Recent Blog Posts

By: Peggy Kirk Hall, Wednesday, July 15th, 2015

Grain bins are “business fixtures” that are personal property not subject to real property tax, according to a decision issued today by the Ohio Supreme Court. 

The court case arose when the Metamora Elevator Company challenged the Fulton County auditor’s inclusion of grain storage bins in the company’s real property valuation.  Metamora filed complaints with the county Board of Revision, arguing that the grain bins are business fixtures that should not be included in the company’s real property assessment.   The Board of Revision disagreed with Metamora and the company appealed to the Board of Tax Appeals (BTA). 

The Fulton County BTA ruled in favor of the company, determining that grains bins are personal property and should not be taxed as real property.  The BTA reduced Metamora’s real property value by nearly $1.1 million, the value of the grain bins.  Fulton County requested a review of the BTA decision by the Ohio Supreme Court, which agreed to hear the case.   The issue before the Court was whether the grain bins are “fixtures” or “improvements” that are subject to real property tax or whether they are not subject to real property tax because they are “business fixtures” that qualify as personal property. 

Ohio Supreme Court’s reasoning

In its decision authored by Justice O’Donnell, the Supreme Court explained that the legislature amended the Ohio Revised Code in 1992 to clarify the historically “elusive” distinction between real and personal property in Ohio.  The court stated that the changes expressed a clear intent to identify fixtures as real property while defining business fixtures as personal property,  according to two of th revised sections of Ohio law:

  • ORC 5701.02(A), which states that “real property” includes “land itself * * * and, unless otherwise specified in this section or section 5701.03 of the Revised Code, all buildings, structures, improvements, and fixtures of whatever kind on the land.”
  • ORC 5701.03(B), which defines “business fixture” as “an item of tangible personal property that has become permanently attached or affixed to the land or to a building, structure, or improvement, and that primarily benefits the business conducted by the occupant on the premises and not the realty.  Business fixture includes, but is not limited to, machinery, equipment, signs, storage bins and tanks, whether above or below ground, and broadcasting, transportation, transmission, and distribution systems, whether above or below ground.

“Our analysis need go no further than to apply the expressed intent of the General Assembly to the undisputed facts of this case,” said the Court, and concluded that the legislature clearly intended for the term “business fixture” to include storage bins, and therefore to define storage bins as personal property not subject to real property tax.   

The Court rejected the two arguments advanced by the county, that property classification cases depend upon what constitutes an “improvement” under the Ohio Constitution and that it would be unconstitutional for the legislature to classify constitutional “improvements” such as fixtures or structures as personal property simply because the fixtures might be used in business.  Because the grain bins related more to the personal business than to the land, based on the definition of “business fixture” in ORC 5701.03, the Court saw no conflict between the personal property classification and the Ohio Constitution.

Implications for agriculture

Fulton County may not be the only county that classifies grain bins as real property for tax purposes.  Landowners who own grain bins should review their property tax records and determine whether the real property value includes the value of grain bins located on the parcel.  If the property tax does incorporate grain bin values, consult with the county auditor to discuss the situation.  Ohio law allows a county auditor to correct "clerical errors" made in the collection of real property taxes, although there is a question of whether inclusion of grain bins in the real property value constitutes a clerical error.  Ohio law also provides remedies for taxpayers who have overpaid taxes; landowners should consult with a tax attorney for guidance on these remedies.  Note that filing a complaint with the Board of Revision is not an option, as March 30 was the deadline for filing complaints for the current tax year.

The case of Metamora Elevator Co. v. Fulton Cty. Bd. of Revision, Slip Opinion No. 2015-Ohio-2807 is available on the Ohio Supreme Court’s website, here.

 

By: Peggy Kirk Hall, Monday, July 06th, 2015

Ohio's newest legislation addressing water quality concerns became effective on July 3, 2015.  The new law, enacted by the Ohio legislature earlier this year as Senate Bill 1, affects Ohio agriculture with the following provisions:

1.  Fertilizer application restrictions in the western basin.  In the western basin of Lake Erie, a person may not apply fertilizer (defined as nitrogen or phosphorous) under these conditions:

  1. On snow-covered or frozen soil
  2. When the top two inches of soil are saturated from precipitation
  3. In a granular form when the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one inch in a twelve-hour period

Exceptions—the above restrictions do not apply if the fertilizer is:

  1. Injected into the ground
  2. Incorporated within 24 hours of surface application
  3. Applied onto a growing crop

2.  Manure application restrictions in the western basin.  In the western basin of Lake Erie, a person may not surface apply manure (defined as animal excreta) under these conditions:

  1. On snow-covered or frozen soil
  2. When the top two inches of soil are saturated from precipitation
  3. When the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding 1/2 inch in a 24 hour period

Exceptions—the above restrictions do not apply if the manure is:

  1. Injected into the ground
  2. Incorporated within 24 hours of surface application
  3. Applied onto a growing crop
  4. Or if, in the event of an emergency, the chief of the division of soil and water resources provides written consent and the application is in accordance with NRCS practice standard code 590.

3.  Exemptions for small and medium operations.  Small and medium agricultural operations in the western basin, defined by number of species using the same criteria as Ohio Department of Agriculture's (ODA's) livesock environmental permitting program, may apply to the chief of the division of soil and water resources for a temporary exemption from the restrictions on manure applications. 

  1. A medium agricultural operation may be exempt for one year, up to July 3, 2016.
  2. A small operation may be exempt for two years, up to July 3, 2017.
  3. An exempt operation will not be subject to civil penalties for violations if working toward compliance and may request technical assistance to reach compliance standards.

4.  Certification requirements for any persons using manure from CAFFs anywhere in Ohio.  On 50 acres or more used in agricultural production anywhere in Ohio, no person may apply manure from a concentrated animal feeding facility regulated under a permit from ODA's Division of Livestock Environmental Permitting unless:

  1. The person has obtain Certified Livestock Manager (CLM) certification by ODA.
  2. The person has been certified by ODA through Ohio's fertilizer applicator certification program.

