Environmental
Disagreements over how to improve the health of Lake Erie have led to yet another federal lawsuit in Ohio. This time the plaintiff is the Board of Lucas County Commissioners, who filed a lawsuit in federal court last Thursday against the U.S. EPA. The lawsuit accuses the U.S. EPA of failing to enforce the federal Clean Water Act, which the county believes has led to an "alarming" decline in the water quality of western Lake Erie.
The Clean Water Act requires states to monitor and evaluate water quality and establish water quality criteria, and also to designate a water body as “impaired” if it does not meet the criteria. Once a water body is on the impaired waters list, the state must create Total Maximum Daily Loads (TMDLs) for the water body. TMDLs determine the maximum amounts of each pollutant that can enter a water body and still allow the water to meet the established water quality criteria. Plans for reducing a pollutant would be necessary if the pollutant exceeds the TMDLs. The state’s efforts to establish the water quality criteria, designate impaired waters and develop TMDLs are subject to review and approval by the U.S. EPA, who must ensure that the states are taking adequate action pursuant to the Clean Water Act.
Lucas County alleges that the U.S. EPA has failed in its Clean Water Act obligations by allowing Ohio to refuse to prepare TMDLs for the western basin of Lake Erie. Even after another court battle forced the designation of the western basin as “impaired,” the county explains, Ohio’s EPA declared the western basin to be a low priority for TMDL development and has not yet proposed either TMDLs or an alternative plan for addressing the basin’s impaired water status. Lucas County argues that since Ohio has not established TMDLs for the impaired waters of Lake Erie, the U.S. EPA must step in and do so.
The county also contends that the lack of state and federal action on the impaired waters status of the western basin has forced Lucas County to expend significant resources to maintain and monitor Lake Erie water quality for its residents. According to Lucas County, such actions and costs would be unnecessary or substantially reduced if the U.S. EPA had fulfilled its legal obligations to ensure the preparation of TMDLs for the western basin.
Agricultural pollution is an explicit concern in the county’s complaint. The development of TMDLs for the western basin would focus needed attention and remedial measures on pollution from agricultural operations, Lucas County states. The county asserts that TMDLs would establish a phosphorous cap for the western basin and methods of ensuring compliance with the cap, which would in turn address the harm and costs of continued harmful algal bloom problems in Lake Erie.
The remedy Lucas County requests is for the federal court to order the U.S. EPA to either prepare or order the Ohio EPA to prepare TMDLs for all harmful nutrients in the western basin, including phosphorous. The county also asks the court to retain its jurisdiction over the case for continued monitoring to ensure the establishment of an effective basin-wide TMDL.
This is not the first TMDL lawsuit over the western basin. In early February of this year, the Environmental Law and Policy Center (ELPC) and the Toledo-based Advocates for a Clean Lake Erie filed a lawsuit that similarly alleges that the U.S. EPA has failed to require Ohio to establish TMDLs for the western basin, which is still ongoing. See our summary of that case here. The case followed an earlier and successful push by the ELPC to order Ohio to declare the western basin as impaired, which the state had refused to do previously. We explain that history here.
The newest round of litigation again highlights differences in opinion on how to remedy Lake Erie’s phosphorous pollution problem. Like the TMDL lawsuits, a successful effort by the Toledoans for Safe Water to enact the Lake Erie Bill of Rights was also predicated on claims that Ohio and the federal government aren’t taking sufficient action to protect Lake Erie. Lucas County made it clear that it isn’t satisfied with the state of Ohio’s approach of providing funding to promote voluntary practices by farmers to reduce phosphorous pollution, despite stating that the county isn’t “declaring war on agriculture.” In its press conference announcing the current lawsuit, the county explained that the state’s voluntary approach won’t provide the “sweeping reforms we need.” On the other hand, the Ohio Farm Bureau has argued that the TMDL process for Lake Erie can take years longer and be less comprehensive than the voluntary practices farmers are pursuing. Still others believe that more research will help us fully understand the phosphorous problem and identify solutions.
As battles continue over the best approach to improving Lake Erie’s water quality, maybe all could at least agree that litigation is costly, in many ways. An alternative but perhaps more challenging path would be appreciation of the concerns on both sides of the issue and cultivation of collaborative solutions. Let’s hope we can find that path. In the meantime, we’ll keep you up to date on the continuing legal battles over water quality in Lake Erie.
Read the complaint in Board of Lucas County Commissioners vs. U.S. EPA here.
Tags: Lake Erie, western basin, TMDLs, Lucas County, phosphorous runoff, agricultural nutrients
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The media storm that surrounded the controversial Lake Erie Bill of Rights (LEBOR) has quieted, but the federal lawsuit over LEBOR has heated up. Just a month ago, Toledo residents voted to approve LEBOR. The measure establishes rights within the City’s charter for the Lake Erie Ecosystem to “exist, flourish, and naturally evolve” as well as rights to self-government and a clean and healthy environment for the citizens of Toledo. LEBOR states that corporations or governments that violate these rights can be liable for harm caused and also cannot use existing federal and state laws or permits in defense of the violations. Drewes Farm Partnership filed a lawsuit in federal court the day after LEBOR passed. The farm’s complaint asks a federal court to declare LEBOR unconstitutional on several grounds and also claims that LEBOR violates state laws. Recent developments in the past week prompted us to provide this quick update on the lawsuit:
City of Toledo agrees to a preliminary injunction. The court announced on March 18 that the City of Toledo agreed to the entry of a Preliminary Injunction Order. Drewes Farm requested the injunction when it filed the lawsuit. The court stated that the purpose of a preliminary injunction “is merely to preserve the relative positions of the parties until a trial on the merits can be held” and noted that the City of Toledo has not “commenced or initiated any action against Drewes Farms or others pursuant to LEBOR.” Toledo therefore agreed to the injunction and to maintain its current position of not taking any action to enforce LEBOR.
