Posts By Date
We haven’t done a legislative update in a while—so what’s been going on in the Ohio General Assembly? Without further ado, here is an update on some notable ag-related bills that have recently passed one of the houses, been discussed in committee, or been introduced.
- House Bill 7, “Create water quality protection and preservation”
This bill passed the House in June, but the Senate Finance Committee had a hearing on it just last month. HB 7 would create both the H2Ohio Trust Fund and the H2Ohio Advisory Council. To explain these entities in the simplest terms, the H2Ohio Advisory Council would decide how to spend the money in the H2Ohio Trust Fund. The money could be used for grants, loans, and remediation projects to address water quality priorities in the state, to fund research concerning water quality, to encourage cooperation in addressing water quality problems among various groups, and for priorities identified by the Ohio Lake Erie commission. The Council would be made up of the following: the directors of the Ohio Department of Agriculture (ODA), the Ohio Environmental Protection Agency (OEPA), and the Ohio Department of Natural Resources (ODNR) the executive director of the Ohio Lake Erie commission, one state senator from each party appointed by the President of the Senate, one state representative from each party appointed by the Speaker of the House, and appointees from the Governor to represent counties, municipal corporations, public health, business or tourism, agriculture, statewide environmental advocacy organizations, and institutions of higher education. Under HB 7, the ODA, OEPA, and ODNR would have to submit an annual plan to be accepted or rejected by the Council, which would detail how the agencies planned to use their money from the Fund. You can find the bill in its current form here.
- House Bill 24, “Revise Humane Society law”
HB 24 passed the House unanimously on October 30, and has since been referred to the Senate Committee on Agriculture & Natural Resources. The bill would revise procedures for humane society operations and require humane society agents to successfully complete training in order to serve. 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 160, “Revise alcoholic ice cream law”
Since our last legislative update, HB 160 has passed the House and is currently in Agriculture & Natural Resources Committee in the Senate. At present, those wishing to sell ice cream containing alcohol must in Ohio 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. To read the bill, click here.
- House Bill 168, “Establish affirmative defense-certain hazardous substance release”
This bill was passed in the House back in May, but there have been several committee hearings on it this fall. HB 168 would provide a bona fide prospective purchaser of a facility that was contaminated with hazardous substances before the purchase with immunity from liability to the state in a civil action. In other words, the bona fide prospective purchaser would not have the responsibility of paying the state of Ohio for their investigations and remediation of the facility. In order to claim this immunity, the purchaser would have to show that they fall under the definition of a bona fide prospective purchaser, that the state’s cause of action rests upon the person’s status as an owner or operator of the facility, and that the person does not impede a response action or natural resource restoration at the facility. You can find the bill and related information here.
- House Bill 183, “Allow tax credits to assist beginning farmers”
House Bill 183 was discussed in the House Agriculture & Rural Development Committee on November 12. This bill would authorize a nonrefundable income tax credit for beginning farmers who attend a financial management program. Another nonrefundable tax credit would be available for individuals or businesses that sell or rent farmland, livestock, buildings, or equipment to beginning farmers. ODA would be in charge of certifying individuals as “beginning farmers” and approving eligible financial management programs. HB 183 is available here. A companion bill (SB 159) has been introduced in the Senate and referred to the Ways & Means Committee, but no committee hearings have taken place.
- House Bill 373, “Eliminate apprentice/special auctioneer licenses/other changes”
HB 373 was introduced on October 22, and the House Agriculture & Rural Development Committee held a hearing on it on November 12. This bill would make numerous changes to laws applicable to auctioneers. For instance, it would eliminate the requirement that a person must serve as an apprentice auctioneer prior to becoming an auctioneer; instead, it would require applicants for an auctioneers’ license to pass a course. The bill would also require licensed auctioneers to complete eight continuing education hours prior to renewing their license. HB 373 would give ODA the authority to regulate online auctions conducted by a human licensed auctioneer, and would require people auctioning real or personal property on the internet to be licensed as an auctioneer. To read the bill in its entirety and see all the changes it would make, click here.
- Senate Bill 2, “Create watershed planning structure”
Since our last legislative post, SB 2 has passed the Senate and is now in 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. The text of SB 2 is available here.
- Senate Bill 234, “Regards regulation of wind farms and wind turbine setbacks”
Senate Bill 234 was just introduced on November 6, 2019. 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 minimum setback distances for wind farms might be measured. SB 234 is available here. A companion bill was also recently introduced in the House. HB 401 can be found here.
If you’ve been keeping up with the ag news lately, chances are you’ve heard a lot about the Renewable Fuel Standard (RFS). As a refresher, the RFS program “requires a certain volume of renewable fuel to replace the quantity of petroleum-based transportation fuel.” Renewable fuels include biofuels made from crops such as corn and soybeans. Lately, you may have heard discussion about a controversial new rule regarding the volumes of biofuels that are required to be mixed with oil. While all that talk has been going on, there has also been a lawsuit against the EPA for RFS exemptions given to certain oil refineries. Congress has been examining the exemptions as well. Having trouble keeping all of this RFS information straight? We’ll help you sort it out.
EPA proposes new RFS rule
As we explained in our last Ag Law Harvest post, available here, the Environmental Protection Agency (EPA) recently released a notice of proposed rulemaking, asking for more public comment on the proposed volumes of biofuels to be required under the RFS program in 2020 and 2021. Agricultural and biofuels groups are not pleased with the proposed blending rules, arguing that the way EPA proposes to calculate biofuel volumes would result in much lower volumes than they were originally promised by President Trump. (The original promise was made in part to make up for waivers the Trump EPA had given to oil refineries.) Conversely, EPA and the Trump administration contend that the proposed rule does meet the previously agreed upon biofuel volumes. A hearing on the proposed rule was held on October 30, where many agriculture and biofuels groups expressed their concerns. The oil industry was also represented at the hearing. Members of the oil industry feel that the cost of mixing in biofuels is too high. It is unlikely any deal was struck at the hearing, but there is still an opportunity to comment on the proposed rule if you wish. Comments are due on November 29, 2019. You can click here for commenting instructions, as well as for a link to submit your comment online.