Complying with the new law

To ensure compliance with Senate Bill 1's fertilizer and manure restrictions that are now effective in Ohio, producers should consider these questions before making an application of manure or fertilizer:

1.  Will the application of fertilizer or manure occur in the western basin of Lake Erie?  If so, the new restrictions may apply to the application.  A map that outlines the 11 watersheds and all or parts of 25 counties that comprise the western basin is available here.

  • Does the application involve a restricted nutrient?  The new restrictions apply to any application that involves nitrogen, phosphorous or any type of animal manure.
  • Will the restricted nutrient be injected into the ground, incorporated within 24 hours, applied onto a growing crop or made with permission of the chief of soil and water resources due to an emergency involving manure applications?  If so, the application is permissible as an exception to the restrictions.
  • If one of the above exceptions does not apply to the application, do weather conditions prohibit the application?  
    • Is the ground frozen, snow covered or saturated two inches deep or more?  If so, the application is prohibited. 
    • Is there a greater than 50% chance that precipitation will exceed one inch in the next 12 hours for the area where the application will occur?  If so, an application of granular fertilizer is prohibited.
    • Is there a greater than 50% chance that precipitation will exceed one-half inch in the next 24 hours for the area where the application will occur?  If so, an application of manure is prohibited.
    • Refer to OSU Extension's C.O.R.N. newsletter for guidance on how to obtain important precipitation information prior to an application.

2.  Is a temporary exemption from the manure restrictions available?  If manure applications will be made by a "small" or "medium" animal feeding facility in the western basin, the facility may request the temporary exemption from the restrictions.  Refer to ODA's explanation of what qualifies as a small or medium animal feeding facility on its website, here.

3.  Is the manure or fertilizer obtained from a confined animal feeding facility regulated by ODA's Division of Livestock Environmental Permitting and to be applied on more than 50 acres of land in agricultural production anywhere in Ohio?  If so, the person applying the manure or fertilizer must be certified by ODA as a Certified Livestock Manager or agricultural fertilizer applicator.  A tool to search for concentrated animal feeding facilities operating under permit is available on ODA's website, here, as is information about CLM certification and the agricultural fertilizer certification program.

Non-compliance risk

ODA has authority to investigate potential violations of the new fertilizer application restrictions and the Division of Soil and Water Resources has similar authority over potential violations of manure application restrictions.  The agencies may investigate upon receiving a complaint from any person or receiving any information that suggests a potential violation.  If a violation has occurred or is occurring, the law grants the agencies rulemaking authority to establish penalty amounts for violations, which may not exceed $10,000 per separate violation.  To date, the agencies have not yet initiated proposed rules for the penalty amounts.  The agencies may not assess penalties until after providing an alleged violator opportunity for a hearing.

Due to the risk of non-compliance with the new law, producers should review insurance policies and determine whether insurance coverage exists or is available for a mishap under the new law. 

 

By Larry R. Gearhardt, Assistant Professor and Field Specialist, Taxation

Owners of Agricultural land enrolled in the Current Agricultural Use Valuation (CAUV) property tax program in the twenty-four counties that are experiencing a reappraisal or triennial update in 2015 (payable in 2016) will see the highest CAUV values in history, based on preliminary numbers from the Ohio Department of Taxation. Similar to prior years, increases in values will be in the vicinity of 100% to 200%. However, lower crop prices and changes made to the CAUV formula by the Ohio Department of Taxation point to lower CAUV values in the future.

WHAT IS CAUV?

In 1972, Ohio voters approved a constitutional amendment that allowed qualified agricultural land to be valued at its current agricultural use value for real property tax purposes rather than fair market value.  The home, home site and outbuildings are still valued at fair market value.

Current agricultural use value can be determined by the capitalization of the typical net income from agricultural crops on a given parcel of land assuming typical management, cropping patterns, and yields for the types of soil present on the tract.

HOW IS CAUV CALCULATED?

The CAUV values are based upon a formula containing five factors applied to three crops: corn, soybeans, and wheat, the three most prevalent crops in Ohio. Hay was dropped from the formula in 2010. The five factors are:

1.)        Cropping pattern- based upon the acres of corn, beans and wheat compared to the total acres of those three crops. These percentages are based upon statewide averages.

2.)        Crop prices- based upon a survey by NASS of elevators in Ohio

3.)        Crop yields- based upon 1984 NRCS/NASS per acre yield estimates for each soil type, adjusted for actual average yields in Ohio for the past ten years.

4.)        Non-land production costs- based upon farmer surveys by The Ohio State University.

5.)        Capitalization rate- based upon the interest rate for a 15-year fixed rate mortgage at Farm Credit Services, with 40% attributed to equity and 60% to debt.

The crop prices, non-land production costs and capitalization rate are calculated by taking the previous seven years of numbers, eliminating the highest number and the lowest number, and then averaging the remaining five numbers. Cropping pattern is based on an average of the last five years of acres planted. The prices, cropping pattern, costs and yields are then multiplied, added and subtracted to determine the net profit per acre of soil type, and that number is then divided by the capitalization rate to arrive at the final value. This calculation is performed for each of the 3500 soil types in Ohio.

LOWER CROP PRICES IN 2014

For the second consecutive year, the price for corn, beans, and wheat that came into the formula is lower than the prior year. The price for corn that came into the formula for 2014 is $3.65/bu. compared to $4.41 for 2013. Similarly, the 2014 price for soybeans that came into the formula is $10.40 compared to $13.00 for 2013. Likewise, the new 2014 wheat price is $5.55 versus $6.54 for 2013.

NOT AN IMMEDIATE EFFECT

One or two years of lower crop prices will not produce a noticeable decrease in CAUV values. There needs to be a trend lasting several years to substantially reduce the values. A trend is required because the crop prices used in calculating CAUV values are based on a seven-year rolling average, with the highest price and the lowest price during that seven-year period thrown out.

Using corn as an example, the corn prices used in the 2015 calculation for the last seven years are:

2008 - $4.21

2009 - $3.55

2010 - $5.45

2011 - $6.44

2012 - $7.09

2013 - $4.41

2014 - $3.65

Since $3.55 is the lowest price and $7.09 is the highest price, they are removed from the calculation. The average of the remaining five numbers is $4.79. After a management allowance of 5%, which is allowed in the formula, the price for corn used in the 2015 formula is $4.55. Please remember that these numbers are preliminary and may change before finalization of the 2015 values. There is a similar trend for the calculation of the prices for soybeans and wheat.

