Recent Blog Posts

In a case of first impression for Ohio, a hearing officer for the Ohio Department of Agriculture (ODA) is recommending that the ODA Director deny a CAFO permit application because it does not contain final recommendations on infrastructure improvements from county and township officials.  The recommendation came as a result of a hearing on Hi-Q's permit application that took place last December, after ODA's previous Director, Robert Boggs, notified Hi-Q of his intent to deny the application for failure to include the local governments' recommendations on infrastructure.

The ODA hearing officer reviewed the notice of intended denial and Hi-Q's permit application and agreed that the application was not complete.  Ohio's Livestock Environmental Permitting Program requires Hi-Q to attach to its application for a permit to install and permit to operate a facility the "written statements from the board of county commissioners of the county and the board of township trustees of the township in which the facility will be located, certifying that, in accordance with those sections, the applicant has provided the boards with the required written notification and that final recommendations, if any, regarding improvements and costs of improvements have been made by the boards."  OAC 901:10-1-02(A)(6).  According to the hearing officer, Hi-Q's application did not include the county and township recommendations.

Hi-Q's attorneys argued that the proposed poultry facility's permit was complete and that the Union County and York Township officials had failed to abide by the permitting program requirements by refusing to give recommendations.  The apparent point of disagreement between the two sides relates to the fact that Hi-Q changed its transportation route after receiving written recommendations and requirements from the county and township on Hi-Q's original proposed transportation route.  The county and township recommended that Hi-Q complete over $7 million in road improvements and pay $132,000 annually for maintenance of the original route.  Hi-Q then proposed a new transportation route; the county and township never made final recommendations for improvements necessary for the new route.  Both sides claim that the other side refused to discuss or agree upon recommendations for the new route.

In reaching its recommendation to deny the permit application on the basis of incompleteness, the ODA hearing officer stated that "[t]his matter garnered widespread media attention and polarized emotional support and opposition.  The facts material to this recommendation are, however, essentially undisputed."

The hearing officer's recommendation will be forwarded to James Zehringer, the new Director of ODA appointed by Governor Kasich.  Zehringer has the authority to make the final decision on whether to grant Hi-Q's application.  If the Director denies Hi-Q's permit for failure to contain the local governments' recommendations, it will be the first time that local reaction to a proposed facility has negatively impacted a facility permit application in Ohio.  Local opponents to CAFOs have unsuccessfully fought permit applications in many instances, but had no legal basis for denial.  According to Ohio law, the ODA must approve a permit application if the applicant meets all of the requirements of the Livestock Environmental Permitting Program (LEPP); the only requirement involving the local community is the infrastructure recommendation provision that is at issue in the Hi-Q application. 

A change to LEPP's local government provision may occur, however, if the ODA follows recommendations recently passed by the agency's Concentrated Animal Feeding Facilities Advisory Committee.  The committee recently approved a proposal in March that recommends giving local government officials a 75-day limit to file their responses to a permit application.  The application could proceed through the approval process if the local governments don't respond within the 75-day window.  The 75-day recommendation by the committee would require legislative action by the Ohio General Assembly.

Read the Hi Q ODA Hearing Officer Recommendation or visit the Ohio Livestock Environmental Permitting Program.

A bill introduced in the Ohio House of Representatives proposes a complete repeal of the Ohio estate tax.  Representatives Grossman and Hottinger introduced H.B. 3 on January 11, 2011. The bill is simple:  it amends the estate tax provisions currently in Ohio law to state that the tax provisions apply only to estates of persons who died before January 1, 2011. Regardless of when the bill would become effective, persons dying after January 1, 2011 would not be subject to the estate tax. The bill also removes the estate tax return filing requirement for estates of persons dying after the January 1, 2011 date. 

The Ohio estate tax is a graduated tax on a person's gross taxable estate, less deductions and exemptions.  An estate valued at less than $338,333 pays no tax due to credits and exemptions included in the law.  Estates between the value of $338,334 and $500,000 pay a 6% estate tax while estates over $500,000 in value owe a 7% estate tax.  The state receives 20% of the estate tax revenue and the local government of the decedent's residence receives the remaining 80% of the tax.  Ohio is one of 17 states that have an estate tax.

