Environmental
Written by: Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program
The Ohio House of Representatives is considering a bill that would affect farmers and rural landowners by requiring the Ohio Department of Natural Resources Division of Oil and Gas Resources Management (ODNR) to plug abandoned oil and gas wells within 60 days, under certain circumstances. Introduced by Rep. Andy Thompson (R-Marietta), House Bill 225 would permit a landowner to report an idle or abandoned well to ODNR, who then must inspect the well and plug it if it’s deemed “distressed-high priority.”
Inspection of Idle or Abandoned Wells
Under HB 225, ODNR would be required to inspect an idle or abandoned well within 30 days after a landowner reports the existence of such a well on their property. No later than 60 days after the inspection, ODNR would be required to provide the landowner with a report concerning the idle or abandoned well that categorizes the well as one of the following:
- Distressed-high priority;
- Moderate-medium priority; and
- Maintenance-low priority.
HB 225 would require ODNR to adopt rules to define these three categories. In adopting these rules, ODNR must include a description of the criteria for an idle or abandoned well to fit within a particular category.
Plugging an Idle or Abandoned Well
If a well is categorized as distressed-high priority, it must be plugged by ODNR within six months after the report. Perhaps most interesting for Ohio landowners, HB 225 could increase the amount of funding available for landowners who choose to plug a well on their property themselves. Currently, landowners may arrange to have the well plugged by a third party. Under current Ohio Revised Code 1509.071(D), a landowner may be reimbursed for plugging costs; however, wells are plugged on a priority basis until the funds for the program are depleted. ODNR administers this law, otherwise known as the Orphan Well Program. More information on the current program is here.
Under HB 225, landowners would be permitted to take an income tax deduction for compensation paid by ODNR to reimburse landowners’ costs to plug an abandoned or improperly plugged oil or gas well. Current law requires ODNR to approve an application for reimbursement by a landowner. A landowner’s application must comply with oil and gas plugging laws and regulations for safety and environmental reasons.
Proposed Increase in Funding Under the Oil and Gas Well Fund
HB 225 would likely increase the funds available to Ohio landowners for plugging idle or abandoned wells. Ohio law currently requires that 14% of the current Oil and Gas Well Fund be dedicated to plugging idle and abandoned wells. HB 225 would require ODNR to dedicate 45% of the fund to plug idle and abandoned wells. ODNR would also be required to issue quarterly reports regarding expenditures associated with plugging wells. ODNR may therefore offer more funding to landowners to plug wells, because of the increase in funding and the requirement to show expenditures on the plugging of wells.
However, the proposed increase in funding may lead to an increase in ODNR’s expenditures on plugging wells. The proposed increase could also drive the number of wells that the state plugs. Under the strict timeline requirements that HB 225 proposes, ODNR may subsequently plug more wells after a landowner notifies ODNR of abandoned wells on their property.
The Future of HB 225
At a committee hearing earlier this month, witnesses testified that there are likely hundreds of wells that haven’t been discovered because they’ve been farmed over and covered by urban development. According to Rep. Thompson, most of the orphan wells that have been identified emit methane gas in addition to often contributing to the runoff of oil and brine into the soil. Rep. Thompson also noted that it is estimated that the current program for plugging abandoned wells in Ohio would take 20 years or more to plug the more than 600 known orphan wells in the state. Members of the Ohio Oil and Gas Association voiced support for HB 225, noting that the taxes levied on oil and gas production should be used to correct problems that have arisen from the early days of the industry.
More information on HB 225 is here. Ohio’s current law regarding plugging idle and abandoned wells is here, under R.C 1509.071(D).
Tags: Abandoned Wells, Oil and Gas Well Fund, Plugging Oil & Gas Wells
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EPA reaches decision on Ohio’s list of impaired waters
Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
The United States Environmental Protection Agency (EPA) has finally rendered a decision on Ohio’s list of impaired waters following several months of delay and two lawsuits filed to compel the EPA to make a decision. (For a background on impaired waters and the two lawsuits, check out our previous blog posts here and here.) On May 19, 2017, the EPA decided to accept the Ohio EPA’s proposed list of impaired waters for the State of Ohio. Ohio’s list does not include the open waters in the Western Basin of Lake Erie. However, the State of Michigan’s list of impaired waters previously approved by the EPA does include the open waters in its portion of the Western Basin of Lake Erie.
The EPA explained that the agency deferred to Ohio's judgment not to include the open waters of the Western Basin of Lake Erie on the impaired waters list. "EPA recognizes the State's ongoing efforts to control nutrient pollution in the Western Basin of Lake Erie," stated Chris Korleski, EPA's Region 5 Water Division Director and previously Ohio's EPA Director. "EPA understands that Ohio EPA intends to evaluate options for developing objective criteria (e.g., microcystin or other metrics) for use in making decisions regarding the Western Basin for the 2018 list. EPA expects the development of appropriate metrics, and is committed to working with you on them."
For now, the EPA appears satisfied with Ohio's plan for addressing nutrient reductions in Lake Erie's Western Basin. It is possible, however, that additional lawsuits could be filed against the EPA in order to reconcile Ohio and Michigan's different designations of water in the same general area.
