Hello, readers! We hope you are all staying safe and healthy. Understandably, news related to agricultural law seems to have slowed down a little bit over the last few weeks as both the federal and state governments have focused mainly on addressing the unfolding COVID-19 outbreak. That being said, there have been a few notable ag law developments you might be interested in.
Federal government extends the tax deadline. The IRS announced on March 21 that the deadline for filing or paying 2019 federal income taxes will be extended to July 15, 2020.
Ohio Coronavirus Legislation. The Ohio General Assembly quickly passed House Bill 197 on Wednesday March 25, 2020. HB 197 originally just involved changes to tax laws, but amendments were added to address the current situation. Amendments that made it into the final bill include provisions for education—from allowing school districts to use distance learning to make up for instruction time, to waiving state testing. Other important amendments make it easier to receive unemployment, move the state tax filing deadline to July 15, extend absentee voting, allow recently graduated nurses to obtain temporary licenses, etc. Of particular note to those involved in agriculture, HB 197 extends the deadlines to renew licenses issued by state agencies and political subdivisions. If you have a state license that is set to expire, you will have 90 days after the state of emergency is lifted to renew the license. HB 197 is available here. A list of all the amendments related to COVID-19 is available here.
Proposed changes to hunting and fishing permits in Ohio. In non-COVID news, Ohio House Bill 559 was introduced on March 18. HB 559 would allow grandchildren to hunt or fish on their grandparents’ land without obtaining licenses or permits. In addition, the bill would give free hunting and fishing licenses or permits to partially disabled veterans. You can get information on the bill here.
EPA simplifies approach to pesticides and endangered species. Earlier this month, the U.S. EPA released its “revised method” for determining whether pesticides should be registered for use. Under the Endangered Species Act (ESA), federal agencies must consider whether an action (in this case, registration of a pesticide) will negatively impact federally listed endangered species. EPA is authorized to make decisions involving pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The revised method consists of a three-step process. First, EPA will consider whether use of the pesticide “may affect” or conversely, have no effect on the listed species. If no effect is found, EPA can register the pesticide. On the other hand, if EPA finds that the pesticide may affect the endangered species, it must examine whether the pesticide is “likely to adversely affect” the species. In this second step, if EPA decides that the pesticide may affect the endangered species, but is not “likely to adversely affect” the species, then the agency may register the pesticide with the blessing of the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS). Conversely, if EPA finds that the pesticide is likely to adversely affect the species, it must move on to step three, where it must work with FWS or NMFS to more thoroughly examine whether an adverse effect will “jeopardize” the species’ existence or “destroy or adversely modify its designated critical habitat.” The revised method is meant to simplify, streamline, and add clarity to EPA’s decision-making.
EPA publishes rule on cyazofamid tolerances. Continuing the EPA/pesticide theme, on March 18, EPA released the final rule for tolerances for residues of the fungicide cyazofamid in or on commodities including certain leafy greens, ginseng, and turnips.
Administration backs off RFS In our last edition of the Ag Law Harvest, we mentioned that the Tenth Circuit Court of Appeals had handed a win to biofuels groups by deciding that EPA did not have the authority to grant three waivers to two small refineries in 2017. By granting the waivers, the EPA allowed the refineries to ignore the Renewable Fuel Standard (RFS) and not incorporate biofuels in with their oil-based fuels. The Tenth Circuit decision overturned this action. The Trump administration has long defended EPA’s action, so that’s why it’s so surprising that the administration did not appeal the court’s decision by the March 25 deadline.