How is agriculture affected by the Ohio estate tax?  It's not uncommon for a farm estate to be valued at the taxable threshold of $338,334.  However, qualifying farm properties that elect the special use valuation option in the estate tax law can further reduce the taxable amount of the estate up to an additional $500,000.  The special use valuation election provides that qualifying farmland will be valued at the lesser Current Agricultural Use Valuation amount; qualifications for the election relate to keeping the farm in the family.  Sound planning and proper use of special use valuation thus can reduce the Ohio estate tax burden for farms that intend to continue the farm business after the loss of an active farm family member.

The idea to repeal the estate tax is not a new one; several prior attempts have not met with success.  A bill identical to current H.B. 3 was proposed last year, but the bill never made it out of the House Ways and Means committee.   Will the change in Ohio's elected officials yield different results?  The current House Ways and Means committee will hear sponsor testimony on the H.B. 3 at its hearing on January 26, 2011.View H.B. 3 here.

Program revisions include new rules to address manure impacts on Ohio lakes

The Ohio Department of Natural Resources (ODNR) will hold a public hearing next week for its proposed revisions to the Ohio Agricultural Pollution Abatement Program,  a water quality program that encourages voluntary actions to manage water pollution impacts from agricultural and silvicultural land uses, provides cost-sharing for agricultural pollution prevention, and allows ODNR to take measures against those who do not voluntarily address an agricultural pollution problem.  For purposes of the program, "agricultural pollution" is the failure to use appropriate practices in farming or silvicultural operations  to abate soil erosion or water quality impacts caused by animal waste or soil sediments.  Local Soil and Water Conservation Districts are initially responsible for implementing the program, with final oversight and enforcement authority held by ODNR's Division of Soil and Water Resources.

The rule revisions come partially as a result of the agency's mandatory five-year review of the program.   However, several new rules--undoubtedly the most controversial proposals--are in response to the high blue-green algae levels  in Grand Lake St. Mary's and other Ohio lakes this past summer.  Studies indicate that manure is one of the contributors to the proliferation of the blue-green algae.  A plan of action to improve the lake's water quality developed in July by ODNR, the Ohio Department of Health and the Ohio EPA proposed several actions related to manure management, including these new rules for the Agricultural Pollution Abatement Program:

• Declaration of a "watershed in distress."    The rule would give the chief of ODNR's Division of Soil and Water Resources, with the approval of the Ohio Soil and Water Conservation Commission, the authority to declare a "watershed in distress" where the watershed has aquatic life and health that is impaired by nutrients or sediment from agricultural land uses and where there is a threat to public health, drinking water supplies, recreation, or public safety and welfare.  
• Pollution minimization in distressed watersheds.   The  distressed watershed designation requires all owners, operators and persons responsible for land application of manure in the watershed to minimize pollution by following applicable standards, methods or management practices; failure to do so is a program violation, regardless of whether pollution actually results from the failure.  
• Land applications of manure in distressed watersheds.  After a watershed remains designated "in distress" for more than two years, the rule places restrictions on land applications of manure, including required prior approval from the state for applications between December 15 and March 1, injection or incorporation for manure applied to  frozen or snow pack ground before December 15 or after March 1 and limitations on applications during certain types of weather.  Additionally, all owners and operators in the distressed area must maintain 120 days of manure storage.
• Nutrient management plans in distressed watersheds.  Each owner, operator or person responsible for producing, applying or receiving more than 350 tons or 100,000 gallons of manure annually in a distressed watershed must develop a nutrient management plan as specified by the regulations.

In response to the proposed new rules, the Ohio Farm Bureau has already indicated that, while it supports the general intent to address water quality issues in Grand Lake St. Marys, it is concerned that the distressed watershed provisions are too vague and may exceed ODNR's scope of authority.  The legislature originally granted ODNR's authority for the Ohio Agricultural Pollution Abatement Program in Ohio Revised Code Chapter 1511.  Interestingly, in the joint plan of state actions for water quality improvement at Grand Lake St. Mary's, the state agencies admitted that they were asking the Ohio General Assembly to support "additional state regulatory authority" by way of approval of the proposed rule revisions by the legislature's Joint Committee on Agency Rule Review (JCARR).  Whether this additional authority exceeds the scope of authority originally granted by the Ohio legislature is a question that JCARR will address in its review of the proposed rules.