Read the EPA's Approval of Ohio's Submission of the State's Integrated Report with Respect to Section 303(d) of the Clean Water Act here.
Tags: Lake Erie, impaired waters, western basin, EPA, agricultural nutrient management
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Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
On May 17, 2017, the Environmental Law & Policy Center (ELPC) and two of its members filed suit against the U.S. Environmental Protection Agency (EPA) in the U.S. District Court for the Northern District of Ohio. ELPC filed the lawsuit to compel the EPA to either accept or reject Ohio’s list of impaired waters. In April, the National Wildlife Federation and other groups sued the EPA in the U.S. District Court for the District of Columbia for the same reason. For more information on the first lawsuit and a more thorough background on the topic, read our previous blog post.
Federal regulation under the Clean Water Act requires states to submit lists every two years of waters they determine to be impaired. The regulation also requires the EPA to either accept or reject the state listings within thirty days. The Ohio Environmental Protection Agency submitted its list of impaired waters on October 20, 2016. The list did not include the open waters of the western basin of Lake Erie. The EPA has not made a decision on Ohio’s list.
To make the situation more complex, Michigan did include its share of the open waters of the western basin of Lake Erie on its list. What is more, the EPA approved of Michigan’s impaired waters list. The plaintiffs in both of these lawsuits seem to hope that forcing the EPA to make a decision on Ohio’s impaired list will resolve the differences in the two states’ listing of waters in the same general area of Lake Erie.
ELPC filed the lawsuit in the Toledo office of the U.S. District Court for the Northern District of Ohio, citing its proximity to Lake Erie, and in particular, to the pollution problem in the western basin of the lake. ELPC’s press release on its lawsuit is available here.
Groups sue EPA over lack of impaired waters decision
Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
The National Wildlife Federation (NWF) and five other environmental and outdoor groups (Plaintiffs) sued the United States Environmental Protection Agency (EPA) last week in the U.S. District Court for the District of Columbia. The Plaintiffs filed the lawsuit due to EPA’s failure to approve or disapprove the list of impaired waters submitted by the Ohio Environmental Protection Agency (OEPA) within the time limit required by law. The Plaintiffs are particularly concerned that the EPA’s lack of a decision on the impaired waters list may affect pollution in Lake Erie’s waters.
A background on impaired waters designation
In 1972, Congress made amendments to the Federal Water Pollution Control Act of 1948. The result was what we know today as the Clean Water Act (CWA). The very first section of the CWA states: “[t]he objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” In order to meet that objective, the CWA sets forth “effluent limitations,” or in other words, the amount of pollution allowed to be discharged. Polluters have different effluent limitations dependent on a number of variables. The states are to “identify” the waters where the “effluent limitations [from certain polluters] are not stringent enough” to meet water quality standards. The specific polluters to be examined are: 1) point sources, and 2) public treatment works either in existence on July 1, 1977 or approved under the CWA before June 30, 1974. For reference, point sources are defined as “any discernable, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” Point sources are not “agricultural stormwater discharges and return flows from irrigated agriculture.”
Those waters that states identify as not having stringent enough effluent limitations for point sources and public treatment works are called “impaired waters.” Along with the identification of impaired waters, states must also put forth total maximum daily loads (TMDLs), or the amounts of each kind of pollutant allowed. The CWA in its entirety is available here.
A regulation promulgated by the EPA under CWA mandates that states submit the list of waters they determine to be impaired every two years. The list must include a description of the “pollutants causing impairment” and their total maximum daily loads (TMDLs). The same regulation requires the EPA “to approve or disapprove such listing and loadings not later than 30 days after the date of submission.”
On October 20, 2016, OEPA submitted its list of impaired waters in the Ohio Integrated Water Quality Monitoring and Assessment Report, available here . The list of impaired waters included parts of Lake Erie, namely the Lake Erie Central Basin Shoreline and the Lake Erie Islands Shoreline. Significantly, OEPA did not include the open waters of the western basin of Lake Erie on its list. The EPA has not responded to Ohio’s list by approving or disproving its listings.
Michigan submitted its impaired waters list in November 2016 and the EPA approved the report on February 3, 2017. Michigan listed the entirety of the Lake Erie waters in the state’s jurisdiction as impaired. This would include Michigan’s share of open waters in the western basin of Lake Erie. Michigan’s report is here.
The current lawsuit
As discussed above, six environmental and outdoor groups based in Ohio, Michigan and Illinois sued the EPA and its national and Region 5 administrators for the lack of a decision on OEPA’s list of impaired waters. The EPA was required to make the decision within 30 days of October 20, 2016. The Plaintiffs gave the EPA prior warning of their intention to sue in a notice sent on December 19, 2016. Since then, the EPA still has not come to a decision about Ohio’s list of impaired waters.
The crux of this lawsuit is the difference between Ohio and Michigan’s listings of waters in the same general area—the Western Basin of Lake Erie. Michigan listed the basin as impaired and Ohio did not. The Plaintiffs argue that the “inaction” on the part of the EPA “allows pollution… to continue unabated” throughout Lake Erie. Implicit in the Plaintiffs’ argument is that it seems unlikely that the EPA would allow one state to designate their Lake Erie water as impaired while the other state does not since water does not necessarily stay within state boundaries. The Plaintiffs appear to anticipate that EPA, when forced to make a decision, will disapprove of Ohio’s listing. Consequently, TMDLs could be established for greater areas of the Lake and water quality would likely be improved for the use and enjoyment of the Plaintiffs and their members.