Lake Erie Ecosystem and Toledoans for Safe Water ask to join the lawsuit. Also on March 18, two attorneys filed a motion asking the court to allow the Lake Erie Ecosystem and the Toledoans for Safe Water to “intervene” in the case as defendants. Federal rules allow a party to file a motion to intervene and become a party to ongoing litigation as either a matter of right or with permission of the court. The attorneys argue that the parties should be allowed to intervene as of right because they have significant legal interests that will be impaired by the case and that the City of Toledo can’t adequately represent those interests. They also ask the court to allow permissive intervention because the parties have a claim or defense that share a common question of law or fact with the main action. The court has asked Drewes Farm and Toledo to file briefs in response to the motion to intervene. Note that the two attorneys representing the Lake Erie Ecosystem and the Toledoans for Safe Water have worked with the Community Environmental Legal Defense Fund, the organization that assisted with the petition initiative that resulted in the adoption of LEBOR.
Lake Erie Ecosystem and Toledoans for Safe Water file a motion to dismiss the lawsuit. On the same day as filing a motion to intervene, the attorneys also filed a motion to dismiss the case on behalf of the Lake Erie Ecosystem and Toledoans for Safe Water. The motion argues that Drewes Farm does not have legal “standing” to bring the case, which is based upon federal constitutional law that states that a federal court cannot have jurisdiction over a case unless the plaintiff demonstrates that he or she has suffered concrete and particularized “injury in fact” that is fairly traceable to the defendant’s conduct and that the requested remedies will redress the alleged injuries. Lake Erie and the Toledoans for Safe Water argue that Drewes Farm has not stated a concrete injury or actual or imminent harm due to LEBOR and therefore cannot meet the standing requirement.
City of Toledo files its answer to the complaint. Yesterday, the City of Toledo filed its answer to the complaint filed against it by Drewes Farm. Toledo presents sixteen defenses to the farm’s allegations, which include a general denial of the complaint and other defenses based upon arguments that: the farm does not have legal standing, has not stated a claim or stated actual or imminent harm and has based its harm on premature speculation; that the City itself is immune and has acted properly, in good faith, and as authorized or required by law to act; that the relief requested by the farm would violate the rights of the citizens of Toledo; that the farm has a duty to mitigate its damages; and that the farm failed to join necessary parties and has not stated a basis for the relief requested. Toledo asks the court to dismiss the case and award all costs of the lawsuit to the City of Toledo.
What’s next? Now the parties must wait for the court to act on the motion to intervene, motion to dismiss, and/or the City of Toledo’s request to dismiss the case. We’ll keep watching the case and will let you know when the court makes a ruling on any of these requests.
Tags: Lake Erie, Lake Erie Bill of Rights, western Lake Erie basin, community rights, Drewes Farm
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State lawmakers have been busy crafting new legislation since the 133rd General Assembly took shape in January. As promised, here are some highlights and summaries of the pending bills that relate to agriculture in Ohio:
- Senate Bill 57, titled “Decriminalize hemp and license hemp cultivation.” The Ohio Senate Agriculture and Natural Resources Committee held a second hearing about the bill on March 13th, and numerous farm organizations spoke in support of the bill. As of now the language of the bill has not changed since we last discussed Ohio’s hemp bill in a blog post, but some changes could be made when the bill is sent out of the committee. Click HERE for more information about the bill, and HERE for the current official bill analysis.
- Senate Bill 2, titled “Create state watershed planning structure.” The one sentence bill expresses the General Assembly’s intent “to create and fund a comprehensive statewide watershed planning structure to be implemented at the local soil and water conservation district level.” It further expresses the intent “to provide authorization and conditions for the operation of watershed programs implemented by local soil and water conservation districts.” Click HERE for more information about the bill.
- House Bill 24, titled “Revise humane society law.” The bill would make various changes to Ohio’s Humane Society Law, including changes to enforcement powers, appointment and removal procedures, training, and criminal law applicability. One of the significant changes would expand to all animals the seizure and impoundment provisions that currently apply only to companion animals. This change would allow an officer to seize and impound any animal that the officer has probable cause to believe is the subject of a violation of Ohio’s domestic animal law. At the same time, the bill would remove certain provisions from current law that pertain to harm to people, thereby focusing the new law solely on the protection of animals. Click HERE for more information about the bill, and HERE for the current official bill analysis.
- House Bill 124, titled “Allow small livestock on residential property.” Under this bill, counties and townships would no longer be allowed to restrict via zoning certain noncommercial agricultural activities on residential property conducted for an individual’s personal use and enjoyment. Instead, owners of residential property that is not generally agricultural would be allowed to keep, harbor, breed, and maintain small livestock on their property. Small livestock includes goats, chickens and similar fowl, rabbits, and similar small animals. Roosters are explicitly excluded from this definition. However, the owner would lose his or her rights to keep small livestock if the small livestock create a nuisance, are kept in a manner that causes noxious odors or unsanitary conditions, are kept in a building that is unsafe as defined under the statute, or if the number of animals exceeds a certain ratio of animals to acres as defined under the statute. The ratio may be modified by the local jurisdiction to allow for more animals per acre. Click HERE for more information about the bill.
