Archive for September, 2012

(Posted by Grant Maki, Of Counsel for the Ohio Environmental Council)

John and Marilyn Saveson live on their family farm and want to pass it on to their children, as Savesons have done for generations.   Savesons have lived on that land since John Saveson’s great-grandfather acquired it in a state of wilderness over a century ago.  

Today, John and Marilyn feel a strong connection to this piece of land that is so tied up in their family history.  They also have a strong conservation ethic—just one of the old-fashioned farming values that have been passed down through generations of Savesons.

So they called the Natural Resources Conservation Service and asked about enrolling their land in the Wetlands Reserve Program (“WRP”).  This program is part of the U.S. Farm Bill, and it provides financial and technical assistance to help farmers install wetlands on part of their property and dedicate it to conservation.  The Savesons had put other land into the WRP once before, so they felt confident that they were doing the right thing for future generations.  They set aside most of their land for wetland conservation, and plotted out a small area on the remaining land for their children to build homes.

The Savesons excitedly signed the papers in 2010 and started working on constructing the wetland.

But they were in for a rude surprise.  In 2011 the Department of Taxation changed course on a decades old practice.  For the past 30 years, lands enrolled in WRP have qualified for a lower tax status known as the “Current Agricultural Use Valuation” (“CAUV”).  CAUV applies to all agricultural lands and all lands enrolled in a qualifying conservation program under the federal government.

In October 2011, however, the Department of Taxation decided that WRP lands no longer qualified.  Without passing any legislation or even providing any public notice, the Department sent out a memo to local auditors that WRP lands should be taxed more heavily.  Even though the Savesons had already put their land into WRP a year before the Department of Taxation changed its mind, they were given a tax bill of over $50,000.

There are a lot of things that aren’t right about this.  The Department of Taxation is throwing the small family farmer, Ohio’s wetlands, and the Ohio Constitution’s prohibition on retroactive laws under the bus-  All, in one move.  We at the OELC are thrilled to have the Savesons as clients.  That’s why we appealed this case at the Board of Revisions in August, and we’re ready to take it all the way to the Supreme Court if we have to.

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(Posted by Grant Maki, Of Counsel, Ohio Environmental Council)

Yesterday, OELC filed comments to Ohio EPA on a rather delicate situation in a very delicate area — Cash-strapped public school’s need for updates and expansion against destroying some of the few high quality wetlands Ohio has left.

SheffieldSheffield Lake City School District, in Lorain County plans to expand its high school.  Unfortunately, the project would fill in 5.6 acres of rare, high-quality category 3 wetlands.  On the positive side, the Schools proposed to place the remaining 39.4 acres of equally high-quality wetland on their property under a conservation easement that would preserve them in perpetuity.

The Schools were almost forced into this situation as previous poor planning left them with a parcel covered in wetlands and a pot of money that is specifically limited by a ballot initiative to be spent only on construction and renovation—not buying new land.

The Schools made a good faith effort to limit their impact to the wetland.  Their original design would have filled over 12 acres of wetland—over twice what they are proposing to fill today.  Still, the proposal has numerous inadequacies that we pointed out in our comments.

Probably the most important issue that we focused on is the Schools’ plan to run a wetlands ecology class in the property.  If that class is structured correctly, the students could improve and maintain the wetland while learning about ecology by doing things like removing invasive species.  But if these same activities are not done in the right way, they could actually harm the wetland.  We urged the Schools to find a highly qualified wetlands scientist to design the curriculum and train school faculty on wetland stewardship.

The Schools’ application also mentioned plans to put one or more trails through the wetland.  Trails can have significant impacts to sensitive species that may live in the wetland.  We asked that all trails be routed around the edge of the wetland, rather than through the middle of it.

We hope that the Schools and Ohio EPA, who will ultimately approve or deny the permit application, will take note of our comments and address these problems.

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(Posted by Trent Dougherty, Ohio Environmental Council)

On Friday, in Cuyahoga County Court of Common Pleas, the Ohio Association for Justice (formerly the Ohio Academy of Trial Lawyers) filed suit against the State of Ohio for violation of the state’s constitutional “single subject” rule regarding legislation.

The OAJ lawsuit cites the recent passage of Ohio House Bill 487 (HB487), the mid-biennium budget review bill, and specifically  the bill’s section (4123.57) that eliminates the right of Ohio workers who have suffered catastrophic injury (i.e. injuries in which someone loses their hand, arm, leg or worse) to receive their intended benefit in a lump-sum without reduction.

However, the stated purpose of HB 487 was “to make operating and other appropriations and to provide authorization and conditions for the operation of state programs,” and not necessarily to alter the rights of seriously injured workers (or for that matter a list of other non-budgetary issues listed in the compliant ).  According to OAJ, that’s unconstitutional violation of Ohio’s “single subject rule”:

No bill shall contain more than one subject, which shall be clearly expressed in its title. No law shall be revived or amended unless the new act contains the entire act revived, or the section or sections amended, and the section or sections amended shall be repealed. OH Constitution Art. II, Sec. 15(D)

The single subject rule is a check on the legislature not to “hide the ball”  – to make sure that legislators don’t tack on unpopular provisions onto more popular bills without public discussion in the committee process. This rule, which dates back to the state’s second constitution in 1851, works to stop   any attempt to sneak last minute amendments into bills outside of full public knowledge and debate.

While this case focuses on a singularly important concern with protecting the rights of seriously injured workers and not necessarily an environmental law, the “single subject” violation claim will have important practical ramifications for environmental and conservation legislation.

The most recent example in the environmental context, was this past Spring’s last minute amendment in SB315 (the governor’s energy bill).  In that 200-plus page bill, on the final day of hearing, with no testimony nor full discussion of the merits, the House of Representatives added an amendment that put unnecessary barriers to challenging non-disclosure of fracking chemicals.  While not a violation of the single subject rule, it was the type of unaccountable legislating that the Constitutional provision means to stop.

This litigation, hopefully will end in the reinstitution of basic injured workers’ rights, but perhaps just as important, give notice to the state legislators that sneaking provisions into unrelated or even related legislation without full public notice and debate, shall not stand.

OELC will keep you up to date on the status of this litigation, and its impact (if any) on the debate on the next biennial budget bill that will begin in early 2013.

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