What would a disapproval of OEPA’s list mean for Ohio?
If the court compels EPA to make a decision and EPA decides that OEPA was wrong to exclude the open waters of the Western Basin of Lake Erie as impaired, EPA regulations give the EPA the authority to take action within thirty days. EPA actions would include identifying the waters as impaired and instituting the allowable TMDLs necessary to implement applicable water quality standards. After a public comment period and potential revisions to EPA’s actions, it would be up to the state of Ohio to meet the EPA’s TMDLs for the impaired waters.
What would a listing as impaired mean for Ohio residents—individuals, farms, and companies? It would probably mean increased regulations, likely in the form of reduced allowable loads of pollutants from the point sources and public treatment works discussed above. Time, effort, and money might be necessary to comply with such changes. Regulations and TMDLs might affect more Ohioans than before, since OEPA designated parts of Lake Erie as impaired but not others.
On the flip side, increased regulation could mean better water quality in Lake Erie for drinking, sport, and other uses. For now, Ohioans and others who use Lake Erie’s waters or are located in areas that drain to the Lake will have to wait for the federal court to act on the lawsuit.
The full complaint in National Wildlife Federation v EPA is available here.
Tags: Lake Erie, water quality, western basin, impaired waters, EPA
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The U.S. Environmental Protection Agency (EPA) is seeking public input on EPA regulations that may be appropriate for repeal, replacement, or modification. The request for comments is in response to President Trump’s Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” which required the heads of agencies such as the EPA to evaluate existing regulations and make recommendations to repeal, replace, or modify regulations that create unnecessary burdens on the American people.
In announcing the agency’s regulatory reform plans, EPA Administrator Scott Pruitt stated that, “EPA will be listening to those directly impacted by regulations, and learning ways we can work together with our state and local partners, to ensure that we can provide clean air, land, and water to Americans.” Pruitt also issued harsh criticism of “misaligned regulatory actions from the past administration.”
Consistent with President Trump’s Executive Order, Pruitt appointed several EPA staff to a Regulatory Reform Task Force that will guide the agency’s reform efforts. In establishing the public comment process, the Task Force is asking entities significantly affected by federal regulations, including state, local and tribal governments, small businesses, consumers, non-governmental organizations, and trade associations to provide comments that will help the Task Force identify regulations that:
- Eliminate jobs or inhibit job creation;
- Are outdated, unnecessary or ineffective;
- Impose costs that exceed benefits;
- Create serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;
- Rely on data, information or methods that are not publicly available or sufficiently transparent for reproducibility;
- Derive from Executive Orders or other Presidential directives that have been rescinded or modified.
The comment period offers the agricultural community an opportunity to raise concerns with EPA regulations that may negatively impact agricultural production. Note that agencies such as the EPA do not base regulatory decision-making on the total number of comments for or against an issue; it is not like a popular ballot vote. Instead, the EPA must base its regulations on information contained in public comments as well as on scientific data, expert opinions, and facts. After receiving comments in this initial public participation period, the EPA will likely develop recommendations for regulatory reform. If so, the agency must offer the public additional opportunity to comment on its reform proposals.
The EPA will accept public comments on regulatory reform until May 15, 2017. Instructions for submitting comments are available here. The agency has already received over 18,000 comments on its online docket, which is available here. Members of the public may request that the EPA allow more time to submit comments, and the EPA may consider late-filed comments if their decision-making schedule permits it. However, commenters should be aware that agencies do not have to consider late comments.
The EPA is also hosting public meetings around the country on regulatory reform in regards to different topics such as water, chemical safety and pesticides. A list of the public meetings is available here.
Federal court dismisses Clean Water Act lawsuit against Iowa drainage districts
A federal district court has dismissed the controversial Des Moines Water Works lawsuit that put the agricultural community on edge for the past two years. While the decision is favorable for agriculture, it doesn’t resolve the question of whether the water utility could prove that nitrates draining from farm fields are harming the utility’s water sources. The court’s dismissal prevents Des Moines Water Works from further asserting such claims.
The lawsuit by the Des Moines Water Works (DMWW) utility sued irrigation districts in three Iowa counties for allowing discharges of nitrates through drainage infrastructure and into the waterways from which the utility drew its water. In addition to claiming that the discharges violate the federal Clean Water Act’s permitting requirements, DMWW also asserted nuisance, trespassing, negligence, takings without compensation, and due process and equal protection claims under Iowa law. The utility sought monetary damages for the cost of removing nitrates from its water as well as an injunction ordering the drainage districts to stop the discharges with proper permits.
The federal district court first certified several questions of state law to the Iowa Supreme Court to clarify whether Iowa law provided immunity to the drainage districts for DMWW’s claims. On January 27, 2017, the Iowa Supreme Court responded in the positive, explaining that Iowa drainage districts had been immune from damages and injunctive relief claims for over a century because drainage districts “have a limited, targeted role—to facilitate the drainage of farmland in order to make it more productive.” The Iowa court also clarified that Iowa’s Constitution did not provide a basis for DMWW’s constitutional arguments.