- House Bill 55, titled “Require oil and gas royalty statements.” Owners of oil and gas wells would have to provide mandatory reports to holders of royalty interests under this bill. Current law only requires disclosure of the information upon request, but this bill would make the disclosure mandatory. The bill would expand the types of information that the reports must include, and allows the holder of royalty interests to sue to enforce the new rights. Click HERE for more information about the bill, and HERE for the current official bill analysis.
- House Bill 94, titled “Ban taking oil or natural gas from bed of Lake Erie.” The Ohio Department of Natural Resources handles oil and gas permitting in Ohio, and this bill would bar the agency from issuing permits or making leases “to take or remove oil or natural gas from and under the bed of Lake Erie.” Click HERE for more information about the bill.
- House Bill 95, titled “Revise Oil and Gas Law about brine and well conversions.” The bill would ban the use of brine in secondary oil and gas recovery operations. It would also ban putting brine, crude oil, natural gas, and other fluids associated with oil and gas exploration in ground or surface waters, on the ground, or in the land. This restriction would apply even if the fluid received treatment in a public water system or other treatment process. Further, brine disposal permits would not be allowed to utilize underground injection or disposal on the land or in surface or ground water. Click HERE for more information about the bill.
- House Bill 100, titled “Revise requirements governing abandoned mineral rights.” Ohio has a statute that governs when a surface owner can take the mineral rights held or claimed by another by operation of law, essentially because of the passage of time. The bill would require a surface owner to attempt to give notice to a holder of mineral rights by personal service, certified mail, or if those are unsuccessful then by publication. Currently, if a holder of mineral rights believes that his or her interest remains valid, he or she may file an affidavit that complies with Ohio Revised Code (ORC) § 5301.56(H)(1) in the county property records. If the holder of mineral rights fails to file an affidavit, the surface owner may then file an affidavit under ORC § 5301.56(H)(2) that effectively vests the mineral rights in the surface owner. The new law would allow the surface owner to challenge a holder of mineral rights’ ORC § 5301.56(H)(1) affidavit. This process would require the surface owner to obtain a court determination that the affidavit is invalid. Then the surface owner would be able to file the new ORC § 5301.56(H)(3) affidavit to obtain the mineral rights. Click HERE for more information about the bill.
There are also some bills that could have some indirect implications in the agricultural and natural resources sectors. These indirect effects make this next set of bills noteworthy, or at least interesting.
- Senate Bill 1, titled “Reduce number of regulatory restrictions.” The bill would require each state agency to count its total number of regulatory restrictions, and then reduce the number of restrictions based on that baseline by 30% by 2022. Once an agency meets its reduction target, it would not be able to increase the number of regulatory restrictions without making additional cuts elsewhere. The bill would target agency rules that require or prohibit specific acts. Click HERE for more information about the bill, and HERE for the current official bill analysis.
- Senate Bill 21, titled “Allow corporation to become benefit corporation.” Much like the LLC merged the principles of a corporation and a partnership, the benefit corporation merges the principles of a corporation and a non-profit. A benefit corporation must follow the formalities of a corporation, but the articles of incorporation can designate a social purpose for the business to pursue, such as promoting the environment through sustainable practices. One of the unique traits of benefit corporations is that benefit corporations cannot be held liable for damages for failing to seek, achieve, or comply with their beneficial purpose, or even obtain a profit; however, certain individuals may seek a court ordered injunction to force the company to pursue those interests. In a sense, the benefit corporation reduces the traditional fiduciary duties expected in general corporations. The bill purports to maintain the traditional fiduciary duties, but by allowing a social purpose other than profit to guide decisions, the traditional fiduciary duties are in effect modified. Click HERE for more information about the bill, and HERE for the current official bill analysis.
- House Bill 33, titled “Establish animal abuse reporting requirements.” Under the bill, veterinarians and social service professionals would have to report their knowledge of abuse, cruelty, or abandonment toward a companion animal. Social service professionals would include licensed counselors, social workers, and marriage or family therapists acting in their professional capacity. Companion animals include non-wild animals kept in a residential dwelling, along with any cats and dogs kept anywhere. These individuals would be required to report the neglect to law enforcement, agents of the county humane society, dog wardens, or other animal control officers. Further, dog wardens, deputy dog wardens, and animal control officers would become mandatory reporters of child abuse. Lastly, the bill explains the information that must be reported, the timing, and the penalties for failure to comply. Click HERE for more information about the bill, and HERE for the current official bill analysis.
- House Bill 48, titled “Create local government road improvement fund.” The bill proposes to deposit into a new local government road improvement fund some of the surplus funds generated when the state spends less than it appropriates in the general revenue fund. Under current law, this surplus is split between the budget stabilization fund, also known as the “rainy day fund,” and the income tax reduction fund, which would redistribute remaining surplus to taxpayers. Click HERE for more information about the bill.
- House Bill 54, titled “Increase tax revenue allocated to the local government fund.” The bill would increase the proportion of state tax revenue allocated to the Local Government Fund from 1.66% to 3.53%. Click HERE for more information about the bill.
