harmful algal blooms
It was a long time coming, but the Ohio EPA has presented a final Total Maximum Daily Load (TMDL) report for the Western Basin of Lake Erie to the U.S. EPA. The agency submitted the “Maumee Watershed Nutrient TMDL ” report on June 30, 2023. This was the exact deadline agreed to in the Consent Decree that settled litigation against the U.S. EPA and Ohio EPA over the lack of a TMDL for Lake Erie’s Western Basin.
What is a TMDL?
A TMDL provides a framework for future decisions that affect water quality in waters designated as “impaired waters” that fail to meet water quality standards. The Ohio EPA declared Western Lake Erie waters as “impaired” in 2018, and the TMDL is the plan for addressing shoreline and open water impairments in the basin. According to the Ohio EPA, the TMDL report “identifies the links between the waterbody use impairment, sources of impairment, and the pollutant load reductions needed to meet water quality standards.”
How will it affect Ohio agriculture?
A major source of the impairment in the Lake Erie Western Basin is cyanobacterial harmful algal blooms caused by high phosphorus loads. The report identifies many sources of phosphorus that contribute to the impairment, with the largest component being “nonpoint” sources that include row crop commercial fertilizers and manures. “Point” sources of phosphorous sources include water treatment facilities; stormwater discharges; and home sewage treatment systems. The TMDL calls for phosphorus load reductions in the Maumee watershed to remedy the lake’s impairment. Agriculture would be affected by increased emphasis on management practices for agricultural fertilizers, manures, soils, and drainage.
How does the TMDL address phosphorus reductions?
The TMDL embraces an “adaptive management” approach that involves developing strategies, establishing milestones, implementing strategies, monitoring environmental responses, evaluating progress, and adjusting strategies. For row crops, the report focuses on management practices such as soil testing and developing a nutrient management plan. It proposes other agricultural phosphorous reductions from soil erosion management, increasing cropping diversity through rotations and cover crops, reductions of phosphorus applications, edge-of-field management, two-stage ditch designs, and controlled drainage. The report points out that many of the proposed actions have already been underway on farms in the watershed for over a decade, and monitoring, evaluations, and adjustment strategies will continue the progress made to-date. Figure 50 in the report, below, highlights phosphorous reduction strategies.
What happens next?
The U.S. EPA now must review the TMDL and decide whether to approve or disapprove the report. It has up to 90 days to do so, according to the Consent Decree. If the U.S. EPA does not approve the TMDL report, it must then prepare a TMDL for the Western Basin.
How to learn more
Read the Maumee Watershed Nutrient TMDL on the Ohio EPA website, which also includes a fact sheet, appendices, and a summary of responses to public comments on the draft TMDL.
Not long after its 10th anniversary, the Great Lakes Restoration Initiative (GLRI) received a hefty package celebrating its success. Congress passed the Great Lakes Restoration Initiative Act of 2019 last month, not only reauthorizing the GLRI for another five years but also significantly increasing its funding levels. The annual funds for GLRI will grow from $300 to $330 million in 2021, to $375 million in 2022, and up another $25 million per year until reaching $475 million in 2026. The GLRI had been set to expire at the end of 2021 and faced funding threats in recent years. The boost in funding with solid bi-partisan support, however, suggests long term viability for the GLRI.
The GLRI began in 2010 with the goals of making water safe to drink and fish safe to eat, reducing harmful algal blooms, protecting native habitat and species and prohibiting invasive species in the Great Lakes basin. It does so by awarding grants for projects that aim to restore and protect the chemical, physical and biological integrity of the Great Lakes basin. In its ten-year history, GLRI has funneled $2.7 billion into over 5,000 projects in the eight states that comprise the Great Lakes ecosystem.
In Ohio, GLRI has funded projects for the removal of dams, agricultural best management practices, stream restoration, coastal wetlands, management of invasive species, and clean-up of contaminated sediments in Ohio’s four targeted “areas of concern,” which include the Ashtabula, Black, Cuyahoga, and Maumee Rivers. Ohioans can expect to see more of these and other projects in the coming years.