Turning to the party’s claims in light of the Iowa Supreme Court’s ruling, the federal district court focused on the drainage district’s motion to dismiss DMWW’s claims based on the doctrine of redressability, which requires a showing that the alleged injury is likely to be redressed by a favorable decision. The doctrine of redressability concludes that a plaintiff cannot have standing to sue and therefore cannot proceed in a case if the defendant doesn’t have the power to redress or remedy the injury even if the court granted the requested relief.
The drainage districts argued that they could not redress DMWW’s Clean Water Act claims because the districts had no power to regulate the nitrates flowing through the drainage systems. The court agreed, stating that “DMWW seeks injunctive relief and the assessment of civil penalties against the drainage districts arising from alleged duties and powers that the districts simply do not possess under Iowa law. DMWW may well have suffered an injury, but the drainage districts lack the ability to redress that injury.”
The federal district court also dismissed DMWW’s remaining claims against the drainage districts. DMWW argued that the immunity given the drainage districts as described by the Iowa Supreme Court prevented DMWW’s remaining claims and thus violated the U.S. Constitution’s Equal Protection, Due Process, and Takings Clauses. The federal district court found these contentions to be “entirely devoid of merit” and dismissed the state law claims of nuisance, trespassing, negligence, takings, due process and equal protection. Because none of the counts against the drainage districts survived the court’s scrutiny, the court dismissed and closed the case.
What does the decision mean for agriculture?
The DMWW case was a futile but somewhat inventive attempt to allocate liability for nitrate pollution to the agricultural community. “Unregulated agricultural discharges into Iowa's rivers, lakes and streams continue to increase costs to our customers and damage Iowa's water quality and environment,” said DMWW’s CEO Bill Stowe upon filing the lawsuit. A public poll by the Des Moines Register soon after Stowe brought the DMWW lawsuit showed that 42% of the respondents agreed with him in believing that farmers should pay for nitrate removal from DMWW’s waters, while 32% thought those who lived in Des Moines should pay to remove the nitrates.
If the goal is to force agriculture to reduce nutrient run off or pay for the cost of removing nutrients from waterways, the DMWW case tells us that suing those who oversee agricultural drainage infrastructure projects is not the proper mechanism for accomplishing that goal. So will the next strategy be to sue the farmers who use the nutrients and the drainage infrastructure?
One challenge in suing farmers for nutrient runoff, and the issue that was not addressed in DMWW, is whether nutrient runoff from farm fields carried through drainage systems constitutes a “point source” that requires regulation under the Clean Water Act, or whether nutrient runoff fits within the agricultural exemption under the Clean Water Act. That law defines a “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged,” but states that point sources do not include “agricultural storm water discharges and return flows from irrigated agriculture.” What we still don’t know after two years of DMWW litigation is whether a court would put the transport of agricultural nutrients through drainage systems in the point source definition or would consider it an agricultural exemption from the point source definition.
A second challenge in an attempt to bring agricultural nutrients under the Clean Water Act is the burden of proof upon the plaintiff to prove the actual origin of a downstream nutrient—who applied the nutrient that ended up downstream? DMWW sought to minimize this challenge by suing the drainage districts that oversee the entire region. But had the case proceeded, DMWW still would have had to trace the nutrients to the region, a difficult task.
The agricultural community expects that its voluntary efforts to reduce nitrate and phosphorus runoff from farm fields will positively impact water quality and stem the possibility of more litigation like the DMWW case. A multitude of voluntary efforts are underway, such as Iowa’s Nutrient Reduction Strategy and the flourish of cover crops in the Western Lake Erie Basin. Ohio has also added a regulatory approach that requires farmers to engage in fertilizer application training. Let’s hope these initiatives will reduce nutrient impacts before another party is willing to point its finger at agriculture and pursue a lawsuit like DMWW.
Read the federal court's decision in DMWW here. A previous post on DMWW is available here.
Tags: Des Moines Water Works, agricultural nutrients, nitrates, litigation
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Written by: Ellen Essman, Law Fellow, and Peggy Hall, Asst. Professor, OSU Agricultural & Resource Law Program
The controversial “Waters of the United States” (WOTUS) Rule suffered three governmental assaults this week. We reported earlier this year about litigation over the Rule and a Senate Resolution urging withdrawal of the Rule. Actions this week in the House of Representatives, the White House and the EPA echo the Senate’s sentiments and push the Rule further towards its demise.
The House Resolution
In the U.S. House of Representatives, Ohio’s Representative Bob Gibbs introduced a resolution on February 27, 2017 stating that the Rule should be vacated. House Resolution 152 declares that the Clean Water Act (from which the Rule derives) is one of the nation’s most important laws whose success requires cooperative federalism, under which federal, state and local governments have a role in protecting water resources. Based upon the foundation of cooperative federalism, “Congress left to the States their traditional authority over land and water, including farmers’ field, non-navigable, wholly intrastate water (including puddles and ponds), and the allocation of water supplies.” The Resolution asserts that the latest revision to the Rule, however, claimed broad federal jurisdiction over water that encroaches upon the authority of the States and undermines the Clean Water Act’s historical exemptions from federal regulation. The Resolution also claims that the EPA failed to follow proper processes when issuing the Rule.