- House Bill 74, titled “Prohibit leaving junk watercraft or motor uncovered on property.” The bill would allow a sheriff, chief of police, highway patrol officer, or township trustee to send notice to a landowner to remove a junk vessel or outboard motor within 10 days. The prohibition applies to junk vessels, including watercraft, and outboard motors that are three years or older, apparently inoperable, and with a fair market value of $1,500 or less. Failure to cover, house, or remove the item in ten days could result in conviction of a misdemeanor. Click HERE for more information about the bill, and HERE for the current official bill analysis.
As more bills are introduced, and as these bills move along, stay tuned to the Ag Law Blog for updates.
Tags: Ohio 133rd General Assembly, hemp, industrial hemp, animal welfare, oil and gas law, mineral rights, regulatory reform, corporations, benefit corporations, local government funding
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Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program
Toledo’s Lake Erie Bill of Rights (LEBOR) has been in the headlines a lot lately, and certainly on the minds of farmers in the Lake Erie watershed. So far, the Ag Law Blog has focused attention on what LEBOR is, why it was on the ballot, and what types of defenses agricultural producers can raise if sued. Because voters approved the ballot measure, the focus now shifts to how LEBOR will be treated in the courts.
On February 26th, Toledo held a special election, with one of the ballot questions being whether to amend the City of Toledo’s charter to adopt LEBOR. While less than 9 percent of Toledo’s registered voters cast a ballot, the majority of those who did voted in favor of amending the city’s charter to include LEBOR.
On February 27th, the Drewes Farm Partnership filed a complaint and initiated a lawsuit in federal court against the City of Toledo. Family owned and operated, this Wood County based grain farm operates wholly within the Lake Erie watershed. Drewes Farm utilizes both manure and commercial fertilizers, and states in its complaint that it follows industry best practices, scientific recommendations, and all legal requirements such as keeping records and not applying fertilizer on snow covered ground. Two of the family members obtained Fertilizer Applicator Certificates, and the Ohio Department of Agriculture certified the farm under its Ohio Agricultural Stewardship Verification Program.
The complaint specifically alleges violations of Drewes Farm’s rights under the First Amendment, Equal Protection Clause, and Due Process Clauses of both the Fifth and Fourteenth Amendments. Further, the complaint argues that LEBOR exceeds the City of Toledo’s authority by intruding on state and federal powers by attempting to meddle with international relations, invalidate state and federal permits, invalidate state law, alter the rights of corporations, and create new causes of action in state courts. Drewes Farm requests that the court 1) grant it a preliminary and permanent injunction to prevent LEBOR’s enforcement, 2) invalidate LEBOR, and 3) grant the plaintiff an award for costs and fees.
The following day, Drewes Farm filed a motion for a preliminary injunction. Parties use preliminary injunctions as a way to enforce the status quo and prevent the other parties from acting in a way that would cause further harm. If granted, the preliminary injunction would prevent the enforcement of LEBOR against the Drewes Farm Partnership during the course of the litigation. At the end of the case, there would be a determination of whether Drewes Farm should receive a permanent injunction, which would prevent LEBOR from being enforced against it after the case has ended.
The party who brings the motion must argue and prove four elements in order for the court to grant the motion for a preliminary injunction:
First, that the movant has a likelihood of success on the merits, meaning that it is likely that the movant will win the underlying case. Drewes Farm’s motion examines each of the grounds that it believes violates its constitutional rights and state and federal law. Drewes Farm argues that it can win on each of the dozen grounds it examines, and that it need only show a likelihood of success on one ground to satisfy this element.
Second, that the movant could suffer irreparable harm without a preliminary injunction, meaning that without a preliminary injunction, the other party may take action to harm the movant in a way that it will not be able to recover. Here, Drewes Farm cites court cases explaining that the loss of one’s constitutional rights for any amount of time constitutes irreparable harm, and that a likelihood of success also demonstrates irreparable harm.
Third, that the issuance of an injunction will not cause greater harm. This element balances the previous element to see whether the injunction is fair. Where the second element looks at the harm to the movant, the third element looks at whether a preliminary injunction will harm others. Here, Drewes Farm argues that others will not be harmed by the granting of a preliminary injunction because it will merely allow the farm to continue operating as required under the law and its permits using best practices. Further, Drewes Farm mentions that the other farms in the watershed will actually experience a benefit from the prevention of LEBOR’s enforcement.
Fourth, that the issuance of a preliminary injunction would serve the public interest. Here, Drewes Farm cites additional court cases explaining that the enforcement of constitutional rights is inherently in the public interest. Further, it argues that the State of Ohio holds its portion of Lake Erie in trust “for all Ohio citizens, not just those residing in a single municipality.”
If the court is satisfied that Drewes Farm has established each of the four elements, it may grant a preliminary injunction.
At this time, the City of Toledo has not filed any responses to the complaint or motion; however, procedural rules require it to respond in a timely manner. Because it has not filed anything with the court, it is unclear how the City of Toledo intends to defend or respond. However, since enforcement of LEBOR had not been commenced against the Drewes Farm Partnership, it is possible that Toledo will challenge the plaintiff’s standing to sue at the present time.
The case is cited in court records as Drewes Farm Partnership v. City of Toledo, Ohio, 3:19-cv-00343 (N.D. Ohio). Stay tuned to the Ag Law Blog for updates about the case.
Whether producing crops, livestock, or other agricultural products, it can be challenging if not impossible for a farmer to completely prevent dust, odors, surface water runoff, noise, and other unintended impacts. Ohio law recognizes these challenges as well as the value of agricultural production by extending legal protections to farmers. The protections are “affirmative defenses” that can shield a farmer from liability if someone files a private civil lawsuit against the farmer because of the unintended impacts of farming. A court will dismiss the lawsuit if the farmer successfully raises and proves an applicable affirmative legal defense.