Continuing to use corn as an example, it will take several years of lower crop prices to substantially lower land values for CAUV purposes. Real property is revalued every three years for tax purposes. Therefore, property being revalued in 2015 will not be revalued again until 2018. During that time, three years’ worth of crop prices will drop out of the formula and will be replaced by three new years’. If the three new years’ crop prices are lower than $6.44, it is likely that there will be a decrease in CAUV values. Based on experts’ opinions and forecasts, such appears to be the case.

CHANGES TO THE FORMULA BY THE OHIO DEPARTMENT OF TAXATION

In response to the alarming increases in CAUV values over the past several years, attorneys at the Ohio Farm Bureau Federation researched and reviewed the CAUV formula in greater detail than it has ever been reviewed since its inception. As a result of this review, Ohio Farm Bureau made several recommendations to the Ohio Department of Taxation to update portions of the formula to more accurately reflect current values. These recommendations do not substantially change the way that CAUV is calculated, but rather to update the data contained in the formula.

The Ohio Department of Taxation has agreed with several of the recommendations forwarded by Ohio Farm Bureau. Therefore, the changes that will appear in the 2015 CAUV calculations are:

  1. TIMELINESS OF DATA – There has always been a two-year lag period between the collection of the data used in the CAUV formula and the finalization of the values for use by county auditors. This became especially troublesome in a year like 2014 when the price of soybeans fell from $13.00/bu. To $10.40/bu., but CAUV values doubled. Soybean prices dropped even lower by the end of the year and continue to fall in 2015. Because of the two-year lag period, it took two years for these lower prices to appear in the formula. Then, the lower number may be thrown out of the calculation if it was the lowest during the seven-year look back period.

By adjusting the schedule of when CAUV values are calculated, the Ohio Department of Taxation was able to cut the two-year lag period to one year. Therefore, lower crop prices, and potentially higher costs, will come into the formula more quickly and CAUV values will be more current. One consequence of this change is that county auditors will not receive the updated values until later in the year of reappraisal or update.

  1. CAPITALIZATION RATE – CAUV values are calculated by dividing the projected net income per acre by the capitalization rate for each of the 3500+ soil types in Ohio. A small change in the capitalization rate can have a big impact on CAUV values. For example, a $200 per acre net return divided by a capitalization rate of 6% results in a $3,333 value. If the capitalization rate increases to 7%, the same $200 per acre net return divided by 7% results in a $2,857 value. Low capitalization rates are good if you are borrowing money; they are not beneficial when calculating CAUV.

The Ohio Department of Taxation adjusted the calculation of the capitalization rate to more accurately reflect current borrowing patterns. The capitalization rate is now based upon a ratio where 80% is considered debt and 20% is considered equity. This is compared to a 60/40 ratio used in prior years. Furthermore, the mortgage interest rate (which is the starting point of the capitalization rate calculation) is based on a 25-year fixed multi-flex rate for loans $25,000 or greater at Farm Credit Services. The prior years’ mortgage interest rate was based on a 15-year loan period.

Although the capitalization rate used in the 2015 calculation went down from 7.5% in 2012 (the previous time CAUV was calculated for counties in this cycle) to 6.5% (contributing to the increase in CAUV values), the capitalization rate between 2014 and 2015 increased from 6.2% to 6.5%. As previously stated, higher capitalization rates contribute to lower CAUV values.

  1. WOODLAND VALUES – Woodland values have increased more dramatically than cropland values, especially if the woodland is located in a high-productivity geographic region. Woodland values are calculated by the same process used to calculate cropland values, with the additional step of subtracting the cost of drainage per acre (for Class I and II soils) and the cost of clearing the land per acre. Since the inception of the program, once the cropland value is determined, there has been a reduction in value for woodlands of $500 per acre for subsurface tile drainage for somewhat poorly drained, poorly drained, and very poorly drained soils. In addition, for 37 soil types, there has been a $250 per acre reduction for surface drainage. There is a $500 per acre reduction allowed for clearing the land for all soil types.

What has occurred in recent years is that the calculation of cropland values is so high that, even with the aforementioned reductions, woodland values have been bumped from minimum value to a value similar to crop producing soils. This scenario is exacerbated if the woodland happens to be located in a high-productivity geographic region.

The Ohio Department of Taxation has increased the reductions for woodland from $500 to $770 per acre for subsurface tile drainage in somewhat poorly drained, poorly drained, and very poorly drained soils; from $250 to $380 per acre for surface drainage in 37 soil types; and from $500 to $1,000 per acre for land clearing in all soil types.

SUMMARY

If the trend of lower crop prices continues, couple with the changes to the formula made by the Ohio Department of Taxation, CAUV values will decrease in the future. Nobody likes paying taxes and it is hard to prepare for tax increases of 100% to 200%. But if CAUV landowners can swallow the bitter pill of paying higher property taxes through 2015, while receiving lower crop prices, the CAUV formula will work to decrease property taxes to more accurately reflect the farm economy. Think of it as a roller coaster with crop prices in the front car and CAUV values in the back car. Ultimately, the roller coaster ends up in the same place.

 

 

 

 

Posted In: Tax
Tags: cauv
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(This information was taken from an article by Michael Cohn, Washington DC, appearing in Accounting Today News on April 8, 2015)

The consumer finance site WalletHub has released a new report ranking the states with the highest and lowest real estate and vehicle property taxes across the country.

The report found the highest real estate taxes in the following states: 43. Vermont ($2,934);  44. Michigan ($3,168); 45. Nebraska ($3,228); 46. Connecticut ($3,301); 47. Texas ($3,327);     48. Wisconsin ($3,398); 49. New Hampshire ($3,649); 50. Illinois ($3,939); and 51. New Jersey ($3,971). The state with the lowest average real property tax is Hawaii at $482.

Ohio comes in at number 40 with an average real property tax of $2,677. Among the surrounding states, this compares to Michigan at $3,168, Pennsylvania at $2,597, West Virginia at $1,015, Kentucky at $1,145, and Indiana at $1,507.

