Tag Archives: watersheds in distress

Ohio Department of Agriculture: New Director Changes Course of Watersheds in Distress Rulemaking

Written by: Evin Bachelor, Law Fellow

Less than a week into the administration of Ohio Governor Mike DeWine, a new approach to watersheds in distress has emerged.  Director Dorothy Pelanda assumed the helm of the Ohio Department of Agriculture (“ODA”) earlier this week.  (Read more about the new director below).  By Tuesday, ODA had changed the status of the proposed watersheds in distress rules in the Register of Ohio to “To Be Refiled.”

Watersheds in Distress Proposed Rules “To Be Refiled”

The change in status of the proposed rules signals that ODA plans to change its earlier proposal.  The Register of Ohio, which is where state agencies post rules and proposed rules, defines a proposed rule with a “To Be Refiled” status as one “that has been temporarily removed from JCARR consideration by the rule-filing agency.”  Until a sponsoring agency acts, the proposed rule remains in the “To Be Refiled” status and off of the agenda of the Joint Committee on Agency Rule Review (“JCARR”).  As we mentioned in a previous blog post, JCARR was set to consider the controversial proposal at its January 22, 2019 meeting.  However, the change in status of the proposed rules means that JCARR will not consider them until ODA takes further action.  ODA may revise the proposal, refile as-is, take no action, or withdraw the proposal.

Readers may recall from a previous blog post that the Kasich administration sought to expand the number of watersheds designated as “in distress,” which would impose additional regulations and restrictions on farmers who apply manure and nutrients to the land.  Further, the proposal would have required impacted farmers to submit a nutrient management plan to ODA, and ODA would have to audit at least 5 percent of those plans.  ODA’s Soil and Water Conversation Division held a hearing on November 21st, and a number of stakeholders attended to provide comments.  A summary report of the hearing is available here.  Currently, the Grand Lake St. Marys Watershed is the only watershed in Ohio subject to the additional requirements.

Dorothy Pelanda Assumes Directorship of Ohio Department of Agriculture

Director Pelanda steps into Governor Mike DeWine’s cabinet as the 39th Director of the Ohio Department of Agriculture.  She served in the Ohio House of Representatives from 2011 until the end of the previous General Assembly, and held leadership positions within the Republican caucus.  Prior to her appointment to the Ohio House, Director Pelanda practiced law in Union County.  She is a graduate of the University of Akron School of Law, Miami University, and Marysville High School.  Director Pelanda is the first woman to serve as the Director of the Ohio Department of Agriculture.  For more information about Director Pelanda, visit ODA’s website here.

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“Watersheds in distress” rules don’t clear the JCARR hurdle

The legislative Joint Committee on Agency Rule Review (JCARR) has voted  to send the “watersheds in distress” rule revisions back to the Ohio Department of Agriculture (ODA).   JCARR reviews administrative rules to make sure they follow legal requirements, which we explained in a previous blog post.   The “watersheds in distress” rules seek to address agricultural nutrient impacts on water quality, also explained in an earlier post.  At its meeting yesterday, JCARR members voted 8 to 1 to recommend that ODA revise and refile the rules for consideration at JCARR’s next meeting on January 22, 2019.

The January 22 meeting date effectively removes Governor Kasich’s administration from the rules revision.  Kasich issued an executive order last July directing his agencies to prepare the controversial rule package.  But the incoming DeWine Administration will control the fate of the rules since DeWine takes office on January 14, 2019.    JCARR is apparently counting on the new administration to take a different approach on agricultural nutrient pollution reduction.

“There will be a new administration and we’ll have maybe more productive talks,” stated JCARR’s chair, Sen. Joe Uecker (R-Loveland).  “The DeWine Administration has demonstrated an interest on working with stakeholders on this issue.”

The lack of stakeholder involvement was a common concern voiced by JCARR members, who stated that the rules had been rushed and did not involve all of the interested parties.  Several committee members also suggested that the rules are inconsistent with legislative intent and will have a significant adverse impact on farmers.  The Ohio Soybean Association, Ohio Corn & Wheat Growers Association, and Ohio Farm Bureau echoed those criticisms to JCARR members while several local residents, local groups and the Ohio Environmental Council testified that the rules would not sufficiently protect water quality.