In our latest law bulletin, we summarize Ohio’s affirmative defenses that relate to production agriculture. The laws afford legal protections based on the type of activity and the type of resulting harm. For example, one offers protections to farmers who obtain fertilizer application certification training and operate in compliance with an approved nutrient management plan, while another offers nuisance lawsuit protection against neighbors who move to an agricultural area. Each affirmative defense has different requirements a farmer must meet but a common thread among the laws is that a farmer must be a “good farmer” who is in compliance with the law and utilizing generally accepted agricultural practices. It is important for farmers to understand these laws and know how the laws apply to a farm’s production activities.
To learn more about Ohio’s affirmative defenses for agricultural production activities, view our latest law bulletin HERE.
Tags: agricultural nutrients, fertilizer application, fertilizer applicator certification, legal defenses, right to farm, nuisance, livestock
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Well, it’s been a while since we’ve written about the Waters of the United States (WOTUS), so everyone had to know we were overdue for WOTUS news!
On December 11, 2018, the Environmental Protection Agency (EPA) and the Army Corps of Engineers announced the Trump Administration’s so-called “straightforward” new definition of WOTUS under the Clean Water Act (CWA). Publication of the proposed rule was delayed due to the federal government shutdown in December and January. The proposed rule was finally published in the Federal Register on February 14, 2019. Interested parties can comment on the proposed WOTUS rule until April 15, 2019. Information on how to comment can be found here, and the proposed rule in its entirety can be found here.
Out with the old WOTUS…
The new definition would replace the 2015 definition of WOTUS promulgated under the Obama Administration. The 2015 definition is codified at 33 CFR 328. The 2015 definition defined waters of the United States as:
- All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
- All interstate waters including interstate wetlands;
- All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
- Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
- From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
- Which are used or could be used for industrial purpose by industries in interstate commerce;
- All impoundments of waters otherwise defined as waters of the United States under the definition;
- Tributaries of waters identified in paragraphs (a) (1) through (4) of this section;
- The territorial seas;
- Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) (1) through (6) of this section.
- Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with the EPA.
The 2015 definition also noted that “[w]aste treatment systems, including treatment ponds or lagoons designed to meet requirements of CWA…are not waters of the United States” (emphasis added).
...In with the new WOTUS
The Trump Administration’s new proposed definition of WOTUS would make significant changes to the definition listed above. Under the new proposed rule, section (a) of §328.3 would define waters of the United States as:
- Waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including the territorial seas and waters which are subject to the ebb and flow of the tide;
- Tributaries of waters identified in paragraph (a)(1) of this section;
- Ditches that satisfy any of the conditions identified in paragraph (a)(1) of this section, ditches constructed in a tributary or that relocate or alter a tributary as long as those ditches also satisfy the conditions of the tributary definition, and ditches constructed in an adjacent wetland as long as those ditches also satisfy the conditions of the tributary definition;
- Lakes and ponds that satisfy any of the conditions identified in paragraph (a)(1) of this section, lakes and ponds that contribute perennial or intermittent flow to a water identified in paragraph (a)(1) of this section in a typical year either directly or indirectly through a water(s) identified in paragraphs (a)(2) through (6) of this section or through water features identified in paragraph (b) of this section so long as those water features convey perennial or intermittent flow downstream, and lakes and ponds that are flooded by a water identified in paragraphs (a)(1) through (5) of this section in a typical year;
- Impoundments of waters identified in paragraphs (a)(1) through (4) and (6) of this section; and
- Adjacent wetlands to waters identified in paragraphs (a) (1) through (5) of this section.
Every other type of water in this proposed definition relates back to the waters described in (1), which the EPA describes as “traditional navigable waters.” For example, tributaries that are WOTUS would be those bodies of water that empty into or connect to traditional navigable waters. Similarly, lakes and ponds are WOTUS under the definition if they are traditional navigable waters themselves, or if they flow regularly into traditional navigable waters. An EPA fact sheet, available here, is very helpful in understanding what is included under the proposed WOTUS definition. It describes the six proposed categories of WOTUS in layman’s terms, and provides examples of bodies of water that fall under each category.
The newly proposed rule also greatly expands the list of waters that are not waters of the United States in section (b):
- Waters or water features that are not identified in paragraphs (a) through (6) of this section;
- Groundwater, including groundwater drained through subsurface drainage systems;
- Ephemeral features and diffuse stormwater run-off, including directional sheet flow over upland;
- Ditches that are not identified in paragraph (a)(3) of this section;
- Prior converted cropland;
- Artificially irrigated areas, including fields flooded for rice or cranberry growing, that would revert to upland should application of irrigation water to that area cease;
- Artificial lakes and ponds constructed in upland (including water storage reservoirs, farm and stock watering ponds, and log cleaning ponds) which are not identified in paragraph (a)(4) or (a)(5) of this section;
- Water-filled depressions created in upland incidental to mining or construction activity, and pits excavated in upland for the purpose of obtaining fill, sand, or gravel;
- Stormwater control features excavated or constructed in upland to convey, treat, infiltrate or store stormwater run-off;
- Wastewater recycling structures constructed in upland, such as detention, retention and infiltration basins and ponds, and groundwater recharge basins; and
- Waste treatment systems.
