Recent Blog Posts

By: Peggy Kirk Hall, Wednesday, January 28th, 2015

A federal court has dismissed a lawsuit claiming that the Ohio Department of Agriculture (ODA) is improperly issuing National Pollutant Discharge Elimination System (NPDES) permits for concentrated animal feeding operations without authorization by the U.S. EPA.   Two residents of northwest Ohio filed the suit last summer against the ODA, the Ohio EPA and the U.S. EPA.  In a tenuous argument, they alleged that the Ohio EPA illegally delegated its authority over NPDES permits by allowing ODA to issue a manure management plan as a condition for obtaining an NPDES permit from the Ohio EPA, and by allowing ODA to “determine, collect and analyze” data required for an NPDES permit.  The plaintiffs had also requested a preliminary injunction against ODA, which the court denied last December.

The lawsuit aims at the Ohio legislature's action in 2000 that transferred authority from the Ohio EPA to ODA for Ohio's state-based permitting program for concentrated animal feeding facilities.  The state permit program is separate from, and in addition to, the NPDES permit program administered under the federal Clean Water Act by the Ohio EPA.  Following the transfer of the state program to ODA, Ohio requested that the U.S. EPA approve a transfer of the NPDES permit authority for animal feeding operations from Ohio EPA to the ODA.  The U.S. EPA has not yet approved the transfer, and the NPDES program remains with the Ohio EPA.  If approved by the U.S. EPA, both the state and NPDES permit programs would be administered through ODA's Livestock Envrionmental Permitting program.  Until that time, ODA administers the Livestock Environmental Permitting program according to Ohio law, while the Ohio EPA oversees NPDES permits for animal feeding operations that are also subject to the Clean Water Act due to potential discharges into waters of the United States.

The plaintiffs claimed that ODA is improperly administering NPDES permits because of the manure management plans required for both the state and federal permit programs.   An applicant seeking both an Ohio and an NPDES permit can submit the same manure management plan to each agency.  The standards for both programs are the same, because ODA followed the EPA's federal requirements for manure management plans when it developed Ohio's manure management plan standards.   It is possible that a manure management plan approved by ODA could also be approved by the Ohio EPA in the NPDES permit program.  Plaintiffs argued that by allowing a manure management plan that had been approved for ODA's permit program to be used in the application for an NPDES permit, the Ohio EPA was delegating its authority to ODA to review and approve manure management plans for the NPDES program.

Not surprisingly, the U.S. District Court disagreed. "Even though a permit applicant may submit to the Ohio EPA a manure management plan which was developed to satisfy Ohio’s permit to operate requirements, the plan is still reviewed by the Ohio EPA and will only be allowed to be used in the discharge elimination permit application if the plan satisfies federal regulations and the Clean Water Act,"  stated Judge David Katz.

Judge Katz proceeded to grant the agencies' motion to dismiss the case.  "Plaintiffs’ assertion that the Ohio EPA improperly delegated its authority regarding concentrated feeding permits to the Ohio Department of Agriculture is completely devoid of merit. The facts simply do not show that Ohio’s EPA and Department of Agriculture have engaged in any conduct which violates a federal statute or regulation."

Read the decision in Askins v. Ohio Dept. of Agriculture here.

By: Peggy Kirk Hall, Monday, January 26th, 2015

House Committee Sets Out to Address Water Quality

The 131st session of the Ohio General Assembly is underway with a few changes to the structure and leadership of the committees that address agriculture.  In the House of Representatives, the previous Agriculture and Natural Resources Committee has been renamed as the Agriculture and Rural Development Committee.  Natural resource issues, previously handled with agriculture under the old committee structure, will now go to a newly formed Energy and Natural Resources Committee.  The committee modifications echo similar changes made last session in the Senate.

Brian Hill (R-Zanesville) will serve as the new chair of the House Agriculture and Rural Development Committee, with Tony Burkley (R-Payne) as vice chair and John Patterson (D-Jefferson) as the ranking minority member.  Other committee members are Terry Boose (R-Clarksville), Jim Buchy (R-Greenville), Jack Cera (D-Bellaire), Christina Hagan (R-Marlboro Township), Steve Kraus (R-Sandusky), Sarah LaTourette (R-Bainbridge Township), Michael O’Brien (D-Warren), Sean J. O’Brien (D-Bazetta), Bill Patmon (D-Cleveland), Debbie Phillips (D-Albany), Wes Retherford (R-Hamilton ), Jeff Rezabek (R-Clayton), Margaret Ann Ruhl (R-Mt. Vernon), Tim Schaffer (R-Lancaster), Michael Sheehy (D-Oregon), Andy Thompson (R-Marietta), A. Nino Vitale (R-Urbana) and Paul Zeltwanger (R-Mason).