The Executive Order
President Trump’s executive order (EO) issued on February 28, 2017 calls for the EPA and the Army for Civil Works (“Civil Works”, a part of the Army Corps of Engineers) to “rescind or revise” the WOTUS Rule. It is important to note, however, that the EO does not abolish the Rule; it simply orders the two agencies to review the Rule and try to adapt it to the Trump administration’s policies. The EO includes a policy statement explaining that it is in the best interest of the United States to keep “navigable waters… free from pollution,” but there is also a strong interest in promoting economic growth, so any changes to the Rule must balance both of those interests. The EO also gives the Attorney General the discretion to communicate any potential changes to the WOTUS Rule to federal courts with pending WOTUS litigation.
The EO further directs the EPA and Civil Works, when revising or rescinding the WOTUS Rule, to construe “navigable waters” as Justice Scalia did in the Supreme Court case Rapanos v. U.S. Under the Clean Water Act, “navigable waters” are defined as “waters of the United States, including territorial seas.” This means that the terms “navigable waters” and “waters of the United States” are interchangeable. In Rapanos, Justice Scalia, who wrote the decision for a plurality of the Court, asserted that navigable waters/WOTUS cannot be “ordinarily dry channels through which water occasionally or intermittently flows.” Instead, they must be “relatively permanent, standing or flowing bodies of water,” or wetlands with a “continuous surface connection” to permanent water bodies. Scalia’s interpretation is at odds with the interpretation contained in the Obama administration’s WOTUS Rule.
Agency Response to the Executive Order
EPA Administrator Scott Pruitt and Civil Works acting Secretary Douglas Lamont didn’t waste any time responding to Trump’s EO. On the same day Trump signed the Order, the agencies filed a Notice of Intention to Review and Rescind or Revise the Clean Water Rule. In the notice, the agencies explain their intentions to follow the EO, review the Rule and consider adopting Justice Scalia’s interpretation of navigable waters. The agencies state that they will utilize new rulemaking to “provide greater clarity and regulatory certainty concerning the definition of ‘waters of the United States.’”
Refresher: What’s in the WOTUS Rule?
The Obama Administration’s WOTUS Rule was released in the Federal Register on June 29th, 2015, and went into effect on August 28th, 2015. According to the EPA and the Army Corps of Engineers at the time, the rule was meant to “clarify the scope of ‘waters of the United States’...protected under the Clean Water Act.” In particular, the Rule states that a number of bodies of water qualify as WOTUS, such as: “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters, and other waters that have a significant nexus to interstate waters.” The Rule elaborates on the definition of “tributaries,” which are WOTUS if they flow “to a traditional navigable water, an interstate water, or the territorial seas,” regardless of whether the flow is year-round, seasonal, or due to precipitation. Tributaries flowing into navigable and interstate waters that have “a bed and banks,” as well as “an indicator of ordinary high water mark” qualify as WOTUS under the Rule. “Adjacent waters” means “all waters located in whole or in part within 100 feet of the ordinary high water mark” of WOTUS, as well as “all waters within the 100-year floodplain” of WOTUS. Numerous different kinds of water can be “adjacent,” such as “wetlands, ponds, lakes, oxbows,” and “impoundments.” More information about the WOTUS Rule is available here.
Tags: waters of the United States, WOTUS, WOTUS executive order
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Written by: Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
The Parties
The Board of Trustees of the Des Moines Water Works (DMWW) brought a lawsuit against thirteen Iowa drainage districts. DMWW is the biggest water provider in Iowa, serving the largest city, Des Moines, and the surrounding area. Drainage districts were first created in Iowa in the 1800s to drain wetlands and allow for agriculture in those areas. In Iowa, the counties are in charge of drainage districts. Individual landowners can tile their land so that it drains water to the ditches, pipes, etc. that make up the counties’ drainage districts. Eventually, that water ends up in Iowa’s rivers. The thirteen drainage districts being sued by DMWW are located in the Raccoon River watershed in Buena Vista, Sac, and Calhoun counties. DMWW is located downstream from the drainage districts in question.
Background of the Lawsuit
On March 16, 2015, the Board of Trustees for the DMWW filed a complaint against the thirteen drainage districts in the U.S. District Court for the Northern District of Iowa, Western Division. DMWW alleged that the drainage districts did not act in accordance with the federal Clean Water Act (CWA) and provisions of the Iowa Code because they did not secure the applicable permits to discharge nitrates into the Raccoon River. In order to serve its customers, DMWW uses the Raccoon River as part of its water supply.
DMWW has to meet maximum contaminant levels prescribed under the federal Safe Drinking Water Act. Nitrate is a contaminant with a maximum allowable level of 10 mg/L. In its complaint, DMWW cited record levels of nitrate in water from the Raccoon River watershed in recent years. DMWW alleged that the nitrate problem is exacerbated by the “artificial subsurface drainage system infrastructure…created, managed, maintained, owned and operated by” the thirteen drainage districts. DMWW alleged that the drainage district infrastructure—“pipes, ditches, and other conduits”—are point sources. DMWW points to agriculture—row crops, livestock production, and spreading of manure, as a major source of nitrate pollution.