Notable differences between 2015 rule and proposed rule
Just glancing at the two rules, it is obvious that there are major differences in how WOTUS is defined. EPA has a useful fact sheet (highly recommended reading) outlining the “key proposed changes” and how they compare to the 2015 WOTUS rule, as well as to the pre-2015 WOTUS rule. Overall, it appears that the number of water bodies considered WOTUS would decrease under the proposed rule. EPA argues that limiting the number of waters classified as WOTUS would give more power to the states to regulate waters as they see fit.
One major change is that under the proposed rule, tributaries that are “ephemeral” (meaning they’re not around for a great deal of time, and/or may be there because of rainfall or snowmelt, etc.), are not considered to be WOTUS. Similarly, the number of ditches considered to be WOTUS would decrease under the new rule. Upland ditches and ephemeral ditches would no longer fall under WOTUS. The number of wetlands considered WOTUS would also take a hit under the new rule. Wetlands would either have to “abut” other WOTUS or “have a direct hydrological surface connection” to WOTUS in a “typical year” to fall under the new definition. Furthermore, wetlands would no longer be considered to be “adjacent,” and therefore connected to WOTUS, if they are “physically separated from jurisdictional waters by a berm, dike, or other barrier.” Finally, you guessed it— the number of lakes and ponds considered WOTUS would also be reduced, since they would no longer connect through “adjacent” wetlands.
What’s next?
It’s important to remember that this new WOTUS rule is not currently effective—they are just proposed rules, open to public comment. In the meantime, due to litigation, what qualifies as WOTUS depends on which state you live in, as we discussed in Harvest posts here and here. EPA has a map depicting which definition of WOTUS currently applies where—in some states, the 2015 rule applies, and in others the pre-2015 rule applies. Obama’s 2015 rule applies in Ohio at this time. If the proposed rule makes it through the rulemaking process and goes into effect, it will replace the 2015 and pre-2015 rules, and barring any other lawsuits, will apply nationwide. The ultimate implementation of this rule is anything but certain; changes and challenges to the rule are likely to occur. The Ag Law Blog will keep readers updated on all the WOTUS discussion yet to come.
We can’t say that Lake Erie is back in the news, because lately it hasn’t left the news. However, there is a new lawsuit in federal court that seeks further action from either the U.S. Environmental Protection Agency (“EPA”) or the Ohio EPA regarding Lake Erie water quality. Filed on February 7, 2019 by the Environmental Law & Policy Center (“ELPC”) and the Toledo-based Advocates for a Clean Lake Erie, this new lawsuit alleges that the U.S. EPA improperly signed off on action taken by the Ohio EPA to designate Lake Erie as an impaired water body without implementing a Total Maximum Daily Load (“TMDL”) to restrict discharges such as agricultural runoff. The plaintiffs weren’t necessarily unhappy about the designation, but they were not happy about the lack of a TMDL.
Designating a waterway as impaired indicates low water quality, and triggers requirements to take action to improve water quality. A state must classify its waterways, and that classification guides the selection of which types of regulations to impose and the priority of fixing a waterway. The Ohio EPA’s designation of Lake Erie as impaired under the federal Clean Water Act was motivated by a previous lawsuit brought by the ELPC. In that lawsuit, a federal court ordered the U.S. EPA to review the Ohio EPA’s compliance with the federal Clean Water Act, which is something the plaintiffs in this new case want the court to order again. That case remains pending, and is cited as Environmental Law and Policy Center v. U.S. EPA, Case No. 17-cv-1514 (N.D. Ohio).
The plaintiffs allege that the new designation alone is not enough, and that the Ohio EPA must take more action. The complaint in the new lawsuit alleges that the Ohio EPA must establish a TMDL for western Lake Erie. Under the federal Clean Water Act, TMDLs identify the maximum amounts of a pollutant that a body of water can handle in order to meet water quality standards. The U.S. EPA describes these as a “starting point or planning tool for restoring water quality” that states often use as targets when crafting comprehensive plans to attain water quality. The complaint alleges that the Ohio EPA must prioritize creating a TMDL for western Lake Erie, but the Ohio EPA has said that it hopes to pursue an alternative approach to water quality attainment without the need for a TMDL. The plaintiffs do not believe that this is enough.
But why then is the new lawsuit against the U.S. EPA, and not the Ohio EPA? Congress granted the U.S. EPA oversight over water quality for federally navigable waters, or Waters of the United States, which include Lake Erie. The complaint alleges that by approving Ohio’s designation of Lake Erie without a plan and timeline to reach water quality standards, the U.S. EPA made an improper and arbitrary decision under the federal Clean Water Act. The plaintiffs want the U.S. EPA to rescind its approval of the Ohio EPA’s action. After this, the U.S. EPA would have to require the Ohio EPA to submit a new binding plan to bring Lake Erie into attainment with water quality standards, or the U.S. EPA can decide that Ohio has refused to submit a plan and exercise its authority to create its own plan for Ohio. The complaint also seeks an award of attorney’s fees and costs to cover the expenses incurred by the plaintiffs in bringing the lawsuit.
Click HERE to view the complaint. The case is cited as Environmental Law & Policy Center v. U.S. EPA, Case No. 3:19-cv-00295 (N.D. Ohio). Stay tuned to the Ag Law Blog for more updates on litigation involving Lake Erie.
Tags: western Lake Erie basin, EPA, Clean Water Act, water quality
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Lake Erie once again made headlines when the Ohio Supreme Court recently decided that a “Lake Erie Bill of Rights” (LEBOR) initiative could be placed on the Toledo ballot on February 26, 2019. The decision raised alarm in Ohio’s agricultural community and fears that, if passed, the measure will result in litigation for farmers in the Lake Erie watershed.