If ODA fails to refile the rules proposal for the January meeting, JCARR will have 31 days to recomend that the Ohio General Assembly invalidate the rules.  That action would allow each chamber five days to pass a resolution invalidating the rules; if the concurrent resolution does not pass within that time period, the rules would stand.  Alternatively, ODA could remove the proposal from JCARR’s agenda and refile revised rules at a later date, a likely course of action for the incoming DeWine administration.

Read the minutes of the December 10, 2018 JCARR meeting, which will be posted here.  The proposed rules are here and here.

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An overview of Ohio’s Joint Committee on Agency Rule Review

Written by Ellen Essman

The Joint Committee on Agency Rule Review (JCARR) plays an important role in Ohio’s government. Its review of new and old rules assists in verifying that administrative rules are not duplicative, overly-burdensome, or costly.  Among other things, JCARR also helps to confirm that rules in fact carry out what the legislature had in mind when passing the law.  In fact, on Monday, December 10, 2018, JCARR will decide the fate of the controversial watersheds in distress rules (we explained the proposed rules in this blog post) prompted by Governor Kasich’s July 2018 executive order.

The Joint Committee on Agency Rule Review, often referred to by its acronym, JCARR, was enacted by the Ohio General Assembly in 1977, and is codified in section 101.35 of the Ohio Revised Code.  JCARR is charged with “review[ing] proposed new, amended, and rescinded rules” from Ohio’s administrative agencies.  The state’s administrative agencies are numerous and include the Ohio Department of Agriculture, the Ohio Environmental Protection Agency, and the Ohio Department of Natural Resources, just to name a few.  The administrative agencies are responsible for making the administrative rules to help carry out the Ohio General Assembly’s legislation.

Make-up of the committee

JCARR is made up of five members of each house of the Ohio General Assembly, meaning that five members from the house of representatives and five members from the senate make up the full committee.  The speaker of the house appoints the five representatives, and the president of the senate appoints the five senators.  The appointments must be bipartisan; each house may only appoint three members of the same political party.  During the general assembly’s first regular session, the speaker of the house chooses the chairperson of JCARR from their house appointees, and the president of the senate chooses the vice-chair.  During the second regular session, the chair and vice-chair are chosen in the reverse.

Conditions that rules must meet

If JCARR reviews an administrative rule and finds that rule to “violates one or more” of six requirements, the committee may “make a recommendation to invalidate the rule.”  The six requirements are as follows:

  1. The rules do not exceed the scope of the rule-making agency’s statutory authority;
  2. The rules do not conflict with a rule of that agency or another rule-making agency;
  3. The rules do not conflict with the intent of the legislature in enacting the statute under which the rule is proposed;
  4. The rule-making agency has prepared a complete and accurate rule summary and fiscal analysis of the proposed rule, amendment, or rescission (Revised Code 18);
  5. The rule-making agency has met the incorporation by reference standards for a text or other material as stated in Revised Code 72, Revised Code 121.75, or Revised Code 121.76; and
  6. If the rule has an adverse impact on business (Revised Code 52), the rule-making agency has demonstrated through the business impact analysis, the Common Sense Initiative office recommendations, and the agency’s memorandum of response to the recommendations, that the regulatory intent of the rule justifies its adverse impact on business.

Rule Invalidation

If a rule is found to violate any of the conditions listed above, a member of JCARR can move to recommend a resolution to invalidate the rule.  The motion for invalidation must include the reason for the invalidation specifically based on one or more of the above conditions.  The motion can be to invalidate the whole rule, or just part of the rule.  If the motion for invalidation is seconded by another committee member, the members of JCARR can then vote on the motion.  A majority of the committee is required to recommend a resolution for amended, revised, and rescinded rules.  A two-thirds super majority is required to recommend a resolution to invalidate a no-change 5 year review.

