We knew 2019 was a very wet spring but did you realize that we have had about one more inch of rain through April and May this year than we did in 2019? Now on the other side most of Licking County has only received about 1 inch of rain so far in June (as of the 18th) while last year we averaged 6.52 inches for the month. This has helped significantly with hay production as most people are finished with first cutting and last year it was just beginning. I will be interested to see if this dry trend continues.
Month: June 2020
Leasing Your Land for Shale & Solar
While leasing your land for oil and gas is not as popular in Licking county as some of the counties to the east, there has been increasing talk from landowners who have been approached about solar leases. OSU Extension is hosting a free three-part webinar to answer questions and provide information for entering into leases. Click on the following link for details and registration: 2020 Shale and Solar Flyer-2
Dicamba regulation update – use ends June 30th
The dicamba roller coaster ride continues today, with a statement issued by the Ohio Department of Agriculture clarifying that the use of XtendiMax, Engenia, and FeXapan dicamba-based products in Ohio will end as of June 30, 2020. Even though the US EPA has issued an order allowing continued use of the products until July 31, 2020, use in Ohio must end on June 30 because the Ohio registrations for the three dicamba-based products expire on that day.
As we’ve explained in our previous blog posts here and here, the Ninth Circuit Court of Appeals vacated the registration of the dicamba products on June 3, 2020. In doing so, the court stated that the EPA had failed to perform a proper analysis of the risks and resulting costs of the products. According to the court, EPA had substantially understated the amount of acreage damaged by dicamba and the extent of such damage, as well as complaints made to state agriculture departments. The court determined that EPA had also entirely failed to acknowledge other risks, such as the risk of noncompliance with complex label restrictions, economic risks from anti-competition impacts created by the products, and the social costs to farm communities caused by dicamba versus non-dicamba users. Rather than allowing the EPA to reconsider the registrations, the court vacated the product registrations altogether.
The EPA issued a Cancellation Order for the three products on June 8, stating that distribution or sale by the registrants is prohibited as of June 3, 2020. But the agency also decided to examine the issue on the minds of many farmers: what to do with the products. Applying its “existing stocks” policy, the EPA examined six factors to help it determine how to deal with stocks of the product that are in the hands of dealers, commercial applicators, and farmers. The EPA concluded that those factors weighed heavily in favor of allowing the end users to use the products in their possession, but that use must occur no later than July 31, 2020 and that any use inconsistent with the previous label restrictions is prohibited.
Despite the EPA’s Cancellation Order, however, the Ohio Department of Agriculture is the final arbiter of the registration and use of pesticides and herbicides within Ohio. ODA patiently waited for the EPA to act on the Ninth Circuit’s ruling before issuing its guidance for Ohio users of the dicamba products. In its guidance released today, ODA stated that:
- After careful evaluation of the court’s ruling, US EPA’s Final Cancellation Order, and the Ohio Revised Code and Administrative Code, as of July 1, 2020, these products will no longer be registered or available for use in Ohio unless otherwise ordered by the courts.
- While use of already purchased product is permitted in Ohio until June 30, further distribution or sale of the products is illegal, except for ensuring proper disposal or return to the registrant.
- Application of existing stocks inconsistent with the previously approved labeling accompanying the product is prohibited.
But the roller coaster ride doesn’t necessarily end there. Several dangling issues for dicamba-based product use remain:
- We’re still waiting to see whether the plaintiffs who challenged the registrations (the National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America) will also challenge the EPA’s Cancellation Order and its decision to allow continued use of the products, and will request immediate discontinuance of such uses.
- Bayer Crop Science, as an intervenor in the Ninth Circuit case, could still appeal the Ninth Circuit’s decision, as could the EPA.
- All of these orders add complexity to the issue of liability for dicamba damage. That issue has already become quite controversial, often pitting farmer against farmer and requiring the applicator or damaged party to prove adherence to or violation of the complicated label restrictions. But the Ninth Circuit’s attention to the risks of adverse impacts from the products raises additional questions about whether an applicator who chooses to use the products is knowingly assuming a higher risk, and whether a liability insurance provider will cover that risk. For this reason, growers may want to have a frank discussion with their liability insurance providers about coverage for dicamba drift.