The OSU Extension Agricultural and Resource Law Program took a close look at LEBOR. Specifically, we wanted to know:
- What does Toledo’s Lake Erie Bill of Rights petition mean?
- What does the petition language say?
- What happened in the legal challenges to keep the petition off the ballot?
- Have similar efforts been successful, and if not, why not?
- Who has rights in Lake Erie?
- What rights do business entities have?
We examine all of these questions, plus a number of frequently asked questions, in a new format called “In the Weeds.” While many of our readers know of our blog posts and law bulletins, explaining this issue required something different. Using “In the Weeds” is a way for us to dig into a current legal issue more in depth.
For answers to the questions above and more, CLICK HERE to view the new “In the Weeds: The Lake Erie Bill of Rights Ballot Initiative.”
Tags: Lake Erie, Lake Erie Bill of Rights, western Lake Erie basin, agricultural nutrients, agricultural pollution
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Written by Ellen Essman, Sr. Research Associate
The Ohio Supreme Court recently decided that a “Lake Erie Bill of Rights” initiative could be placed before Toledo residents in a special election on February 26, 2019. The Lake Erie Bill of Rights (LEBOR) is a proposed amendment to the Toledo City Charter. Josh Abernathy, an opponent to the initiative, brought the lawsuit seeking a “writ of prohibition”—meaning he wanted the Ohio Supreme Court to determine that the Lucas County Board of Elections must remove LEBOR from the special election ballot.
The Supreme Court began its analysis in the case by explaining that in order to obtain a writ of prohibition in an election case, the party bringing suit must prove all of the following:
- The board of elections exercised quasi-judicial power,
- The exercise of that power was unlawful, and
- The party bringing suit has no adequate remedy in the ordinary course of law.
The Supreme Court examined the three elements in reverse order. The Court quickly answered the third element in the affirmative—reasoning that because the election was so imminent, Abernathy did “not have an adequate remedy in the ordinary course of the law,” because any other suit, such as an injunction, would not be finished prior to the election.
The Supreme Court determined that the second element was not satisfied. The Court reasoned that the “exercise of power” was not “unlawful,” because “a board of elections has no legal authority to review the substance of a proposed charter amendment and has no discretion to block the measure from the ballot based on an assessment of its suitability.” In doing so, the Supreme Court pointed to past cases it had decided, as well as the language in Article XVIII, Section 9 of the Ohio Constitution, which must be read with Section 8, both provided above. Section 9 says that a charter amendment can “be submitted to” the voters “by a two-thirds vote of the legislative authority,” as well as through a petition signed by 10 percent of the voters in the municipality. Then, as is explained above, the board of elections must pass an ordinance to include the proposed amendment on the ballot. After that, the Supreme Court found, based on precedent and the language of the Constitution, the only responsibility of the board of elections is to put the charter amendment on the ballot—the board has no other authority.
Finally, the Ohio Supreme Court concluded that since the second element was not met, there was no reason to address the first element—whether or not “the board’s exercise of authority was quasi-judicial.” Abernathy also argued that the board of elections should not have put LEBOR on the ballot due to the doctrine of claim preclusion—meaning that since the Court had already decided a case concerning LEBOR, the board should not have the power to place it on the ballot afterwards. The Supreme Court disagreed, pointing once again to the language in the Ohio Constitution, which effectively says that “the board had no power to keep the proposed charter amendment off the ballot for any reason, including claim preclusion.” In sum, the Supreme Court decided that based on a reading of case law and the Ohio Constitution, the board of elections in Toledo had no option other than placing LEBOR on the ballot. This outcome does not necessarily mean that if Toledo passes LEBOR, it is a done deal; if and when it passes, courts could determine it is unconstitutional and/or beyond the scope of the city’s power.
The case is cited as State ex rel. Abernathy v. Lucas Cty. Bd. Of Elections, Slip Opinion No. 2019-Ohio-201, and the opinion is available at https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2019/2019-Ohio-201.pdf.
Tags: Lake Erie, Lake Erie Bill of Rights, agricultural nutrients, Ohio Supreme Court
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We are full steam ahead in 2019, and so far we have held to our new year’s resolutions. However, we want to take a quick look in the rearview mirror. Ohio legislators passed a number of bills in 2018 that affect Ohio agriculture. They range from multi-parcel auction laws to broadband grants, and oil & gas tax exemptions to hunting licenses. Here are some highlights of bills that the Ohio General Assembly passed and former Governor Kasich signed in 2018.
- House Bill 500, titled “Change township law.” As mentioned in a previous blog post, the Ohio General Assembly made a number of generally minor changes to Ohio’s township laws with House Bill 500. The changes included, among other things, requiring a board of township trustees to select a chairperson annually, modifying how vacating township roads and name changes are carried out, allowing fees for appealing a zoning board decision, clarifying how a board can suspend a member of a zoning commission or board of appeals, and removing the requirement for limited home rule townships to submit a zoning amendment or resolution to a planning commission. To learn about more of the changes that were made, visit the Ohio General Assembly’s H.B. 500 webpage here.
