would authorize the Army Corps of Engineer to carry out a variety of river and harbor improvements across the country, along with other conservation and water resource development projects.  The bill did not specifically earmark projects for Ohio, but it did authorize a Coastal Resiliency Study for the Great Lakes.  Also included in the bill was a reauthorization for the Safe Drinking Water Act, which authorizes the U.S. EPA to set drinking water standards and work toward reaching those standards.  Visit Congress’s website for the full text of the Senate Bill 3021.

States wait to decide on whether to end joint Ohio River standards.  Currently, the Ohio River Valley Water Sanitation Commission (ORSANCO) sets water quality standards and performs assessments for the Ohio River Basin.  Formed in 1948, ORSANCO includes representatives from Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Virginia, West Virginia, and the federal government.  The members of the commission were set last week to vote on whether to decentralize the setting of water quality standards, and instead have the individual states along the Ohio River set their own standards.  The vote was postponed in order to provide commissioners with more time to consider the proposal.  According to WCPO Cincinnati and Politico, opponents of the proposal say that this could harm water quality by allowing conflicting standards, while proponents argue that the commission’s role is redundant in light of the U.S. EPA’s jurisdiction over the Ohio River and its major tributaries.  Learn more about ORSANCO by visiting their website.

Multi-year and lifetime hunting and fishing licenses become available in Ohio.  As we reported in a Harvest post earlier this year, Governor Kasich signed a bill into law that created multi-year and lifetime hunting and fishing licenses for residents of Ohio, and that allows the Division of Wildlife to offer licensure “packages” for any combination of licenses, permits, or stamps.  The new license categories are codified in Ohio Revised Code section 1533.321.  On Tuesday, October 9, 2018, the Ohio Department of Natural Resources announced that the new multi-year and lifetime hunting and fishing licenses were available for purchase.  The options include 3, 5, 10-year, and lifetime licenses for three age categories—Youth (17 and younger), Adult (18-65), and Senior (66 and older).  More information on hunting and fishing licenses can be found here, including pricing, and where and how licenses can be purchased.

NAFTA 2.0 is now USMCA.  The Office of the U.S. Trade Representative has released the text of the proposed United States-Mexico-Canada Agreement (USMCA), which President Trump intends to use as a replacement for the North American Free Trade Agreement (NAFTA).  NAFTA is currently a federal statute, and replacing it will require an act of Congress.  The U.S. Trade Representative’s webpage contains official summaries and fact sheets regarding the agreement, along with the current text of the agreement.

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Tags: ag law harvest
Comments: 0
By: Evin Bachelor, Thursday, October 11th, 2018

Since significant changes were made to Ohio’s Line Fence Law in 2008, landowners have contacted us with a variety of questions about how it works.  We have compiled many of the frequently asked questions in our new law bulletin, appropriately titled Ohio’s Line Fence Law: Frequently Asked Questions.  The law bulletin answers questions like:

  • Who has to pay for a new line fence?
  • Can I stop my neighbor from installing a new line fence?
  • Who has to pay for maintenance and upkeep of a line fence?
  • What is the role of the township trustees?
  • What happens when my neighbor and I disagree?

The new law bulletin is available here.  If you still have some questions about Ohio’s line fence law, check out the Line Fence Law section of our Ag Law Library here, including our more in-depth fact sheet and our explanation about line fence affidavits.

Posted In: Property
Tags: line fence law
Comments: 0
By: Peggy Kirk Hall, Friday, October 05th, 2018

Those post cards advising producers of a $1.51 billion settlement in the Syngenta corn seed lawsuits are legitimate, and corn producers seeking compensation from thesettlement must file claims by 11:59 p.m. on October 12, 2018.  The settlement is the result of class action and individual lawsuits alleging that Syngenta failed to receive import approval from China before selling its genetically modified Viptera and Duracade seeds in the United States, which led to the rejection of  U.S. corn shipments and a lowering of corn prices from 2013 to 2018.

Who can file a claim?

Three types of claimants that were involved in the U.S. corn market between September 15, 2013 and April 10, 2018 may file claims: 

  • Corn producers, which includes any owner, operator, landlord or tenant who shared in the risk of producing any variety of corn, not just Syngenta varieties.  Landlords who operated under fixed cash leases are not eligible.
  • Grain handling facilities that purchased, transported, stored, handled and sold any variety of corn. 
  • Ethanol production facilities that produced, purchased and sold dried distillers' grains from any variety of corn.

How to file a claim?

File electronically through a secure, encrypted portal at www.CornSeedSettlement.com or download a printed form on the same website to file via U.S. mail.  Claimants must file using either a federal tax ID number or social security number and must file a separate claim for each Form 578 filed with FSA.  Note that the settlement claims administrator states that all claims information is confidential and will be destroyed after the payment of claims.

How much will a claimant receive?