DMWW also cited a number of costs associated with dealing with nitrates, including the construction of facilities that remove nitrates, the operation of those facilities, and the cost associated with acquiring permits to discharge the removed waste. In their complaint, they generally asked the court to make the drainage districts reimburse them for their cleanup costs, and to make the drainage districts stop discharging pollutants without permits.
All together, DMWW filed ten counts against the drainage districts. In addition to their claim that the drainage districts had violated the CWA and similarly, Iowa’s Chapter 455B, DMWW also alleged that the continued nitrate pollution violated a number of other state and federal laws. DMWW maintained that the pollution was a public, statutory, and private nuisance, trespassing, negligence, a taking without just compensation, and a violation of due process and equal protection under the U.S. and Iowa Constitutions. Finally, DMWW sought injunctive relief from the court to enjoin the drainage districts to lessen the amount of nitrates in the water. In many of the counts, DMWW asked the court for damages to reimburse them for their costs of dealing with the pollution.
On May 22, 2015, the defendants, the thirteen drainage districts, filed their amended answer with the court. On January 11, 2016, the district court filed an order certifying questions to the Iowa Supreme Court. In other words, the district court judge submitted four questions of state law to the Iowa Supreme Court to be answered before commencing the federal trial. The idea behind this move was that the highest court in Iowa would be better equipped to answer questions of state law than the district court.
Iowa Supreme Court Decision
The Iowa Supreme Court filed its opinion containing the answers to the four state law questions on January 27, 2017. All of the questions were decided in favor of the drainage districts. The court answered two questions related to whether the drainage districts had unqualified immunity (complete protection) from the money damages and equitable remedies (actions ordered by the court to be taken or avoided in order to make amends for the harm caused) requested by DMWW. Both were answered in the affirmative—the court said that Iowa legislation and court decisions have, throughout history, given drainage districts immunity. Iowa law has long found the service drainage districts provide—draining swampy land so that it could be farmed—to be of great value to the citizens of the state. To that end, the law has been “liberally construed” to promote the actions of drainage districts. What is more, judicial precedent in the state has repeatedly found that drainage districts are not entities that can be sued for money damages because they are not corporations, and they have such a limited purpose—to drain land and provide upkeep for that drainage. The law has further prohibited receiving injunctive relief (obtaining a court order to require an action to be taken or stopped), from drainage districts. Instead, the only remedy available to those “claim[ing] that a drainage district is violating a duty imposed by an Iowa statute” is mandamus. Mandamus allows the court to compel a party to carry out actions that are required by the law. In this case, those requirements would be draining land and the upkeep of the drainage system.
The second two questions considered by the court dealt with the Iowa Constitution. The court determined whether or not DMWW could claim the constitutional protections of due process, equal protection, and takings. They also answered whether DMWW’s property interest in the water could even be “the subject of a claim under...[the] takings clause.” The court answered “no” to both questions, and therefore against DMWW. Their reasoning was that both DMWW and the drainage districts are subdivisions of state government, and based on numerous decisions in Iowa courts, “one subdivision of state government cannot sue another…under these clauses.” Additionally, the court found that “political subdivisions, as creatures of statute, cannot sue to challenge the constitutionality of state statutes.” Consequently, they reasoned that the pollution of the water and the resulting need to remove that pollution did “not amount to a constitutional violation” under Iowa law. The court also found that since the water in question was not private property, the takings claim was not valid. A takings claim only applies to when the government takes private property. What is more, the court added that regardless of its status as a public or private body, DMWW was not actually deprived of any property—they still had the ability to use the water. Therefore, the Iowa Supreme Court answered all four state law questions in the drainage districts’ favor, and against DMWW.
What’s next?
The Iowa Supreme Court found that the questions of state law favored the drainage districts, but that is not necessarily the end of this lawsuit. Now that the questions of state law are answered, the U.S. District Court for the Northern District of Iowa, Western Division, can decide the questions of federal law. If any of the numerous motions for summary judgment are not granted to the drainage districts, a trial to decide the remaining questions is set for June 26, 2017. The questions left for the district court to decide include a number of U.S. Constitutional issues.
One of these issues is whether the drainage districts’ discharge of nitrates into the water constitutes a “taking” of DMWW’s private property for a public use under the Fifth and Fourteenth Amendments. Another issue is whether the drainage districts’ state-given immunity infringes upon DMWW’s constitutional rights of due process, equal protection, and just compensation. An important federal law question that also remains to be decided is whether the drainage districts are “point sources” that require a permit to discharge pollutants under the CWA.
How will the outcome affect other states?
Either outcome in this lawsuit will have implications for the rest of the country. For example, if the district court sides with DMWW on all of the questions, it could open the floodgates to potential lawsuits against drainage districts and other similar entities around the country for polluting water. Municipal and other users of the water could assert an infringement of their constitutional rights, including taking without just compensation. Furthermore, if drainage districts are found to be “point sources,” it could mean greater costs of permitting and cleanup for drainage districts and other state drainage entities. Those costs and additional regulations could be passed onto farmers within the watershed. As a result, farmers and water suppliers around the country will closely follow the district court’s decisions on the remaining questions in the case.