If a motion for invalidation passes JCARR, the rule is put into suspension, meaning the administrative agency cannot proceed with the rule.  A member of the committee then writes a concurrent resolution about invalidating the rule. Then, depending on which house the writer of the resolution comes from, the resolution goes to the house of representatives or senate, where the body has five session days to act on the resolution.  If that time lapses, or there is no majority vote within five days, then the resolution dies, meaning the rule would no longer be suspended.  If the resolution does pass the first body by majority vote, it then goes to the other house of General Assembly.  Again, in the second body, the resolution must be voted on within 5 session days and be passed by a majority vote.  If the resolution does not pass or is not voted on, again, the rule comes out of suspension.  Finally, if the concurrent resolution for invalidating the rule passes both the house and senate, the rule is invalidated.

5 Year Review of Rules

Administrative agencies in Ohio must review their administrative rules every five years.  The first part of the review requires the agency to ascertain whether or not the rule has a harmful effect on business in the state of Ohio. If the agency decides that the rule does have a bad impact on business, then the rule must be sent to the Common Sense Initiative office (CSI).  The CSI is charged with finding ways to diminish the effects on business.

After the analysis of the effect on business, the agency decides whether or not the rule needs to be updated or removed.  Upon deciding that a rule needs to be changed or removed, the agency must then file the rule with JCARR as a five year amended or rescinded rule.  Then, JCARR goes through the process described above—the committee determines whether the amended or rescinded rule violates any of the six requirements, and if it does, the committee follows the process for rule invalidation.

If the agency determines that the rule should remain as it is, then it should file the rule as a five year no-change rule.  JCARR then considers the following questions as pertains to the no-change rule:

  • Should the rule be continued based on the intent of the statute under which the rule was adopted?
  • Should the rule be amended to give more flexibility at the local level?
  • Should the rule be rescinded or eliminated because of unnecessary paperwork?
  • Does the rule meet the standards for incorporation by reference?
  • Does the rule duplicate, overlap, or conflict with other rules?
  • Is there a continued need for the rule?
  • If the rule has an adverse impact on business, did the rulemaker demonstrate through the business impact analysis, CSI recommendations, and the memorandum of response that the regulatory intent of the rule justifies its adverse impact on business?

If JCARR finds that one of the above questions was violated or not sufficiently addressed by the agency, then the committee can entertain a motion for invalidation of the rule, triggering the rule invalidation process discussed above.

More information

JCARR has an excellent website with informative videos and other information about its purpose and how it carries out the review process, available here.  For a deeper dive into JCARR and the review process, the committee’s procedure manual is also very helpful.

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The Ag Law Harvest

Written by: Evin Bachelor, Law Fellow, and Ellen Essman, Sr. Research Associate

We’re back from the American Agricultural Law Association’s 2018 symposium, which was held in Portland, Oregon this year.  We had the chance to hear from lawyers and experts from across the nation on various legal issues facing agriculture.  Stay tuned to the Ag Law Blog for an update on what we learned at the symposium, but first, here’s the latest in agricultural law news:

Vote to designate watersheds in distress tabled by Ohio Soil and Water Conservation Commission.  As recently reported in the Ag Law Blog, the Ohio Soil and Water Conservation Commission held a meeting this week to discuss whether to designate certain sub-watersheds in the Western Lake Erie Basin as “in distress.”  Such designation would trigger additional management and reporting requirements on farmers in affected watersheds.  The Commission voted 4-3 to table the discussion and wait for the Joint Committee on Agency Rule Review (JCARR) to examine the Ohio Department of Agriculture’s proposed rule changes next month.  This week’s vote maintains the status quo without extending the “in distress” designation to other watersheds.

FDA releases two FSMA draft guidance documents.  The Food and Drug Administration recently released draft guidance documents explaining how to follow rules under the Food Safety Modernization Act (FSMA).  One document, titled “Guide to Minimize Food Safety Hazards of Fresh-cut Produce,” provides guidance on how to follow the Preventive Controls Rule under FSMA.  “Fresh-cut produce,” is defined as “any fresh fruit or vegetable or combination thereof that has been physically altered from its whole state after being harvested from the field without additional processing.”  The guidance would affect manufacturers, processors, packers, and holders of fresh-cut produce.  The document covers current good manufacturing practices, as well as “new requirements for hazard analysis and risk-based preventive controls.”  The draft guidance document, in addition to information on how to submit a comment on the guidance, is available here.

