Recent Blog Posts

By: Peggy Kirk Hall, Thursday, June 22nd, 2017

Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

The Ohio Department of Agriculture (ODA) will hold a public hearing on July 19, 2017 at 9:00 a.m. to accept written and oral comments on its proposed amendments to the maple syrup, sorghum, and honey rules in the Ohio Administrative Code (OAC).

Amendments and changes to the maple syrup, sorghum, and honey rules are proposed for parts of OAC chapters 901:3-44, 901:3-45, and 901:3-46, including substantive changes that address antibiotics in honey, grades and standards for maple syrup, labeling related to maple syrup grades, and requirements for food grade materials to be used for honey, maple syrup, and sorghum. With these proposed changes and amendments, ODA seems to be trying to make the rules for honey, maple syrup, and sorghum more in line with federal rules and standards. In addition, safety of honey, maple syrup, and sorghum products seems to be at the forefront with a broader antibiotic exclusion in honey products, and the requirement to use “food grade materials” for honey, maple syrup, and sorghum. The sections below will discuss each of these proposed changes in turn.

No antibiotics allowed in honey

It is proposed that OAC 901:3-44-01 be amended to remove references to specific antibiotics and to instead simply state that any antibiotics, in any amount, “render the honey” or its beeswax as “adulterated.”

Maple syrup rules to correspond with federal rules and standards

ODA has proposed striking the current OAC 901:3-45-01, which outlines voluntary grades and standards for maple syrup, and replacing it with language that incorporates the grading and color classifications put forth by the United States Department of Agriculture (USDA). In other words, ODA is proposing that Ohio replace its current language with the grades and color classifications for maple syrup used by the federal government. What is more, if this amendment is adopted, it appears as though grading and color classifications would no longer be voluntary.

ODA’s proposed amendment for OAC 901:3-45-03 involves deleting “Ohio” and inserting “U.S.” This change would mean that the labeling requirements for grading maple syrup would follow federal standards instead of state standards. The adoption of federal grade labeling, as well as of federal grading and color classifications, would make it easier to sell and ship maple syrup produced in Ohio outside of the state.

Food grade materials for honey, maple syrup, and sorghum

The proposed changes to OAC 901:3-45-04, 901:3-45-05, 901:3-46-06, 901:3-46-07 all include the addition of the requirement that containers be made of food grade materials. Accordingly, the proposed changes would require that all of the following be made of food grade materials:

  • Maple syrup packaging,
  • Bulk containers (barrels, drums, etc.) for maple syrup,
  • Packaging for products from maple syrup processors, sorghum processors, and beekeepers exempt from mandatory inspection, and
  • Bulk containers for products from maple syrup processors, sorghum processors, and beekeepers exempt from mandatory inspection.

“Food grade material” is defined in OAC 901:3-46-01 as “a material that when in contact with food will remain safe, durable, free of rust, non-absorbent, and will not allow the migration of deleterious substances, impart color, odor, or taste to food under normal use.”

More information about attending the hearing or sending in comments (including when written comments must be received), and a brief overview of each change is available here. A draft of the proposed amendments and revisions is here.

By: Peggy Kirk Hall, Wednesday, June 21st, 2017

A bill in Ohio’s House of Representatives proposes amending Ohio’s hunting and fishing laws to expand exemptions from hunting, fishing and trapping licenses for grandchildren of landowners.

House Bill 272, sponsored by Rep. Householder (R—Glenford) and Rep. Kick (R—Loudonville) proposes a change to current law, which permits grandchildren to hunt, fish or trap on their grandparent’s land without a license only up to the age of 18.  The proposal revises the law to allow grandchildren “of any age” to be exempt from licensing requirements when hunting, fishing or trapping on their grandparent’s land.

The bill also extends hunting and fishing privileges to veterans. The proposed legislation would provide a partially disabled veteran the same free hunting and fishing license privilege currently afforded to a veteran with a total disability.

“Hunting and fishing are family activities,” said Rep. Householder upon introducing the bill. “They should be enjoyed without government intrusion.”

H.B. 272 is currently before the House Energy and Natural Resources Committee and is available for viewing here.