Right to Farm statute protects contract hog operation. If you’re a regular reader of the blog, you may recall that many nuisance lawsuits have been filed regarding large hog operations in North Carolina. In Lewis v. Murphy Brown, LLC, plaintiff Paul Lewis, who lives near a farm where some of Murphy Brown’s hogs are raised, sued the company for nuisance and negligence, claiming that the defendant’s hogs made it impossible for him to enjoy the outdoors and caused him to suffer from several health issues. Murphy Brown moved to dismiss the complaint, arguing that the nuisance claim should be disqualified under North Carolina’s Right to Farm Act, and that the negligence claim should be barred by the statute of limitations. The U.S. District Court for the Eastern District of North Carolina made quick work of the negligence claim, agreeing with Murphy Brown that the statute of limitations had passed. North Carolina’s Right to Farm Act requires a plaintiff to show all of the following: that he is the legal possessor of the real property affected by the nuisance, that the real property is located within one-half mile of the source of the activity, and that the action is filed within one year of the establishment of the agricultural operation or within one year of the operation undergoing a fundamental change. Since the operation was established in 1995 and the suit was not brought until 2019, and no fundamental change occurred, the court determined that Lewis’s claim was barred by the Right to Farm Act. Since neither negligence or nuisance was found, the court agreed with Murphy Brown and dismissed the case.
There’s always something going on with the waters of the United States (WOTUS) rule. Last September, we wrote a post about how the 1986/1988 WOTUS rule would replace the 2015 Obama rule until the Trump administration finalized its new rule. Well, the final rule was just announced by the EPA on January 24, 2020. So, what does the new rule categorize as “waters of the United States?” Are there any differences between the rule as it was proposed in February of 2019 and the final rule? Will this version of WOTUS stick?
What is (and isn’t) WOTUS now?
The Trump EPA’s WOTUS rewrite maps out which waters are and are not waters of the United States. The following are WOTUS in the new rule:
- The territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide;
- Lakes and ponds, and impoundments of jurisdictional waters; and
- Adjacent wetlands.
Notably, this definition is a great deal shorter than the 2015 iteration of the rule, meaning that less waters fall under the rule. For a refresher on the 2015 rule, we discussed it at length here.
In addition, the new rule contains a much longer list of waters that are not WOTUS:
- Waters or water features that are not identified in the definition of WOTUS, above;
- Groundwater, including groundwater drained through subsurface drainage systems;
- Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools;
- Diffuse stormwater run-off and directional sheet flow over upland;
- Ditches that are not territorial seas, waters used in foreign commerce, or tributaries, and those portions of ditches constructed in some adjacent wetlands;
- Prior converted cropland;
- Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease;
- Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters that are connected the territorial seas, or waters used in interstate or foreign commerce;
- Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;
- Stormwater control features constructed or excavated in upland or in nonjurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
- Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in non-jurisdictional waters; and
- Waste treatment systems.
Changes made to proposed rule
The most significant difference between the proposed rule and the final rule is the treatment of some waters connected by ephemeral streams. Ephemeral streams are those streams that only last for a short time after precipitation. In the proposed version of the rule, if upstream perennial and intermittent tributaries were connected to a water of the United States by an ephemeral stream, they were not WOTUS. The final rule changes this, and such tributaries are WOTUS if they have a surface water connection to a downstream water of the United States during a normal year. To make a long story short, the final rule protects some bodies of water that the proposed rule left out.
So, WOTUS is set in stone now, right?
Not exactly. In addition to the ongoing lawsuits over the brief recodification of the 1986/1988 rules, (see our post here), it is almost certain that environmental groups and some states will file lawsuits against the new WOTUS rule. Additionally, while many in the world of agriculture cheer the new rule, there are other groups that have already spoken out against it. For example, the group Public Employees for Environmental Responsibility (PEER), which includes many EPA employees, scientists, and lawyers, filed a lengthy complaint against the rule with the Inspector General. In the complaint, PEER argues that the new rule violates EPA’s “Scientific Integrity Policy,” which EPA employees must follow when making decisions. PEER alleges that top employees at the EPA did not follow this policy when writing the rule because the rule was not based on science, and EPA staff with expertise in the area were not consulted. While the new rule is currently the law of the land, we’ll have to wait and see how long it will last. Challenges like the PEER complaint will have to be addressed, as well as an inevitable wave of lawsuits. Like the 2015 rule, the lawsuits and challenges will likely alter and/or interrupt the implementation of this so-called “final” rule.