The remaining proposed revisions to the agricultural pollution abatement program regulations intend to address a need for more rapid handling of pollution situations as well as problems identified through a program review conducted last year by an appointed advisory committee.   Other revisions in the rules package  include:

• The inclusion of manure applicators as parties responsible for land application of manure, in addition to the current rule's allocation of responsibility for the owners or operators of animal feeding operations. 
• A number of changes designed to create more flexibility and efficiency in program oversight and administration by allowing earlier involvement of the Division of Soil and Water Resources.
• An increase of cost share monies to a maximum of $30,000 and expansion of the types of practices eligible for cost-sharing;
• A change throughout the rules from "animal waste" to "manure," which includes animal excretia, discarded products, process waste water, process generated waste water, waste feed, silage drainage, and compost products from mortality composting, on farm biodigerster operations or animal excretia composting. 
• Required facility modifications where seepage of animal manure occurs.
• Changing "concentrated animal feeding operations" to "animal feeding operations" throughout the rule and clarifying that the program does not apply to facilities regulated through the state's Livestock Environmental Permitting Program or NPDES permit program.

The ODNR has posted the rules package and supporting materials on its website.  The public hearing for the rules proposal will take place on November 8, 2010.

Proposed rule addresses standards for farm animal euthanasia

The Ohio Livestock Care Standards Board has developed its first set of proposed standards regarding farm animal welfare, pursuant to the constitutional amendment passed last year by Ohio voters as Issue 2 (see our earlier posts on Issue 2).  The Livestock Care Standards Board unanimously approved standards regarding euthanasia of farm animals on October 5, 2010.   The ODA will now carry the Board's proposed standards through the administrative rulemaking process.

The proposed standards define acceptable methods of euthanasia, which includes inhalant agents, injectable agents, captive bolt guns, blunt force, gunshot, cervical dislocation, decapitation, electrocution, foam hypoxia, maceration and exsanguination.  The proposal establishes different acceptable methods and guidelines for different species, which includes equine, poultry, swine, cattle, goats, sheep, alpaca and llamas.  Provisions also address general considerations for performing euthansia, such as euthanization of animals unlikely to recover from illness or injury, determination of death, unsuccessful euthanasia, disposal of animals and mass euthanasia.  The rule references a civil penalty provision for violations, but the actual civil penalty provision is still under development by the Board.

Interesting to note is how the proposed euthanasia rule relates to the animal welfare agreement entered into last June by the State of Ohio, Humane Society of the United States, Ohio Farm Bureau and several other agricultural organizations.  Regarding euthanasia, the animal welfare agreement states:

"Recommendations will be made to The Ohio Livestock Care Standards Board (OLCSB) to take action on issues related to downer cattle and humane euthanasia using language consistent with the proposed ballot initiative."

The proposed ballot initiative referred to in the animal welfare agreement is the HSUS-led initiative that could have been on the upcoming November ballot, but was pulled as part of HSUS's compromise in the animal welfare agreement.  The ballot initiative proposed amending the Ohio Constitution to include this language on euthanasia:

"Require a farm owner or operator to  ensure that all on-farm killing of cows or pigs be performed in a humane manner using methods explicitly deemed “Acceptable” by the American Veterinary Medical  Association.  This standard shall also include a prohibition on strangulation of cows and pigs as a form of euthanasia."

Note that the animal welfare agreement does not require the adoption of the ballot initiative language in the euthanasia standards; it states only that "recommendations will be made" to the Board to take action using language consistent with the proposed ballot language.  A review of the record available on the Board's website does not indicate whether any party to the animal welfare agreement made such recommendations to the Board.  The Board had already begun working on the euthanasia standards prior to the announcement of the animal welfare agreement in June.  A review of the Board's proposal, however, indicates that the euthanasia standards do not precisely duplicate the HSUS's proposed ballot language.  The standards don't include a specific prohibition against strangulation of cows and pigs.  Instead, the standards do not list strangulation as an acceptable method of euthanasia.  Nor do the standards specifically reference the American Veterinary Medical Association (AVMA) acceptable standards; but many of the Board's acceptable standards are similar to AVMA acceptable standards.  Whether or not recommendations were made to the Board as promised in the animal welfare agreement, the Board's proposed euthanasia standards do appear to be "consistent with" the ballot initiative language on euthanasia.

ODA announced the Board's proposed euthanasia standards today and will accept comments on the standards until October 20, 2010.  Following review of comments, ODA will submit the package to the joint legislative committee that oversees the administrative rulemaking process.  To view the proposed euthanasia standards, visit the ODA website, here.