Ag and biofuels groups sue the EPA
In the midst of the argument over how the volumes of biodiesel under the RFS will be calculated, another related quarrel has emerged. At the center of this dispute are exemptions EPA has given to “small refineries” in the oil industry. The number of exemptions given has increased drastically under the Trump administration, which in turn has lessened the demand for biofuels made from crops like corn and soybeans. On October 23, 2019, agriculture and biofuel groups filed a petition against the EPA in the U.S. Court of Appeals for the D.C. Circuit. In the petition, the groups ask the court to review a decision made in August 2019 which retroactively exempted over 31 small refineries from meeting their 2018 biofuels requirements. The petitioning groups include Renewable Fuels Association, American Coalition for Ethanol, Growth Energy, National Biodiesel Board, National Corn Growers Association, and National Farmers Union.
How does the small refinery exemption work?
Typically, an oil refinery would have to mix a set volume of renewable fuels, like biofuels, into their gasoline or diesel fuel. The volumes are set annually. Small refineries, which are defined as refineries where “the average aggregate daily crude oil throughput does not exceed 75,000 barrels,” can petition the EPA for an exemption from meeting their renewable fuel obligations. Exemptions are typically given temporarily if the refinery can show they would suffer economic hardship if they were made to blend their fuel with biofuel. A refinery seeking an exemption has to include a number of records showing their economic hardship in their petition, such as tax filings and financial statements. EPA’s website explaining the small refinery exemption is available here.
Why are ag and biofuel groups asking for judicial review?
Why are the groups we mentioned above upset about this particular set of small refinery exemptions? Well, first of all, the groups point to the brevity of the EPA’s decision. (The decision document can be found in the link to the petition, listed above.) The EPA’s decision document uses only two pages to explain their decision on 36 small refinery petitions. Because the decision was so short, the groups feel that EPA did not include the analysis of economic hardship for each refinery that they believe is required by the Clean Air Act and RFS regulations. Essentially, the groups argue that the EPA has not provided enough evidence or explanation for awarding the exemptions. You can read the groups’ press release explaining their reasoning here.
Underlying all of this is the fact that more small refinery exemptions means lower demand for biofuels. In fact, the ag and biofuel groups claim that due to the 31 exemptions made in August alone, 1.5 billion gallons of renewable fuel were not used. In addition, the 31 exemptions are just a few of many awarded by Trump’s EPA. By all accounts, since Trump took office, there has been a sharp increase in exemptions granted. EPA has data on the number of exemptions available here. The first year the Trump administration made exemptions is 2016.
Congress gets in on the action
It seems as though the House Subcommittee on Environment and Climate Change (part of the Committee on Energy and Commerce) is also worried about EPA’s exemptions, or waivers, for small oil refineries. On October 29, 2019, the Subcommittee held an oversight hearing entitled “Protecting the RFS: The Trump Administration’s Abuse of Secret Waivers.” In fact, in their memo about the hearing, the Subcommittee cited some of the same issues in the lawsuit we discussed above; namely the increase in waivers and the consequent effect on biofuel demand. Testimony was heard from both ag/biofuels and oil representatives.
In the hearing, the Subcommittee also considered the proposed “Renewable Fuel Standard Integrity Act of 2019.” The text of the bill is available here. The bill would require small refineries to submit petitions for exemptions from RFS requirements annually by June 1. Additionally, it would require information in the waiver petitions to be available to the American public. For information and documents related to the hearing, as well as a video stream of the hearing, click here.
What happens next?
As you can see, we’re playing a waiting game on three separate fronts. For the RFS rule, we’ll have to wait and see what kind of comments are submitted, and whether or not the EPA takes those comments into account when it writes the final rule. As for the lawsuit, all eyes are on the Court of Appeals for the D.C. Circuit. The court could determine that the law does indeed require EPA to include more information and analysis to explain their reasons for exemption. On the other hand, the court could find that EPA’s decision document is sufficient under the law. In Congress, we’ll have to wait and see whether the proposed bill gets out of the Committee on Energy and Commerce and onto the House floor. We will be keeping track of the RFS developments on all fronts and keep you updated on what happens!
Legalized hemp production in the U.S. took a major step forward today with the publication of the USDA’s rule establishing the “U.S. Domestic Hemp Production Program.” States and potential hemp growers have been awaiting this rule since the Farm Bill legalized hemp back in December 2018 but required that regulatory programs be established for overseeing hemp production. Today’s hemp rule sets up the regulatory framework for state departments of agriculture, Indian tribal governments and the USDA to license producers who want to grow hemp as a commodity crop.
What’s in the hemp rule?
The hemp rule lays out the requirements for establishing Hemp Production Plans within States or Tribal governments and creates a USDA administered licensing program for producers in areas that choose not to regulate hemp production. Other parts of the rule include definitions, appeal provisions, and reporting requirements. The rule also addresses the interstate transportation of hemp. Here’s a quick summary of provisions that affect Ohioans.
Requirements for State and Tribal Hemp Production Plans. A State or Tribe must include the following in a Hemp Production Plan that the USDA must approve before the State or Tribe can allow hemp production within its borders:
- Plans to maintain relevant producer and land information. A state must collect, maintain and provide USDA with contact and location information for each licensed hemp producer, including personal information about the individual or business and location information about the land where hemp is produced.
- Plans for accurate and effective sampling and testing. A plan must include procedures for collecting hemp flower samples; conducting sampling and testing of plants 15 days prior to any harvest; ensuring that sampling methods are reliable and represent a homogeneous composition of the sampling area; preventing commingling of plants from different sampling areas; requiring that producers are present during sampling; and allowing samplers to have unrestricted access to hemp plants and all land and facilities used for cultivating or handling hemp.
- Procedures to accurately test THC levels in samples. The rule lays out suggested reliable testing methods but does not establish a single, national testing procedure for determining whether a hemp plant falls beneath the 0.3 threshold for THC, the psychoactive ingredient that distinguishes hemp from marijuana. However, a State or Tribe must use a testing lab that is registered with the Drug Enforcement Agency and must require the lab to follow testing performance standards. The standards must include evaluation of “measurement of uncertainty,” a concept similar to determining the margin of error, and must account for the uncertainty in THC test results.