By: Peggy Kirk Hall, Thursday, June 15th, 2017

Written by: Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program

A new Ohio law affects farmers that plan to use certain utility vehicles for farm work, including Gators, Mules and other utility vehicles with a bed designed to transport cargo. The new law is part of the 2018-2019 transportation budget, formally known as House Bill 26. HB 26, which goes into effect on June 30, 2017, permits utility vehicles to travel on any public road or right of way other than a freeway when travelling from one farm field to another for agricultural purposes.

Under HB 26, utility vehicles are now expressly required to display a triangular Slow-Moving Vehicle (SMV) emblem. Previously, it was up to local law enforcement to interpret the law and decide whether a utility vehicle should have a SMV. The new law also clearly allows utility vehicles to travel on public roads between farm fields, whereas the old law required farmers to know whether the county or township allowed utility vehicles on the road. Utility vehicle operators can read more about the old law in our previous blog post on APVs, ATVs, and four-wheelers here.

What Qualifies as a “Utility Vehicle?”

Farmers should be aware that this law only covers what it defines as “utility vehicles.” This means that the law only applies to vehicles designed with a bed for transporting material or cargo related to agricultural activities. Not all ATVs and APVs will be included in this definition.

The law is good news for farmers. Those who plan to use a utility vehicle on the farm should know the following before taking the vehicle out:

  • In order to legally use a utility vehicle on a public road, a driver must be traveling from one farm field to another farm field for agricultural purposes.
  • Utility vehicle drivers must display a SMV on any utility vehicle used on a public road as it travels between farm fields.
  • Ohio Revised Code Section 5589.10 prohibits the placement of earth, mud, manure, or other injurious materials on a public highway. Therefore, farmers should avoid leaving such debris in the roadway or should clean up the roadway if a utility vehicle leaves mud behind.

More information on HB 26 is here, under Sec. 4511.216 on page 328 of the bill.

Posted In: Roadway Laws
Tags: ATV, SMV
Comments: 0
By: Peggy Kirk Hall, Thursday, June 08th, 2017

With spring in full swing and summer just around the corner, many producers may be considering selling produce, meats, cottage foods and baked goods directly to consumers at the farm property. A question we often hear from farmers thinking about these types of farm food sales is, “do I need some type of license or inspection to sell food from the farm?” The answer to this question depends upon the type of food offered for sale:

  • Sales of foods such as fresh produce or cottage foods do not require a license.
  • Sales of certain types of baked goods require a home bakery license.
  • Sales of multiple types of foods or higher risk foods require a farm market registration or a retail food establishment (RFE) license.
  • The home bakery license, farm market registration, and RFE license involve inspections of the production or sales area.

It is important for a producer to carefully assess the food sales situation and comply with the appropriate licensing or registration requirements. To do so, a producer should identify the type and number of food products he or she will sell and whether the food poses low or high food safety risk.

Our new Law Bulletin, Selling Foods at the Farm: When Do You Need a License? will help producers assess their situations and determine their needs for appropriate licensing, registration, or inspections.  Read the bulletin on http://farmoffice.osu.edu, here.

By: Peggy Kirk Hall, Wednesday, June 07th, 2017

EPA reaches decision on Ohio’s list of impaired waters

Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

The United States Environmental Protection Agency (EPA) has finally rendered a decision on Ohio’s list of impaired waters following several months of delay and two lawsuits filed to compel the EPA to make a decision. (For a background on impaired waters and the two lawsuits, check out our previous blog posts here and here.)   On May 19, 2017, the EPA decided to accept the Ohio EPA’s proposed list of impaired waters for the State of Ohio.  Ohio’s list does not include the open waters in the Western Basin of Lake Erie.   However, the State of Michigan’s list of impaired waters previously approved by the EPA does include the open waters in its portion of the Western Basin of Lake Erie.  

The EPA explained that the agency deferred to Ohio's judgment not to include the open waters of the Western Basin of Lake Erie on the impaired waters list.  "EPA recognizes the State's ongoing efforts to control nutrient pollution in the Western Basin of Lake Erie," stated Chris Korleski, EPA's Region 5 Water Division Director and previously Ohio's EPA Director.   "EPA understands that Ohio EPA intends to evaluate options for developing objective criteria (e.g., microcystin or other metrics) for use in making decisions regarding the Western Basin for the 2018 list.  EPA expects the development of appropriate metrics, and is committed to working with you on them."