However, Ohio does not levy any vehicle property tax, while twenty-seven states across the country do. Those include Michigan at $110, West Virginia at $378, Kentucky at $286, and Indiana at $300. Like Ohio, Pennsylvania has no vehicle property tax.

Nationwide, the average American household spends an average of $2,089 on real estate property taxes each year, and residents of the twenty-seven states that levy a vehicle property tax shell out another $423 annually.                                

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By: Peggy Kirk Hall, Tuesday, March 31st, 2015

Ohio’s Senate and House of Representatives have agreed upon a final bill intended to control algae production in Lake Erie and its western basin.  Senate Bill 1, as amended by the House, passed both chambers on March 25 and now awaits Governor Kasich’s signature. (Post note:  Governor signed the bill on April 2, 2015; its effective date is July 3, 2015).

The law will regulate manure and fertilizer applications in the western basin of Lake Erie, require monitoring of phosphorous for certain publicly owned treatment works, regulate the placement of dredged materials in Lake Erie and its tributaries, change how the Healthy Lake Erie Fund may be used and establish agency coordination and research on harmful algae management and response.

In regards to fertilizer and manure applications, the legislation includes two new amendments that were not part of the original bills passed earlier by the Senate and House:

  • Certification requirements for persons using manure from CAFFs.  To utilize manure from a concentrated animal feeding facility that is regulated under ODA’s Division of Livestock Environmental Permitting, a person must hold either a Certified Livestock Manager license or certification under Ohio’s new fertilizer applicator certification program.  The provision pertains only if applying the manure for agricultural production on more than 50 acres.  This language closes the proclaimed “loophole” that allowed persons to receive and apply manure from a livestock facility without being subject to the same regulations as the facility.   ORC 903.40.
  • Exemptions for small and medium operations.  Small and medium agricultural operations may apply for a temporary exemption from the law’s restrictions on manure applications.  The chief of the division of soil and water resources may grant an exemption of up to one year for a medium agricultural operation and up to two years for a small operation, if the operation is working toward compliance.  An exempted operation may request technical assistance to reach compliance, and will not be subject to civil penalties for violations.  The law defines small and medium agricultural operations in the same way as the Livestock Environmental Permitting program, based on the number of livestock according to species.  ORC 1511(D). 

Other changes to the final bill include a removal of a five-year sunset provision and attempts to address lead contamination.  The final bill contains the following provisions:

Fertilizer application restrictions in the western basin

For applications of fertilizer in the western basin, a person may not apply fertilizer, defined as nitrogen or phosphorous, under these conditions:

(1) On snow-covered or frozen soil, or

(2) When the top two inches of soil are saturated from precipitation, or

(3) In a granular form when the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one inch in a twelve-hour period,

unless the fertilizer is injected into the ground, incorporated within 24 hours of surface application or applied onto a growing crop.

Small and medium operations may apply for a temporary exemption from the restrictions, as explained above.  The ODA will have authority to investigate complaints of potential violations and to assess penalties for violations, which may not exceed $10,000 for each violation.  

Manure application restrictions in the western basin

A person may not surface apply manure in the western basin under any of the following circumstances:

(1) On snow-covered or frozen soil;

(2) When the top two inches of soil are saturated from precipitation;

(3) When the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one-half inch in a 24 hour period.

unless the manure is injected into the ground, incorporated within 24 hours of surface application, applied onto a growing crop, or if in the event of an emergency, the chief of the division of soil and water resources or the chief's designee provides written consent and the manure application is made in accordance with procedures established in the United States department of agriculture natural resources conservation service practice standard code 590 prepared for this state.

Small and medium operations may apply for a temporary exemption from the restrictions, as explained above.  The ODA will have authority to investigate complaints of potential violations and to assess penalties for violations, which may not exceed $10,000 for each violation.  

Applications of sewage sludge

In issuing sewage sludge management permits, the director of Ohio EPA may not allow the placement of sludge on frozen ground.

Agency responsibilities for harmful algal management and response

  • The law appoints the director of the Ohio EPA or his/her designee to serve as the coordinator of harmful algae management and response.
  • Requires the Director of Environmental Protection to consult with specified state and local officials and representatives to develop actions that protect against cyanobacteria in the western basin and public water supplies and that manage wastewater to limit nutrient loading into the western basin.
  • Requires the Director to develop and implement protocols and actions regarding monitoring and management of cyanobacteria and other agents that may result in harmful algal production.

Healthy Lake Erie Fund

The fund shall now be used in support of conservation measures in the western basin as determined by the director of ODNR; for funding assistance for soil testing, winter cover crops, edge of field testing, tributary monitoring and animal waste abatement; and for any additional efforts to reduce nutrient runoff as the director may decide. The director must give priority to recommendations that encourage farmers to adopt agricultural production guidelines commonly known as 4R nutrient stewardship

Phosphorous monitoring for publicly owned treatment works

  • Requires certain publicly owned treatment work to begin monthly monitoring of total and dissolved phosphorous by December 1, 2016.
  • Requires a publicly owned treatment works that is not subject to a specified phosphorous effluent limit on the bill's effective date to complete and submit an optimization study that evaluates its ability to reduce phosphorous to that limit.

Dredged material in Lake Erie and tributaries

  • Beginning on July 1, 2020, prohibits deposits of dredged material from harbor or navigation maintenance activities in Ohio’s portion of Lake Erie and direct tributaries of the lake unless authorized by the Director of Ohio EPA.
  • Allows the Ohio EPA Director to authorize a deposit of dredged material for confined disposal facilities; beneficial use; beach nourishment; placement in the littoral drift; habitat restoration and projects involving amounts of dredged material of less than 10,000 cubic yards.
  • Requires the Ohio EPA Director to endeavor to work with the U.S. Army Corps of Engineers on long-term planning for the disposition of dredged materials.

Implementation review

The final version of the legislation requires a review three years after the law’s effective date by the appropriate House and Senate committees, who must assess the results of implementing the new measures and issue a report of their findings and recommendations for revisions of repeal to the Governor.

Transfer of Agricultural Pollution Abatement Program

The law declares that the legislature intends to enact legislation to transfer the Ohio Agricultural Pollution Abatement Program from ODNR to ODA by July 1, 2015. 

The bill is now awaiting action by Governor Kasich.  The final version of the legislation and accompanying documents are available here.