The second draft guidance document is titled “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption: Guidance for Industry.”  This document provides guidance on how to follow FSMA’s Produce Safety Rule.  The guidance would affect produce farms.  The guidance covers personnel qualifications and training, health and hygiene practices, biological soil amendments, contamination from domesticated and wild animals, suggestions for practices during the growing, harvesting, packing, and holding of produce, sanitation of equipment, recordkeeping on produce farms, and other topics.  According to a press release about the two guidance documents, FDA will be holding a series of four public meetings at various places around the U.S. to discuss the second draft guidance document with those affected.  FDA will be announcing the details about the meetings in the Federal Register soon.

It is important to remember that these are draft guidance documents.  Furthermore, guidance documents are just that—guidance.  In other words, the documents are there as suggestions on how to follow rules, and “do not establish legally enforceable responsibilities.”

EPA renews dicamba registration for cotton and soybeans, and updates labels.  On October 31, 2018, the United States Environmental Protection Agency (EPA) shared its decision on changes to applying dicamba, the much discussed herbicide.  EPA renewed the herbicide’s registration until December 20, 2020 for application to growing (what EPA terms “over-the-top”) dicamba-resistant cotton and soybean plants.

Below is EPA’s list of label alterations to dicamba products for the 2019-2020 growing season:

  • Two-year registration (until December 20, 2020)
  • Only certified applicators may apply dicamba over the top (those working under the supervision of a certified applicator may no longer make applications)
  • Prohibit over-the-top application of dicamba on soybeans 45 days after planting and cotton 60 days after planting
  • For cotton, limit the number of over-the-top applications from 4 to 2 (soybeans remain at 2 OTT applications)
  • Applications will be allowed only from 1 hour after sunrise to 2 hours before sunset
  • In counties where endangered species may exist, the downwind buffer will remain at 110 feet and there will be a new 57-foot buffer around the other sides of the field (the 110-foot downwind buffer applies to all applications, not just in counties where endangered species may exist)
  • Clarify training period for 2019 and beyond, ensuring consistency across all three products (Xtendimax with Vapor Grip Technology, Engenia Herbicide, DuPont FeXapan Herbicide)
  • Enhanced tank clean out instructions for the entire system
  • Enhanced label to improve applicator awareness on the impact of low pH’s on the potential volatility of dicamba
  • Label clean up and consistency to improve compliance and enforceability

EPA’s press release is available here.  More information on dicamba registration for resistant cotton and soybeans is available here.

Judge reduces jury verdict against Bayer’s Monsanto.  As we predicted in a previous edition of The Harvest, Bayer’s Monsanto quickly challenged a quarter billion dollar verdict granted by a San Francisco jury to a plaintiff who alleged that Monsanto’s Roundup weed killer caused his cancer.  Monsanto asked the judge to reconsider the jury’s verdict, and on Monday, October 22nd, the judge reduced the punitive damages portion of the jury verdict from $250 million to $39.25 million.  The judge accepted the jury’s finding that Monsanto acted with malice, but said that the evidence did not justify a quarter billion dollar award.  The judge did uphold the $39.25 million compensatory damages verdict.  In total, the plaintiff would receive a $78.5 million award.  Just this week, the plaintiff accepted the reduction in the award, saying that he will not ask the judge to reconsider the decision on damages.  However, the litigation seems likely to continue, so stay tuned to the Ag Law Blog for more updates about the glyphosate and Roundup lawsuits.