For now, the EPA appears satisfied with Ohio's plan for addressing nutrient reductions in Lake Erie's Western Basin.  It is possible, however, that additional lawsuits could be filed against the EPA in order to reconcile Ohio and Michigan's different designations of water in the same general area.

Read the EPA's Approval of Ohio's Submission of the State's Integrated Report with Respect to Section 303(d) of the Clean Water Act here

 

By: Peggy Kirk Hall, Thursday, May 18th, 2017

Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

On May 17, 2017, the Environmental Law & Policy Center (ELPC) and two of its members filed suit against the U.S. Environmental Protection Agency (EPA) in the U.S. District Court for the Northern District of Ohio. ELPC filed the lawsuit to compel the EPA to either accept or reject Ohio’s list of impaired waters. In April, the National Wildlife Federation and other groups sued the EPA in the U.S. District Court for the District of Columbia for the same reason. For more information on the first lawsuit and a more thorough background on the topic, read our previous blog post.

Federal regulation under the Clean Water Act requires states to submit lists every two years of waters they determine to be impaired. The regulation also requires the EPA to either accept or reject the state listings within thirty days. The Ohio Environmental Protection Agency submitted its list of impaired waters on October 20, 2016. The list did not include the open waters of the western basin of Lake Erie. The EPA has not made a decision on Ohio’s list.

To make the situation more complex, Michigan did include its share of the open waters of the western basin of Lake Erie on its list. What is more, the EPA approved of Michigan’s impaired waters list. The plaintiffs in both of these lawsuits seem to hope that forcing the EPA to make a decision on Ohio’s impaired list will resolve the differences in the two states’ listing of waters in the same general area of Lake Erie.

ELPC filed the lawsuit in the Toledo office of the U.S. District Court for the Northern District of Ohio, citing its proximity to Lake Erie, and in particular, to the pollution problem in the western basin of the lake. ELPC’s press release on its lawsuit is available here.

 

 

 

 

 

 

Posted In: Environmental
Tags: Lake Erie, impaired waters
Comments: 0
By: Peggy Kirk Hall, Thursday, May 11th, 2017

Ohio's Senate has settled on its solution for fixing Ohio's CAUV formula. The Senate unanimously passed S.B. 36  yesterday after the Senate Ways and Means Committee adopted two amendments to the bill.  The legislation aims to stem recent increases in property taxes for farmland enrolled in Ohio's Current Agricultural Use Valuation (CAUV) program.   The Senate's bill will ensure that the CAUV formula "sticks to valuing farmland based on agricultural production," stated the bill's sponsor, Sen. Cliff Hite (R-Findlay). 

In addition to including new factors in the CAUV formula,  making changes to the capitalization rate calculation and addressing rates used for conservation lands (explained in detail in our earlier post on S.B. 36), the bill passed by the Senate yesterday contained two new provisions:

  • A three year phase-in of the changes to the CAUV formula, which would begin the first tax year after 2016 in which a county's sexennial appraisal or triennial update occurs.  The purpose of the phase-in is to reduce the financial impact of lowered property valuations on school districts.
  • Replacement of the seven year rolling average determination of the equity yield rate with an equity yield rate that equals the 25-year average of the "total rate of return on farm equity" determined by the United States Department of Agriculture but that cannot exceed the loan interest rate used in the debt factor of the capitalization rate computation.

Last week, Ohio's House passed legislation containing different solutions for revising the CAUV program in H.B. 49 (see our summary of H.B. 49 here).  Senate leaders yesterday indicated a willingness to work with the House to resolve the differences between the two bills.  H.B. 49 is now before the Senate Finance Committee.

Read S.B. 36 as amended here.  The Legislative Service Commmission's summary of the bill is here.

Posted In: Tax
Tags: cauv, agricultural tax law, real property tax
Comments: 0
By: Peggy Kirk Hall, Thursday, May 04th, 2017

Written by: Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program

The Grain Inspection, Packers and Stockyards Administration (GIPSA) is delaying the implementation of the Farmer Fair Practices rules. GIPSA is a USDA agency that facilitates the marketing of livestock, poultry, meat, cereals, oilseeds, and related agricultural products. One purpose of GIPSA is to promote fair and competitive trading practices for the benefit of consumers and agriculture.