For more on the GLRI, visit this link.
Written by Peggy Kirk Hall and Ellen Essman
In the not-too-surprising news category, a federal court has invalidated the Lake Erie Bill of Rights (LEBOR) that Toledo residents passed last year to recognize and protect legal rights for Lake Erie. What is surprising, however, is how the court reached its decision to strike down LEBOR, even in the wake of a law passed by the Ohio legislature in July of 2019 that denies legal standing to nature and prevents a person from bringing a court action on behalf of nature or any ecosystem.
The verdict came exactly one year after Drewes Farm Partnership filed its federal lawsuit to prevent enforcement of LEBOR a day after Toledoans passed the measure. Drewes Farm asserted that LEBOR violated the farm’s rights under the First Amendment, Equal Protection Clause, and Due Process Clauses of the Fifth and Fourteenth Amendments. Drewes Farm also argued that LEBOR exceeded the City of Toledo’s authority because it usurped the power of the state and the federal government by interfering with international relations, invalidating state and federal permits, invalidating state law, altering the rights of corporations, and creating new causes of action in state courts. In April 2019, the state of Ohio joined the lawsuit as a fellow plaintiff. Proponents of LEBOR unsuccessfully attempted to join in the litigation.
Did the plaintiffs have the right to bring the case?
The opinion begins with the court’s “standing” analysis. Toledo argued that Drewes Farm and Ohio did not have legal standing to bring the lawsuit against the City. Legal standing requires that a plaintiff (1) suffers an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Failing to meet the legal standing requirement would force dismissal of the lawsuit. Without a finding in favor of legal standing, the court wouldn’t be able to determine LEBOR’s validity.
The central issue in whether the parties had legal standing was the injury in fact requirement, according to the court. To challenge LEBOR, the plaintiffs must demonstrate “concrete and particularized” injury that is “actual or imminent, not conjectural or hypothetical.” The court determined that the state of Ohio met this requirement because it suffered an injury, “at least on paper,” from LEBOR’s invalidation of Ohio laws, regulations, licenses and permits and because the state “could” be sued under LEBOR. The judge also found that Drewes Farm demonstrated injury in fact since any Toledo resident “could” sue the farm for violating LEBOR.
In its brief attention to the second component of standing, that the injury is fairly traceable to the defendant, the court determined that the potential injuries were traceable to Toledo because its city charter was amended by voters to include the LEBOR language. Even though the City itself did not legislatively enact LEBOR, had actually attempted to keep the issue off the ballot due to concerns that it was unconstitutional, and had not indicated any intent to enforce LEBOR, the court concluded that “the City is a proper defendant in the suit.” The court also found that invalidating LEBOR would redress the plaintiffs’ injuries, the final requirement for legal standing.
LEBOR violates due process
The court next directly examined only one of the many constitutional claims against LEBOR, the Fourteenth Amendment’s right to due process, and specifically focused on one element of due process: clarity of the law. The court stated that if a law is vague and unclear, it can “trap the innocent by not providing fair warning and invite arbitrary enforcement by prosecutors, judges, and juries.” Pointing to language in LEBOR such as the right of Lake Erie and its watershed to “exist, flourish, and naturally evolve,” and Toledoans’ right to a “clean and healthy environment,” the court questioned what type of conduct would violate the broad language and how a judge or jury would determine the line between “clean and unclean and healthy and unhealthy.” Spreading even a small amount of fertilizer could possibly violate LEBOR, the court said, as well as countless other activities such as catching fish, pulling weeds, planting corn, or driving a gas-powered vehicle. Not surprisingly, the court concluded that the language is void for vagueness. While LEBOR’s language sounds powerful, the court explained, it has no practical meaning, contains merely “aspirational statements” rather than rules of law, and violates constitutional due process.
What about other constitutional claims?