You’re never going to make everyone happy. This is especially true when it comes to the federal definition of “waters of the United States,” or WOTUS, under the Clean Water Act (CWA). The definition of WOTUS has changed over the years in order to adapt to numerous court decisions. The Obama administration’s 2015 rule has been litigated so much that a patchwork of enforcement has been created across the country, with some states falling under the 2015 rule and others falling under the previous iterations of the rule from 1986 and 1988. In fact, in New Mexico, parts of the state follow one rule and other parts follow the other. You can see the current state breakdown here.
To add even more chaos to all of this confusion, the Trump administration decided to repeal and replace Obama’s 2015 rule. In September, a rule was announced that would repeal the 2015 WOTUS rule and replace it with the 1986 and 1988 rule. This reversion would not be permanent; the 1986/1988 rule is simply a placeholder until the EPA and Army Corps of Engineers finalize a new WOTUS rule to replace it. The repeal is set to become effective in December. You can read our blog post on the repeal here.
Of course, there are those who are unhappy with the 1986/1988 rule being reinstated, even if only for a time. In October, two lawsuits were filed against the EPA and Army Corps of Engineers in federal district courts. In South Carolina, environmental groups sued because they feel that the 1986/1988 rules do not go far enough to protect waters. On the other hand, in the New Mexico Cattle Growers’ Association sued because they feel that returning to the 1986/1988 rules goes too far in regulating water. Below, we will briefly break down the arguments in each of these lawsuits.
South Carolina lawsuit
Following the October repeal announcement, environmental groups, including the South Carolina Coastal Conservation League and the Natural Resources Defense Council, sued the EPA and U.S. Army Corps of Engineers in the U.S. District Court for the District of South Carolina, Charleston Division, claiming that the repeal rulemaking was unlawful. In their complaint, the environmental groups make several arguments. They allege that the repeal rulemaking violates the Due Process Clause, Administrative Procedure Act (APA), and Supreme Court precedent. They say that the Due Process Clause has been violated because the rulemaking was not undertaken with an open mind, instead it was already pre-judged or all but decided before the process even started. They cite many violations of the APA—including failing to provide a “reasoned explanation” for the repeal, failing to discuss alternatives to repealing the rule, and failing to provide a meaningful opportunity for public comment on the rulemaking. Additionally, the environmental groups claim that the repeal “illegally departs from Justice Kennedy’s” opinion in the Rapanos case. Ultimately, Kennedy’s opinion in Rapanos is what led the EPA and Corps to scrap the 1986/1988 rule and create the 2015 rule to be more consistent with that opinion. Therefore, the environmental groups argue that going back to the 1986/1988 version would violate Kennedy’s “significant nexus” test for WOTUS, which invalidated the old version of the rule. In other words, the environmental groups believe that going back to the 1980s rules will result in less waters being protected.
New Mexico lawsuit
The New Mexico Cattle Growers’ Association (NMCGA) sued the EPA and the U.S. Army Corps of Engineers in the U.S. District Court for the District of New Mexico. In the complaint, NMCGA asks the court to enjoin, or stop the enforcement of the repeal rule, claiming that the rule violates the CWA, the Congressional Review Act, the Commerce Clause, the Due Process Clause, the Non-delegation Doctrine, and the Tenth Amendment. The NMCGA’s argument hinges on the definition of “navigable waters.” Under the CWA, “navigable waters” are the same as WOTUS. Like the environmental groups in South Carolina, NMCGA interprets the Rapanos decision as invalidating provisions of the 1986/1988 WOTUS rule. NMCGA, however, reads Rapanos as limiting “navigable waters” to only the waters that are actually navigable, or “navigable-in-fact.” Thus, unlike the environmental groups, NMCGA believes that both the 1986/1988 rule and the 2015 rule result in more waters being regulated than is allowed under the CWA and Supreme Court decisions.
Will the tide turn on WOTUS in the future?