On April 11, 2017, the USDA announced that GIPSA delayed the implementation of the Farmer Fair Practices rules until October 19, 2017. The delayed Farmer Fair Practices rules were originally set to be effective on December 20, 2016. According to the USDA, the delayed rules would protect chicken growers from retaliation by processors when growers explore opportunities with other processors, discuss quality concerns with processors, or when refusing to make expensive upgrades to facilities. GIPSA concludes that the Farmer Fair Practices rules alleviates these issues. However, several livestock groups argue that the delayed rules would have adverse economic effects on the livestock industry.

Opportunity for Public Comment

During the delay, the USDA is seeking public comment on the Farmer Fair Practices rules. The comment period offers the agricultural community an opportunity to suggest what action the USDA should take in regard to the Farmer Fair Practices rules. The USDA asked the public to suggest one of four actions that the USDA should take:

  1. Let the delayed rules become effective
  2. Suspend the delayed rules indefinitely
  3. Delay the effective date of the delayed rules further, or
  4. Withdraw the delayed rules

After receiving public comments, the USDA will consider the comments and make an informed decision regarding the delayed Farmer Fair Practices rules. According to Drovers, Secretary of Agriculture Sonny Perdue recently visited Kansas City, Missouri to speak with farmers, ranchers, and industry members. During the event, Secretary Perdue responded to a question about the GIPSA rule. “We’re going to look at it very closely,” said Perdue. The full Drovers article is here.

More information on the delayed GISPA rules is here. Leave a public comment on the delayed rules here by clicking “Comment Now.”

By: Peggy Kirk Hall, Sunday, April 30th, 2017

Groups sue EPA over lack of impaired waters decision

Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

The National Wildlife Federation (NWF) and five other environmental and outdoor groups (Plaintiffs) sued the United States Environmental Protection Agency (EPA) last week in the U.S. District Court for the District of Columbia.  The Plaintiffs filed the lawsuit due to EPA’s failure to approve or disapprove the list of impaired waters submitted by the Ohio Environmental Protection Agency (OEPA) within the time limit required by law. The Plaintiffs are particularly concerned that the EPA’s lack of a decision on the impaired waters list may affect pollution in Lake Erie’s waters.

A background on impaired waters designation

In 1972, Congress made amendments to the Federal Water Pollution Control Act of 1948. The result was what we know today as the Clean Water Act (CWA). The very first section of the CWA states: “[t]he objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”  In order to meet that objective, the CWA sets forth “effluent limitations,” or in other words, the amount of pollution allowed to be discharged. Polluters have different effluent limitations dependent on a number of variables. The states are to “identify” the waters where the “effluent limitations [from certain polluters] are not stringent enough” to meet water quality standards. The specific polluters to be examined are: 1) point sources, and 2) public treatment works either in existence on July 1, 1977 or approved under the CWA before June 30, 1974. For reference, point sources are defined as “any discernable, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” Point sources are not “agricultural stormwater discharges and return flows from irrigated agriculture.”

Those waters that states identify as not having stringent enough effluent limitations for point sources and public treatment works are called “impaired waters.” Along with the identification of impaired waters, states must also put forth total maximum daily loads (TMDLs), or the amounts of each kind of pollutant allowed. The CWA in its entirety is available here.

A regulation promulgated by the EPA under CWA mandates that states submit the list of waters they determine to be impaired every two years. The list must include a description of the “pollutants causing impairment” and their total maximum daily loads (TMDLs). The same regulation requires the EPA “to approve or disapprove such listing and loadings not later than 30 days after the date of submission.”

On October 20, 2016, OEPA submitted its list of impaired waters in the Ohio Integrated Water Quality Monitoring and Assessment Report, available here . The list of impaired waters included parts of Lake Erie, namely the Lake Erie Central Basin Shoreline and the Lake Erie Islands Shoreline. Significantly, OEPA did not include the open waters of the western basin of Lake Erie on its list. The EPA has not responded to Ohio’s list by approving or disproving its listings.

Michigan submitted its impaired waters list in November 2016 and the EPA approved the report on February 3, 2017. Michigan listed the entirety of the Lake Erie waters in the state’s jurisdiction as impaired. This would include Michigan’s share of open waters in the western basin of Lake Erie. Michigan’s report is here.