The court surprisingly didn’t tackle the many other constitutional issues raised by Drewes Farm and the State. But in its “severability” analysis, the court did briefly touch on the constitutionality of LEBOR’s preemption of state and federal laws. LEBOR contains a severability clause stating that a determination of one part of LEBOR as invalid does not invalidate the remaining parts of LEBOR. According to the court, this severability clause is valid only if the constitutional and unconstitutional parts of LEBOR are capable of separation and can stand by themselves. The court concluded that once the vague rights are stripped away, the remaining parts of LEBOR are meaningless.
The court then took the opportunity to note that LEBOR’s attempt to preempt Ohio law in the name of environmental protection would fail on its own merits. Lake Erie’s health falls well beyond Toledo’s authority and rights to govern its internal affairs, and enacting laws that conflict with Ohio law is a “textbook example of what municipal government cannot do,” said the court.
Protecting Lake Erie is a worthy goal
In a slightly sympathetic nod to LEBOR supporters “frustrated by the status quo,” the court notes that using a democratic process to protect Lake Erie is a well-intentioned goal but LEBOR simply fails to achieve the goal. Careful drafting by Toledoans could result in valid legislation that would reduce water pollution, the court explains, while highlighting an ordinance in Madison, Wisconsin that restricted the use of phosphorus-containing fertilizers in the city and withstood a legal challenge.
It comes as no surprise
Echoing what many had already concluded, the court criticized LEBOR’s authors for ignoring legal principals and constitutional limitations and stated that LEBOR’s invalidation should come as no surprise. “This is not a close call,” the court says. “LEBOR is unconstitutionally vague and exceeds the power of municipal government in Ohio. It is therefore invalid in its entirety.”
LEBOR has met the end of its road, but it never really stood a chance of actual enforcement due to its clearly unconstitutional language. LEBOR’s proponents often claimed that the purposes of LEBOR were to gain more attention to Lake Erie’s poor water quality and to push the concept of recognizing legal rights for nature and ecosystems a bit further down the road. Were they successful? Will Toledoans give up, or will they regroup and carefully draft new legislation to protect their water?
Farmers in Ohio now have absolute certainty that they will not be sued for violating Lake Erie’s “rights,” but such a lawsuit never really stood a chance of actual success due to LEBOR’s clearly unconstitutional language. And let’s not forget the new language in Ohio Revised Code §2305.01 stating that “nature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas; no person, on behalf of or representing nature or an ecosystem, shall bring an action in any court of common pleas; and no person shall bring an action in any court of common pleas against a person who is acting on behalf of or representing nature or an ecosystem.”
And what about Lake Erie’s water quality? New voluntary programs are rolling out from Governor DeWine’s H2Ohio plan. But many claim that more forceful measures are necessary. Other litigation over the lake’s water quality lingers, and Ohio has listed the Western Lake Erie Basin as “impaired” and must develop a plan to address Total Maximum Daily Loads of pollutants in the lake. It’s no surprise that even though it’s the end of the road for LEBOR, conflicts over solving Lake Erie’s water quality problems will continue.
Written by: Evin Bachelor, Law Fellow
Welcome to 2019 from all of us at the OSU Extension Agricultural and Resource Law Program! With a new Congress, a new Ohio General Assembly, and a new slate of leaders atop Ohio’s executive offices, we are expecting a flurry of activity in the new year. Our resolution this year is to keep you in the know about agricultural law news, and maybe find some time to exercise.
Here’s our latest gathering of agricultural law news that you may want to know:
U.S. Supreme Court declines to hear state livestock standard lawsuits. In a previous blog post, we noted that California and Massachusetts had adopted laws that would require sellers of certain meats and eggs to follow heightened animal care standards in order to sell those products within California or Massachusetts. Thirteen states, led by Indiana, quickly sued Massachusetts to stop its law from taking effect. Missouri led another group of thirteen states in suing California.
Indiana and Missouri had attempted to have their cases brought directly before the U.S. Supreme Court, arguing that the U.S. Supreme Court has “original jurisdiction” over claims between states. After the states filed their arguments with the Supreme Court, the justices asked the U.S. Solicitor General whether he believed these cases were appropriate for the Court’s original jurisdiction. The Solicitor General filed briefs in the Indiana v. Massachusetts and Missouri v. California maters, and suggested that the Supreme Court should not exercise original jurisdiction because, among other things, the states lack the proper standing to sue. Here, this argument essentially means that the resulting harm from enforcement of the statutes would not harm the states as states, but only some of their citizens, and that those citizens may still sue California or Massachusetts for their individualized harm.