Despite the Trump EPA’s repeal and upcoming replacement of the 2015 rule, the future of WOTUS is anything but certain. The lawsuits in South Carolina and New Mexico are just the latest proof of that. What is more, the lawsuits to enjoin the 2015 rule are still ongoing, and it is unclear whether they will be wiped out when the repeal rule becomes effective in December. When the replacement rule is finally published, there is no doubt even more lawsuits will follow. It’s also important to remember that we have an election next year, so if there’s a new administration, they’ll probably put their own stamp on WOTUS.
The controversy over the 2015 Waters of the United States (WOTUS) rule never really leaves the news. Case in point: last week, on May 28, 2019, the U.S. District Court for the Southern District of Texas decided to keep a preliminary injunction that prevents the enforcement of the 2015 version of the rule in Texas, Louisiana, and Mississippi, meaning that the 2015 rule does not currently apply in those states. Meanwhile, at the end of March, the U.S. District Court for the Southern District of Ohio was not persuaded by Ohio and Tennessee to issue a preliminary injunction which would have halted the execution of the 2015 rule in those states. All of this judicial activity is taking place while the Trump administration is working on a replacement for the Obama administration’s 2015 rule.
If you’re a regular follower of the Ag Law Blog, you know we’ve written numerous updates on the WOTUS saga. For a refresher, the WOTUS rule defines which waters are considered “waters of the United States,” and are consequently protected under the Clean Water Act. In 2015, the Obama administration promulgated its final WOTUS rule, which many agricultural groups and states felt regulated too many waters. Needless to say, many lawsuits over the rule ensued. The Trump administration, hoping to replace the Obama-era rule, released its new proposed rule on February 14, 2019. The comment period for the proposed rule ended on April 15, 2019. The new rule is forthcoming, but in the meantime, due to all of the litigation, whether or not the 2015 WOTUS rule is applicable varies by state. For an explanation of the 2015 rule and the new proposed rule, see our previous blog post here.
Judge continues to block 2015 WOTUS in Texas, Louisiana, and Mississippi…
At the end of May, Judge George C. Hanks Jr. of the U.S. District Court for the Southern District of Texas handed down a decision remanding the 2015 WOTUS rule to the EPA and Army Corps of Engineers and ordering that a previously issued preliminary injunction stay in place, meaning that the government should not implement the 2015 rule in Texas, Louisiana, and Mississippi. While Judge Hanks declined to take up the questions raised by the plaintiffs about the constitutionality of the 2015 rule, he did determine that the agencies violated the Administrative Procedure Act (APA) at the rule’s conception. The APA is a federal law that controls how federal agencies must go about making regulations. Importantly, the APA dictates that agencies should give the American public notice of a proposed rule, as well as a chance to comment on a proposed rule. In the case of Obama’s 2015 WOTUS rule, the definition of “adjacent waters” was changed from being based upon a “hydrologic connection” in the proposed rule to being based on how many feet separated the waters in the final rule. Interested parties did not have any chance to comment on the change before it was included in the final rule. What is more, interested parties did not have the chance to comment on the final report that served as the “technical basis” for the rule. For these reasons, Judge Hanks found that the final rule violated the APA. As a result, he remanded the rule to the agencies to fix and left in place the preliminary injunction blocking the implementation of the rule in Texas, Louisiana, and Mississippi.
…but 2015 WOTUS still applies in Ohio and Tennessee
A decision in the District Court for the Southern District of Ohio came to the opposite conclusion of the Texas case. In March of this year, Judge Sargus denied the states’ motion for a preliminary injunction against carrying out the 2015 WOTUS rule. Sargus did not agree that Ohio and Tennessee were being irreparably harmed by having to follow the 2015 rule, and therefore did not go through with what he called the “extraordinary measure” of providing the states preliminary injunctive relief. Basically, Ohio and Tennessee were not persuasive enough in their argument, and “failed to draw the Court’s attention” to any specific harm the states faced from the 2015 rule. Therefore, as of this writing, the 2015 WOTUS rule still applies in Ohio and Tennessee.
