All is quiet at the statehouse as the Ohio legislature continues on its summer recess, but here’s our gathering of other agricultural law news you may want to know:
Does Roundup cause cancer? A jury in California has determined that it’s possible. The jury awarded $289 million last Friday against Monsanto in the first of thousands of cases alleging that Monsanto should have warned users about Roundup’s cancer risk. The plaintiff argued that Monsanto has known for decades that the Roundup product could cause cancer but failed to warn consumers, while Monsanto claimed that more than 800 studies and reviews conclude that glyphosate itself does not cause cancer. Monsanto plans to appeal the award.
Pursuing a Bill of Rights for Lake Erie. The Toledoans for Safe Water submitted over 10,500 signatures last week on a petition proposing to amend the city’s charter to establish a bill of rights for Lake Erie. The proposed bill of rights would state that Lake Erie and its watershed possesses a right to exist, flourish and naturally evolve; that the people of Toledo have a right to a clean and healthy Lake Erie, a collective and individual right to self-government in their local community and a right to a system of government that protects their rights; and that any corporation or government that violates the rights of Lake Erie could be prosecuted by the city and held legally liable for fines and all harm caused. The effort is backed by the Community Environmental Legal Defense Fund. If successful, the initiative would appear on the November ballot for Toledo residents.
EPA ordered to ban the sale of chlorpyrifos. The U.S. Ninth Circuit Court of Appeals late last week ordered the U.S. EPA within 60 days to cancel all registrations for chlorpyrifos, a pesticide first introduced by Dow and commonly used on crops and animals. The court held that there was no justification for a decision by previous EPA Administrator Scott Pruitt refusing to grant a petition to ban chlorpyrifos in the face of scientific evidence that the pesticide can cause neurodevelopmental damage in children. The court also discarded the agency’s argument that it could refuse to ban chlorpyrifos so based on a possible contradiction of evidence in the future. Both actions, said the court, placed the agency in direct violation of the Federal Food, Drug, and Cosmetic Act and the Federal Insecticide, Fungicide and Rodenticide Act. The highest uses of chlorpyrifos are on cotton and corn crops and almond and fruit trees.
Highest award in Smithfield nuisance litigation raises responses. The third and largest jury award in a series of nuisance lawsuits in North Carolina yielded a $473.5 million award for plaintiffs claiming harm from hog farms owned by Smithfield. The verdict will reduce to $94 million due to a state law that caps punitive damages. Agricultural interests are claiming that the lawsuits circumvent state right to farm laws and are seeking state legislative responses. Opponents are also hoping to reverse a gag order issued by the court to impose communication restrictions on potential witnesses, parties and lawyers in the cases. The federal judge in the case, Hon. Earl Britt from the Eastern District of North Carolina, is stepping down due to health issues. Hon. David Faber of the Southern District of West Virginia will replace Judge Britt and will soon hear a fourth trial that targets a 7,100 head hog farm in Sampson County, North Carolina.
It’s official: no reporting of air emissions from animal waste. The U.S. EPA has posted a final rule clarifying that air emissions from animal waste at farms are exempt from federal regulations that require the reporting of air releases from hazardous wastes. The rule implements an order by the U.S. Court of Appeals for the District of Columbia and revisions in the Fair Agricultural Reporting Method Act enacted by Congress earlier this year. We reported on the court case and legislation earlier this year.
Written by Ellen Essman, Sr. Research Associate
Here’s our gathering of recent agricultural law news you may want to know:
Kasich’s Executive Order delayed. As we previously wrote about, Governor John Kasich signed an executive order earlier this month which directed ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission (OSWC) to designate” certain watersheds “as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment.” The OSWC voted on July 19 to delay Kasich’s executive order, which means that the eight watersheds will not be labeled “watersheds in distress” at this time. Instead, a subcommittee of the OSWC is tasked with researching and determining if each of the watersheds should be listed as “watersheds in distress.” More information on this delay is available in Ohio’s Country Journal.
ODA to submit “Watersheds in Distress” rule package. In more news regarding “watersheds in distress,” ODA is expected to propose a new rule package. While rules concerning watersheds in distress already limit the land application of manure on farms, the new rules would also limit the application of “nutrients,” which are defined as “nitrogen, phosphorus, or a combination of both.” Stay tuned to the Ag Law Blog for any updates on this rule package!