The Supreme Court took the position of the Solicitor General and denied the requests of Indiana and Missouri to have the cases brought before the Court. Any further action will have to be taken through the lower courts. For more information about the Missouri v. California matter as argued to the Supreme Court, click here. For more information about the Indiana v. Massachusetts matter as argued to the Supreme Court, click here.
USDA not required to adopt Obama-era “Farmer Fair Practice Rules,” according to federal appeals court. In December 2016, the USDA published the Farmer Fair Practices Rules as an interim final rule, and published two amendments to its rules that deal with the Packers and Stockyards Act. The amendments addressed the ease of bringing a lawsuit for unfair and uncompetitive business practices under the Packers and Stockyards Act. The rule was set to take effect at the end of February 2017, although the amendments were only proposals that had not fully gone through the required notice and comment process. In early February 2017, citing the President’s regulatory freeze, and arguing that the rule would cause more litigation and confusion, the USDA postponed, and ultimately withdrew, the rule. The USDA also did not take action on the two proposed amendments. The Organization for Competitive Markets sued to stop the USDA from withdrawing the interim final rule, and to compel the USDA to promulgate the two amendments, arguing that the 2008 Farm Bill requires action by the USDA.
On December 21, 2018, the United States Court of Appeals for the Eighth Circuit denied the Organization for Competitive Markets’ request for review. The court explained that the USDA did not fail to fulfill its mandate, describing Congress’s language as ambiguous. Further, the court said that the USDA’s withdrawal of the interim final rule followed the proper notice and comment procedures. Ultimately the court believed that Congress has been monitoring this issue and if Congress wishes for a more specific action, then Congress should act. The court’s opinion in Organization for Competitive Markets v. USDA, No. 17-3723 (8th Cir. 2018) is available here.
Funding for National Weather Service and National Algal Bloom Program receives President’s signature. On Monday, January 7th, President Trump signed Senate Bill 2200, which passed during the previous Congress. The bill increases funding for the National Weather Service’s agriculture related weather monitoring and forecasting from $26.5 million in 2019 to $28.5 million by 2023. The Office of Oceanic and Atmospheric Research, the research arm of the National Oceanic and Atmospheric Administration (NOAA), will see an increase in funding from $136.5 million in 2019 to $154 million by 2023. The bill also instructs NOAA to “plan the procurement of future data sources and satellite architectures,” essentially instructing NOAA to think about cost-effective ways to upgrade weather monitoring systems both on the ground and in space. The National Integrated Drought Information System will also see an increase in funding from $13.5 million this year to $14.5 million by 2023. The program is to use some of the funding to “develop a strategy for a national coordinated soil moisture monitoring network” within the next year. Finally, the bill also reauthorizes $20.5 million each year through 2023 for relief from hypoxia or harmful algal blooms “of national significance,” which the bill defines as “a hypoxia or harmful algal bloom event that has had or will likely have a significant detrimental environmental, economic, subsistence use, or public health impact on an affected state.” For the text of the act, visit Congress’s webpage here.
Ohio Case Law Update
- Ohio Power Citing Board cannot extend construction certificate for wind farm by simple motion, but must follow amendment process, according to the Ohio Supreme Court. Black Fork Wind Energy filed an application with the Ohio Power Citing Board (“the board”) to construct a wind farm in Crawford and Richland Counties in 2011, and the board approved the application in January 2012. Black Fork had five years, until January 2017, to begin construction on the project. The project was delayed due to a lawsuit challenging the project, and Black Fork sought an additional two years to begin construction. The board granted Black Fork’s motion without a full application to amend and investigation. The board argued that it regularly grants such extensions and that extensions do not amount to an “amendment” that would require an application because an extension is not “a proposed change to the facility.” The majority of the Ohio Supreme Court disagreed, and held that the board acted improperly. Because the commencement of construction was a term in the certificate, granting an extension amounts to an amendment in the certificate. As such, the board should not have acted on the request without requiring an application for amendment and investigation. The Court reversed the order and remanded the issue back for further proceedings. Justices Fischer and O’Donnell dissented, arguing that the Court should defer to the board in how it reads “amendment” under Ohio Revised Code § 4906.07(B). For the Ohio Supreme Court’s opinion from In re application of Black Ford Wind Energy, Slip Opinion No. 2018-Ohio-5206, click here.