The House Agriculture and Rural Development committee will kick off its work with a prominent issue:  water quality.  Speaker Cliff Rosenberger has stated that water quality will be a priority issue that the House "needs to address and address quickly."  Late last session, the House attemped to mitigate algal issues in Ohio lakes by passing legislation that would have affected applications of livestock manure and chemical fertilizers (HB 490).  The legislation failed to pass the Ohio Senate and expired on December 31, 2014 with the end of the legislative session.  This week, the House Agriculture and Rural Development Committee will revisit those issues when it meets off-site for a hearing at Cooper Farms in Van Wert to discuss water quality, nutrient management and agriculture.  Expert witnesses in agriculture and watershed management will present testimony and address questions from the committee.

mitigate toxic algal blooms in Lake Erie
"I think the water quality issue is something that is extremely important. I think it's something you'll probably see as a priority bill that we need to get done early on," he said in a recent interview. - See more at: http://www.gongwer-oh.com/programming/news.cfm?article_ID=840020204#stha...
"I think the water quality issue is something that is extremely important. I think it's something you'll probably see as a priority bill that we need to get done early on," he said in a recent interview. - See more at: http://www.gongwer-oh.com/programming/news.cfm?article_ID=840020204#stha...

On the Senate side of the new legislative session, the Senate Agriculture Committee will continue under the leadership of Cliff Hite (R-Findlay), with vice chair Joe Uecker ((R–Miami Township) and ranking minority leader Lou Gentile (D-Steubenville).  Other committee members are Bill Beagle (R–Tipp City), Dave Burke (R-Marysville), Capri S. Cafaro (D-Hubbard), Randy Gardner (R-Bowling Green), Gayle Manning (R-North Ridgeville), Bob Peterson (R-Sabina) and Michael J. Skindell (D-Lakewood).  The Senate Agriculture Committee does not currently have any hearings on its schedule.

By: Peggy Kirk Hall, Tuesday, January 13th, 2015

Ohio State University Extension will offer four Farmland Leasing Workshops throughout Ohio this February.

The three hour workshops will include topics of interest to both landowners and farm operators, such as factors affecting leasing options and rental rates, analyzing rent survey data and legal requirements and provisions for farm leases.  The speakers will help attendees consider how to use data in negotiations and to apply legal information to leasing practices.

Workshop presenters include Barry Ward, Assistant Professor, OSU Extension and Leader, Production Business Management and Peggy Hall, Assistant Professor, OSU Extension and Director of OSU's Agricultural & Resource Law Program.  

Topics included in the workshop are:

  • Factors affecting leasing options and rates
  • Evaluating cash rent survey data
  • Farmland leasing options:  fixed and flexible cash leases
  • Creating a legally enforceable lease
  • Legal provisions in farmland leases
  • Analyzing good and bad leasing practices

Dates and Locations of Farmland Leasing Workshops:

February 4, 2015, 9:00 am—12:00 pm
Fairfield County Ag Center, Lancaster  
Registration:  Call OSU Extension at 740-653-5419.  A program on the Farm Bill will follow the Farmland Leasing Workshop. $10 registration fee for both programs.
 
February 6, 2015, 1:00–4:00 pm
Kent State University Tuscarawas, New Philadelphia
Registration:  Call OSU Extension at 330-339-2337.  $15 registration fee.  

February 11, 6:00–9:00 pm
Paulding County Extension Office, Paulding
Registration:  Call OSU Extension at  419-399-8225.  $20 registration fee if registered by February 4.

February 20, 9:00 am—12:00 pm
Greene County Career Center,  Xenia
Registration:  Call OSU Extension at 937-372-9972, x114.  Call by February 16 for free registration.

Check the events calendar at http://aglaw.osu.edu for workshop details.
 