Blockchain: the future of information sharing?  We keep hearing about Blockchain technology, but what is it?  Blockchain is a digital system that allows users to securely transfer information and money without an intermediary to facilitate the transfer.  The transfers are recorded and timestamped, and the information contained in the “blocks” cannot be modified without the agreement of a majority of network users.  The system is decentralized in nature, meaning that the information is not stored in one location but is rather is stored on servers across the globe.  This makes the system more secure and less prone to modification because no single user can control the blockchain.  Its early uses were for digital cryptocurrencies like Bitcoin, but its uses have expanded into information.  The system has a potential in almost every sector of the economy, agriculture included.  For example, Walmart announced plans to utilize blockchain to quickly track products like produce all the way from the ground to the consumer.  By tracking information on foods like produce, companies like Walmart hope to be able to quickly determine sources of contamination in its food supply.  This would not only be a way to save lives, but to also not have to waste produce that was not contaminated.  For more information on Blockchain, here is a webinar from the National Agricultural Law Center that goes more in depth on what blockchain is, how it works, and how it can be utilized to help agriculture.

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ODA again revises “watersheds in distress” rule

In an ongoing attempt to carry out Governor Kasich’s executive order to establish nutrient management requirements for agricultural nutrients within “watersheds in distress,” the Ohio Department of Agriculture (ODA) has made a second revision to its proposed rule package.  According to ODA, the proposed watersheds in distress rules “create a uniform, state-wide standard that governs the application of manure and fertilizer on frozen, snow-covered and rain-soaked ground” within areas designated as “watersheds in distress.” pursuant to Ohio Admin. Code 1501:15-5-20.  Those proposed standards include the following:

  • Manure and nutrient application restrictions.   Owners, operators and applicators shall not surface apply manure and nutrients (nitrogen and phosphorus) on more than 50 acres of land used for agricultural production on snow covered, frozen and saturated soil or when there’s a greater than 50% chance that precipitation would exceed one-half inch in 24 hours, unless the manure or nutrients are  injected, incorporated with 24 hours or applied to a growing crop.
  • Compliance with 590 standards.  Owners, operators and applicators must follow the conservation practices in USDA’s “Field Office Technical Guide,” also known as the “590 standards.”
  • Nutrient management plan (NMP) requirements.  Owners and operators within watersheds in distress must develop and comply with NMPs if applying nutrients on more than 50 acres or producing, applying, or received more than 350 tons or 100,000 gallons of manure annually by deadlines established by ODA, must submit an attestation of NMP completion to ODA, and must produce a copy of the plan within five days of a demand by ODA.  The rule outlines the requirements and standards for NMPs.
  • Ongoing compliance.  Owners and operators must update NMPs and attestations once every three years or when conditions change.
  • Enforcement.  The rule includes penalities for failure to comply with rule provisions.

ODA proposed the first rule package in July, accepted public comments on the rule, and published a revised rule package for public comments.   In response to the second round of comments, ODA has made another revision to the rule.  The agency states that it is now amending the rule “to require the Department to conduct an audit of at least 5% of the attestations submitted to determine compliance regarding completion of nutrient management plans.”  Explaining the purpose of the revision, ODA states that “support was voiced from certain stakeholders regarding the flexibility of farmers to apply manure and nutrients during the winter months when conditions were favorable and safe to apply. In contrast, other stakeholders raised concerns that agricultural operations would no longer have any restrictions on the application of manure and nutrients. Stakeholders also raised concerns regarding the Department’s ability to enforce the new proposals.”

The proposed watersheds in distress rule package is here and the business impact analysis for the rules is here.   The public may submit comments on the proposal to ODA at AGReComments@agri.ohio.gov until October 5, 2018. 

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The Ag Law Harvest

Movement on Ohio “Watersheds in Distress” rules.  As we have reported on several times this summer, Governor John Kasich signed an executive order on July 11, 2018 directing ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission (OSWC) to designate” certain watersheds “as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment.”  Since that time, ODA has submitted a proposed rule dealing with Watersheds in Distress.  Amendments were made to the proposed rule after evaluating the first set of public comments, and ODA is now resubmitting the rules package.  ODA reopened the proposed rule for public comments, but it closed the comment period on September 7, 2018.  Information about the proposed rules, as well as how and where to comment, can be found here (click on the “Stakeholder Review” tab and then the “Soil and Water Conservation – Watersheds in Distress OAC 901:13-1” drop down option).  A draft of the newly amended proposed rules is available here.