The current lawsuit

As discussed above, six environmental and outdoor groups based in Ohio, Michigan and Illinois sued the EPA and its national and Region 5 administrators for the lack of a decision on OEPA’s list of impaired waters. The EPA was required to make the decision within 30 days of October 20, 2016. The Plaintiffs gave the EPA prior warning of their intention to sue in a notice sent on December 19, 2016. Since then, the EPA still has not come to a decision about Ohio’s list of impaired waters.

The crux of this lawsuit is the difference between Ohio and Michigan’s listings of waters in the same general area—the Western Basin of Lake Erie. Michigan listed the basin as impaired and Ohio did not. The Plaintiffs argue that the “inaction” on the part of the EPA “allows pollution… to continue unabated” throughout Lake Erie. Implicit in the Plaintiffs’ argument is that it seems unlikely that the EPA would allow one state to designate their Lake Erie water as impaired while the other state does not since water does not necessarily stay within state boundaries. The Plaintiffs appear to anticipate that EPA, when forced to make a decision, will disapprove of Ohio’s listing. Consequently, TMDLs could be established for greater areas of the Lake and water quality would likely be improved for the use and enjoyment of the Plaintiffs and their members.

What would a disapproval of OEPA’s list mean for Ohio?

If the court compels EPA to make a decision and EPA decides that OEPA was wrong to exclude the open waters of the Western Basin of Lake Erie as impaired, EPA regulations give the EPA the authority to take action within thirty days. EPA actions would include identifying the waters as impaired and instituting the allowable TMDLs necessary to implement applicable water quality standards. After a public comment period and potential revisions to EPA’s actions, it would be up to the state of Ohio to meet the EPA’s TMDLs for the impaired waters.

What would a listing as impaired mean for Ohio residents—individuals, farms, and companies?  It would probably mean increased regulations, likely in the form of reduced allowable loads of pollutants from the point sources and public treatment works discussed above. Time, effort, and money might be necessary to comply with such changes. Regulations and TMDLs might affect more Ohioans than before, since OEPA designated parts of Lake Erie as impaired but not others.

On the flip side, increased regulation could mean better water quality in Lake Erie for drinking, sport, and other uses. For now, Ohioans and others who use Lake Erie’s waters or are located in areas that drain to the Lake will have to wait for the federal court to act on the lawsuit.

The full complaint in National Wildlife Federation v EPA is available here.

By: Peggy Kirk Hall, Thursday, April 27th, 2017

Written by Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program

Update:  The House passed H.B. 49 on May 2, 2017.

The Ohio legislature continues to consider revising the Current Agricultural Use Valuation (CAUV) law that affects taxation of agricultural land. However, the latest legislative discussions are not about Senate Bill 36, introduced by Senator Cliff Hite on February 7, 2017 (read more about that bill here).  Instead, current debate centers on a new proposal in House Bill 49, Ohio’s “budget bill.”   The House Finance Committee is currently considering that bill.

The budget bill proposal would require the equity yield rate used in the CAUV capitalization rate to equal the greater of either the 25 year average of the total rate of return on farm equity published by the USDA or the loan interest rate. The capitalization rate is used to calculate a valuation from an annual profit for an average Ohio farm, considering only agricultural factors.  The proposal would establish a holding period of 25 years for calculating equity build-up and land value appreciation in the formula.  Addressing concerns about taxation amounts on land in conservation programs, the bill also would place a ceiling on the taxable value of CAUV land used for conservation purposes by requiring the land to be valued as though it included the least productive soil.  

The proposed changes to the CAUV program would be phased in over two reassessment update cycles.  The bill would also reconcile the proposed changes with the current formula by specifying that during the first three-year cycle in each county (beginning with tax year 2017), the tax value of CAUV land would include one half of the difference between its value under the new versus the old formula.

Time may soon tell whether Ohio lawmakers will address the agricultural community’s concerns about property tax increases under the current CAUV formula and if so, whether it will prefer the House’s budget bill or the Senate’s proposal.  The budget bill is available here--see page 652 of that document for the suggested changes to CAUV.  The Senate’s bill, which has received four hearings before the Senate Ways and Means Committee but still remains in committee, is available here.

Posted In: Property, Tax
Tags: cauv, current agricultural use valuation
Comments: 0

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