- Procedures for disposal of non-compliant plants. A State or Tribal plan must prohibit any handling, processing, or entering the stream of commerce of any hemp grown in an area that exceeds the acceptable THC level and must have procedures for disposing of the plants, verifying disposal, and notifying USDA of non-compliant plants, including provision of test results to USDA.
- Inspection procedures. A plan must include procedures for annual inspections of random samples of licensed producers.
- Reporting procedures. A plan must explain how a State or Tribe will submit all of the information and reports required by the rule, which includes monthly producer reports, monthly hemp disposal reports, and annual reports of total planted, harvested, and disposed acreage. The plan must also require producers to report crop acreage to the Farm Service Agency.
- Corrective action plans. A required corrected action plan will address procedures for allowing producers to correct negligent regulatory violations such as failing to provide a legal description, failing to obtain a license, and exceeding the THC level. The procedures must include a reasonable compliance date, reporting by the producer for two years after a violation, five years of ineligibility for producers with three negligence violations with a five-year period, and inspections to ensure implementation of corrective action plans.
- Enforcement for culpable violations. A plan must have procedures for reporting any intentional, knowing, willful or reckless violations made by producers to the U.S. Attorney General and chief law enforcement officers of the State or Tribe.
- Procedures for addressing felonies and false information. The plan must not allow a producer with a felony conviction relating to controlled substances to be eligible for a hemp license for a period of ten years from the felony conviction, and must prohibit a producer who materially falsifies information on an application to be ineligible for a license.
Plan review by USDA. The rule states that after a State or Tribe submits a hemp plan, USDA has 60 days to approve or deny the plan. The rule also allows USDA to audit approved state plans at least every three years.
Interstate commerce of hemp. The rule reiterates an important provision first mentioned in the 2018 Farm Bill: that no state can prohibit transportation of hemp or hemp products lawfully produced under an approved state plan or a USDA license.
USDA issued licenses. A producer in a state that chooses not to regulate hemp production may apply to the USDA for a license to cultivate hemp. The USDA’s sets forth its licensing program requirements in the rule, which are similar to provisions for State and Tribal Hemp Production Plans.
Effective date: today
It’s important to note that the USDA published the rule as an “interim final rule” that becomes effective upon its publication in the Federal Register, which is today, October 31, 2019. Federal law allows an agency to forego the typical “notice and comment” period of rulemaking and publish a final rule if there is good cause for doing so. USDA explains that good cause exists due to Congress’s interest in expeditious development of domestic hemp production, critically needed guidance to stakeholders who’ve awaited publication of the hemp rule, previous outreach efforts, and the public’s interest in engaging in a new and promising economic endeavor. The immediacy of USDA’s rule allows the agency to begin reviewing State and Tribal Hemp Production Plans now, in hopes that producers will be able to plant hemp for the 2020 growing season. USDA is seeking public input on the interim final rule for the next sixty days, however, and plans to consider such comments when it replaces the interim final rule with a “final rule” in two years time.
Is Ohio ready?
While Ohio’s Department of Agriculture (ODA) won’t be the first in line to have its hemp production program reviewed under the new USDA program, Ohio won’t be too far behind the twenty states and tribes that are already awaiting review. ODA proposed Ohio’s hemp regulations earlier this month after the General Assembly decriminalized hemp and authorized the agency to develop a hemp program in July of this year via Senate Bill 57. The USDA rule comes just one day after ODA closed the comment period on the proposed rules, which we summarize here. Once ODA publishes the final hemp regulations, it can proceed to submit Ohio’s Hemp Production Plan to the USDA for approval. Ohio’s timing may prove beneficial, as ODA now has the opportunity to review the USDA rule and ensure that Ohio’s plan will meet the federal requirements.
Our comparison of Ohio’s hemp laws and regulations to the USDA’s hemp rule indicates that Ohio is well prepared to meet the hemp rule requirements. Only a few provisions in the federal rule may require additional attention by Ohio before ODA submits its plan for USDA approval. Key among those are procedures for THC testing methods (technical details not included in Ohio’s proposed regulations) and procedures for corrective action plans (which are not clearly laid out in the proposed regulations but are addressed in Senate Bill 57). One potential conflict between the federal and Ohio rules regards destruction of hemp plants that exceed the allowable 0.3 THC level. The federal rule prohibits any further handling, processing or entering into the stream of commerce of any hemp plants from the sampling area and requires disposal of non-compliant plants, while Ohio’s regulations allow bare hemp stalks for fiber that is free of leaf, seed and floral material to be harvested, processed and used while all other material from plants that exceed 0.3 THC must be destroyed. We’ll soon see how ODA handles these and other issues when it submits Ohio’s Hemp Production Plan for USDA approval.
Read the interim final rule on “Establishment of a Domestic Hemp Production Program” here, which is also the site for submitting comments on the rule. USDA will accept public comments until December 30, 2019.
Written by: Ellen Essman and Peggy Hall
October is almost over, and while farmers have thankfully been busy with harvest, we’ve been busy harvesting the world of ag law. From meat labeling to RFS rules to backyard chickens and H-2A labor certification, here’s our latest gathering of agricultural law news you may want to know:
Federal judge upholds Missouri’s meat labeling law—for now. Missouri passed a law in 2018, which among other things, prohibited representing a product as “meat” if it is not derived from livestock or poultry. As you can imagine, with the recent popularity of plant-based meat products, this law is controversial, and eventually led to a lawsuit. However, U.S. District Judge Fernando Gaitan Jr. decided not issue a preliminary injunction that would stop the Missouri Department of Agriculture from carrying out the labeling law. He reasoned that since companies like Tofurky, who brought the suit, label their products as plant-based or lab-grown, the law does not harm them. In other words, since Tofurky and other companies are not violating the law, it doesn’t make sense to stop enforcement on their account. Tofurky, the American Civil Liberties Union, and the good Food Institute have appealed Judge Gaitan’s decision, asserting that Missouri’s law infringes upon their right to free speech. This means that the Missouri law can be enforced at the moment, but the decision is not final, as more litigation is yet to come.