What regulation applies in which states?
All of these lawsuits with different outcomes beg the question: what rule is applicable in which state? EPA has a map depicting which states must currently follow the 2015 rule, and which states instead must follow the pre-2015 definition of WOTUS. The map has not been updated since September of 2018. Since the last update, Colorado, Michigan, New Mexico, and Wisconsin, whose governors’ mansions flipped from red to blue in November, have pulled out of lawsuits against the 2015 rule. These withdrawals could affect which version of WOTUS applies in these states.
Although the outcomes in the different lawsuits throughout the country presently affect which version of the WOTUS rule applies in which state, it is not clear how the rulings will ultimately affect the 2015 WOTUS rule. The Trump administration is currently carrying out its plan to scrap the rule and replace it with new language, which may render all of the existing legal fights over the 2015 rule irrelevant.
The new WOTUS rule, which is expected in its final form later this year, will probably not mark the end of the WOTUS debate. While implementation of the new rule will likely make the aforementioned lawsuits moot, it doesn’t necessarily mean we’ll be out of the woods yet. With all the contention over this topic, it is likely lawsuits will be filed challenging the new rule, as well. Disagreement over what makes up WOTUS might be around for as long as rivers flow.
As our readers can probably tell by now, there has been a lot happening in the agricultural law world over the past couple of weeks. From the Lake Erie Bill of Rights going on the ballot in Toledo to a new court decision on wedding barns, we’ve done our best to keep you in the know. While the legislative sessions in Congress and the Ohio General Assembly have started to shift into a higher gear, covering those bills will take up a lot of space, so be on the lookout for a legislative update soon.
For now, here’s our latest gathering of agricultural law news that you may want to know:
Yep, more WOTUS. The U.S. EPA has announced new public hearings regarding its proposed revised definition of Waters of the United States. The hearing will be held on Wednesday, February 27th and Thursday, February 28th at the Reardon Convention Center in Kansas City, Kansas. For those who wish to provide input, but are unable to make the trip, the U.S. EPA will accept written comments from the public online at http://www.regulations.gov with the docket ID number: EPA-HQ-OW-2018-0149. The online comment portal will accept new submissions until April 14th. The text of the proposed rule, which the U.S. EPA released just in time for Valentine’s Day, is available on the online comment portal page as well as in the Federal Register. For more information about either attending the meeting or submitting a comment to the U.S. EPA, visit the Federal Register’s webpage here. For more information about WOTUS rulemaking, see our most recent WOTUS blog post, or visit the U.S. EPA’s webpage here.
Conservation funding for federal lands could be restored under U.S. Senate bill. In a sign of bipartisanship, the U.S. Senate passed the National Resources Management Act by a vote of 92-8. If the House approves and it receives the President’s signature, the bill would modify a number laws addressing the management and conservation of federal lands, and would also restore funding to the Land and Water Conservation Fund, which had expired last fall. This fund primarily supports the protection of federal public lands and waters, but it also promotes voluntary conservation on private lands and awards grants to states for the acquisition and development of parks and outdoor recreation sites. Also in the bill are two specific changes of note for Ohio. First, section 6004(c) of the bill would increase the cap on total spending for the Ohio & Erie National Heritage Canalway from $10 million to $20 million. Second, section 2502 of the bill would extend the Lewis and Clark National Historic Trail from Illinois to Pennsylvania, which will include portions in Ohio. You can read the full text of the bill and see the official analyses on Congress’s website here.
FFA charter amendments approved by Congress and the President. Citing issues arising from the U.S. Department of Education’s not filling seats on the National FFA Board of Directors, the National FFA sought an amendment to its charter. Congress originally granted the charter in 1950, and any changes to the charter must be done so by an act of Congress. One of the major changes sought by National FFA was a reduction in the number of seats on the board of directors that must be appointed by the Department of Education. By not filling all of the seats on the Board of Directors, the National FFA faced difficulty making decisions because it often could not meet its quorum for meetings. The new amendments reduce the organization’s reliance on an appointment to its board of directors by the U.S. Department of Education, which increases the organization’s ability to self-govern. You can read the text of the bill on Congress’s website here, or visit the National FFA’s webpage on frequently asked questions about the charter revision here.