ODA upgrades website. The Ohio Department of Agriculture updated its website last month. The update includes a section with frequently asked questions and answers for each of the separate Divisions. For example, the questions frequently asked about food safety, making and selling food are available here. Head to www.agri.ohio.gov to check it out the new ODA website.
Additional comments sought on WOTUS. On July 12, 2018, the Army Corps of Engineers and the EPA published a supplemental notice of proposed rulemaking in the Federal Register. The supplemental notice is meant to “clarify, supplement and seek additional comment on” last summer’s proposal to repeal the 2015 Waters of the United States (WOTUS) Rule. As a reminder, the 2015 WOTUS rule expanded the meaning of “waters of the United States,” or those waters protected under the Clean Water Act, to include “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.” If the 2015 WOTUS rule is repealed, then the pre-2015 regulations defining WOTUS will be recodified. The agencies are seeking additional comments on the proposed rulemaking through this supplemental notice. The comment period is open through August 13, 2018. Comments can be left here.
Ohio legislation on the move
- Dogs on patios. H.B. 263, which we have been following, was sent to the Governor on 7/24/2018. Kasich’s signature would mean that food establishments and food service operations could permit customers to bring a dog into an outdoor dining area if the dog is vaccinated. Each establishment must adopt a policy requiring customers to control their dogs and to keep their dogs out of indoor areas. See our previous coverage of this legislation here and here.
Recent actions by the Ohio legislature and Governor Kasich will affect the management of agricultural nutrients in Ohio. The Ohio General Assembly has passed “Clean Lake 2020” legislation that will provide funding for reducing phosphorous in Lake Erie. Governor Kasich signed the Clean Lake 2020 bill on July 10, in tandem with issuing Executive Order 2018—09K, “Taking Steps to Protect Lake Erie.” The two actions aim to address the impact of agricultural nutrients on water quality in Lake Erie.
The Clean Lake 2020 legislation provides funding for the following:
- $20 million in FY 2019 for a Soil and Water Phosphorus Program in the Ohio Department of Agriculture (ODA). In utilizing the funds, ODA must:
- Consult with the Lake Erie Commission and the Ohio Soil and Water Conservation Commission to establish programs that help reduce total phosphorus and dissolved reactive phosphorus in the Western Lake Erie Basin and must give priority to sub-watersheds that are highest in total phosphorus and dissolved reactive phosphorus nutrient loading.
- Create specific programs that include the purchase of equipment for (1) subsurface placement of nutrients into soil; (2) nutrient placement based on geographic information system data; and (3) manure transformation and manure conversion technologies; soil testing; tributary monitoring; water management and edge-of-field drainage management; and an agricultural phosphorus reduction revolving loan program.
- Not use more than 40% of the funds on a single program or activity.
- $3.5 million for county soil and water conservation districts in the Western Lake Erie Basin for staffing costs and for soil testing and nutrient management plan assistance to farmers, including manure transformation and manure conversion technologies, enhanced filter strips, water management, and other conservation support.
- $2.65 million for OSU’s Sea Grant—Stone Laboratory on Lake Erie to construct new research lab space and purchase in-lake monitoring equipment including real-time buoys and water treatment plant monitoring sondes.
- A $2 million obligation increase for the Ohio Public Facilities Commission allocated to the costs of capital facilities for state-supported and state-assisted institutions of higher education.
Governor Kasich’s Executive Order contains two parts:
- Directs the ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission to designate the following Hydrologic Unit Code (HUC) watersheds or portions of watersheds in the Maumee River Basin as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment: Platter Creek Watershed, Little Flat Rock Creek Watershed, Little Auglaize River Watershed, Eagle Creek Watershed, Auglaize River, Blanchard River, St. Mary’s, Ottawa River.”
- If the Soil and Water Commission consents to a designation of a watershed in distress, ODA, the Ohio Department of Natural Resources and the Ohio EPA “should recommend a rule package that establishes the following . . . nutrient management requirements for all nutrient sources; development of associated management plans for agricultural land and operations within the designated watershed boundaries; requirements for the storage, handling, land application, and control of residual farm products, manure, and erosion of sediment and substances attached thereto within the designated watershed boundaries.”
A pair of companion bi-partisan bills just introduced in the Ohio Senate and Ohio House of Representatives would provide significant funding to help meet Ohio’s goal of reducing phosphorus loading by 20% in Lake Erie by 2020. The sponsors of S.B. 299 are Senators Gardner (R-Bowling Green) and O’Brien (D-Bazetta) and Representatives Arndt (R-Port Clinton) and Patterson (D-Jefferson) are the sponsors of H.B. 643. The legislation is a “targeted funding solution bill,” according to Rep. Arndt, “providing both [general revenue funds] and capital funding for a variety of strategies that scientists, Lake Erie advocates, agriculture leaders, and others believe can help achieve our phosphorus reduction goals.”