Oregon goes for cage-free egg law. In August, Oregon passed a new law that would require egg-laying chickens, turkeys, ducks, geese, or guinea fowl to be kept in a “cage-free housing system.” This law will apply to all commercial farms with more than 3,000 laying hens. A cage-free housing system must have both indoor and outdoor areas, allow the hens to roam unrestricted, and must have enrichments such as scratch areas, perches, nest boxes and dust bathing areas. As of January 1, 2024, all eggs sold in the state of Oregon will have to follow these requirements for hens. The law does allow hens to be confined in certain situations, like for veterinary purposes or when they are part of a state or county fair exhibition.
City can ban backyard chickens, says court. The Court of Appeals for Ohio’s Seventh District upheld the city of Columbiana’s ordinances, which ban keeping chickens in a residential district, finding that they were both applicable to the appellant and constitutional. In this case, the appellant was a landowner in Columbiana who lived in an area zoned residential and kept hens in a chicken coop on his property. The appellant was eventually informed that keeping his hens was in violation of the city code. A lawsuit resulted when the landowner would not remove his chickens, and the trial court found for the city. The landowner appealed the trial court’s decision, arguing that he did not violate the city ordinances as they were written, and that the city applied the ordinances in an arbitrary and unreasonable way because his chickens did not constitute a nuisance. Although keeping chickens is not explicitly outlawed in Columbiana, the Court of Appeals for Ohio’s Seventh District found that reading the city’s zoning ordinances all together, the “prohibition on agricultural uses within residential districts can be inferred.” Furthermore, the court pointed out that the city’s code did not ban chickens in the whole city, but instead limited them to agricultural districts, and that the prohibition in residential areas was meant to ensure public health. For these reasons, the court found that the ordinances were not arbitrarily and unreasonably applied to the appellant, and as a result, the ordinances are constitutional. To read the decision in its entirety, click here.
EPA proposes controversial Renewable Fuel Standard rule. On October 15, EPA released a notice of proposed rulemaking, asking for more public comment on the proposed volumes of biofuels to be required under the Renewable Fuel Standard (RFS) program in 2020. The RFS program “requires a certain volume of renewable fuel to replace the quantity of petroleum-based transportation fuel” and other fuels. Renewable fuels include biofuels made from crops like corn, soybeans, and sugarcane. In recent years, the demand for biofuels has dropped as the Trump administration waived required volumes for certain oil refiners. The administration promised a fix to this in early October, but many agricultural and biofuels groups feel that EPA’s October 15 proposed rule told a different story. Many of these groups are upset by the proposed blending rules, claiming that way the EPA proposes calculate the biofuel volumes would cause the volumes to fall far below what the groups were originally promised by the administration. This ultimately means the demand for biofuels would be less. On the other hand, the EPA claims that biofuels groups are misreading the rule, and that the calculation will in fact keep biofuel volumes at the level the administration originally promised. The EPA plans to hold a public hearing on October 30, followed by a comment period that ends November 29, 2019. Hopefully the hearing and comments will help to sort out the disagreement. More information is available here, and a preliminary version of the rule is available here.
New H-2A labor certification rule is in effect. The U.S. Department of Labor has finalized one of many proposed changes to the H-2A temporary agricultural labor rules. A new rule addressing labor certification for H-2A became effective on October 21, 2019. The new rule aims to modernize the labor market test for H-2A labor certification, which determines whether qualified American workers are available to fill temporary agricultural positions and if not, allows an employer to seek temporary migrant workers. An employer may advertise their H-2A job opportunities on a new version of the Department’s website, SeasonalJobs.dol.gov, now mobile-friendly, centralized and linked to third-party job-search websites. State Workforce Agencies will also promote awareness of H-2A jobs. Employers will no longer have to advertise a job in a print newspaper of general circulation in the area of intended employment. For the final rule, visit this link.
And more rules: National Organic Program rule proposals. The USDA has also made two proposals regarding organic production rules. First is a proposed rule to amend the National List of Allowed and Prohibited Substances for organic crops and handling. The rule would allow blood meal made with sodium citrate to be used as a soil amendment, prohibit the use of natamycin in organic crops, and allow tamarind seed gum to be used as a non-organic ingredient in organic handling if an organic form is not commercially available. That comment period closes on December 17, 2019. Also up for consideration is USDA’s request to extend the National Organic Program’s information collection reporting and recordkeeping requirements, which are due to expire on January 31, 2020. The USDA’s Agricultural Marketing Service specifically invites comments by December 16, 2019 on: (1) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Great Lakes restoration gets a boost from EPA. On October 22, 2019, the EPA announced a new action plan under the Great Lakes Restoration Initiative (GLRI). The plan will be carried out by federal agencies and their partners through fiscal year 2024. Past GLRI action plans have removed environmental impairments on the lakes and prevented one million pounds of phosphorus from finding its way into the lakes. The plans are carried out by awarding federal grant money to state and local groups throughout the Great Lakes, who use the money to carry out lake and habitat restoration projects. Overall, the new plan’s goals are to remove toxic substances from the lakes, improve and delist Areas of Concern in the lakes, control invasive species and prevent new invasive species from entering the lakes, reduce nutrients running off from agriculture and stormwater, protect and restore habitats, and to provide education about the Great Lakes ecosystem. You can read EPA’s news release on the new plan here, and see the actual plan here. We plan to take a closer look at the plan and determine what it means for Ohio agriculture, so watch for future updates!
Unfortunately, the death of a farmland owner can create conflict within a family. Often, transition planning by the deceased could have prevented the conflict. Such is the case in a family disagreement that ended up before Ohio’s Third District Court of Appeals. The case pitted two brothers against one another, fighting over ownership of the family farm.
When their mother passed away in 2006, the five Verhoff siblings decided to sell the family farm. Two of the brothers wanted to purchase the farm, but one of them was also the executor of the estate. The estate’s attorney advised the executor brother that he should not buy the land directly from the estate due to his fiduciary duties as executor. The attorney recommended that the executor wait and purchase one-half of the farm from the other brother after it was transferred from the estate to the other brother.
