Home » Quarterly Update March 2016

Quarterly Update March 2016

March 2016 Update

2016 Hot Ag Law Topics – By Sarah Everhart, Ashley Ellixson, and Paul Goeringer

This year is poised to be a big one in agriculture with multiple forms of new technology expected to address some important issues. Here are a few of the 2016 hot topics in agriculture law that the legal specialists at ALEI will be watching:

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Nutrient Trading

The Maryland Departments of the Environment and Agriculture released the Maryland Nutrient Trading Policy Statement in October 2015, announcing that Maryland is pursuing a cross-sector nutrient trading program in an effort to restore the water quality of the Chesapeake Bay.

The Maryland Nutrient Trading program, with input from the Maryland Water Quality Trading Advisory Committee, includes issuing guidelines which will be used to initiate trades within Maryland.

The Committee, which met for the first time on January 21, 2016, compromises 32 stakeholders representing a broad range of fields and interests including the regulated community, local governments, federal and state government agencies, the Maryland General Assembly, the academic and technical community, agriculture, business, and the environmental community.

The Nutrient Trading Program will also include adopting regulations proposed by the Maryland Department of Agriculture that establish the requirements and standards for generation, verification, and certification of nutrient and sediment credits on agricultural lands.


Maryland’sPhosphorus Management Tool (PMT) regulations became effective June 8, 2015. These regulations provide a multi-year process for farmers to transition from the Phosphorus Site Index to the PMT, an updated tool that uses the latest scientific findings to identify the potential risk of phosphorus loss from farm fields and will prevent the additional buildup of phosphorus in already saturated soils.

Currently, fields with the greatest risk forphosphorus runoff into waterways, as indicated by a Soil Fertility Index Value of 500 or greater, are banned from receiving additional phosphorus.

To help farmers comply with the new regulations, the Maryland Department of Agriculture issued a grant solicitation on December 18, 2015 for demonstration projects from vendors, businesses, and individuals offering technologies, equipment, infrastructure, or services that can improve the management and utilization of manure and other nutrient-rich, on-farm generated waste products. Proposals are due by 4 p.m. March 18, 2016.

Food Safety Modernization Act

As a result of foodborne illness in staggering numbers, Congress passed the Food Safety Modernization Act (FSMA) in December 2010.FSMA amends the Food, Drug and Cosmetic Act (FDCA) and gives the FDA authority to mandate preventive-based controls across the food supply chain. This affects not only U.S. food facilities, butalso provides for greater oversight of the millions of food products entering the United States from other countries every year as well.

To date, a number of the FSMA rules have been finalized, such as Preventive Controls for Human Food and Food for Animals, Standards for Produce Safety, and Foreign Supplier Verification Programs. Currently, training is being conducted to train the trainers who will then train farmers on the rules and processes FSMA requires. This year will be a year of learning and teaching with regards to FSMA.

Farm Data Ownership

The House Ag Committee held a public hearing October 28, 2015 to survey the role big data plays in the agriculture industry. “Big data” has become a popular term, but between the media and the technology industry, it can be quite confusing navigating what this means to farmers.

While agricultural technology has presented great advancements, like improved productivity, efficiency, and a more in-depth qualitative look at unique farmland, these advancements also present challenges, including collecting, managing, utilizing, and owning data.

To this point, there has been no legislative definition of farm data or, most importantly, the ownership status once that data is shared with an agricultural technology provider (ATP). This year should elicit developments in this area of the law; the ALEI team will keep everyone up to date.

ALEI Presents at the 15th Annual Mid-Atlantic Women in Ag Conference – By Sarah Everhart

ALEI legal specialists Paul Goeringer, Ashley Ellixson, and Sarah Everhart were among the presenters at the 15th Annual Mid-Atlantic Women in Agriculture Conference at the Dover Downs Hotel and Casino on February 11, 2016.

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Ellixson started off the morning with a presentation to educate operators on how to reduce their exposure to liability from landowner liability claims and agritourism issues. Ellixson explained that landowners have differing legal responsibilities to protect visitors to their farms depending on the status of the visitors, be they trespassers, social guests, or customers.

Ellixson also provided liability limitation strategies for U-pick and agritourism operators, including a sample liability waiver, available to operators on the ALEI website.

