Revisions Coming to the Ohio Agricultural Pollution Abatement Program?

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 clarifyingthat 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.

Ohio General Assembly passes bill to modify tax on energy projects

Bill makes wind and solar in Ohio competitive with neighboring states

Passed by both chambers of the Ohio legislature early morning on Friday, June 4, S.B. 232 provides tax exemptions for certain sources of new power generation. The bill was sponsored by State Senator Chris Widener and enjoyed bipartisan support. A press release from the Governor’s office makes clear he intends to sign it into law as soon as he receives it.

The new law will eliminate both the tangible personal property tax and the real property tax on new advanced energy projects. Qualified energy sources include wind, solar, and all other renewable energy resources as defined in Ohio Revised Code Section 4928, in addition to clean coal, nuclear energy, and the cogeneration of electricity from waste heat sources.  To qualify, new projects involving wind, solar and other renewables must be under construction by January 1, 2012 and in service by January 1, 2013. All other qualified energy sources must be under construction by 2017.

One impetus for this change in tax treatment is that the current tangible tax rate energy companies pay is not competitive with other states. In Ohio, the tax rate for wind facilities stands at approximately $40,000 per megawatt, while solar is approximately $100,000 per megawatt. This compares to a range of $3,000 to $9,000 per megawatt in neighboring states.

The Ohio Department of Development will certify the exemption and base new payment rates (payment in lieu of taxes) on the number of Ohioans employed in the construction and installation of a qualified facility. Energy companies will have to comply with several other requirements including road repair, first responder training, and the establishment of university partnerships to promote the education, training and curriculum development of renewable energy industries.

The new rates will be as follows:

  • Solar – $7,000 per MW

All other facilities:

  • $6,000 per MW when 75% or more Ohio-domiciled employees are employed during construction and installation.
  • $7,000 per MW when 60% or more Ohio-domiciled employees are employed during construction and installation.
  • $8,000 per MW when 50% or more Ohio-domiciled employees are employed during construction and installation.

The bill also addresses Current Agricultural Use Valuation (CAUV) property and provides that the installation of an energy facility will not cause the remaining portion of a CAUV tract to be ineligible for CAUV.

The new law may signify the beginning of wind development in Ohio’s rural communities. Three wind projects have already received an Ohio Power Siting Board certificate and may be the first projects situated to apply for the new tax exemptions. Information regarding the three approved wind projects and four pending projects can be found on the Ohio Power Siting Board website

Full text of S.B. 232 is available here.

Ohio’s “animals running at large” law may see revision

Bill introduced in Ohio House of Representatives to clarify liability standards

A recurring problem around Ohio may be resolved if H.B. 503 progresses through the General Assembly before the end of the year.  Representatives Bubp (R-88th Dist.) and Garrison (D-93rd Dist.) recently introduced the bill to revise Ohio’s animals at large law.  The proposal clarifies the standards for civil and criminal liability under the law.

The animals running at large law, found in Ohio Revised Code Chapter 951, states that no owner or keeper of  horses, mules, cattle, sheep, goats, swine, or geese “shall permit” the animals to run at large on public roads or outside of their enclosures.   Many law officers, prosecutors and judges have interpreted the word “shall” as a trigger for automatic liability–if an animal is out, the owner is liable.    But in a case before the Ohio Supreme Court, the court stated that the law does not establish automatic liability.  The court explained that the law creates the duty to exercise ordinary care to keep animals from running at large and sets up a “rebuttable presumption” of liability.   An animal owner whose animals are found running at large has the opportunity to rebut the presumption of liability and prove that he or she exercised ordinary care to contain the animals.  Despite the Supreme Court opinion, animal owners have continued to be subject to prosecution under an automatic liability standard.

H.B. 503 removes the possibility of interpreting the animals at large law as a strict liability law and lays out two different standards for civil and criminal liability.  An owner or keeper of animals who “negligently” permits animals to run at large is liable for all damages caused by the animal, and an owner or keeper who “recklessly” permits animals to run at large is guilty of a fourth degree criminal misdemeanor.  Under Ohio law, “negligence” is the failure to exercise ordinary care, while “recklessness” is acting with indifference to consequences and with disregard to a known risk.

H.B. 503 would alleviate the problems many animal owners in Ohio have faced–potential criminal liability when natural disasters, vandals, pranksters or neighbor disputes, rather than the owner’s action or inaction, caused the release of the animals.   A disturbing increase in such incidents led the Ohio State Bar Association and its Agricultural Law Committee to work with H.B. 503 sponsors to develop the revisions.  View H.B. 503 here.

Bill introduced to address on-farm bioenergy production

Proposal would ensure that on-farm bioenergy activities qualify for CAUV and are exempt from zoning regulation.

A legislative proposal in the Ohio House of Representatives would include on-farm bioenergy production activities in two key provisions of Ohio law:  qualification for differential tax assessment under the Current Agricultural Use Valuation program and exemption from local zoning authority.  Representatives Pryor and Domenick introduced  House Bill 485 in mid-April with assistance from the Ohio Department of Agriculture.  The bill was referred to the House Agriculture and Natural Resources Committee, but no other action on the bill has taken place.

The proposal addresses ”biodiesel production, biomass energy production, electric or heat energy production and biologically derived methane gas production”  where at least 50% of the starting material or feedstocks are from the same tract, lot or parcel on which the energy production takes place.  This 50% requirement targets on-farm energy production, where a farm is producing and processing the energy inputs, as long as no more than 50% of the supplementary inputs derive from other properties.

The bioenergy production activities that meet the 50% rule would be included in the CAUV’ program’s definition of “land devoted exclusively to agricultural use” in ORC 5713.30, thus guaranteeing eligibility for the CAUV property tax rate.  The bioenergy production activities would also become part of the definition of “agriculture” for purposes of county and township zoning, ORC 303.01 and ORC 519.01.  Because counties and townships have  limited zoning authority over “agriculture,” the proposal would ensure that a county or township could not use zoning authority to prohibit the qualifying bioenergy production activities. 

H.B. 485 is available online, here.