Posted In: Business and Financial, Crop Issues
Tags: farm leases
Comments: 0
By: Peggy Kirk Hall, Tuesday, January 06th, 2015

Attorney Bill Bridgforth will present OSU's next webinar on "The 2014 Farm Bill:  Guiding a Client through the New Law" on Friday, January 9 at 1 pm EST.  Bridgforth is a senior partner in the Arkansas law firm of Ramsay, Bridgforth, Robinson & Raley, LLP who represents agricultural producers around the United States.  He will explain the election decisions producers and landowners must make under the new Farm Bill and will provide examples of decision making impacts. 

There is no registration or fee required for the webinar, which is accessible at https://carmenconnect.osu.edu.  A recording of the webinar and a listing of additional webinars is available at aglaw.osu.edu.  

The Ohio Food, Agriculture & Environmental Law Webinar Series is an outreach project of OSU Extension's Agricultural & Resource Law Program.

By: Peggy Kirk Hall, Tuesday, November 25th, 2014

OSU’s Agricultural & Resource Law Program is pleased to announce its inaugural webinar, Big Data and UAVs:  Legal Issues for Agriculture, scheduled for Friday, December 12 at 1 pm.  This is the first webinar in the program’s new “Ohio Food, Agriculture and Environmental Law Webinar Series,” offering monthly legal webinars on issues of importance to Ohio agriculture. 

The webinar will feature John Dillard, an Associate Attorney with the law firm of Olsson Frank Weeda Terman Matz, PC in Washington, DC and a leading expert on legal issues with technology and agriculture.  With a background in agriculture and experience advising clients in the food and agricultural industries, Dillard will present a practical analysis of the legal issues raised by agriculture’s increasing use of large data sources and UAVs.   Dillard authors a blog, Ag in the Courtroom, on AgWeb.com and Legal Ease, a column in Farm Journal magazine.  He has appeared on national television and radio agricultural programs to discuss legal issues that affect agriculture.

Future webinars in the Ohio Food, Agriculture and Environmental Law Webinar Series will feature other national and state experts discussing legal issues of importance to Ohio agriculture.  Topics in the series thus far will include:

The 2014 Farm Bill: Guiding a Client through the New Law with Bill Bridgforth of Ramsay, Bridgforth, Robinson & Raley LLP, Pine Bluff, Arkansas on Friday, January 9, 2015 at 1 pm. 

Managing Pollutant Discharge Risk on Farms with Chris Walker and Jack Van Kley of Van Kley & Walker LLP, Dayton/Columbus, Ohio and Tom Mehnke of Mehnke Consulting LLC, Greenville, Ohio on Thursday, February 12, 2015 at 1 pm (tentative).

Introduction to Food Law:  What You Need to Know to Build a Food Law Practice with Jason Foscolo of Foscolo & Handel PLLC, Sag Harbor, New York on Thursday, March 12, 2015 at 1 pm.

Nursing Home Costs & Medicaid:  The One-Two Punch to the Family Farm with Craig Vandervoort of Sitterly & Vandervoort Ltd, Lancaster, Ohio on Friday, April 10, 2015 at 1 pm.

Rights and Remedies for Protecting Your Water Supply in Ohio with Joe Reidy of Frost Brown Todd LLC, Columbus, Ohio and Peggy Kirk Hall of OSU’s Agricultural & Resource Law Program on Thursday, May 14, 2015 (tentative).

For information on how to access the complimentary webinars and archived recordings, visit the “webinars” tab on http://aglaw.osu.edu.  

Posted In: Legal Education
Tags: big data, UAVs, drones, webinars
Comments: 0
By: Caty Daniels, Tuesday, November 18th, 2014

By: Larry Gearhardt, OSU Extension Asst. Professor, Taxation

For the past several years, Ohio’s farmers have had the enviable task of planning for higher incomes because of historically high crop prices. Year-end tax planning became increasingly important with the passage of the 2012 Fiscal Cliff legislation (passed on January 1, 2013, but made retroactive to 2012). This legislation contained several provisions that penalized high income earners, such as a new 39.6% income tax rate, a 20% tax on capital gains for taxpayers in the 39.6% range, and a new 3.8% net investment income tax and a 0.9% Medicare tax.

Most farmers normally do not have income that exceeds the thresholds that trigger these higher taxes. However, the higher crop prices over the past several years have pushed more farmers into the category where year-end tax planning was critical. Perhaps 2014 will be different because of the plummeting crop prices, but on the flip side, farmers have lost two very important tax planning tools, at least for today. Furthermore, as is often the case, when one sector of agriculture loses, another sector gains. Livestock and poultry farmers are still receiving high prices for their products.