The PACT Act is back. The Prevention of Animal Cruelty and Torture Act has been reintroduced into the U.S. House of Representatives. The act would allow for significant fines and up to seven years in prison for those convicted of animal crushing, creating animal crushing videos, or distributing animal crushing videos. The bill defines crushing as “actual conduct in which one or more living non-human mammals, birds, reptiles, or amphibians is purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury.” However, the bill does contain exceptions for conduct that is related to “customary and normal veterinary, agricultural husbandry, or other animal management practice[s];” “the slaughter of animals for food;” legal hunting, trapping, and fishing activities; research; defense of a human; and euthanizing an animal. Many in the agriculture community have opposed the bill, arguing that it is duplicative in light of animal protections created by the states and that it risks courts and juries interpreting the language too broadly. At this time, the bill has only been introduced in the U.S. House and referred to the Judiciary Committee.
Nebraska wind farms sue to enforce contract and keep utility from flying off into the sunset. Three Nebraska windfarms in a power supply contract with the Nebraska Public Power District (NPPD) have filed suit to prevent the utility from backing out of the contract. The wind farms filed a complaint in federal court in Nebraska on January 30th, alleging that NPPD expressed its intention to terminate a power purchase agreement, and that doing so would be wrongful. The complaint explains NPPD’s position that the wind farms materially violated the contract by investing in other businesses and operations. The plaintiffs disagree that there was a breach, but say that even if there was, NPPD cannot terminate the contract because it knew of the transactions. The plaintiffs also note that NPPD has eminent domain power. They argue that by terminating the contract, NPPD knows that the wind farms will likely enter default with creditors. This could allow NPPD to acquire the rights of the wind farms through a foreclosure sale or eminent domain. To prevent NPPD from terminating the contract, the parties requested, and were granted, a temporary restraining order until March 1st that requires NPPD to honor the contract. The case is cited as Laredo Ridge Wind, LLC v. Nebraska Pub. Power Dist., No. 8:19-cv-45 (D. Neb.).
Wisconsin Supreme Court asked to decide scope of agency power to regulate agriculture. A Wisconsin court of appeals has certified two cases to the Wisconsin Supreme Court, asking the court to determine the extent of the Wisconsin Department of Natural Resource’s authority to regulate agriculture in order to protect groundwater. A certification represents a lower court seeking guidance on an issue that the lower court believes it is not in the best position to decide without knowing what the higher court thinks. These cases are important for Wisconsin because they pertain to a law passed in 2011 that restrained authority of state agencies to act beyond express grants of authority by the state legislature. Specifically, the cases ask whether the Wisconsin DNR can impose conditions on issuing a permit beyond the conditions stated in a statute. The affected parties in the cases range from dairy farms to manufacturers and from food processors to municipal water utilities. Environmental groups hope that state agencies may take a more expansive look at environmental impacts when reviewing permit applications. The two certification orders are available here and here.
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.
Written by Ellen Essman, Sr. Research Associate, OSU Agricultural & Resource Law Program
The Ohio EPA has released its draft water quality report for 2018 and the report proposes to list the open waters of the Western Basin of Lake Erie as “impaired.” Readers of the Ag Law Blog will remember that the road to this listing has been long and complicated. The numerous posts we’ve written on this subject can be found by searching “impaired waters” on our blog website.
The controversy began in the fall of 2016, when Michigan and Ohio submitted their respective impaired waters lists to the U.S. EPA. Every two years, a regulation promulgated under the Clean Water Act requires states to turn in a list of their impaired waters. Michigan listed the waters of Lake Erie under its jurisdiction as impaired, while Ohio did not list the open waters in the Western Basin of Lake Erie as impaired. The waters described by Michigan as impaired and those not listed by Ohio are basically one in the same, hence the problem. The U.S. EPA approved Michigan’s list in early 2017, but made no decisions about Ohio’s list.