- House Bill 480, titled “Establish requirements for multi-parcel auctions.” The Ohio Department of Agriculture regulates auctions, and H.B. 480 gave ODA authority to regulate a new classification of auctions: the multi-parcel auction. Revised Code § 4707.01(Q) will define these as “any auction of real or personal property in which multiple parcels or lots are offered for sale in various amalgamations, including as individual parcels or lots, combinations of parcels or lots, and all parcels or lots as a whole.” For more information, visit the Ohio General Assembly’s H.B. 480 webpage here.
- House Bill 522, titled “Allow outdoor refreshment area to include F permit holders.” A municipality or township may create a “designated outdoor refreshment area” where people may walk around the area with their opened beer or liquor. Previously, only holders of certain D-class permits (bars, restaurants, and clubs) and A-class permits (alcohol manufacturers) could allow their patrons to partake in a designated open area. H.B. 522 will allow holders of an F-class liquor permit to also allow their patrons to roam in the designated area with an open container. F-class liquor permits are for festival-type events of a short duration. However, holders of either permits D-6 (allowing Sunday sales) or D-8 (allowing sales of growlers of beer or of tasting samples) will no longer be eligible for the open container exception. For more information, visit the Ohio General Assembly’s H.B. 522 webpage, here.
- Senate Bill 51, titled “Facilitate Lake Erie shoreline improvement.” As mentioned in a previous blog post, the primary purpose of Senate Bill 51 was to add projects for Lake Erie shoreline improvement to the list of public improvements that may be financed by a special improvement district. S.B. 51 also instructed the Ohio Department of Agriculture (“ODA”) to establish programs to assist in phosphorous reduction in the Western Lake Erie Basin. This adds to the previous instructions given to ODA in S.B. 299 regarding the Soil and Water Phosphorous Program. S.B. 51 further provided funding for a number of projects, ranging from flood mitigation to MLS stadium construction. For more information, visit the Ohio General Assembly’s S.B. 51 webpage here.
- Senate Bill 299, titled “Finance projects for protection of Lake Erie and its basin.” Largely an appropriations bill to fund projects, S.B. 299 primarily targeted water quality projects and research. ODA received an additional $3.5 million to support county soil and water conservation districts in the Western Lake Erie Basin, plus $20 million to establish water quality programs under a Soil and Water Phosphorous Program. Further, the Ohio Department of Natural Resources (“ODNR”) received an additional $10 million to support projects that divert dredging materials from Lake Erie. Stone Laboratory, a sea grant research program, received an additional $2.65 million. The bill also created a mentorship program called OhioCorps, and set aside money for grants to promote broadband internet access. For more information, visit the Ohio General Assembly’s S.B. 299 webpage here.
- Senate Bill 257, titled “Changes to hunting and fishing laws.” ODNR may now offer multi-year and lifetime hunting and fishing licenses to Ohio residents under S.B. 257. Further, the bill creates a resident apprentice senior hunting license and an apprentice senior fur taker permit, and removes the statutory limits on the number of these permits a person may purchase. The bill also creates a permit for a Lake Erie Sport Fishing District, which may be issued to nonresidents to fish in the portions of Lake Erie and connected waters under Ohio’s control. For more information, visit the Ohio General Assembly’s S.B. 257 webpage here.
- House Bill 225, titled “Regards plugging idle or orphaned wells.” H.B. 225 creates a reporting system where a landowner may notify ODNR’s Division of Oil and Gas Resources about idle and orphaned oil or gas wells. Upon notification, the Division must inspect the well within 30 days. After the inspection, the Division must determine the priority for plugging the well, and may contract with a third party to plug the well. To fund this, the bill increases appropriations to the Oil and Gas Well Fund, and increases the portion of the fund that must go to plugging oil and gas wells. For more information, visit the Ohio General Assembly’s H.B. 225 webpage here.
- House Bill 430, titled “Expand sales tax exemption for oil and gas production property.” Certain goods and services directly used for oil and gas production have been exempted from sales and use taxes, and H.B. 430 clarifies what does and does not qualify for the exemption. Additionally, property used to control water pollution may qualify for the property, sales, and use tax exemptions if approved by ODNR as a qualifying property. H.B. 430 also extends the moratorium on licenses and transfers of licenses for fireworks manufacturers and wholesalers. For more information, visit the Ohio General Assembly’s H.B. 430 webpage here.
- Senate Bill 229, titled “Modify Board of Pharmacy and controlled substances laws.” The Farm Bill’s opening the door for industrial hemp at the federal level has led to a lot of conversations about controlled substances, which we addressed in a previous blog post. Once its changes take effect, Ohio’s S.B. 229 will remove the controlled substances schedules from the Ohio Revised Code, which involve the well-known numbering system of schedules I, II, III, IV, and V. Instead, the Ohio Board of Pharmacy will have rulemaking authority to create schedules and classify drugs and compounds. Prior to the removal of the schedules from the Revised Code, the Board of Pharmacy must create the new schedules by rule. S.B. 229 also mentions cannabidiols, and lists them as schedule V under the current system if the specific cannabidiol drug has approval from the Food and Drug Administration. For more information, visit the Ohio General Assembly’s S.B. 229 webpage here.
The end of 2018 effectively marked the end of the 132nd Ohio General Assembly, and 2019 marks the start of the 133rd Ohio General Assembly. Any pending bills from the 132nd General Assembly that were not passed will have to be reintroduced if legislators wish to proceed with those bills. Stay tuned to the Ag Law Blog for legal updates affecting agriculture from the Ohio General Assembly.
Tags: Ohio legislation, Ohio legislature, township law, Lake Erie, Ohio hunting law, hunting license, oil and gas law, cbd oil
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