Ohio Agricultural Law Blog--The Ag Law Harvest

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.