As a result of the discrepancy over Lake Erie, environmental and other groups sued the U.S. EPA to make a decision about Ohio’s impaired waters list. On May 18, 2017, the U.S. EPA approved Ohio’s list. However, on January 12, 2018, the U.S. EPA withdrew its earlier approval and asked Ohio to compile additional data for a new evaluation of the status of the Western Basin of Lake Erie.
With all of this back and forth and litigation, it is now long past the due date for the 2016 impaired waters list. As a result, the draft water quality report submitted by the Ohio EPA on March 22 contains the 2018 list.
Ohio EPA’s 2018 Draft Water Quality Report
In its draft water quality report, the Ohio EPA outlines the general condition of Ohio’s waters and lists “impaired waters” that are not meeting federal or state water quality goals and waters that have improved to meet water quality standards. For the first time, the EPA includes the open waters in the Western Basin of Lake Erie on its impaired list. The impaired designation is for recreational uses “due to harmful algae” and for drinking water “due to occurrences of microcystin.” (Microcystin are harmful toxins created by blue-green algae. More information about these toxins is here.) Other new areas listed as impaired for drinking water due to harmful algae are Sims Run, parts of the Maumee River, the headwaters to Grand River and the headwaters of Cowan Creek in the Little Miami River watershed.
Next steps and public comments
While an impaired listing may not create immediate change in the Western Basin, it will require Ohio to create total maximum daily loads, which are the amounts of different pollutants allowed to be discharged each day in the open waters. This could eventually mean increased regulation of certain pollutants in the area, which may include agricultural nutrients such as phosphorous and nitrogen. Only time will tell.
The EPA is accepting written comments on its proposed list of impaired waters. Submit comments by May 4, 2018, to email@example.com, or to Ohio EPA Division of Surface Water, P.O. Box 1049, Columbus, Ohio 43216-1049, attn: 303(d) comments. Following public review and comments, the agency will submit a final report to the U.S. EPA. The agency published a news release on the draft water quality report and is hosting an upcoming webinar on the report on April 25, 2018.
Read the EPA's draft water quality report here.
A bipartisan group of eight U.S. senators have introduced a bill to exempt agricultural producers from reporting requirements under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). We’ve reported previously on the new mandate that would require livestock operations to report air emissions, the result of a U.S. Court of Appeals decision last year that struck down the EPA’s rule that exempted agriculture from the reporting requirements. The U.S. EPA has repeatedly requested the court for a delay of the new reporting mandate, now delayed until after May 1, 2018. The proposed legislation would establish a new exemption that would protect farmers from the upcoming reporting mandate.
Senator Deb Fischer (R-Neb.), a primary sponsor of the legislation, stated that “[t]hese reporting requirements were designed to apply to industrial pollution and toxic chemicals, not animal waste on a farm or ranch.” Co-sponsor Joe Donnelly (D-Ind.) assured farmers that requiring them to “spend their time and money on reports that will go unused by EPA would be burdensome and needless.”
The text of the senators’ proposed Fair Agricultural Reporting Method (FARM) Act, S. 2421, is available here. The proposal includes:
- A statement that CERCLA reporting does not apply to air emissions from animal waste, including decomposing animal waste, at a farm.
- A definition for “animal waste,” which means feces, urine, or other excrement, digestive emission, urea, or similar substances emitted by animals (including any form of livestock, poultry or fish), and including animal waste that is mixed or commingled with bedding, compost, feed, soil, or any other material typically found with such waste.
- A definition of “farm,” which means a site or area (including associated structures) that is used for the production of a crop or the raising or selling of animals (including any form of livestock, poultry, or fish) and under normal conditions, produces during a farm year any agricultural products with a total value equal to not less than $1,000.
- A statement that maintains the current exemption from CERCLA reporting for applications, storage and handling of registered pesticide products.
