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Written by Ellen Essman and Peggy Hall
What’s old is new again. To what was likely a mixed chorus of cheers and groans heard around the nation, the U.S. EPA and Army Corps of Engineers today announced the repeal of the 2015 Waters of the United States (WOTUS) rule. The action is “Step 1” in the Trump administration’s two-step plan to repeal and replace the WOTUS rule, which establishes the jurisdictional authority of the EPA and Army Corps over waters and waterways. It came in the form of a final rule that not only repeals the 2015 WOTUS rule set in place by the Obama Administration, but also reverts the entire country back to the old regulatory definitions of “waters of the United States” that were developed in 1986 and 1988 rulemakings and further interpreted by U.S. Supreme Court decisions. Those definitions of WOTUS created a lot of confusion and litigation over the actual meaning of WOTUS, which the 2015 WOTUS rule aimed to clear up. Today’s “Step 1” takes us back to older, earlier definition of WOTUS.
Wait—there’s a Step 2?
Back in February, we wrote a blog post when the Trump administration began what is now “Step 2,” proposing a new definition of WOTUS. If that rule becomes final, it will replace the pre-2015 WOTUS definitions put in place by today’s announcement. So, Step 1 involves reverting back to the old WOTUS definition until Step 2, implementing a new definition, is finalized.
The Trump administration’s proposed WOTUS rule scales back the reach of the 2015 WOTUS rule, which many claimed exceeded the agencies’ regulatory authority over waterways and waterbodies in the U.S. Under the currently proposed rule, tributaries that are “ephemeral”—meaning those that are not around for a great deal of time or created by temporary conditions like rainfall or snowmelt—would not be considered as WOTUS. In both the 2015 and pre-2015 WOTUS definitions, at least some ephemeral streams fell under federal regulation. The currently proposed rule also clarifies waters that are not WOTUS by including a list of such waters. The Trump administration states that its proposed rule would encompass fewer ditches, lakes, ponds, and adjacent wetlands than both the 2015 and pre-2015 versions of WOTUS.
So what’s WOTUS now, exactly?
Until the tide turns again, the definition of WOTUS set in place by today’s announcement is the pre-2015 rule, which is as follows:
- All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
- All interstate waters including interstate wetlands;
- All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: (i) which are or could be used by interstate or foreign travelers for recreational or other purposes; or (ii) from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or (iii) which are used or could be used for industrial purposes by industries in interstate commerce;
- All impoundments of waters otherwise defined as waters of the United States under this definition;
- Tributaries of waters identified above;
- The territorial seas;
- Wetlands adjacent to waters (other than waters that are themselves wetlands) identified above;
The current WOTUS does not include prior converted cropland or certain waste treatment systems. Importantly, it also contains definitions for the terms wetlands, adjacent, high water, ordinary high water mark and tidal waters—many of these definitions have been the source of the litigation and confusion that led to the 2015 rule.
Somehow it’s mid-September already, and that can only mean one thing: it’s time for Farm Science Review! We’re excited to get back out to the Molly Caren Agricultural Center to talk with farmers about our latest publications and answer their questions.
Check out the schedule above for the talks we will be giving on solar leasing, hemp law, and food regulations. If you can’t make one of the presentations, or want to learn more about other topics on agricultural law, visit us at our booth in the Firebaugh Building, which is located at 384 Friday Avenue.
We will have free copies of our most popular law bulletins available, including:
- Do’s and Don’ts of Dealing with Trespassers on the Farm
- Ohio’s Line Fence Law: Frequently Asked Questions
- Creating an Enforceable Farmland Lease
- A Checklist of Farmland Lease Provisions
- Ohio’s Recreational User Statute: Limiting Liability for Hunters, Snowmobilers, and More
- Ohio’s Noxious Weed Laws
- And many more!
We will also be bringing along some of our new law bulletins, including:
- Legal or Not? Growing Industrial Hemp in Ohio
- The Farmland Owner’s Solar Leasing Checklist
- Laws that Provide Defenses for Agricultural Production Activities
- Youth Labor on the Farm: Laws Farmers Need to Know
For more information about Farm Science Review, including directions, tickets, and a list of events and exhibitors, visit http://fsr.osu.edu. We’ll see you there!
These days, industrial hemp never seems to leave the news. Just this week, the U.S. Court of Appeals for the Ninth Circuit declined to decide a case involving the interstate shipment of hemp between Oregon and Colorado by way of Idaho. Hemp is illegal in Idaho, where the product was seized and the driver was arrested, even though the 2018 Farm Bill allows for the interstate transportation of hemp. The Ninth Circuit, reviewing the case, determined that the state court actions needed to be decided before federal courts could hear the case. As you may be aware, Ohio also made news this summer when the state passed a bill legalizing hemp in the state.