The dicamba roller coaster ride will surely continue, and we’ll keep you updated on the next development.
Read the ODA’s Official Statement Regarding the Use of Over-the-Top Dicamba Products here.
Additional update from Peggy Hall.
It appears that there will not be an immediate federal order to cease use of dicamba, despite the emergency motion filed by the National Family Farm Coalition last Thursday that asked the Ninth Circuit to void the EPA’s order that allow use of existing stocks. Since then:
- The Ninth Circuit Court of Appeals has directed the EPA to respond to the emergency motion, giving the agency until the end of the work day on June 16 to do so.
- The court has also directed the Coalition to then file a reply to the EPA’s response, and to do so by the end of the workday on June 18.
This suggests that the court will make a ruling after June 18. For the time being, then, the Court of Appeals has not taken any further action that would disallow ODA’s allowance of the use of dicamba in Ohio until June 30.
However, as I mentioned in my last blog post on the Ohio Ag Law Blog, it would be wise for applicators to check in with their insurers to determine whether their insurers will cover a drift incident given the “vacated” registration status of XtendiMax, FeXapan and Engenia. Some insurers have already indicated that they will not ensure coverage.
Be aware, also, that Corteva Agriscience (maker of FeXapan) and BASF (maker of Engenia) have filed motions to intervene in the case. Although it’s doubtful that the court will allow intervention at this point in the process, the motions suggest that the three companies (Bayer Crop Science is already an intervenor in the case) are planning an appeal of the Ninth Circuit’s decision to vacate the registrations. That appeal would go to the U.S. Supreme Court.
Tree and plant identification videos
In collaboration with the OSU South Centers and Tree Talk we are launching a YouTube video series, Tree Identification Clips that can be found at: http://go.osu.edu/treeid There are currently 6 videos posted with 7 more being edited this week. We plan to post new ones on the 2nd and 4th Fridays of each month until we get the site populated. For all those interested in identifying types of trees but not wanting to take a class or sit down with books, these 1 to 3 minute video clips are a great way to start.
What is new in agriculture law?
|Farm Office Blog
Ohio Legislative Update
Tuesday, June 16th, 2020
Written by Ellen Essman, Senior Research Associate
|There’s been a lot of action in the Ohio General Assembly over the last few weeks ahead of the body’s summer break. Specifically, the House of Representatives has considered bills involving a student debt forgiveness program for veterinarians, animal abuse, road safety in Amish country, immunity for apiary owners for bee stings, and a bill meant to support county fairs during the COVID pandemic. Finally, both the Ohio House and Senate have passed bills that would limit liability involving the transfer of COVID-19.
Animal-drawn vehicle lighting. House Bill 501, concerning slow-moving, animal drawn vehicles, was introduced in February of 2020 and was first heard in the House Transportation & Public Safety committee on June 2. The purpose of HB 501 is to “clarify the law governing slow-moving vehicles and to revise the lighting and reflective material requirements applicable to animal-drawn vehicles.” The bill would require animal-drawn vehicles, like the buggies typically driven by the Amish, to have the following: (1) at least one white lamp in the front visible from 1,000 feet or more; (2) two red lamps in the rear visible from 1000 or more; (3) one yellow flashing lamp mounted on the top most portion of the rear of the vehicle; (4) a slow moving vehicle (SMV) emblem; and (5) micro-prism reflective tape that is visible from at least 500 feet to the rear when illuminated by low beams on a vehicle. In the committee hearing, HB 501 had mostly positive feedback, and was touted as a solution to crashes involving animal-drawn vehicles in poor visibility.
When the bee stings. HB 496, which would grant apiary owners immunity for bee stings, passed the Ohio House on June 9, 2020. The bill would protect the owner of a registered apiary from liability in the case of a personal injury or property damage from a sting if they do the following: (1) implement and comply with the beekeeping industry best management practices (BMPs) as established by the department of agriculture; (2) keep correct and complete records of their implementation and compliance with BMPs and make the records available in a legal proceeding; (3) comply with local zoning ordinances pertaining to apiaries; (4) operate the apiary in compliance with the Ohio Revised Code. Notably, the bill would not protect apiarists from harming a person intentionally or through gross negligence. The bill now moves on to the Ohio Senate for consideration.