- Creditors must first seek payment of unpaid bills from estate of deceased spouse before attempting to collect from a surviving spouse, according to the Ohio Supreme Court. In Embassy Healthcare v. Bell, Mr. Robert Bell received care at a nursing home operated by Embassy Healthcare. Embassy sent a letter for collection to his wife, Mrs. Bell, six months and three days after he had passed away, but no estate for Mr. Bell had been opened. In Ohio, creditors have six months to request an estate administrator be appointed in order to collect a debt from an estate, but Embassy did not make such a request. Since it missed the six month statute of limitations, Embassy tried to seek collection from Mrs. Bell under Ohio’s “necessaries” law, as provided in Ohio Revised Code § 3103.03. This law requires spouses to support their spouse with money, property, or labor if their spouse cannot do so on their own; however, the Ohio Supreme Court has said that a person is responsible for their own debts first, and that under this statute their spouse will only be liable if that person cannot pay for their debts. In this case, the Ohio Supreme Court said that Embassy had to seek payment from Mr. Bell’s estate before it could require payment from his spouse. Since the statute of limitations had run to bring a claim against Mr. Bell’s estate, Embassy would be unable to demonstrate that Mr. Bell’s estate could not cover his personal debts. Therefore, Embassy would not be able to prove an essential requirement of Ohio’s necessaries law, and cannot recover from his spouse. For the Ohio Supreme Court’s opinion in Embassy Healthcare v. Bell, Slip Opinion No. 2018-Ohio-4912, click here.
- Trial court may determine width of easement as a question of fact, and will not be reversed by appellate court unless the evidence shows it clearly lost its way, according to Ohio Court of Appeals for the 7th District. A property owner signed an express easement to a neighbor so that the neighbor could cross the property owner’s land to access the public road. The written easement did not specify the width of the easement, but the neighbor cleared a path approximately 10 feet wide. The property owner eventually sold the property, and the new owner laid gravel on the path from the public road to their garage, and the neighbor extended the gravel all the way to his own property. Disputes later arose regarding the easement, and the neighbor sued the new property owners for breach of easement, and sought a declaration that the easement was thirty feet wide. Ohio case law allows trial courts to establish the dimensions of an easement if the writing does not specify any dimensions if the trial court examines: 1) the language of the granting document, 2) the context of the transaction, and 3) the purpose of the easement. The trial court found the easement to be ten feet wide. The neighbor appealed, but the Seventh District found the trial court’s decision to be reasonable given the evidence and Ohio law. Since the width of an easement is a question of fact, an appellate court will not reverse the trial court absent evidence that the trial court clearly lost its way given the weight of the evidence. For the Seventh Districts’ opinion in Cliffs and Creek, LLC v. Swallie, 2018-Ohio-5410 (7th Dist.), click here.
Written by Ellen Essman, Law Fellow, Agricultural & Resource Law Program
The U.S. Senate has passed a bill sponsored by Ohio senators Sherrod Brown and Rob Portman that intends to improve the federal response to water pollution by amending the Harmful Algal Bloom and Hypoxia Research and Control Act of 1998. Senate Bill 1057 will now move on to the House of Representatives for debate.
What are harmful algal blooms and hypoxia?
The EPA defines harmful algal blooms as “overgrowths of algae in water,” some of which “produce dangerous toxins in fresh or marine water.” The toxins can be dangerous for humans and animals. One major contributor to algal blooms is an excess of nitrogen and phosphorus in the water. Hypoxiacan also be caused by too much nitrogen and phosphorus in the water. The EPA defines hypoxia as “low oxygen” in water. Hypoxia sometimes goes hand-in-hand with algal blooms, because as algae dies, it uses oxygen, which in turn removes oxygen from the water. Algal blooms and hypoxia have been a problem in Lake Erie and other parts of the country.