The most important step in year-end tax planning is to establish a date to determine income and expenses for the year. I suggest that around December 1 of this year, the farmer should determine, as close as possible, what his/her income and expenses are for the year. This leaves ample time for the farmer to take action to reduce income taxes, if possible. As soon as the ball drops on New Years Eve, the farmer has lost his opportunity to take action to reduce his taxes in 2014.

There were 55 tax benefits, credits, and exclusions that expired at the end of 2013 and have not been re-authorized. The two most critical tax benefits for farmers that either expired, or were reduced, were bonus depreciation and the section 179 expense deduction. Until the end of 2013, section 179 of the Internal Revenue Code allowed a farmer to deduct up to $500,000 of the cost of capital improvements as an expense in the year of purchase. This amount has been reduced to $25,000 in 2014. In addition to the $500,000 expense deduction, a farmer could take a 50% bonus depreciation in the year of purchase of a capital asset. There is no bonus depreciation for 2014.

There is keen interest in whether or not the section 179 expense deduction will be increased and the bonus depreciation returned. The word out of Washington is that nothing will happen until after the November election. Whether or not any changes happen between the election and the end of the year is anyone’s guess. However, historically, Congress has made the section 179 expense deduction and the bonus depreciation retroactive to the prior year if no action is taken. If a farmer bets on section 179 being increased and bonus depreciation returning, he should take action prior to the end of the year. If he waits until 2015 to purchase that new tractor, it is too late to adjust 2014 taxes.

Besides betting on the section 179 expense deduction and bonus depreciation, another useful tax planning tool is income averaging. Farmers enjoy the ability to look back at the prior three years and average their income over that period of time in the event that the farmer experiences a high income year. This may have limited benefit in light of the high crop prices over the last several years.

The most basic year-end tax planning is timing income and expenses, if possible, so that the income and expenses occur in the year that is most beneficial to the farmer. If 2014 is a high income year, the farmer should delay the receipt of revenue until 2015 and pay for 2015 expenses this year. This becomes especially important under the current circumstances where it appears as if 2015 income will be lower than previous years.

Even though the crop prices are plummeting, those farmers in the livestock and poultry sectors are still enjoying high profit margins. Until we know the future of the section 179 expense deduction and bonus depreciation, the options of livestock and poultry farmers are somewhat limited. The timing of income and expenses becomes more critical with more emphasis placed on deferring income and accelerating expenses. Even though it is not as inviting as in prior years, making capital expenditures and depreciating the cost by MACRS depreciation is still a useful tool.

Posted In: Tax
Tags: Tax Planning, 2014 Tax Planning Considerations
Comments: 0
By: Caty Daniels, Friday, November 14th, 2014

Ohio State University Extension’s Agricultural and Resource Law Program is excited to announce a new partnership with a group of universities creating a new Agricultural and Food Law Consortium.  The Consortium is a national, multi-institutional collaboration designed to enhance and expand the development and delivery of authoritative, timely, and objective agricultural and food law research and information.

The Consortium will host its first webinar on Wednesday, November 19, from 2:30-3:30 (EST). The webinar, titled Mandatory GMO Labeling Laws: Overview and Status of Current Legal Issues, will focus on GMO labeling laws, proposals, and initiatives. Details about the webinar, including sign-on instructions, are available on the National Agricultural Law Center website at http://nationalaglawcenter.org/consortium/gmolabelingwebinar/. The program presenter will be Consortium member, Ross Pifer, Director of the Agricultural Law Resource and Reference Center at Penn State Law. The program is designed for a broad audience that includes non-attorneys.

The Consortium is being led by the National Agricultural Law Center, which is a unit of the University of Arkansas System Division of Agriculture in Fayetteville, Arkansas. The OSUE Agricultural and Resource Law Program’s role in the consortium will be to conduct legal research, write articles, and produce outreach material. The consortium will allow us to collaborate on national and regional issues using our strengths to create bigger impact and will allow us to bring our expertise and Ohio’s issues to a national audience. Other universities making up the consortium include the National Sea Grant Law Center at the University of Mississippi School of Law and the Agricultural Law Resource and Reference Center at Penn State Dickinson School of Law.

Right now, an online survey is being conducted asking for input on agriculture and legal issues individuals are dealing with. This survey will help define the Consortium’s long-term research and information agenda. Everyone is asked to participate in the short, anonymous survey. The survey can be found at: http://nationalaglawcenter.org/consortium/.