Debt forgiveness for veterinarians. The House also passed HB 67 on June 10, 2020. This bill would create the “veterinarian student debt assistance program,” which would determine which veterinarians would receive student debt assistance, and how much each person would receive. The amount awarded must be between $5,000 and $10,000. Essentially, if the new veterinarian agrees to live in Ohio for a certain amount of time, and to participate in “charitable veterinarian services” like spaying and neutering for a nonprofit organization, humane society, law enforcement agency, or state, local, or federal government, student debt could be forgiven. The details, including how many hours a veterinarian would need to work for charity, the types of charities that qualify, the amount of time a person must live in Ohio, and others would be determined by State Veterinary Medical Licenses Board.
Animal abuse. HB 33 passed the lower chamber on June 11, 2020. This bill would require veterinarians, social service professionals (people who work at the county Job and Family Services, Children’s Services), counselors, social workers, and other similar professions to report violations against “companion animals” (dogs, cats, other animals kept in a residential dwelling), to law enforcement and/or the county humane agent or animal control officer. People in these professions would have to report when they have “knowledge or reasonable cause to suspect” that violations to companion animals are happening, and they know or suspect that a child or older adult (60 years and older) lives in the residence, and they know or suspect that the violation is having an impact on the child or older adult. Violations include animal abandonment, injury, poisoning, cruelty, fighting, dog fighting, or sexual conduct with an animal.
Assistance for county fairs. If you’ve heard about any Ohio legislation recently, it was likely this bill. HB 665 was passed by the House after much debate on June 11, 2020. The 61 page bill makes a lot of changes to the statutory language. Importantly, the bill would make it a misdemeanor for patrons not to follow written warnings and directions on amusement rides. The bill also makes a number of changes to how county agricultural societies operate. First of all, members of a county agricultural society would have to be residents of the county. Members would have to pay a fee to retain membership, and the societies would have to issue a printed membership certificate to members. In counties with an ag society, the county treasurer must transfer $1600 to the society each year as long as the society holds its annual exhibition, reports to the Ohio Department of Agriculture (ODA), and the director of ODA presents the society with a certificate showing it has followed applicable laws and regulations. The bill also addresses independent agricultural societies, to which similar rules apply. The county board of commissioners would also be required to appropriate at least $100 to the ag society’s junior club. The bill would require ag societies to create a report of its proceedings during the year, file a financial report and send it to the ODA director, and publish an announcement in the county newspaper or the society’s website a statement about the filing of the financial report, and contact information for people who want to obtain a copy of the report. The bill also outlines the circumstances under which an ag society can sell fairgrounds or parts of fairgrounds. Finally, an amendment to the bill was adopted that would allow rescheduling of horse races.
So what was so controversial about this bill? A suggested amendment to the bill led to a heated argument in the House. The amendment would have banned sales and displays of confederate flags and other memorabilia at county fairs. This ban is already in place at the Ohio State Fair, but not county fairs. Ultimately, the bill passed in the house, but this amendment did not. The vote to table the amendment was largely along party lines, with every Republican except one voting against the amendment, and all Democrats voting for.
COVID-19 liability. The House passed HB 606 back in May, and we discussed it in a blog post here. As a refresher, the bill is meant to protect businesses, schools, corporations, people, etc. from liability. It would accomplish this with the declaration: “orders and recommendations from the Executive Branch, from counties and local municipalities, from boards of health and other agencies, and from any federal government agency, do not create any new legal duties for purposes of tort liability.” In other words, as long as the person, school, or business did not expose or transfer the virus recklessly, intentionally, or with willful and wanton conduct, someone could not bring a civil action for injury, death, or loss to person or property if they contract COVID from the entity. Furthermore, the bill also provides temporary civil immunity for health care providers, grants immunity to the State for care of persons in its custody or if an officer or employee becomes infected with COVID-19 in the performance or nonperformance of governmental functions and public duties, and expands the definition of “governmental functions” for purposes of political subdivision immunity to include actions taken during the COVID-19 pandemic.