Following a series of discussions between the two brothers, the executor brother sent half of the farm’s purchase price to the other brother and issued the farm’s deed to the other brother. Over the next eight years, the two brothers shared a joint checking account used to deposit rental income from the farmland and to pay for property taxes and utilities on the property. But when the executor brother asked the other brother for a deed showing the executor brother’s half-interest in the farm, the other brother claimed that the executor brother did not have an ownership interest. The money rendered by the executor brother was a loan and not a purchase, claimed the other brother. The other brother then began withholding the farm rental payments from the joint checking account. The relationship between the two brothers broke down, and in 2016, the executor brother filed a lawsuit to assert his half-ownership of the farm and his interest in the rental payments.
At trial, a jury found that the brothers had entered into a contract that gave the executor brother half ownership of the farm upon paying half of the purchase price to the other brother. The trial court ordered the other brother to pay the executor brother half of the current value of the farm and half of the rental income that had been withheld from the executor brother. The other brother appealed the trial court’s decision. The court of appeals did not agree with any of the other brother’s arguments, and upheld the trial court’s decision that a contract existed and had been violated by the other brother. Two of the arguments on appeal raised by the other brother are most relevant: that Ohio’s statute of frauds required that the contract be in writing and that the contract was illegal because an executor cannot purchase land from an estate.
A contract for the sale of land should be in writing, but there are exceptions
Ohio’s “Statute of Frauds” provides that a contract or sale of land or an interest in land is not legally enforceable unless it is in writing and signed by the party to be charged. The other brother argued that because there was no written agreement about the ownership of the farm, the situation did not comply with the Statute of Frauds and could not be enforceable. However, the court focused on an important exception to the Statute of Frauds: the doctrine of partial performance. The doctrine removes a verbal contract from the writing requirement in the Statute of Frauds if there are unequivocal acts of performance by one party in reliance upon a verbal agreement and if failing to enforce the verbal agreement would result in fraud, injustice, or hardship to that party who had partly performed under the agreement.
Based upon evidence produced by the executor brother, the appeals court agreed with the trial court in determining that an oral contract did exist between the two brothers and that the executor brother had performed unequivocal acts in furtherance of the verbal contract. The court explained that the executor brother had endured “risks and responsibility” by giving the other brother money with the expectation that he would receive rental income from the farm and own a one-half interest in the property. An injustice would occur if the verbal contract was not enforced because of the Statute of Frauds, as the other brother would receive a windfall at the executor brother’s expense, said the court. The court concluded that because the doctrine of partial performance had been met, the writing requirement in the Statute of Frauds should be set aside.
Did the executor brother violate his fiduciary duties by purchasing the land?
The other brother also claimed that the verbal contract was illegal because the executor brother made a sale from the estate to himself. According to the other brother, the sale violated Ohio Revised Code section 2109.44, which prohibits fiduciaries from buying from or selling to themselves or having any individual dealings with an estate unless authorized by the deceased or the heirs.
The court pointed out, however, that the executor brother did not buy the farm from the estate. Instead, the executor brother purchased the farm through a side agreement with the other brother who purchased the farm from the estate. The court noted that this type of arrangement could be voidable if other heirs challenged it. But since no other heirs did so, the court determined that the executor brother had not violated his fiduciary duties to the estate and allowed the side agreement to stand.
Estate and transition planning can help prevent family disputes
Imagine the toll this case took on the family. It’s quite possible that parents can prevent these types of conflicts over what happens to the farm when they pass on. An initial step for parents is to determine which heirs want to transition into owning and managing the farm, and what their future roles with the farm might be. This often raises other tough questions parents must face: how to provide an inheritance to children who don’t want the farm when other children do want the farm? Must or can the division of assets be equal among the heirs? What about other considerations, such as children with special issues or not having heirs who do want to continue the farm? These are difficult but important questions parents can answer in order to prevent conflict and irreparable harm to the family in the future.
The good news is that there are legal tools and solutions for these and the many other situations parents encounter when deciding what to do with the farm and their assets. An attorney who works in transition planning for farmers will know those solutions and can tailor them to a family’s unique circumstances. One agricultural attorney I know promises that there’s a legal solution for every farm family’s transition planning issues. Working through the issues is difficult, but identifying tools and a detailed plan for the future can be satisfying. And it will almost certainly prevent years of litigation.
The text of the opinion in Verhoff v. Verhoff, 2019-Ohio-3836 (3rd Dist.) is HERE. For more information about farm estate and transition planning, be on the lookout for our soon-to-be released Farm Transition Matters law bulletin series or catch us at one of our Farm Transition Planning workshops this winter.
Mentoring is a rewarding part of my position with OSU, but it is often a bittersweet experience to see young people come and go. Such is the case with our law fellow Evin Bachelor, whom I’ve had the privilege of mentoring for the past two years. Evin left the Farm Office on September 30 to pursue private practice.
While I’m happy to send Evin off to serve farmers with his brilliant legal mind, I’m sad to see him go. I will miss his passion, his cleverness, his analytical gifts, and his hearty laugh. But it’s been a joy to help Evin evolve from a law student curious about agricultural law to an attorney prepared to impact the world of agricultural law. He has deftly exceeded every challenge I’ve given him.
One of those challenges was to co-author a set of law bulletins on legal documents used in farm financing arrangements, his final project. The Financing the Farm law bulletin series, which specifically targets new and beginning farmers, is now available. The series includes explanations of mortgages, promissory notes, installment contracts, leasing arrangements and secured transactions, and how they’re used in farm financing. Access the law bulletins in the Financing the Farm series here.
Evin will be practicing law with our good friends at Wright & Moore Law Co. LPA in Delaware, Ohio. He's an excellent addition to an already outstanding agricultural law firm. You’ll continue to see his work on the Farm Office, however, as I’ll be contracting with Evin on a few more finance and farm transition projects in the next year. The mentorship and Evin’s time at OSU is over, but the relationship will continue. A bittersweet ending, to be sure.