By: Peggy Kirk Hall, Thursday, March 12th, 2015

Senate and House bills on algae control differ

On March 10, the Ohio House of Representatives passed H.B. 61, a proposal to address Ohio’s toxic algae issues.   Last month, the Ohio Senate approved a bill on the same issue, but with several points of difference.  The two must now reconcile these differences and agree upon a plan for reducing the occurrence of toxic algae in Lake Erie, which they have stated they will soon accomplish.  The House already began its hearings on the Senate bill on March 11.

Here's a summary of the similarities and variations between the two proposals.

Prohibitions of surface applications.  Both bills prohibit the surface application of manure and fertilizer, defined as nitrogen or phosphorous, in the western Lake Erie basin on frozen ground, saturated soil, and when the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one inch in a 12-hour period.  The Senate version also prohibits the application of granular fertilizer with regard to weather conditions, and the House bill also prohibits reckless violation of EPA rules regarding the surface application of sewage sludge.

Exemptions from prohibitions.  Both bills exempt a person from the above prohibitions for manure and fertilizer applications that are injected into the ground or applied on a growing crop.   Each also contains an exemption for fertilizer that is incorporated into the soil within a certain time period; the House allows a 24-hour time period while the Senate allows 48 hours for incorporation of the fertilizer.

Exclusion from enforcement.    The House bill allows a potential violator of the manure prohibitions to request assistance from ODNR, SWCD or other qualified persons on the development of technically feasible and economically reasonable measures that would cease or prevent violations; requires ODNR to assist with the request and set a schedule for implementing the measures; and prevents ODNR from enforcing violations if a person has made such a request, is receiving assistance or is implementing the measures.  The Senate bill does not include these or similar exclusions from enforcement.

Enforcement of violations.  If a person violates the prohibition against manure applications, the Senate authorizes ODNR to assess a civil penalty as determined by rulemaking and after allowing opportunity for a hearing.  The House takes a "corrective action" approach, allowing ODNR to notify a violator and propose corrective actions within a specified time period, then to inspect for continued violations after the specified time period and determine whether violations are still occurring and a civil penalty should be assessed, with an opportunity for a hearing.

Review and sunset.   The House bill requires a joint legislative committee review of the results of the prohibitions against fertilizer and manure applications and a report to the Governor of their findings and recommendations on whether to repeal or revise the prohibitions.  The Senate version requires a joint review and report to the Governor after four years, but states that the prohibitions on fertilizer and manure applications will sunset after five years unless the committees jointly recommend continuing the prohibitions.

Agency coordinator.  The Senate bill requires the EPA director to serve as the coordinator of harmful algae management and response and to develop plans, protocols and coordinated efforts to address harmful algae.  The House proposal does not contain this or a similar provision.

Studies.   In the Senate bill, the EPA is authorized to conduct studies of nutrient loading from point and nonpoint sources in the Lake Erie and Ohio River basins.  The House bill does not contain this or a similar provision.

Healthy Lake Erie Fund.  The House would not change the existing Healthy Lake Erie Fund, but the Senate proposes eliminating most current uses of the fund and revising it to allow the fund to be used for financial assistance with winter cover crops, edge of field testing, tributary monitoring and animal waste management and conservation measures in the western Lake Erie basin and for reduction of nutrient runoff as determined by ODNR’s Director.

Phosphorous monitoring.   Both bills require certain publicly owned treatment works (POTWs) to conduct monthly monitoring of total and dissolved phosphorous by the end of 2016 and other POTWs to complete a study of their ability to reduce phosphorous, but the House bill would also require the Ohio EPA to modify NPDES permits to include these requirements. 

Dredging.  Both bills prohibit the deposit of dredged materials beginning July 1, 2020; the Senate applies the prohibition to Ohio’s entire portion of Lake Erie and its direct tributaries, while the House would limit the prohibition to the Maumee River basin.

Lead contamination.  The House does not address lead contamination, but the Senate version prohibits the use in public water systems or water consumption facilities of certain plumbing supplies and materials that are not lead free and prohibits other actions related to lead pipes and fittings. 

Emergency.  The Senate version declares an emergency, allowing the legislation to be effective immediately upon passage, while the House bill does not declare an emergency.

To review H.B. 61, visit this link.  The Senate's bill, S.B. 1, is availble at this link

By: Peggy Kirk Hall, Sunday, February 22nd, 2015

After much anticipation, the Federal Aviation Administration (FAA) has published proposed regulations that would govern the operation of drones used for agricultural and other activities.  The proposal would allow farmers and ranchers to operate drones, referred to in the rule as “unmanned aircraft” and “unmanned aircraft systems” (UAS), subject to requirements intended to address public safety and national security concerns.  

Under the proposed small UAS rule, operators must comply with a certification process, register and maintain aircraft, and follow limitations on aircraft operation. Of the proposed limitations, agricultural operators might have concerns about a “visual line-of-sight” rule requiring that operators have visual contact with aircraft, a flight ceiling of 500 feet above ground level and prohibitions against night flights.  Additionally, the proposal fails to address privacy issues and the potential use of drones for surveillance activities on another person’s property.

The following provisions are the major components of the proposed rule, which would apply to unmanned aircraft weighing less than 55 pounds that are used for non-hobby and non-recreational purposes:

Operator Certification and Reporting

Certification.  An operator of a UAS must have an “unmanned aircraft operator certificate with a small UAS rating,” which requires:

  • Meeting eligibility requirements:  the applicant is at least 17 years old, speaks English, has no state or federal drug offenses, has no physical or mental condition to prevent safe UAS operation, and the applicant’s identity is verified by the FAA.
  • Passing an initial aeronautical knowledge test at an FAA-approved knowledge testing center, which covers: (1) applicable regulations relating to small UAS rating privileges, limitations, and flight operation; (2) airspace classification and operating requirements, obstacle clearance requirements, and flight restrictions affecting small UAS operation; (3) official sources of weather and effects of weather on small UAS performance; (4) small UAS loading and performance; (5) emergency procedures; (6) crew resource management; (7) radio communication procedures; (8) determining the performance of small UAS; (9) physiological effects of drugs and alcohol; (10) aeronautical decision-making and judgment; and (11) airport operations.
  • Passing a recurrent aeronautical knowledge test every 24 months.