Senator Fischer introduced S.2421 on February 13 and the Senate has referred the bill to the Committee on Environment and Public Works.
by Ellen Essman, Sr. Research Assoc., Agricultural & Resource Law Program
The saga of Ohio’s designation of impaired waters continues. Readers will recall previous posts on the Ag Law Blog detailing lawsuits against the U.S. EPA for failing to approve or disapprove Ohio’s 2016 list of impaired waters within the time limit required by law. Those posts are available here and here. Eventually, on May 19, 2017, the EPA accepted the Ohio EPA’s list of impaired waters, which did not include the open waters of Lake Erie’s western basin. Our blog post regarding that decision is here. That, however, was not the end of the story. In a letter to the Ohio EPA dated January 12, 2018, the U.S. EPA withdrew its May 2017 approval of Ohio's impaired waters list and asked Ohio to compile additional data for a new evaluation of Lake Erie.
What’s the issue?
Why has Ohio’s 2016 list of impaired waters been so hotly contested? Understanding this situation requires a little bit of background information. An EPA regulation created under the federal Clean Water Act (CWA) requires that states submit a list of impaired waters every two years. "Impaired waters" are those water bodies that do not or are not expected to meet the water quality standards for their intended uses. Designating a water body as impaired triggers a review of pollution sources, determinations of Total Maximum Daily Loads (TMDLs) of pollutants, and an action plan for meeting TMDLs.
After a state submits its impaired waters list, the EPA must approve or disapprove the designations within 30 days. In the case of Ohio’s 2016 list, Ohio did not include the open waters of the western basin of Lake Erie on its impaired waters list and the EPA delayed acting on the list until far beyond the 30 day mark. On the other hand, Michigan listed all of the waters of Lake Erie within its jurisdiction as impaired, which included the open waters in the western basin of Lake Erie. By approving both Ohio’s list and Michigan’s list, the EPA was agreeing to two different designations for what could essential be the same water in the same area of Lake Erie. As a result of this discrepancy, environmental groups brought a federal lawsuit against the EPA.
EPA withdraws approval
The EPA’s recent letter to Ohio could possibly have been prompted by the lawsuit mentioned above. In its letter, the EPA withdrew its May 2017 approval...”specifically with respect to the open waters of Lake Erie.” The agency states that Ohio’s 2016 submission failed to assemble and evaluate existing data and information related to nutrients in the open waters of Lake Erie, and directs Ohio to reevaluate available data and information by April 9, 2018.
The controversy over Ohio’s 2016 designation of impaired waters has gone on so long that it's now time for a new list. Ohio must submit a 2018 designation of impaired waters to the EPA by April 1, 2018. It is very likely that the withdrawal of approval for the 2016 list will affect which waters Ohio designates as impaired on its 2018 list, particularly in regards to the western basin of Lake Erie.
The withdrawal of approval could also affect the outcome of the current lawsuit against the EPA. The environmental groups plan to persist with the lawsuit even in light of the EPA’s withdrawal. It will be interesting to see who the District Court sides with, given the fact that the EPA has now taken steps to resolve the discrepancy at the heart of the lawsuit.
The letter from the U.S. EPA to the Ohio EPA is available here.
UPDATE 2: The federal spending bill signed into law on March 23, 2018 contained a provision stating that air emissions from animal waste at a farm are not subject to CERCLA reporting requirements, nor are emissions from the application, handling or storage of registered pesticides.
UPDATE: The court has delayed these new reporting requirements for a second time-- the new date is May 1, 2018. Farm operations of certain sizes are now required to report air emissions of certain hazardous substances that exceed a reportable quantity under CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act. This new requirement affects livestock farmers with larger numbers of animals, as they may exceed the reportable quantity for ammonia emissions. We've authored a new Law Bulletin on Continuous Release Reporting of Air Emissions for Livestock Farms to help farms determine whether they must report air emissions and if so, how to complete the reporting process. The new bulletin is available here.
Read more about the new CERCLA air emissions reporting mandate in our earlier post.