By: Peggy Kirk Hall, Tuesday, September 30th, 2014

Although long considered a natural fertilizer that can benefit our soils, manure has a history of increased regulation in recent years based on potential impacts to water quality.   The following explains how state and federal law regulates the production, storage and application of animal manure in Ohio.  

Livestock Environmental Permitting Program

The Ohio Department of Agriculture’s Division of Livestock Environmental Permitting (ODA) administers a permit program for Ohio’s largest confined livestock operations, or Concentrated Animal Feeding Facilities (CAFFs).  Ohio Revised Code Chapter 903 and Ohio Administrative Code 901:10 contain the program’s legal provisions.

An owner must obtain a “permit to install” and a “permit to operate” from ODA before operating a CAFF.  The permit requirement applies to a CAFF that houses any of the following, at a minimum:

  • 700 mature dairy cows
  • 2,500 hogs over 55 pounds
  • 10,000 baby pigs under 55 pounds
  • 82,000 laying hens
  • 125,000 pullets or broilers
  • 1,000 head of beef animals of any size
  • 500 horses
  • 10,000 sheep or lambs
  • 55,000 turkeys

Related to manure, obtaining the “permit to install” requires a CAFF owner to submit information on:

  • Maps indicating CAFF boundaries, manure storage facility dimensions, location and siting distances and locations of subsurface drains within 100 feet of manure storage.
  • Geological study results with information on soil; groundwater sampling and analysis; hydrology; geology and topography of land used for manure storage.
  • Listing of the type, amount and nutrient content of manure from the facility.

For the permit to operate, the CAFF must submit a Manure Management Plan that outlines the Best Management Practices the CAFF will implement to minimize water impacts from the storage and use of manure.  The Manure Management Plan must include:

  • A nutrient budget.
  • Manure and soil characterizations.
  • Manure distribution and utilization methods
  • Methods for minimizing odor.
  • Inspection, maintenance and monitoring practices.
  • Land application methods.

Land Application of Manure for Permitted CAFFs

Land application of manure by a permitted CAFF or by a Certified Livestock Manager working with the CAFF must be in accordance with ODA regulations, which include requirements for:

  • Soil and manure tests.
  • Crop yields and rotations to determine nutrient needs.
  • Setbacks from streams, neighbors and wells
  • Limitations on amounts of nitrogen, phosphorus and liquid applied.
  • Weather predictions.
  • Examination of soil condition for cracks, earthworm burrows and plant root pathways to tile or tile blowouts in the field.
  • Monitoring of tile outlets during and after application.
  • Restrictions against runoff or ponding of manure.
  • Recordkeeping requirements.
  • Inspection requirements.

If a local farmer uses manure from a permitted CAFF for application on another farm, the CAFF must provide the farmer with the ODA’s application requirements and a current manure test.  The farmer must certify when and how much manure was taken from the CAFF.  The farmer’s land application of manure then falls under the Agricultural Pollution Abatement Program, described below.

National Pollutant Discharge Elimination System (NPDES) Permits

The federal Clean Water Act requires livestock operations defined as “Confined Animal Feeding Operations” (CAFOs) to obtain a federal NPDES permit if they discharge or propose to discharge a pollutant to surface waters, even if the operation has obtained a permit from ODA. The Ohio EPA administers the NPDES permit process, which requires operators to control spills and runoff from their facilities and from the land application of manure.   To obtain a permit, a CAFO must develop and implement a Manure Management Plan that addresses:

  • Practices to ensure adequate manure storage capacity and proper maintenance and operation of storage facilities.
  • Practices to divert clean storm water away from production areas.
  • Practices to ensure that animals and manure in the production area do not come into direct contact with waters of the State.
  • A land application plan that includes:
  • A nutrient budget.
  • Manure and soil characterizations.
  • Application methods and timing.
  • Agronomic application rates.

CAFO owners must also meet ongoing monitoring, recordkeeping and reporting requirements and are subject to enforcement actions for violations.

Certified Livestock Manager Certification

Ohio law requires Ohio’s largest CAFFs and every manure broker or manure applicator who handles more than 4,500 dry tons or 25 million liquid gallons of manure per year to obtain the Certified Livestock Manager (CLM) certification from ODA.  The applicant must complete core classes on nutrient management standards, manure storage and handling and Ohio manure regulations and must also complete three elective classes on water quality, soil testing, stockpiling, emergency action plans, spill reporting, value of manure nutrients, recordkeeping, biosecurity, liability or applying manure to growing crops. CLMs must complete ten hours of continuing education every three years to maintain their certification.