Background of the law
The Harmful Algal Bloom and Hypoxia Research and Control Act was passed in 1998 in response to harmful algal blooms and hypoxia along the coast of the United States. When passing the law, Congress cited scientists who said both problems were caused by “excessive nutrients.” Furthermore, Congress found that harmful algal blooms had caused animal deaths, health and safety threats, and “an estimated $1,000,000,000 in economic losses” in the previous decade.
The law established an interagency Task Force on Harmful Algal Blooms and Hypoxia (Task Force), which was charged with submitting an assessment to Congress on the “ecological and economic consequences” of both harmful algal blooms and hypoxia. The assessments were to include “alternatives for reducing, mitigating, and controlling” harmful algal blooms and hypoxia. A number of other reports and assessments were also required, which were to all culminate in a plan to combat and reduce the impacts of harmful algal blooms. Additionally, the Act singled out the areas of the Northern Gulf of Mexico and the Great Lakes. For these two areas, the Act required additional progress reports and mitigation plans.
The Act has undergone a few amendments throughout the years. The amendments have expanded and/or renewed the duties of the Task Force and other state and federal actors. Most notably, amendments in 2014 created the national harmful algal bloom and hypoxia program (Program) and a comprehensive research plan and action strategy. Under the Program, the National Oceanic and Atmospheric Administration (NOAA) was charged with administering funding to programs combatting algal blooms and hypoxia, working with state, local, tribal, and international governments to research and address algal blooms and hypoxia, and supervising the creation and review of the action strategy, among other duties. The action strategy identified the “specific activities” that the Program should carry out, which activities each agency in the Task Force would be responsible for, and the parts of the country where even more specific research and activities addressing algal blooms and hypoxia would be necessary.
What changes are proposed?
SB 1057 would make a number of changes and additions to the current law. Overall, the goal of the bill seems to be to strengthen the federal government’s ability to research and respond to water pollution in the form of algal blooms and hypoxia. The most important amendments in the bill would:
- Add the Army Corps of Engineers to the list of agencies on the Task Force.
- Combine the sections on freshwater and coastal algal blooms, and require that scientific assessments be submitted to Congress every five years for both types of water.
- Establish a website that would provide information about the harmful algal bloom and hypoxia program (Program) activities to “local and regional stakeholders.”
- Require the Task Force to work with extension programs to promote the Program and “improve public understanding” about harmful algal blooms and hypoxia.
- Require the use of “cost effective methods” when carrying out the law.
- Require the development of “contingency plans for the long-term monitoring of hypoxia.”
- Fund the Program and the comprehensive research plan and action strategy from 2019 through 2023.
Most importantly, SB 1057 would add a completely new section to the law that would allow federal officials to “determine whether a hypoxia or harmful algal bloom event is an event of national significance.” Under the new language, the federal official can independently determine that such an event is occurring, or the Governor of an affected state can request that a determination to be made.
When making the determination, the federal official would have to take a number of factors into consideration including:
- Toxicity of the harmful algal bloom;
- Severity of the hypoxia;
- Potential to spread;
- Economic impact;
- Relative size in relation to the past five occurrences of harmful algal blooms or hypoxia events that occur on a recurrent or annual basis; and
- Geographic scope, including the potential to affect several municipalities, to affect more than one State, or to cross an international boundary.
Finally, in the case an event of national significance is found, the the federal official would have the power to give money to the affected state or locality to mitigate the damages. However, SB 1057 states that the federal share of money awarded cannot be more than 50% of the cost of any activity. The federal official would have the power to accept donations of “funds, services, facilities, materials, or equipment” to supplement the federal money.
The bill now goes to the House of Representatives for consideration. Text and information on SB 1057 is available here. To read the current law, click here. For further information on water pollution, check out the EPA’s pages on harmful algal blooms and hypoxia.