WOTUS woes continue.  The Obama administration’s hotly contested “Waters of the United States” Rule is back in the news, and this time, where it applies is dependent on where you live.  A background on the rule can be found in our previous blog post.  The rule basically expanded which bodies of water qualify as “waters of the United States,” which in turn protected more waters under the Clean Water Act.  The rule became effective in 2015.  Since that time, U.S. District Courts in North Dakota and Georgia have issued preliminary injunctions against Obama’s WOTUS Rule, which means it cannot be carried out in twenty-four states.  Additionally,  last summer, the EPA and Army Corps of Engineers, under the direction of President Trump, announced their plan to repeal Obama’s WOTUS Rule and replace it with the definition of WOTUS “that existed prior to 2015” until a new definition could be developed. Trump’s  rule was published on February 6, 2018, giving the administration until 2020 to come up with a new definition.   However, in a ruling on August 16, 2018, in a U.S. District Court in South Carolina, Judge David Norton determined that the Trump administration “failed to comply with” requirements of the Administrative Procedure Act when it enacted its rule.  This means that the Trump rule repealing and replacing the definition of WOTUS is invalidated.  As a result of Judge Norton’s decision, in the remaining twenty-six states without an injunction, the Obama administration’s version of the rule has been reinstated.  Ohio is one of the twenty-six states where the Obama rule currently applies.  Will the Trump administration and the EPA respond to Norton’s decision by announcing yet another new WOTUS rule?  Follow the Ag Law Blog for any updates.  In the meantime, the country remains nearly split in half by which version of the WOTUS rule is carried out.

Regulators, meet “meat.”  Under a new Missouri law, it is a criminal offense to misrepresent a product as “meat” if there is, in fact, no meat.  Missouri’s revision of its meat advertising laws took effect on August 28th, and has been dubbed by many as the first attempt by a state to regulate what qualifies as meat.  Defining meat as “any edible portion of livestock, poultry, or captive cervid carcass,” the law prohibits “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.”  Violations are treated as a misdemeanor, with a fine up to $1,000 and possible jail time.  The Missouri Department of Agriculture has said that it intends to enforce the law, but that it plans to give affected companies until the start of next year to bring their labels into compliance.  Supporters of the law, like the Missouri Cattlemen’s Association, argue that it will provide consumers with accurate information about their food, and also protect meat producers from unfair labeling of plant-based or lab-grown meat alternatives.  Opponents have already filed a lawsuit to prevent enforcement, arguing that the law restricts free speech and improperly discriminates against out-of-state producers of meat alternatives.  The named plaintiff on the lawsuit is Turtle Island Foods, an Oregon company that does business under the names Tofurky and The Good Foods Institute.  The company makes plant-based food products, and is joined in its opposition by the American Civil Liberties Union of Missouri and the Animal Legal Defense Fund.  Beyond Missouri, the National Cattlemen’s Beef Association has listed the issue as a top policy priority for this year, and the U.S. Cattlemen’s Association has petitioned the USDA to adopt stricter labeling requirements.  As this issue develops, the Ag Law Blog will keep you updated.

USDA taps Commodity Credit Corporation to aid farmers.  Readers are no doubt aware of global trade disputes in which other countries have increased tariffs on American agricultural exports.  Given the extensive news coverage, the Harvest will not attempt to cover the dispute in depth; however, one point that has been less covered is the tool that the USDA has selected to provide relief to impacted farmers: the Commodity Credit Corporation.  What is it?  The Commodity Credit Corporation (CCC) is a federal government entity created during the Great Depression in 1933 to “stabilize, support, and protect farm income and prices.”  Since 1939, it has been under the control of the Secretary of Agriculture, although it is managed by a seven member Board of Directors.  CCC is technically authorized to borrow up to $30 billion from the U.S. Treasury at any one time, but due to trade agreements, that number is, in reality, much smaller.  This gives USDA access to billions of dollars in funding without having to go to Congress first.  The money can be used to provide loans or payments to agricultural producers, purchase agricultural products to sell or donate, develop domestic and foreign markets, promote conservation, and more.  CCC has no staff, but is instead administered through other USDA agencies, largely the Farm Service Agency and Agricultural Marketing Service.  On August 27th, Secretary of Agriculture Sonny Perdue announced that USDA plans to tap the Commodity Credit Corporation for up to $12 billion worth of aid to farmers affected by recent tariffs.  The Market Facilitation Program will provide direct payments to eligible corn, cotton, dairy, hog, sorghum, soybean, and wheat producers, and the Food Purchase and Distribution Program will purchase up to $1.2 billion in select commodities.  For more about the Commodity Credit Corporation, check out its website.