Ohio Agricultural Pollution Abatement Program

Ohio’s Agricultural Pollution Abatement Program (APAP) applies to agricultural operations that are not subject to the above state and federal permit programs for CAFFs and CAFOs.   As stated in Ohio Revised Code 1511 and Ohio Administrative Code 1501:15-5, APAP provides state standards for management and conservation practices that aim to abate water pollution resulting from animal manure.   The Ohio Department of Natural Resources Division of Soil and Water Resources (ODNR) administers APAP in cooperation with local Soil and Water Conservation Districts (SWCD).

Ohio’s APAP regulations establish Best Management Practices (BMPs) for livestock operators.  The standards encourage operators to:

  • Operate and maintain animal manure collection, storage or treatment facilities to prevent seepage, overflow or discharge of animal manure into waters of the state.
  • Prevent the discharge of manure-contaminated runoff from animal feedlots and animal manure management facilities.
  • Prevent pollution caused by flooding; construct animal feeding operations so that animal manure will not be inundated by a 25 year frequency flood.
  • Minimize pollution from land application of manure by adopting manure application practices that consider the characteristics of the animal manure, available land, topography, cropping system, method of application, weather, time of the year, condition of the soil, other nutrients applied and nutrient status of the soil.

Technical expertise and cost-share assistance is available through APAP to help operators install and implement BMPs and develop Operation and Management Plans.   The law provides a complaint-driven process for suspected pollution incidents that can result in an investigation by ODNR or SWCD.   Farms that cause pollution and fail to adopt the recommended BMPs to address pollution abatement must develop and implement modifications to their facilities as approved by ODNR or SWCD, or face enforcement actions.

Watershed in Distress Regulations

The Ohio APAP regulations also contain rules that apply to certain producers of manure within areas designated as “watersheds in distress,” located in Ohio Administrative Code 1501:15-5-19 to 20.   The chief of ODNR’s Division of Soil and Water Resources, with approval of the Ohio Soil and Water Conservation Commission, may designate a watershed to be in distress when aquatic life and health 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.  Within the boundaries of a designated watershed in distress, these additional regulations apply to animal facility owners and operators and manure applicators:

  • No land application of manure may occur between December 15 and March 1 without prior approval from the agency; before and after these dates, applications of manure on frozen ground or ground covered in more than one inch of snow may occur only if injected into the ground or incorporated within 24 hours of surface application.
  • No land application of manure if the local weather forecast shows more than a 50% chance that precipitation would exceed one-half inch of rain in the 24 hours after the proposed application.
  • Restrictions on the application of snowpack manure.
  • An operation must ensure a minimum of 120 days of manure storage as of December 1 of each year and keep records of manure storage volumes.
  • Anyone who produces, applies or receives more than 350 tons or 150,000 gallons of manure per year must have an approved Nutrient Management Plan that addresses the methods, amount, form, placement, cropping system and timing of all nutrient applications, unless the farm is already operating under a permit from ODA’s DLEP or an NPDES permit from OEPA.

For more information on the regulation of animal manure in Ohio, refer to these resources:

ODA Livestock Environmental Permitting and Certified Livestock Manager Programs - www.agri.ohio.gov/divs/DLEP/dlep.aspx

Ohio EPA Confined Animal Feeding Operations - www.epa.ohio.gov/dsw/cafo/index

Ohio DNR Agricultural Pollution Abatement  - www2.ohiodnr.com/soilwater/water-conservation/agricultural-pollution-abatement

Ohio Revised Code - http://codes.ohio.gov/orc

Ohio Administrative Code - http://codes.ohio.gov/oac

By: Caty Daniels, Monday, September 08th, 2014

With fall quickly approaching, now is a good time to consider whether you should lease your land for hunting. Leasing your land for hunting can be beneficial by giving you an extra source of income as well as managing wildlife populations and decreasing crop damage. However, there are some considerations to make before granting that lease to someone.