Reporting. An operator must report an accident to the FAA within 10 days of any operation that results in injury or property damage.

Aircraft Requirements

  • Aircraft registration.   A small unmanned aircraft must be registered with the FAA.
  • Markings.   A small unmanned aircraft must display nationality and registration markings.
  • Aircraft condition.  An operator must maintain a small unmanned aircraft in a condition for safe operation.

Operation Requirements

Pre-flight requirements.  Before a flight, an operator must conduct a pre-flight inspection and assessment that includes:

  • Inspection of the links between the unmanned aircraft and its control station.
  • Verification of sufficient power to operate the aircraft at least 5 minutes beyond the intended operational time period.
  • Assessment of the operating environment, including local weather conditions, local airspace and flight restrictions, locations of persons and property on the ground and other ground hazards.
  • A briefing to all persons involved in the aircraft operation that addresses operating conditions, emergency procedures, contingency procedures, roles and responsibilities and potential hazards.

Visual line of sight requirement.  An operator must maintain a “visual line-of-sight” with the unmanned aircraft, using only human vision that is unaided by any device other than glasses or contact lenses.

Use of visual observer.   An operator may use “visual observers” to assist with the visual line-of-sight requirement.

  • An operator and visual observer must maintain constant communication, which may be made through communication-assisted devices.
  • The aircraft must still remain close enough to the operator for the operator to be capable of maintaining the visual line-of-sight.

Operating limitations.  An operator must not operate an unmanned aircraft:

  • More than 500 feet above ground level.
  • More than 100 mph.
  • After daylight, which is the time between official sunrise and sunset.
  • When there is not minimum weather visibility of 3 miles from the aircraft’s control station.
  • No closer than 500 feet below and 2,000 feet horizontally away from any clouds.
  • Over any persons not directly involved in the operation and not under a covered structure that would protect them from a falling UAS.
  • From a moving aircraft or vehicle, unless the moving vehicle is on water.
  • Within Class A airspace; or within Class B, C, or D airspace or certain Class E airspace designated for an airport, without prior authorization from the appropriate Air Traffic Control facility.
  • Carelessly or recklessly, including by allowing an object to be dropped from the aircraft in a way that would endanger life or property.

“Micro” UAS

In the proposed rule, the FAA also presents the possibility of including regulations in the final rule for “micro-UAS,” or unmanned aircraft weighing no more than 4.4 pounds that are composed of  “frangible” materials that yield on impact and present minimal safety hazards.  The micro-UAS category would require operators to self-certify their familiarity with the aeronautical knowledge testing areas; would limit operation to:  1,500 feet within the visual line-of-sight of the operator, no more than 400 feet above ground, only in Class G (uncontrolled) airspace and at least 5 miles from an airport; and would allow flight over people not involved in the operation.  The agency invites comments on whether to include a micro-UAS category in the final rule.

What’s not in the Proposed Rule?

Privacy concerns.  Many in the agricultural community worry about the potential use of drones for surveillance activities that violate a property owner’s privacy.  The FAA states that privacy concerns about unmanned aircraft operations are beyond the scope of this rulemaking and that “state law and other legal protections for individual privacy may provide recourse for a person whose privacy may be affected through another person’s use of a UAS.” 

The agency also notes the recent Presidential Memorandum issued by President Obama, Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems (February 15, 2015), which requires the FAA to participate in a multi-stakeholder engagement process led by the National Telecommunications and Information Administration to develop a framework for privacy, accountability, and transparency issues concerning the commercial and private use of UAS in the NAS.   The memorandum also requires agencies to “ensure that policies are in place to prohibit the collection, use, retention, or dissemination of data in any manner that would violate the First Amendment or in any manner that would discriminate against persons based upon their ethnicity, race, gender, national origin, religion, sexual orientation, or gender identity, in violation of law.”  Read the Presidential Memorandum here.

External loads and towing operations.   The FAA declined to propose new regulations for small unmanned aircraft with towing and external load capabilities. Instead, the agency invites comments, with supporting documentation, on whether external load and towing UAS operations should be permitted and whether their use should require airworthiness certification, higher levels of airman certification or additional operational limitations.

What’s Next?

The FAA will accept public comments on the proposed small UAS rule until April 24, 2015.   Issuing a final rule could take at least another year after the comment period closes.  In the interim, FAA encourages operators to visit http://knowbeforeyoufly.org/ to understand current regulations for the use of small UAS, which remain in place until the FAA issues its final rule.

The proposed small UAS rule is available in the Federal Register online here.  To submit comments for the rule, Docket No. FAA–2015–0150, visit www.regulations.gov.

Posted In: Crop Issues, Property, Uncategorized
Tags: UAVs, UAS, drones, FAA
Comments: 0
By: Peggy Kirk Hall, Thursday, February 19th, 2015

Legislation intended to reduce the occurrence of harmful algae blooms in Ohio passed the Ohio Senate on February 18 after a fast track through the Senate Agriculture Committee.  The enacted version of Senate Bill 1 varies somewhat from the original bill introduced on February 2 by Senators Randy Gardner and Bob Peterson, but maintains a primary goal of prohibiting certain types of fertilizer and manure applications in Ohio's western basin in winter and rainfail weather conditions along with addressing other potential contributors to the algae problem. 

Revised from the original SB 1 were proposals to transfer the Ohio Agricultural Pollution Abatement Program to the Ohio Department of Agriculture, create a new Office of Harmful Algal Blooms and prohibit all open lake disposal of dredge material in Lake Erie and its tributaries.   The committee also tabled several attempts to amend the bill before sending it to the full Senate.  Those proposals included extending the bill's fertilizer and manure application prohibitions to the entire Lake Erie watershed, establishing a daily fine for violators of $333, removing the five year sunset, changing certification requirements for anyone using manure from a facility regulated by Ohio's Livestock Environmental Permitting Program and requiring standards for testing water for microcystin. 