All of these developments involving industrial hemp may leave you with many questions. What is hemp? What did the 2018 Farm Bill do? What does Ohio’s new law do? Most importantly, can I grow and process hemp right now? To help farmers and others interested in the status of the hemp industry, we have recently added a law bulletin entitled “Legal or Not? Growing Industrial Hemp in Ohio” to our Ag Law Library. There, we sort out the above questions and more. We also discuss the anticipated development of federal and state hemp regulations. The bulletin is available for you to read here.
Whether we’re ready or not, Labor Day traditionally marks a transition from summer to fall. Pumpkin flavored everything will soon be available at a coffee shop and restaurant near you, and Ohio’s agritourism farms will surely be busy.
Whether you are just getting your agritourism farm up and running, or a seasoned agritourism veteran, it never hurts to take a moment to think about your liability risks. The OSU Extension Agricultural & Resource Law Program has developed a number of resources, available on our publications webpage, that can help you think about ways to minimize the legal risks to you and your farm. These resources include:
- Ohio’s Agritourism Law – Ohio law grants liability protection for personal injuries suffered while participating in an agritourism activity. It also provides for special taxation and zoning of lands where agritourism activities occur. This law bulletin explains what your farm needs to do to be covered by the immunity, and how much protection it provides. Click HERE to read the law bulletin.
- Farm Animals and People: Liability Issues for Agritourism – Farm animals can be a valuable attraction for an agritourism operation, but having people and animals interact on the farm creates liability risks. This factsheet explains a range of animal liability risks and provides a checklist to think about what you can do to reduce the risk of injury to your visitors, as well as reduce the risk of a lawsuit. Click HERE to read the factsheet.
- Agritourism and Insurance – Even with immunity laws in place, a farmer must carefully consider the farm’s insurance needs and ensure that it has adequate coverage. This factsheet explains agritourism insurance, why it may be needed, and more. It also provides a checklist that may help an agritourism farmer make sure that certain important insurance questions are addressed before an accident occurs. Click HERE to read the factsheet.
- Agritourism Immunity Laws in the United States – Many states, including Ohio, have taken steps to encourage agritourism by providing agritourism farms with some degree of immunity to liability. We explain Ohio’s law more in depth in our law bulletin titled “Ohio’s Agritourism Law,” but this factsheet compares approaches taken in other states and provides a checklist that helps an agritourism farm think about how much protection it has under these laws. Click HERE to read the factsheet.
- Agritourism Activities and Zoning – Zoning is a force to be reckoned with in many states, but many states, including Ohio, have taken steps to encourage agritourism through zoning regulations. This factsheet explains how zoning and agritourism interact across the country, including an explanation of Ohio’s current approach. Click HERE to read the factsheet.
- Youth Labor on the Farm: Laws Farmers Need to Know – Many Ohio agritourism farms provide employment to youth, who are able to learn about agriculture, business, and customer service through working at the farm. Those hiring youth under the age of 18 want to make sure that they are following federal and Ohio labor laws. Our latest law bulletin explains the youth labor laws that are unique to agriculture. Click HERE to read the factsheet.
Food sales present some special issues that you will want to think about if you wish to sell food at your farm. Depending upon the foods you sell, you may have to obtain a retail food establishment license for food safety purposes. The following resources can help you think through the steps you must take to sell food at your agritourism farm:
- Food Sales at Agritourism Operations: Legal Issues – Whether you sell fresh produce, cottage foods or baked goods, or prepare and serve food on-site, there are legal risks and requirements that may come into play. This factsheet explains some of the legal issues you should consider before selling food at your farm, and provides a checklist of things to consider before you begin selling food. Click HERE to read the factsheet.
- Selling Foods at the Farm: When Do You Need a License? – This Ohio-specific factsheet explores farmers, including those operating an agritourism farm, need to register or obtain a license in order to sell food at the farm. Click HERE to read the law bulletin.
Beyond our website, many of our peers at OSU Extension have developed a number of helpful resources for agritourism farms. OSU Extension’s Agritourism Ready webpage, which you can access at u.osu.edu/agritourismready/, is designed to be a one stop shop for preparing an emergency management plan. You can also read factsheets on Ohioline related to agritourism ranging from “Creating Signage for Direct Food and Agricultural Sales” to “Grants and Low-Interest Loans for Ohio Small Farms,” and “Maps, Apps and Mobile Media Marketing” to “Selling Eggs in Ohio: Marketing and Regulations.”
As new legal issues arise, we will continue to create resources that help farmers understand and mitigate their risk. In the meantime, we wish everyone a fun and safe fall at Ohio’s agritourism farms.