Goeringer discussed the preparation of a farm transition or estate plan. Goeringer explained that a farm transition plan is an integral part of farm businesses, and provided strategies for developing a transition or estate plan to better prepare the next generation of farmers.

Later in the day, Everhart presented on helping operators understand their property’s full potential.

“The first step to understanding the full potential of property is to understand your legal ownership structure,” noted Everhart.

She described the impact that easements, covenants, and, most importantly, zoning can have on the ability to fully utilize farm lands. Everhart encouraged attendees to be active participants in their local comprehensive zoning processes and to continue to monitor their property’s zoning.

For more information on these issues, take a look at these publications available on the ALEI website, “Understanding Agriculture Liability-Premise’s Liability” and “Estate Planning for Maryland Farm Families.”

Farm Transition and Estate Planning Workshops Held Around Maryland and Delaware – By Paul Goeringer

The hardest issue for many farm families is starting the discussion of how to pass the agricultural operation on to the next generation. Developing a farm transition plan and an estate plan can require difficult conversations with children, uncertainty of what to do with farm assets, tax implications, and a whole host of decisions.

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To help agricultural producers start thinking about these issues, ALEI in partnership with the Department of Agricultural and Resource Economics, Maryland Crop Insurance Education Program, and University of Maryland Extension hosted a series of Farm Transition and Estate Planning workshops in Salisbury (August 26, 2015), Hughesville (October 27, 2015), Frederick (December 3, 2015), and Wye Mills (December 10, 2015) in Maryland.

Ashley Ellixson and Paul Goeringer have also worked closely with the University of Delaware to conduct smaller workshops for Delaware residents. More workshops are planned for 2016 in Delaware. These workshops are sponsored in part by a grant from the Sustainable Agriculture Research and Education, Nationwide Insurance, and University of Delaware Extension.

The workshops featured experts discussing the variety of legal tools that may make up a farm transition plan, tax implications, and preparing to discuss this topic with your family. ALEI is grateful to presenters Dale Johnson, University of Maryland Extension, Henry Leonard, CPA, C. Lee Gordon, Esq., JoAnn Wood, Esq., Syd Moreland, CPA, and Matt Mudd, CPA, for lending their expertise.

Additional workshops will be planned in Maryland for 2016. For more information on the farm transition and estate planning process, please see the Extension’s Farm Transition and Estate Planning Program website.

Agronomy Days – By Ashley Ellixson

A warmer-than-normal December kicked off ALEI’s Agronomy Day meetings across the state. From top developments in agricultural law, to water law, to labor, the ALEI team covered many relevant topics affecting Maryland producers.

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ALEI expert Paul Goeringer started off the Agronomy Day tour at the Northern Maryland Agronomy Day in December where he spoke to producers about the top legal developments in agriculture in 2015, including the use of drones, the Chesapeake Bay total daily maximum load, the Cow Palace decision, and the much talked about Syngenta class action. Goeringer also presented these same topics to producers at Caroline County’s Agronomy Day on February 17.

Sarah Everhart made two presentations at the Cecil County Agronomy Day on January 27. Everhart’s morning presentation was on commonly asked agricultural law questions and answers, where topics ranged from premises liability, trespass, labor, and leasing. In the afternoon, she presented on migrant, seasonal, and H-2A visa workers.

Everhart also spoke about easements at the Harford County Agronomy Day on February 10. The presentation educated operators on the various types of easements in Maryland and how easements can affect an agricultural operation.

Ashley Ellixson presented at the Lower Shore Agronomy Day in Salisbury, Maryland on January 21, where she spoke about water law in Maryland, covering the water appropriation permit process as well as the new buffer regulations required for farm operations located near waterways.

ALEI covered many topics at the various Agronomy Meetings throughout the state this season and are hopeful that these educational legal presentations are helping producers in Maryland with their legal concerns.

Quarterly Update Archive

Agriculture Law Education Initiative November 2015 Quarterly Update

Agriculture Law Education Initiative July 2015 Quarterly Update

Agriculture Law Education Initiative June 2014 Quarterly Update

Agriculture Law Education Initiative March 2014 Quarterly Update