Bayer reports increasing number of lawsuits against newly acquired Monsanto.  Bayer, the German pharmaceutical and life sciences company that acquired Monsanto early this summer, has indicated that there are an increasing number of lawsuits in the United States alleging that its weed killers cause cancer.  According to the Wall Street Journal, there were roughly 8,700 plaintiffs seeking monetary damages from Bayer as of late August, a sharp increase from the 5,200 plaintiffs just months earlier.  Many of these lawsuits involve cancer patients who claim that Monsanto’s glyphosate-containing herbicides like Roundup caused their cancer.  As we reported in a previous edition of the Harvest, one person’s successful lawsuit against Monsanto resulted in a San Francisco jury award of $289.2 million for failing to warn consumers of the risks posed by its weed killers.  Monsanto is expected to file motions for a new trial and for the judge to set aside the verdict, and may ultimately appeal the decision.  These cancer-related claims come at a time when another Monsanto product, Dicamba, is causing great controversy.  Stay tuned to the Ag Law Blog as these lawsuits continue to develop.

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The Ag Law Harvest

Written by Ellen Essman, Sr. Research Associate

Here’s our gathering of recent agricultural law news you may want to know:

Kasich’s Executive Order delayed.  As we previously wrote about, Governor John Kasich signed an executive order earlier this month which directed ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission (OSWC) to designate” certain watersheds “as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment.”  The OSWC voted on July 19 to delay Kasich’s executive order, which means that the eight watersheds will not be labeled “watersheds in distress” at this time.  Instead, a subcommittee of the OSWC is tasked with researching and determining if each of the watersheds should be listed as “watersheds in distress.”  More information on this delay is available in Ohio’s Country Journal.

ODA to submit “Watershed in Distress” rule package.  In more news regarding “watersheds in distress,” ODA is expected to propose a new rule package.  While rules concerning watersheds in distress already limit the land application of manure on farms, the new rules would also limit the application of “nutrients,” which are defined as “nitrogen, phosphorus, or a combination of both.”  Stay tuned to the Ag Law Blog for any updates on this rule package!

ODA upgrades website.  The Ohio Department of Agriculture updated its website last month.  The update includes a section with frequently asked questions and answers for each of the separate Divisions. For example, the questions frequently asked about food safety, making and selling food are available here.  Head to www.agri.ohio.gov to check it out the new ODA website.

Additional comments sought on WOTUS.  On July 12, 2018, the Army Corps of Engineers and the EPA published a supplemental notice of proposed rulemaking in the Federal Register.  The supplemental notice is meant to “clarify, supplement and seek additional comment on” last summer’s proposal to repeal the 2015 Waters of the United States (WOTUS) Rule.  As a reminder, the 2015 WOTUS rule expanded the meaning of “waters of the United States,” or those waters protected under the Clean Water Act, to include “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters and other waters that have a significant nexus to interstate waters.” If the 2015 WOTUS rule is repealed, then the pre-2015 regulations defining WOTUS will be recodified.  The agencies are seeking additional comments on the proposed rulemaking through this supplemental notice.  The comment period is open through August 13, 2018.  Comments can be left here.

Ohio legislation on the move

  • Dogs on patios. B. 263, which we have been following, was sent to the Governor on 7/24/2018.  Kasich’s signature would mean that food establishments and food service operations could permit customers to bring a dog into an outdoor dining area if the dog is vaccinated.  Each establishment must adopt a policy requiring customers to control their dogs and to keep their dogs out of indoor areas.  See our previous coverage of this legislation here and here.

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