The legislation passed by the Senate includes the following provisions:

Application of fertilizer and manure

  • Prohibits the surface application of fertilizer or manure in the western basin of Lake Erie on frozen or snow-covered soil or when the top two inches of soil are saturated from precipitation.
  • Prohibits the application of fertilizer in the western basin in granular form when the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one inch in a 12-hour period.
  • Prohibits the application of manure in the western basin when the local weather forecast contains greater than a 50% chance of precipitation exceeding one-half inch in a 24-hour period.
  • Provides exceptions from the prohibition for applications of fertilizer or manure that are injected into the ground, incorporated within 24 hours of surface application or applied onto a growing crop.
  • Provides an exception from the prohibition for applications of manure made in the event of an emergency with written consent of the chief of the division of soil and water resources and in accordance with procedures established in the USDA natural resources conservation service practice standard code 590.
  • Clarifies that the prohibition on fertilizer or manure applications does not apply to or affect any restrictions for facilities permitted under Ohio’s concentrated animal feeding facilities law.
  • Defines “fertilizer” as nitrogen or phosphorous.
  • Defines the “western basin” as the St. Mary’s, Auglaize, Blanchard, Sandusky, Cedar Portage, Lower Maumee, Upper Maumee, Tiffin, St. Joseph, Ottawa and River Raisin watersheds.
  • Grants investigation and enforcement authority for potential violations to the Director of Agriculture for fertilizer applications and the Chief of the Division of Soil and Water Resources for manure applications and allows each agency to establish by rule the civil penalty amounts for violations.
  • Requires a “sunsetting” of the above prohibition in five years, but requires the agriculture committees of the Ohio House and Senate to jointly review the effectiveness of the prohibitions, determine whether to prevent the sunset and to submit a report of findings to the Governor of Ohio.

Ohio Agricultural Pollution Abatement Program

  • Declares that it is the intent of the General Assembly that legislation transferring the administration and enforcement of the Agricultural Pollution Abatement Program from the Department of Natural Resources to the Department of Agriculture shall be enacted not later than July 1, 2015.

Harmful Algae Management

  • Appoints the Director of the Ohio Environmental Protection Agency or his/her designee as the coordinator of harmful algae management and response.
  • Requires the Director of Environmental Protection to consult with specified state and local officials and representatives to develop actions that protect against cyanobacteria in the western basin and public water supplies and that manage wastewater to limit nutrient loading into the western basin.
  • Requires the Director to develop and implement protocols and actions regarding monitoring and management of cyanobacteria and other agents that may result in harmful algal production.

Nutrient loading to Ohio watersheds

  • Authorizes the Director of Environmental Protection to study, calculate and evaluate nutrient loading to Ohio watersheds from point and nonpoint sources and to determine the most environmentally beneficial and cost-effective mechanisms to reduce nutrient loading.
  • Requires the Director or the Director's designee to report and update the study's results to coincide with the release of the Ohio Integrated Water Quality Monitoring and Assessment Report.

Phosphorous monitoring for publicly owned treatment works

  • Requires certain publicly owned treatment work to begin monthly monitoring of total and dissolved phosphorous by December 1, 2016.
  • Requires a publicly owned treatment works that is not subject to a specified phosphorous effluent limit on the bill's effective date to complete and submit an optimization study that evaluates its ability to reduce phosphorous to that limit.

Dredged material in Lake Erie and tributaries

  • Beginning on July 1, 2020, prohibits deposits of dredged material from harbor or navigation maintenance activities in Ohio’s portion of Lake Erie and direct tributaries of the lake unless authorized by the Director of Ohio EPA.
  • Allows the Ohio EPA Director to authorize a deposit of dredged material for confined disposal facilities; beneficial use; beach nourishment; placement in the littoral drift; habitat restoration and projects involving amounts of dredged material of less than 10,000 cubic yards.
  • Requires the Ohio EPA Director to endeavor to work with the U.S. Army Corps of Engineers on long-term planning for the disposition of dredged materials.

Lead contamination

  • Revises the definition of "lead free" and prohibits using or selling certain plumbing supplies and materials that are not lead free for public water systems or in a facility providing water for human consumption, with stated exceptions.

Emergency declaratation

  • The bill declares an emergency and would be effective immediately.

Visit this link to review SB 1.  The Ohio House of Representatives is currently considering its proposal to address algal blooms, with action expected on the proposal in the next few weeks.

By: Caty Daniels, Thursday, February 05th, 2015

Author: LARRY R. GEARHARDT, OSU EXTENSION FIELD SPECIALIST IN TAXATION

Generally, a taxpayer that buys business or income-producing property (not held for sale) with a useful life of more than one year cannot deduct its full cost as an expense for that year. However, the Internal Revenue Code (Code) allows an annual deduction of a portion of the cost of the property. This deduction may be a deduction for depreciation, amortization or depletion.

For most tangible property, a depreciation deduction is provided under the Modified Accelerated Cost Recovery System (MACRS). IRS form 4562 is used to claim the deduction for depreciation.

SECTION 179 EXPENSE DEDUCTION AND ACCELERATED FIRST YEAR DEPRECIATION (AFYD)

There are two exceptions to the aforementioned rule. The first exception is the section 179 expense deduction and the other exception is the Accelerated First Year Depreciation (AFYD). Many taxpayers are eligible to deduct (in lieu of depreciation) the cost of most tangible personal property used in the active conduct of a trade or business pursuant to section 179 of the Code. The taxpayer can elect on Form 4562 to expense the cost of “eligible 179 property” in the year that the property was placed in service. “Eligible property” that qualifies for section 179 includes: machinery and equipment; property contained in or attached to a building (other than structural components), such as milk tanks, automatic feeders, barn cleaners, and office equipment; livestock, including horses, cattle, hogs, sheep, goats, mink and other fur-bearing animals; grain bins; single-purpose agricultural or horticultural structures; and agricultural fences and drainage tile. This deduction can be used for both new and used property.

In addition to, or in combination with, the section 179 expense deduction, taxpayers were allowed to deduct 50% of the cost of “qualified property” in the year that the property was placed in service as accelerated depreciation. “Qualified property” is tangible personal property that qualifies to be depreciated under the MACRS depreciation method with a recovery period of twenty years or less. This deduction can only be used when purchasing new property and the taxpayer must be the original user of the property.