The legislation includes the following:
- A “Soil and Water Conservation Support Fund” of up to $3.5 million to support county soil and water conservation districts in the Western Lake Erie Basin for staffing and to assist in soil testing, nutrient management plan development that would also include manure transformation and manure conversion technologies, enhanced filter strips and water management.
- A “Soil and Water Phosphorus Program” of up to $20 million, to be established by the Ohio Department of Agriculture to reduce phosphorus in sub-watersheds of the Western Lake Erie Basin. The bill requires that the programs be supported with the purchase of equipment for subsurface placement of nutrients into the soil; nutrient placement based on geographic information system data; soil testing; variable rate technology; manure transformation and manure conversion technologies; tributary monitoring and water management and edge-of-field drainage management.
- $3.5 million for Ohio State’s Sea Grant—Stone Laboratory on Lake Erie to construct new research lab space and purchase in-lake monitoring equipment.
- Up to $10 million for the Healthy Lake Erie Initiative to reduce open lake disposal of dredged materials into Lake Erie.
Both bills were immediately referred to committee, with proponent testimony heard before the Senate Finance Committee on May 15 and the House Finance Committee on May 16. The Lake Erie Foundation, Nature Conservancy, Ohio Environmental Council, Soil and Water Conservation Districts and Ohio Farm Bureau testified in support of the legislation.
The legislators also introduced Senate Joint Resolution 6 and House Joint Resolution 16 on May 9 that propose to submit a constitutional amendment authorizing the issuance of up to $1 billion in general obligation bonds to pay for the Lake Erie clean water improvements for voter approval at the November 6, 2018 general election. The resolutions were also referred to the respective finance committees but were not on the committees’ recent agendas.
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.
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.
By Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
The Ohio legislature recently enacted a bill expected to enhance Ohio’s efforts to address water quality in Lake Erie. Senate Bill 2, a far reaching environmental bill, contains several revisions to the Ohio Lake Erie Commission (OLEC) and Ohio’s Lake Erie Protection and Restoration Strategy.
The purpose of OLEC is to advise on the development, implementation, and coordination of Lake Erie programs and policies and to oversee the management of the Lake Erie Protection Fund. For Ohio agriculture, the most important of S.B. 2’s revisions to OLEC is the expansion of OLEC’s purpose to include “issues related to nutrient-related water quality.” This change reveals a new focus on nutrient impacts on Lake Erie’s water quality and a resulting charge for OLEC to implement the Ohio EPA’s current plan for reducing phosphorous levels in the Lake by 40% by 2025.
Furthermore, S.B. 2 broadens and strengthens OLEC’s role in coordinating and funding policies, programs and priorities related to Lake Erie. Coordination with the federal government is encouraged, as is consideration of the efforts of Ohio and other Great Lakes states and countries, as well as any agreements between those states and countries and Ohio. OLEC must also publish a Lake Erie Protection and Restoration Strategy that describes the commission’s goals and its planned uses for the Lake Erie Protection Fund. Demonstration projects and cooperative research are now acceptable uses of the fund, in addition to the previously established use of data gathering.
S.B. 2 enhances coordination between OLEC and the Great Lakes Protection Fund (GLPF) board by bringing two members of the GLPF’s board onto OLEC’s board, which currently consists of the directors of Ohio’s EPA, Department of Natural Resources, Department of Health, Department of Agriculture, Department of Transportation and Department of Development, along with five additional members appointed by the governor and approved by the Senate. S.B. 2 requires the Governor to select the two GLPF board members who will serve on the OLEC board.
Changes in S.B. 2 also call for OLEC to develop public education and outreach programs about their work and issues facing Lake Erie and to expand fundraising efforts to support their programs—namely through the promotion of the sale of Lake Erie license plates. A number of provisions regard the disposal of construction and demolition debris and dredging in Lake Erie.
The revisions in S.B. 2 are likely to better equip OLEC to carry out strategies for improving Lake Erie’s water quality. Most notably, the new law will shift some of OLEC’s focus to combating water quality problems associated with nutrient pollution, a change that will surely affect Ohio agriculture.
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.
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.