All of the court documents and decisions concerning this lawsuit, as well as additional articles and blog posts on the topic can be found here. Additional reading on the subject from the Des Moines Register can be found here and here.
Update: The final rule concerning the listing of the rusty patched bumble bee as endangered was originally slated to go into effect on February 10, 2017, as is described below. On February 9, the Fish and Wildlife Service published a notice in the Federal Register explaining that they would abide by the Trump Administration’s 60-day regulatory freeze and delay the effective date until March 21, 2017. The Federal Register entry is available here.
Will the bee's ESA listing stand, and how might it affect agriculture?
Written by: Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
On January 11, 2017, the U.S. Fish and Wildlife Service (FWS) published a final rule designating the rusty patched bumble bee (scientific name Bombus affinis) as an endangered species, the first bee in the continental U.S. to receive this status. The rule was originally slated to go into effect on February 10, 2017. If the rule is allowed to stand, it will have a number of implications for federal agencies, farmers, and other private entities.
The final rule, found in the Federal Register at 50 CFR Part 17, includes a lengthy description of the rusty patched bumble bee. The bees have black heads, and the worker bees, as well as the male bees, have a “rusty reddish patch centrally located on the abdomen,” giving them their common name. Necessities for the species include “areas that support sufficient food (nectar and pollen from diverse and abundant flowers), undisturbed nesting sites in proximity to floral resources, and overwintering sights for hibernating queens.” Additionally, the bees prefer temperate areas. The rusty patched bumble bee was found in 31 states and provinces in the 1990s. From the year 2000 and on, the bumble bee has only been found in a diminished range of 14 states and provinces. The bumble bee has been found in Ohio since 2000, but following the overall trend, at much lower rates.
Possible reversal of the rule
Since the publishing of the final rule, the Trump Administration has instituted a regulatory freeze on administrative agencies which could push back effective dates for those regulations that have not yet gone into effect by at least 60 days. In the meantime, the Congressional Review Act (CRA) may also affect the final rule. The CRA gives Congress 60 legislative days from either the date a rule is published in the Federal Register, or the date Congress receives a report on the rule, to pass a joint resolution disapproving the rule. A signature by the President is the final step required to invalidate the rule. What is more, an agency cannot submit a rule after these steps are taken that is “substantially in the same form” as the overturned rule. Historically, the CRA has not been frequently used, as success is typically only possible when a number of events align:
- There is a new presidential administration;
- Congress and the President are members of the same party;
- The previous President was a member of the opposing party; and
- The timing of rule publication or rule reporting and Congressional calendars allow for a joint resolution within the 60-day limit.
The text of the CRA is available here. With the regulatory freeze and the possible use of the CRA, it is not clear when or even if the new rule will actually go into effect.
Importance of the rusty patched bumble bee
The rusty patched bumble bee is a pollinator species, meaning they, along with other pollinators, assist with the reproduction of flowers, crops, and grasses. According to a FWS fact sheet, in the United States, the rusty patched bumble bee and other insects’ pollination is worth $3 billion annually.
The Endangered Species Act
What exactly is the process for listing a species as “endangered?” The Endangered Species Act’s (ESA) definition of an endangered species is: “any species which is in danger of extinction throughout all or a significant portion of its range.” Accordingly, the ESA allows the FWS to designate species as endangered or threatened as long as one (or more) of five factors apply:
- (A) The present or threatened destruction, modification or curtailment of its habitat or range;
- (B) Overutilization for commercial, recreational, scientific, or educational purposes;
- (C) Disease or predation;
- (D) The inadequacy of existing regulatory mechanisms; or
- (E) Other natural or manmade factors affecting its continued existence. 16 USC 1533.
In the case of the rusty patched bumble bee, the FWS found that factors (A), (C), and (E) applied. For factor (A), which concerns loss of habitat and range, the FWS cited past encroachment by residential, commercial, and agricultural development. Additionally, agriculture has contributed to the replacement of plant diversity with monocultures, which has resulted in loss of food for the bees. What is more, the range of the rusty patched bumble bee has faced an 87% reduction, as well as an 88% drop in the number of recognized populations.
Concerning factor (C), FWS pointed to a number of diseases and parasites that have afflicted the rusty patched bumble bee. Finally, for factor (E), the FWS identified more numerous hot and dry periods, pesticide and herbicide use, and reproductive issues that have contributed to the reduction of the species. Due to its findings and the factors discussed, the FWS determined that the rusty patched bumble bee is “in danger of extinction throughout its range,” and therefore designated it as endangered.
Significance of ESA listing
After a species is labeled “endangered,” what happens next? In order to facilitate recovery of a species, the ESA also calls for, to the “maximum extent prudent and determinable,” a critical habitat designation to be made for the species. The term “critical habitat” does not apply to everywhere the species is found. Instead, “critical habitat” can be certain places both inside and outside the overall “geographical area occupied by the species” that are found to be “essential” to its preservation. In the case of the rusty patched bumble bee, the FWS has not yet determined its critical habitat.