RECENT HISTORY OF SECTION 179 AND AFYD

In 2013, the section 179 expense deduction was $500,000 per item, with a threshold of $2,000,000 before the deduction was limited. The AFYD limitation was 50% of the cost of the eligible property. However, these two deductions expired at the end of 2013 along with 53 other tax credits, deductions, and tax benefits. Beginning in 2014, the section 179 expense deduction dropped to $25,000 and the AFYD was eliminated entirely.

Prior to the end of 2013, a tax extender bill was introduced in Congress to extend the expired tax deductions, including the section 179 expense deduction at $500,000 and AFYD at 50%. The tax extender bill did not pass prior to the end of 2013 due to the inaction of Congress. So beginning in 2014, the section 179 expense deduction was $25,000 and there was no AFYD.

Congress debated the tax extender bill throughout most of 2014. Reports from Washington DC indicated that the tax extender bill would pass, but when? Finally, in December, Congress passed the tax extender bill which returned the section 179 expense deduction to $500,000 and AFYD to 50%. President Obama signed the bill on December 19, 2014. It is important to note that the bill extended the beneficial tax provisions only through 2014. Beginning in 2015, the section 179 expense deduction reverted back to $25,000 and AFYD was eliminated.

FARMERS IN A QUANDARY

Congress’ inaction regarding the tax extender bill in 2013, and continuing through most of 2014, put farmers in a quandary. The farmers had to decide whether or not to make capital expenditures in 2014 and rely on the tax extender bill being passed, or not to make the purchases. As a result of this quandary, some farmers resorted to creative purchase arrangements where they called the purchase a “lease.” Others entered into agreements where the purchase agreement contained an option to “lease” or “purchase,” thereby allowing them the opportunity to take advantage of the section 179 expense deduction if the tax extender bill was passed. However, in many instances, the “lease” would not pass IRS scrutiny. The so-called lease was really a conditional sales agreement which would have received different tax treatment which was less beneficial. With the passage of the tax extender bill in December of 2014, the issue was resolved so the legitimacy of the leases never came into question.

Since the $500,000 section 179 expense deduction and the AFYD expired at the end of 2014, farmers are put in the same quandary in 2015 that they had in 2014. Should farmers make that capital expenditure in 2015 and count on Congress extending section 179 at $500,000 and continue AFYD? Does a lease of equipment, rather than a purchase, receive favorable tax treatment?

 A lease is a viable alternative as long as the lease is a legitimate lease. This document examines the requirements of a true lease for tax purposes and the factors that turn the lease into a conditional sales agreement.

TAX TREATMENT OF A LEASE

If you pay to use property that you do not own in business, the payments are “lease payments.” These lease payments paid for property used in business are deductible business expenses. On a Schedule F tax form, the payments would be deducted on line 24a.

A “lessor” is the person who owns the property and allows another to use the property in exchange for payments. A “lessee” is the person using the property and making payments in exchange for the use of the property.

Before trying to understand the tax advantages of leasing, it is important to understand the different types of leases. For IRS purposes, equipment leases generally fall into two categories, each with a different type of purchase option:

  1. Non Tax-Oriented Leases: Legal ownership resides with the lessor, however, because the lessor is not considered to be at risk at the end of the lease, the lessee receives the tax benefits of ownership. In other words, the lease acts merely as security for a sale.
  2. Tax-Oriented True Leases: Lessor maintains ownership of the equipment and there is a fair market value purchase option for lessee at the end of the lease.

When leases are structured as true leases, the lessee may claim the entire lease payment as a deductible business expense.

CONDITIONAL SALES AGREEMENT

If an agreement is found to be a conditional sales agreement, payments made pursuant to the agreement are non-deductible purchase payments. An agreement is treated as a conditional sales agreement if it provides that you will acquire title to, or equity in, the equipment upon completing a certain number or amount of payments. Being the “owner” of the equipment is a prerequisite to taking the section 179 expense deduction and depreciation. An “owner” is the person that has the benefits and burdens of ownership and not necessarily the owner of legal title. Therefore, if the purchaser is not considered the “owner,” a conditional sales agreement may be the worst of two worlds – no business expense deduction for the payments and no depreciation deduction.

DISTINGUISHING A LEASE FROM A CONDITIONAL SALES AGREEMENT

The intent of the parties controls whether an agreement is a lease or a conditional sales agreement. How do the parties view the transaction? While the intent of the parties is important, for tax purposes the intent of the parties may be inferred from certain objective factors.

A conditional sales agreement (and not a lease) exists if any of the following are found:

  1. The agreement applies part of each payment toward an equity interest.
  2. The agreement provides for the transfer of title after payment of a stated amount.
  3. The amount of the payment to use the property for a short time is a large amount of the amount paid to obtain title to the property.
  4. The payments exceed the current fair rental value of the property (based upon comparisons with other similar properties).
  5. There is an option to buy the property at a nominal price as compared to the property’s value at the time the option can be exercised.
  6. There is an option to buy the property at a nominal price as compared with the total amount required to be paid under the agreement.
  7. The agreement designates a part of the payments as interest, or in some way makes part of the payments easily recognizable as interest.

CONCLUSION

For lease payments to be deductible as a business expense, the lease agreement must be a Tax-Oriented True Lease. If there are any factors present that show that the payments are intended to be creating equity in the equipment, the agreement will be deemed to be a conditional sales agreement. The payments pursuant to a conditional sales agreement are not deductible business expenses and the equipment is not depreciable unless the purchaser is considered the owner.

The importance of this issue depends on when Congress addresses the section 179 expense deduction and AFYD. If Congress’ inaction in 2013 and 2014 is any indication, farmers may very well find themselves in the same position of not knowing whether or not to make capital expenditures in 2015. The best possible scenario would be for Congress to permanently establish section 179 at $500,000 and AFYD at 50% to provide farmers with the certainty that they need to make wise business decisions. However, this is unlikely to happen. If a lease is a viable alternative for the farmer, make sure that it is a Tax-Oriented True Lease.

 

Resources: 2015 RIA Federal Tax Handbook, (Thomson-Reuters Checkpoint), sec. 1900, 1941

                   2014 IRS Publication 225, Farmers Tax Guide, p. 22

                   2014 IRS Publication 535, Business Expenses, p. 9

Posted In: Tax
Tags: Section 179
Comments: 0
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.

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