Payments will vary and will depend upon the total number of filed claims.  For corn producers, the claims administrator will determine payments based on the following factors: (1) compensable recovery quantity as calculated by number of acres, ownership interest, NASS county yields and predetermined marketing year averages, (2) the year of planting, (3) the producer’s ownership interest, and (4) whether the producer purchased and planted Agrisure Viptera or Duracade seed or a different variety.

When will claimants receive payments?

A claimant might not receive a payment for about a year.  A court hearing to approve the settlement will take place in the U.S District Court in Kansas on November 15, 2018.  If the court approves the settlement, those who object to the approval can file appeals.  Final payments won't occur until the court resolves all appeals, which could take about a year or more.

Must claimants report payments as income?

Class action settlement payments that compensate for the loss of business income should be reported for tax purposes.  Claimants should consult with tax advisors to determine IRS reporting requirements.

For more information, an extensive list of frequently asked questions about the Syngenta corn seed settlement is available here

By Ellen Essman, Sr. Research Associate

On September 25, 2018, USDA found a Cleveland, Ohio company to be in violation of the Perishable Agricultural Commodities Act, or PACA.  USDA initiated the complaint against Forest City Weingart Produce (Forest City) in November 2017.  Forest City’s failure to pay $716,689, collectively, to numerous produce sellers is considered “unfair conduct” under PACA.  The complaint was determined to be valid, and consequently, Forest City is not permitted to “operate in the produce industry” for a time.  Because USDA found Forest City’s violations to be “repeated and flagrant,” under PACA, the Secretary of Agriculture had the authority to revoke the company’s license.  According to USDA’s press release, Forest City will be able to reapply for a PACA license on September 21, 2020.  The principal officers of the company are also banned from being “employed by or affiliated with any PACA licensee” through September 21, 2019.  Since Forest City has been found to have violated PACA by participating in unfair conduct, the law states that the company is liable to those they took advantage of “for the full amount of damages,” which in this case, would be the aforementioned $716,689. 

What is PACA?

PACA was passed in 1930.  The Act’s purpose is to promote “fair business practices” when buying and selling “perishable agricultural commodit[ies].”  A perishable agricultural commodity is defined in the law as “fresh fruits and fresh vegetables of every kind and character,” which can also be “frozen or packed in ice,” including “cherries in brine.” 

PACA contains a list of what the law considers to be “unfair conduct.”  Such unfair conduct is unlawful for commission merchants, dealers, or brokers, who are essentially the middle-men of the perishable agricultural commodities industry, to engage in.  The following actions are deemed to be “unfair” under the law, and therefore illegal when the transaction is in interstate or foreign commerce:

  • Using any unfair, unreasonable, discriminatory, or deceptive practice when weighing, counting, or determining the quantity of a perishable agricultural commodity;
  • Rejecting or failing to deliver perishable agricultural commodities under the terms of the contract, if there is no reasonable cause for the failure;
  • Discarding, dumping, or destroying any perishable agricultural commodity received without reasonable cause;
  • Making a false or misleading statement, for a fraudulent purpose, in connection with any transaction involving a perishable agricultural commodity; failing or refusing to make full, prompt, payment in such a transaction; or failing to perform any specification or duty in such a transaction without reasonable cause;
  • Misrepresenting by word, act, mark, stencil, label, statement, or deed, the character, kind, grade, quality, quantity, size, pack, weight, condition, degree of maturity, or State, country, or region of origin of any perishable agricultural commodity;
  • Removing, altering, or tampering with any card, stencil, stamp, tag, or other notice upon any container or railroad car containing any perishable agricultural commodity, if such notice contains a certificate or statement under the authority or law or regulation of the federal or state government concerning the grade, quality, or origin of the commodity;
  • Making any change by way of substitution or otherwise in the contents of a load or lot of any perishable agricultural commodity after it has been officially inspected for grading and certification. 

PACA also makes it mandatory for commission merchants, dealers, and brokers to be licensed.  In order to obtain a license, both an application and fee are required.  If all the requirements are met, the Secretary of Agriculture may issue the license.  Licenses can be annual or cover multiple years, depending on the type of entity licensed.  The Secretary may also suspend or revoke a license. 

Violations, Complaints, and Liability

PACA specifically states that when any commission merchant, dealer, or broker is found to have participated in unfair conduct (discussed above), they are “liable” to those injured by their conduct “for the full amount of the damages sustained in consequence of such violation.”  Liability can be enforced through the complaint process or through the courts.  Complaints of unfair conduct can be sent to the Secretary of Agriculture up to nine months after the unfair conduct occurs.  Notifications of violations by merchants, dealers, or brokers can also be sent to the Secretary by officers of state agencies.  The Secretary is then able to investigate complaints and notifications.  If the investigation shows violations occurred, then the Secretary can “have the complaint served” on the violator.   If the alleged damages are more than $30,000, the Secretary must provide the violator with the opportunity for a hearing.  After a hearing, the Secretary can “determine whether or not the commission merchant, dealer, or broker has violated” any part of the law regarding “unfair conduct.”

Those interested in background information on PACA, fees, licensing, etc. can find it at the USDA’s website, here.  The federal regulations that accompany PACA are here