Implications for agriculture
Under the ESA, federal agencies and private entities have different responsibilities. Federal agencies generally must make sure that any action they are involved in will not do harm to an endangered species or its critical habitat. For the most part, private entities are not affected by critical habitat unless financial aid or approval is sought from a federal agency.
Even though critical habitat concerns do not explicitly apply to private entities, the ESA does contain provisions that prohibit the importing, exporting, possession, sale, delivery, transport, shipping, receiving, or carrying of an endangered species in the United States or in foreign commerce. What is more, the ESA prohibits the “taking” of endangered species within the United States or in the ocean. “Take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,” an endangered species, or to attempt to do so (emphasis added). It is important to note that “harm” is defined as “an act which actually kills or injures fish or wildlife…includ[ing] significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavior patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.” Thus, even though the designation of an endangered species and its critical habitat does not explicitly affect private entities, the definitions of “take” and “harm,” when read together, implicitly prohibit actions that are damaging to the species or its habitat. The FWS rule defining “harm” can be found here. The government can assess penalties against those who violate these provisions.
Farmers and other private entities should be aware of the designation of a species as endangered. In the case of the rusty patched bumble bee, if the rule is allowed to stand, private landowners, including farmers, would not be allowed to “take” or “harm” the bee or destroy its critical habitat. Given the important role pollinators like the rusty patched bumble bee play in making agriculture possible, we can assume that agriculture will want to protect the species. But due to the nature of this species, it will be difficult to ascertain when a farmer’s actions do “take” or “harm” a rusty patched bumble bee. The nature of the species and the future status of the rule create much uncertainty on how agriculture will address the rusty patched bumble bee going forward.
Tags: rusty patched bumble bee, endangered species act, congressional review act
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Written by: Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program
Update: On January 25, 2017, the Sixth Circuit Court of Appeals granted a motion to hold the WOTUS litigation in the Sixth Circuit in abeyance (putting an issue on hold) while the Supreme Court reviews whether the Sixth Circuit has proper jurisdiction to hear the WOTUS litigation.
The Supreme Court of the United States has accepted a petition to hear an appeal from a Waters of the United States (WOTUS) ruling from the Sixth Circuit Court of Appeals. As discussed in our February 2016 blog post (available here), the Sixth Circuit Court of Appeals ruled that it had jurisdiction to hear challenges to the Clean Water Rule (WOTUS Rule). Proposed by the U.S. EPA and the Army Corps of Engineers, the controversial WOTUS Rule attempts to expand the geographic extent of waterways considered to be “waters of the United States” that are subject to the Clean Water Act.
A background on the WOTUS Rule in the Sixth Circuit
On April 21, 2016, the Cincinnati-based Sixth Circuit Court of Appeals determined that federal courts of appeal, and not federal district courts, have proper jurisdiction to hear cases involving the WOTUS Rule. In that case, numerous states argued that federal district courts should have jurisdiction to hear WOTUS Rule cases. However, the Sixth Circuit Court of Appeals held that federal appeals courts had exclusive jurisdiction over the review of the WOTUS Rule. Now that ruling is being challenged before the Supreme Court of the United States.
Challenging the ruling by the Sixth Circuit Court of Appeals
A private manufacturing association—the National Association of Manufacturers, is bringing the case before the Supreme Court. The association previously challenged the WOTUS Rule in federal district court and in the court of appeals. The question presented to the Supreme Court by the National Association of Manufacturers is whether the Sixth Circuit incorrectly decided that the federal courts of appeal have the exclusive jurisdiction under federal law to review the WOTUS Rule. The Supreme Court could decide that the federal appeals courts do not have exclusive jurisdiction to hear cases involving the WOTUS Rule, in which case the WOTUS Rule could be challenged in federal district courts instead of only in federal courts of appeal.
Implications
The upcoming change of administration may lead to uncertainty for the future of the WOTUS Rule. The incoming Trump Administration has proposed eliminating the WOTUS Rule altogether. The U.S. EPA and U.S Army Corps of Engineers may be directed to dismantle the WOTUS Rule if the executive branch chooses to eliminate it. That would cause the question before the Supreme Court to become a moot point. The Supreme Court may not even rule on the jurisdictional issue brought by the National Association of Manufacturers, if the incoming administration eliminates the WOTUS Rule quickly.
Some legislators in Washington agree with the incoming Trump administration’s position on the WOTUS Rule. Members of the Senate introduced Senate Resolution 12 (SR 12) on January 12, 2017. SR 12 expresses the position that the U.S. Senate formally requests that the Administrator of the EPA and the Chief of Engineers of the Army Corps of Engineers eliminate the WOTUS Rule altogether. However, SR 12 has not passed in the U.S. Senate and is currently pending. While SR 12 may not force any official action to repeal the WOTUS Rule, it shows support for the incoming administration’s plans to repeal the rule. We can expect WOTUS issues to remain hotly debated in 2017 as either the executive or the judicial branch addresses the WOTUS Rule.
U.S. Senate Resolution 12 is available here. Read the Sixth Circuit’s opinion issued February 22, 2016: U.S. Dep’t of Defense & U.S. Envtl. Protection Agency Final Rule: Clean Water Rule at http://www.ca6.uscourts.gov/opinions.pdf/16a0045p-06.pdf.
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