In August, the Secretary of the Interior announced that the Trump Administration would be making revisions to the way the Endangered Species Act (ESA) is carried out under federal regulations. The move was made in part to further the Administration’s goal to “ease the regulatory burden” on citizens. The revised regulations apply to sections 4 and 7 of the ESA, which means they make changes to how species are listed as endangered, how critical habitat for species is determined, how threatened species are treated, and how the different federal agencies cooperate to carry out the ESA.
Revision of endangered, threatened, and critical habitat protections
The changes to how the ESA is carried out were made in three rulemakings published on August 27, 2019. One of the rules, available here, is meant to increase cooperation between federal agencies when carrying out the ESA (this rule is set to become effective on October 28). Changes made by the other two rules, available here, and here, are much more controversial because they have a great impact on how endangered and threatened species and their habitats are treated under federal regulations. The new rules went into effect on September 26, 2019. We discuss some of the biggest modifications below.
First, the rules change the term “physical or biological features” to “physical or biological features essential to the conservation of the species.” This change will likely diminish the number of natural features and areas that will be protected, since only those deemed essential to an endangered species will be protected. Similarly, the new rules give the federal government more leeway to determine when habitat is not critical habitat for species, which may result in less habitat being protected under the new iteration of the rules.
In yet another change, the new rules separate the discussion of “threatened” and “endangered” species within the regulatory text. Due to this uncoupling, some read the new version of the rule as stripping threatened species of protections they enjoyed when they were more closely related to endangered species. The new edition of the rules instead includes factors for determining whether a species can be listed as threatened, such as whether it is likely the species will become endangered in the “foreseeable future,” which will be determined on a case by case basis. Critics of the new rules believe that this language will give the government the discretion to overlook the effects of climate change on a species, which could play out over a period of time longer than the “foreseeable future.” Along the same lines, the rules also make it harder to ban certain activities in order to protect threatened species.
The rules weaken the ESA by allowing the federal government to take into account the actions of states, other nations, and local jurisdictions when listing and delisting species. In other words, if the species is being protected on another level of government or by another country, the U.S. government may be less inclined to protect the species; either by choosing not to list the species, or by removing its threatened or endangered status. Importantly, the new rules also allow “commercial information,” not just scientific information, to be considered when making a decision. Under the old rules, agencies were not allowed to consider the economic impacts of listing or delisting a species. On the whole, the rules seem to give the federal government a lot more discretion to determine that species or habitats should not be protected.
On September 25, 2019, the day before the new rules became effective, the attorneys general from 17 states, including Ohio’s neighbors Michigan and Pennsylvania, sued the Trump Administration in federal court over the changes to the rules. You can find the complaint here. The states assert that the rulemaking violates several federal statutes, including the Administrative Procedure Act, which governs federal administrative agencies. The states further claim that the weakening of protections for endangered and threatened species and their habitats will cause harm to their natural resources, harm to their citizens through environmental degradation, take away the current and future economic benefits of protected species, and increase costs for state governments.
Amidst all the rule changes and lawsuits, members of Congress have been working on their own potential changes to the ESA. Recently, the Congressional Western Caucus, a group of congress members from all around the country who are concerned with land use and resource rights, among other causes, introduced nineteen bills meant to “modernize” the ESA. If you’re interested in the specifics of each bill, they are listed on the Caucus’ website, here. Overall, the bills focus on fixing the ESA by implementing “defined recovery goals” for species, relying on “standardized…publically available” science, and allowing more involvement from states and stakeholders on endangered species decisions.
With action taking place on the administrative, legislative, and judicial levels of the federal government, the way the ESA is written and interpreted seems to be up in the air at present. We will be sure to update the Ag Law Blog with any developments.
By Peggy Kirk Hall and Ellen Essman
Ohio’s newly created hemp program is one step further toward getting off the ground. On October 9, the Ohio Department of Agriculture (ODA) released its anxiously awaited proposal of the rules that will regulate hemp production in Ohio. ODA seeks public comments on the proposed regulations until October 30, 2019.
There are two parts to the rules package: one rule for hemp cultivation and another for hemp processing. Here’s an overview of the components of each rule:
1. Hemp cultivation
The first rule addresses the "cultivation" of hemp, which means "to plant, water, grow, fertilize, till or havest a plant or crop." Cultivating also includes "possessing or storing a plant or crop on a premises whre the plant was cultivated until transported to the first point of sale." The proposal lays out the following regulatory process for those who wish to cultivate hemp in Ohio.
Cultivation licenses. Anyone who wants to grow hemp must receive a hemp cultivation license from the ODA. Licenses are valid for three years. To obtain a license, the would-be hemp cultivator must submit an application during the application window, which will be between November 1 and March 31. The application requires the applicant to provide personal information about the applicant, and if the applicant is a business, information about who is authorized to sign on behalf of the business, who will be primarily responsible for hemp operations and the identity of those having a financial interest greater than ten percent in the entity. The cultivation license application will also seek information about each location where hemp will be grown, including the GPS coordinates, physical address, number of outdoor acres or indoor square footage, and maps of each field, greenhouse, building or storage facility where hemp will grow or be stored. Cultivators must pay a license application fee of $100, and once licensed, an additional license fee of $500 for each growing location, which the rule defines as "a contiguous land area or single building in which hemp is grown or planned to be grown." All applicants and anyone with a controlling interest in the hemp cultivation business must also submit to a criminal records check by the bureau of criminal identification and investigation.
Land use restrictions. The proposed rules state that a licensed hemp cultivator shall not:
- Plant or grow cannabis that is not hemp.
- Plant or grow hemp on any site not approved by the ODA.
- Plant, grow, handle or store hemp in or within 100 feet of a residential structure or 500 feet of a school or public park, unless for approved research.
- Co-mingle hemp with other crops without prior approval from ODA.
- Plant or grow hemp outdoors on less than one-quarter acre, indoors on less than 1,000 square feet, or in a quantity of less than 1,000 plants without prior approval from ODA.