The Ohio Senate passed a similar bill, SB 308. Unlike the House bill, SB 308 provides immunity only in the health care context. The bill would provide immunity from civil liability for doctors, nurses, and others working in the health care arena during “disasters” like the current pandemic. It would also provide a qualified immunity from liability to services providers for “manufacturing” and any other service “that is part of or outside of a service provider’s normal course of business conducted during the period of a disaster or emergency declared due to COVID-19 and ending on April 1, 2021.”
What’s next? The Ohio Senate is scheduled to meet next week on an “as needed” basis. During these tentatively scheduled sessions, the senate could consider the bills that have cleared the House—HBs 496, 67, 33, and 665. If passed by the Senate, the bills would then move on to Governor DeWine for approval. We will keep you updated on what the Senate and Governor decide. In the case of the COVID immunity bills, each bill moved to the opposite house, where they are currently being considered in committees. We’ll have to wait and see if one or both are sent on to DeWine, or if the two houses choose to somehow combine the bills into one document.
Cover Crop Cost Share
Muskingum Watershed Conservancy District Cost Share Opportunity
To promote the use of cover crops, the Muskingum Watershed Conservancy District is again providing funding for the Cover Crop Cost-Share Program to assist producers in planting cover crops to decrease erosion and improve water quality.
Soil & Water will be accepting applications until July 3, 2020. Applications are evaluated individually with fields being scored based on several criteria. Fields that score high enough are approved for cost-share funding at a rate of $12/approved acre. If a producer and field are new to the Program, the cost-share rate is $15/approved acre. There is a cap of 200 approved acres per producer.
The application and additional details can be found here: https://lickingswcd.com/what-we-do/agri-rural-resources.html
Don’t miss your opportunity – CFAP Program for livestock and crop producers.
The Coronavirus Food Assistance Program (CFAP) will provide $16 billion in Direct Support to Farmers and Ranchers. This is designed to assist with losses attributed to the COVID-19 pandemic. Sign up has begun and will continue until the close of business on August 28th. Benefits are available for livestock including cattle, sheep (yearlings and lambs only), and hogs. Dairy milk is eligible but has a separate payment calculation. Many specialty and non-specialty crops are also included. For more details specific crops and payment amounts please click on this link: CFAP Payments Final 5 20 2020
The Farm Service Agency is handling the application process. You do not need to have participated in any of their programs in the past to be eligible. Please call them at 740-670-5340 to start the process.
Nominations Opened June 15 for the 2020 County Committee Elections for the Farm Service Agence
The U.S. Department of Agriculture (USDA) Farm Service Agency (FSA) encourages all farmers and FSA program participants to take part in the Licking County Committee election nomination process.
FSA’s county committees are a critical component of the day-to-day operations of FSA and allow grassroots input and local administration of federal farm programs.
Committees are comprised of locally elected agricultural producers responsible for the fair and equitable administration of FSA farm programs in their counties. Committee members are accountable to the Secretary of Agriculture. If elected, members become part of a local decision making and farm program delivery process.
A county committee is composed of three to 11 elected members from local administrative areas (LAA). Each member serves a three-year term. One-third of the seats on these committees are open for election each year.
County committees may have an appointed advisor to further represent the local interests of underserved farmers. Underserved producers are beginning, women and other minority farmers and landowners and/or operators who have limited resources.
All nomination forms for the 2020 election must be postmarked or received in the local USDA service center by Aug. 3, 2020. For more information on FSA county committee elections and appointments, refer to the FSA fact sheet: Eligibility to Vote and Hold Office as a COC Member available online at: fsa.usda.gov/elections.
Maps for Acreage Reporting
Maps have been mailed out by the Licking County FSA Office for acreage reporting purposes. If you have not received your maps, please call our office at 740-670-5340.
Once producers receive their maps, they need to fill them out with the crop that was planted and the plant date in each field. Once they are filled out, please return them to the office by mail or call to make an appointment to drop them off. The information will then be data loaded and the office staff will contact the producer to sign a form verifying the information.
In order to maintain program eligibility and benefits, producers must timely file acreage reports. Failure to file an acreage report by the crop acreage reporting deadline may result in ineligibility for future program benefits. FSA will not accept acreage reports provided more than a year after the acreage reporting deadline.
Producers are encouraged to file their acreage reports as soon as planting is completed.