Featuring the work of Carolyn C. Jolly, Law Fellow, National Agricultural Law Center
OSU’s Agricultural & Resource Law Program is fortunate to be a partner with the National Agricultural Law Center, which includes working with the Center’s Law Fellows—students currently studying law in different law schools across the country. Carolyn C. Jolly is one of our current Law Fellows, and she has an interest in environmental laws that affect agriculture. Carolyn is the author of today’s blog. She has assembled a harvest of environmental updates affecting agriculture that include approval of Ohio EPA’s phosphorus TMDL, a practical ESA guide for producers, EPA’s commitment to adhering to its ESA requirements, and an update on participation by agricultural producers in voluntary carbon markets.
EPA Approves Ohio’s Maumee Watershed Nutrient Total Maximum Daily Load
In 2014, phosphorous runoff from farms in the western basin of Lake Erie caused an algal bloom. Harmful algal blooms produce toxins that impair drinking water, affect aquatic life, and hinder recreational use. Coming up with a solution to reduce the phosphorus runoff has been contentious. In 2019, Toledo voters passed a bill that would allow citizens to sue farmers on behalf of the lake. This measure was held to be unconstitutional, but it could have greatly impacted the ability of farmers and producers to continue their operations. To address specific pollutants, the Clean Water Act requires states to develop Total Maximum Dailey Loads (TMDL). Environmental interests and local governments in Ohio legally challenged both the Ohio EPA and U.S. EPA to establish a TMDL for the western Lake Erie Basin. In June of 2023, the Ohio EPA did submit a proposed TMDL for to the EPA and it was approved in September. The aim of the TMDL is to reduce phosphorus runoff in the Maumee Watershed.
Here are some of the approaches for agricultural areas the EPA included in the TMDL:
- Soil testing and nutrient management planning efforts (e.g., Voluntary Nutrient Management Plans via H2Ohio funding)
- Variable rate fertilization and subsurface placement of fertilizer (e.g., following the ‘4 R’s’ of nutrient management: using the right nutrient at the right rate and right time in the right place)
- Manure incorporation (mixing manure into soils or placing the manure below the soil surface)
- Conservation crop rotation and cover crops (e.g., improving soil health, increasing soil organic matter, improving soil moisture storage capacity, etc.)
Agricultural Water Quantity Management
- Drainage water management (e.g., management of discharge from agricultural tile drainage lines to store water in the water table beneath fields and reduce discharge to surface waters)
- Edge-of-field buffers (e.g., planting in riparian areas to increase water storage and decrease nutrient and sediment inputs, Great Lakes Restoration Initiative)
- Two-stage ditch deployment (e.g., modifying the profile of stream channel bottoms by constructing a bench/floodplain adjacent to the existing stream channel to slow water flow during high flow events and trap nutrients and sediment)
- Wetland restoration and preservation (e.g., the restoration/protection of existing wetlands are beneficial for storing water and nutrients on the landscape, Environmental Quality Incentives Program; Western Lake Erie Basin Project - Ohio)
Read the Final TMDL on the Ohio EPA’s webpage for the Maumee Watershed.
Agricultural Producers Now have a Practical Guide to the Endangered Species Act
The Endangered Species Act (ESA) is intended to protect endangered and threatened species and thus has an impact on agriculture and land use across the country. However, being such a wide-ranging piece of legislation, it can be difficult to understand the law and its full impact on agriculture. Brigit Rollins, an attorney with our partner, the National Agricultural Law Center, set out to answer how and why the ESA affects agriculture and land use by creating the Endangered Species Act Manual: A Practical Guide to the ESA for Agricultural Producers. It is a concise guide that describes the history of the ESA, influential case law, regulatory changes, and specifics of the ESA’s impact on agriculture. Additionally, it is meant to be a living document that will be updated with current changes and issues.
EPA on Balancing ESA Requirements and Responsible Pesticide Use
When registering new uses for pesticides and reviewing already registered uses, the Environmental Protection Agency (EPA) is required to consult the Endangered Species Act (ESA) to ensure that the use follows ESA standards. This can be a lengthy process and the EPA has complied with the process in less than 5% of its actions. This noncompliance has resulted in substantial litigation. To address these issues, EPA issued its ESA Workplan. EPA actions in the workplan include developing mitigation measures for particularly vulnerable species, developing and implementing strategies to identity mitigation measures for the different classes of pesticides, completion of ESA work for eight organophosphates and four rodenticides, and hosting a workshop with stakeholders to explore other methods of offsetting pesticide impacts. EPA also released its Draft Herbicide Strategy for comment and the Rodenticide, Insecticide, and Fungicide Strategies are under development. The EPA has also released its ESA guidance for future registrations.
Agricultural Producer Participation in Carbon Markets
To mitigate climate change, Congress passed the Growing Climate Solutions Act (GCSA) to improve access to carbon markets for agricultural producers. In accordance with the law’s requirements, the U.S Department of Agriculture (USDA) released A General Assessment of the Role of Agriculture and Forestry in the U.S. Carbon Markets on October 23, 2023. The report addresses participation by agricultural producers in the carbon market, barriers to and concerns or participation, and ways to improve producer participation. The report notes that even though producers are aware of the carbon market, voluntary participation has been low. According to the report, “Producers cite the concerns about the return on investment, upfront costs, data collection burdens, compensation for pre-existing practices, permanence requirements, issues of scale, and confusion about carbon markets and programs as key factors in their evaluation into whether to participate in a carbon project.” The USDA concludes that to reduce barriers to participation, strategies need to be implemented to “reduce transaction costs, minimize record-keeping burdens, address early-adopter and permanence requirement concerns, and address barriers related to project scale.” The report also details the USDA’s role in improving participation through outreach and education, offering grants and partnerships, supporting carbon market infrastructure, and investing in measurement, monitoring, reporting, and verification of carbon credit procedures.