- Plant or grow hemp within half a mile of a parcel licensed for medical marijuana cultivation.
- Plant or grow hemp on property that the license holder does not own or lease.
Hemp harvesting. Licensed growers would be required to submit a report to ODA at least 15 days before their intended harvest date and pay a pre-harvest sample fee of $150. ODA then has to sample the hemp for THC content, and only if approved can a cultivator harvest the crop, which in most cases must occur within 15 days after the sample is taken. Failing to harvest within the 15-day window might require a secondary sampling and sampling fee. A cultivator would be required to have a hemp release form from ODA before moving any harvested materials beyond the storage facility.
Random sampling. The proposed rules also allow for random sampling of hemp by ODA and provide details on how ODA will conduct the sampling and charge sampling fees. Any cultivator is subject to random sampling in each location where hemp has been cultivated. ODA will report testing results that exceed 0.3 THC to the cultivator, who may request a second sample. A cultivator must follow procedures for destroying any leaf, seed, or floral material from plants that exceed 0.3 THC and any material that was co-mingled with the 0.3 THC materials, but may harvest bare hemp stalks for fiber.
Destruction of hemp. Under the proposed regulations, a license holder must submit a destruction report before destroying hemp and ODA must be present to witness the destruction. The proposed rules also authorize ODA to destroy a crop that was ordered destroyed, abandoned, or otherwise not harvested and assess the costs against the licensee.
Reporting and recordkeeping are also important in the proposed rules. Licensed cultivators must submit a planting report on an ODA form for each growing location by July 1 or within 15 days of planting or replanting, which shall include the crop’s location, number of acres or square footage, variety name, and primary intended use. The rule would also require licensees to submit a completed production report by December 31 of each year. A licensee that fails to submit the required reports would be subject to penalties and fines. Cultivators must maintain planting, harvest, destruction and production reports for three years.
Control of volunteer plants. A licensee must scout and monitor unused fields for volunteer hemp plants and destroy the plants for a period of three years past the last date of reported planting. Failing to do so can result in enforcement action or destruction of the plants by ODA with costs assessed to the licensee.
Pesticide and fertilizer use. The laws and rules that apply to other crops will also apply to hemp, except that when using a pesticide on a site where hemp will be planted, the cultivator must comply with the longest of any planting restriction interval on the product label. ODA may perform pesticide testing randomly, and any hemp seeds, plants and materials that exceed federal pesticide residue tolerances will be subject to forfeiture or destruction without compensation.
Prohibited varieties. The proposed rule states that licensed cultivators cannot use any part of a hemp plant that ODA has listed as a prohibited variety of hemp on its website.
Clone and seed production. Special rules apply to hemp cultivators who plan to produce clones, cuttings, propagules, and seed for propagation purposes. The cultivator can only sell the seeds or plants to other licensed cultivators and must maintain records on the variety, strain and certificate of analysis for the “mother plants.” The licensee need not submit a harvest report, but must keep sales records for three years of the purchaser, date of sale, and variety and number of plants or seeds purchased.
Cultivation research. Universities may research hemp cultivation without a license but private and non-profit entities that want to conduct research must have a cultivation license. Cultivation research licensees would be exempt from many parts of the proposed rules, but must not sell or transfer any part of the plants and must destroy the plants when the research ends.
Enforcement. The proposed rule grants authority to the ODA to deny, suspend or revoke cultivation licenses for those who’ve provide false or misleading information, haven’t completed a background check, plead guilty to a felony relating to controlled substances within the past 10 years, or violated the hemp laws and rules three or more times in a five-year period.
2. Hemp processing
The proposed rules package by ODA also addresses processing, which the rule defines as “converting hemp into a hemp product” but does not include on-farm drying or dehydrating of raw hemp materials by a licensed hemp cultivator for sale directly to a licensed hemp processor. Because of this definition, many farmers who want only to grow and dry hemp would need only a cultivation license. Growers who want to process their licensed hemp into CBD oil or other products, however, must also obtain a processing license. The processing rules follow a similar pattern to their cultivation counterpart, as follows.
Processing licenses. In addition to submitting the same personal, business and location information as a cultivation license requires, a hemp processing license application must list the types of hemp products that the processor plans to produce. An “extraction operational plan” including safety measures and guidelines is required for processors who want to extract CBD from hemp to produce their product, and an applicant must indicate compliance with all building, fire, safety and zoning requirements. The amount of the license fee depends on what part of the hemp plant the processor plans to process. Processing raw hemp fiber, for example, requires a $500 license fee for each processing site, whereas processing the raw floral component of hemp requires a $3000 fee for each site. Like the cultivation license, a processing license is valid for three years. Applicants and those with a controlling interest in the business must submit to a background check.
Land use restrictions. The proposed regulations would prevent a licensed processor from:
- Processing or storing any cannabis that is not hemp.
- Processing or storing hemp or hemp products on any site not approved by ODA.
- Processing, handling, or storing hemp or hemp products in or adjacent to a personal residence or in any structure used for residential use or on land zoned for residential use.
- Processing hemp within 500 feet of a school or public park, except for approved research.
Financial responsibility. A licensed processor must meet standards of financial responsibility, which require having current assets at least $10,000 or five percent of the total purchase of raw hemp materials in the previous calendar year, whichever is greater, and possessing a surety bond.
Inspection and sampling. As with cultivation licensees, hemp processing licensees would be subject to inspection and sampling by ODA under the proposed rule.
Food safety regulations. The proposed rule requires hemp processes to comply with federal and state food safety regulations.
Sources and extraction of cannabinoids (CBD). A processor who wants to extract or sell CBD products must obtain the materials from a licensed or approved cultivator or processor in Ohio or another state with hemp cultivation licenses. The regulation outlines components of the extraction operational plan that a processor must submit with the processing application, as well as acceptable extraction methods and required training.
Product testing. A hemp processor must test hemp products at an accredited testing laboratory before selling the products. The proposed rule describes the testing procedures, which address microbial contaminants, cannabinoid potency, mycotoxins, heavy metals, pesticide and fertilizer residue and residual solvents. There are testing exemptions, however, for hemp used exclusively for fiber, derived exclusively from hemp seed and hemp extracts. The testing laboratory must create a certificate of analysis for each batch or lot of the tested hemp product.