Your first concern should be whether or not you would be liable for hunting accidents on your property. You likely wouldn’t be, thanks to Ohio’s Recreational User Statute. In certain situations, Ohio’s Recreational User Statute provides immunity from legal liability for someone harmed on your property during recreational activities. The types of recreational activities included in the Recreational User Statute include: hunting, fishing, trapping, camping, hiking, swimming, operating a snowmobile, all-purpose vehicle, or four-wheel drive motor vehicle, or engaging in “other recreational pursuits.”    

Under the Recreational User Statute, those who lease nonresidential property for hunting do not have any duty to keep the premises safe, do not give any promises of safety by granting permission, and do not assume responsibility or liability for injuries caused by any act of the hunters.

Next, you should consider the lease itself. To create an enforceable lease, the lease must:

  1. Be in writing
  2. Identify the land being leased by legal description, address, and acreage
  3. Properly name the lessor (the owner of the land) and the lessee (the person leasing the land to hunt)
  4. Be signed by both parties
  5. Be acknowledged and certified by a notary public or local official if the lease is over three years

It is also important to consider what should be included in the lease. Some terms and conditions you should consider including are:

  • A description of the property
    • Clearly defining what property is/is not included in the lease will set clear boundaries for the lessee
  • A description of what activities are/are not allowed
    • Fishing, camping, tree stand or duck blind construction, etc.?
  • Allowance or restriction of sub-leasing
    • Do you want to give permission to the lessee to sub-lease or is the lease strictly between you and the lessee?
  • Who is allowed to hunt or access the property
    • Just the lessee? Or may the lessee bring guests? Is there a limit to the number of people allowed to hunt at any given time? Do you want the lessee to ask permission to bring guests?
  • Amount of payment and payment dates
    • How much will you charge for the lease and when do you want paid?
  • Termination clause
    • When will the lease end? On a specific date and/or if a violation of the lease agreement occurs?
  • Deer Killed
    • Limiting the number of deer that may be killed? Requiring a certain number of female deer killed?
  • Landowners reserving some rights to hunt on their land
    • When leasing your land for hunting, you give up your right to hunt the land yourself unless you reserve some rights to hunt for yourself
  • What season is the lease in effect?
    • Only deer, deer and turkey, etc.
  • Vehicle access to the property
    • Where can vehicles drive and park on your property? What vehicles are permitted – will you allow ATV’s?
  • Requiring hunters to maintain liability insurance

These are important considerations to think about including in a hunting lease, but this is not an exhaustive list. You should really consider what your goal is for leasing your land for hunting. Make sure the terms and conditions you include in your lease will help accomplish those goals. While hunting lease templates can be found online, you should consult with an attorney to create a hunting lease that will satisfy the goals and needs of your particular situation.  

To read Ohio’s Recreational User Statute, visit: http://codes.ohio.gov/orc/1533.181

Posted In: Animals, Property
Tags: Ohio hunting leases, hunting leases
Comments: 0
By: Peggy Kirk Hall, Tuesday, August 19th, 2014

In response to the recent drinking water ban in Toledo, three senators from Ohio's Lake Erie counties have introduced SB 356 to expand and accelerate fertilizer certification legislation passed earlier this year.  Senators Brown, Cafaro and Turner's proposal would add "manure" to the definition of "fertilizer" for purposes of the fertilizer certification program enacted this May in SB 150.   Whether or not manure applications should fall under the fertilzer certification requirement was a point of much debate in committee hearings for SB 150, with the legislature ultimately deciding to exclude manure applications from the new certification program.

SB 356 would also significantly change the deadline for fertilizer applicators to become certified--from September 30, 2017 to December 31, 2014.  This change of deadline, which appears impracticable if not impossible, would require the Ohio Department of Agriculture (ODA) to establish the regulations for the fertilizer certification program and offer certification training so that any persons desiring to apply fertilizers after December 31, 2014 could become certified through the new program.  Currently, SB 150 gives ODA and fertiler applicators three years to establish the new fertilizer certification program and complete certification training.

S.B. 356 is the first of several legislative proposals we expect to see in response to Toledo's water concern.  The bills will likely present different approaches to address phosphorous runoff, which many point to as the cause of the algae problem.  Representative Sheehy has announced his intent to introduce legislation soon that would limit applications of manure on frozen or snow-covered ground and would expand manure storage requirements for livestock operations. 

A statewide Ohio Lake Erie Phosphorous Task Force formed in 2009 issued its second report and recommendations for addressing phosphorous in Ohio waterways last October.

 

 

 

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