Processor waste disposal. Under the proposed rule, a licensed processor must follow procedures for proper disposal of hemp byproducts and waste and must maintain disposal records.
Product labeling requirements are also proposed in the rule. A processor must label all hemp products except for those made exclusively from hemp fiber as outlined in the rule and in compliance with federal law and other existing Ohio regulations for standards of identify and food coloring.
Recordkeeping. As we’d expect, the proposal states that hemp processors must maintain records for five years that relate to the purchase of raw, unprocessed plant materials, the purchase or use of extracted cannabinoids, and the extraction process.
Prohibited products. Finally, the proposed rules include a list of hemp products that cannot be offered for sale, which includes hemp products with over 0.3 percent THC by dry weight basis, hemp products which laboratory testing determines do not meet standards of identity or that exceed the amount of mytoxins, heavy metals, or pesticides allowed, and any hemp products produced illegally.
What’s next for the hemp rules?
Keep in mind that these rules are not yet set in stone; they are a simply a proposal for hemp licensing rules in Ohio. Those interested in cultivating or processing hemp in the future should read the draft rules carefully. The proposed rule for hemp cultivation is here and the proposal for hemp processing is here. Anyone can submit comments on the proposed rules here. Your comments could affect what the final hemp rules require for hemp cultivators and processors. After ODA reviews all comments, it will issue its final hemp licensing regulations.
Federal law requires that after Ohio finalizes its rules, ODA must submit them to the USDA for approval. That approval won’t occur, however, until USDA completes its own hemp regulations, which are due out in proposal form any day now. Ohio’s rules will become effective once USDA approves them, hopefully in time for the 2020 planting season. Stay tuned to the Ag Law Blog to see what happens next with hemp production in Ohio.
Farm Science Review is upon us, and we’re hoping that the low-80s forecast holds true. In addition to checking the weather report, we’ve been monitoring the news for developments in the agricultural law world, and quizzing each other on agricultural law topics so that we’re ready to answer your questions. While we hope you come see our presentations (speaking schedule available HERE), we won’t make you wait until you see us at the Molly Caren Agricultural Center in London to learn what we’ve found in the news.
Here’s our latest gathering of agricultural law news you may want to know:
Family Farmer Relief Act of 2019 signed into law. We’ve talked about this bill on the ag law blog, and now it’s official. With the President’s signature, the debt limit for family farmers seeking to reorganize under Chapter 12 bankruptcy increases to $10 million from an adjusted $4.4 million.
No vote on community rights in Williams County, yet. A proposed county charter for Williams County, Ohio containing language similar to the Lake Erie Bill of Rights may not make it on the November ballot. The Ohio Supreme Court recently refused to compel the Williams County Board of Elections (BOE) to include the charter on the ballot for procedural reasons.
The charter would have declared that the people of Williams County have the right to a healthy environment and sustainable community, and that the Michindoh Aquifer and its ecosystem have the right to exist, flourish, evolve, regenerate. Further, the aquifer would have the right of restoration, recovery, and preservation, including the right to be free from interferences such as the extraction, sale, lease, transportation, or distribution of water outside of the aquifer’s boundary.
Even though the petition to put the charter on the ballot had enough signatures, the BOE believed that the language of the charter violated Ohio law, and therefore exercised its power to reject the petition and keep it off the ballot. The petitioners appealed the BOE’s decision to the Williams County Court of Common Pleas, and that court agreed with the BOE. Instead of going to the Court of Appeals, the petitioners tried to go directly the Ohio Supreme Court because the BOE will soon print the November ballots. The Ohio Supreme Court said the petitioners should have gone to the Court of Appeals first, and that it will not decide on whether the BOE has to include the charter on the ballot until the petitioners do so.
This doesn’t mean the end for the proposed charter, but rather that more court time is in the proposed charter’s future. To read the Ohio Supreme Court’s opinion, click HERE. To read the text of the proposed charter, click HERE.
Hemp, hemp, and more hemp. Legal and policy updates on hemp continue to trickle down from state and federal officials. Since our last blog post, when we released our latest law bulletin on the legal status of hemp in Ohio, there have been a couple additional developments.
One of the latest updates we’ve heard from USDA is that industrial hemp growers in states with a USDA-approved hemp production plan may apply for crop insurance to cover hemp grown for fiber, flower, or seeds starting next year. Ohio is in the process of putting together a hemp program to send to the USDA for approval. Ohio farmers still cannot legally grow hemp until the Ohio Department of Agriculture creates a hemp program and the USDA approves that program, but we are expecting rules to be released from those agencies in the coming weeks. For more about the crop insurance update, read the Risk Management Agency’s press release HERE.
Closer to home, we’ve heard that the Ohio Department of Agriculture (ODA) has requested $3.3 million from the Ohio Controlling Board for staffing along with IT equipment and support. Further, ODA has made statements predicting that it expects to have its rule hemp program rule package ready by the end of the year.
Federal court orders U.S. EPA to reconsider Renewable Fuel Standards waivers and their impact on endangered species. The U.S. EPA is responsible for creating fuel standards that incorporate and blend renewable sources of energy under the Clean Air Act. These standards tell refineries how much of their fuel blend must come from renewable sources of energy; however, the U.S. EPA also has the authority to grant waivers to companies that would have difficulty meeting the standard. The court noted that some industry groups felt that the 2018 rules were too strict, while others argued that they were too lax. The court ended up dismissing all but one of the claims against the U.S. EPA, saying that Congress gave it discretion in developing the standards. However, the court sent the rule back to the U.S. EPA due to an argument by environmental groups that the federal agency failed to conduct a thorough review of the risk to endangered animals, plants, and habitats under the Endangered Species Act. Many farm groups have criticized the Trump administration’s granting of waivers for causing a reduction in demand for their products from energy companies, but it appears that they will have to make their arguments to the administration rather than to the courts. To read the D.C. Circuit’s opinion, click HERE.
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 the 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.