For the last several years, the state of Ohio and the U.S. EPA have been plagued with objections and lawsuits—from states, local governments, and environmental groups—concerning Ohio’s list of impaired waters and development of total maximum daily loads (TMDLs) for the Western Basin of Lake Erie. (Some of our past blog posts on the subject are available here, here, and here.) Under the Clean Water Act (CWA), states are required to submit a list of impaired, or polluted, waters every two years. Typically, designating a water body as impaired triggers a review of pollution sources, determinations of TMDLs for different pollutants, and an action plan for meeting those TMDLs. Ohio repeatedly failed to include the Western Basin in its list of impaired waters, even though the area has been subject to pollution-caused algal blooms in recent years. When the state finally listed the Western Basin waters as impaired in 2018, it still did not develop the accompanying TMDL for the area. However, Ohio’s TMDL drought ended last week.
Ohio EPA announced on February 13, 2020, that it would develop TMDLs for the Western Basin “over the next two to three years.” This decision will ultimately affect farmers in the watershed, as it is likely that the Ohio EPA would create TMDLs for phosphorus, nitrogen, and other fertilizers in the Western Basin. Consequently, farmers may have to reduce the amounts they put on their fields, and/or implement additional measures to keep such inputs from running off into the water.
So, Ohio listed the Western Basin as impaired and is working on TMDLs for the area—the controversy is over, right? Not so fast. Lucas County, Ohio and the Environmental Law & Policy Center filed a lawsuit against the U.S. EPA that is still ongoing. (We last discussed this lawsuit here.) Basically, the plaintiffs in the suit are arguing that the U.S. EPA violated the CWA when it allowed the Ohio EPA to designate the Western Basin as impaired in 2018, but did not make the state develop TMDLs. Even though Ohio has since promised to implement TMDLs for the area, the outcome of the case will still weigh in on the crucial question of whether the U.S. EPA can make states create TMDLs for impaired waters under the CWA. In addition, the U.S. District Court case applies to Ohio’s 2018 impaired waters list, whereas Ohio EPA’s recent announcement concerns the 2020 list. Finally, it’s doubtful that environmental groups and others will stop their efforts just because Ohio has now promised to create TMDLs—it’s almost a certainty that the debate over pollution in the Western Basin and the best ways to remedy the problem will persist.
Written by Ellen Essman, Sr. Research Associate
Readers of the Ag Law Blog will recall our previous posts regarding Governor Kasich’s “watersheds in distress” executive order and the rules proposed to accompany the order. The proposed rules were recently filed and the Ohio Soil and Water Conservation Commission continues to hold meetings about which watersheds will actually be designated as “distressed.”
“Watersheds in Distress” rules are filed and hearing is scheduled
On October 15, 2018, the Ohio Department of Agriculture (ODA) filed the proposed watersheds in distress rules in the Register of Ohio, which would make changes to Ohio Administrative Code Sections 901:13-1-11, 901:13-1-19, and 901:13-1-99. A hearing on the proposed amendments will be held on November 20, 2018 at 9:00 a.m. in the Ohio Department of Agriculture, Bromfield Administration Building, Auditorium 141, 8995 East Main Street, Reynoldsburg, Ohio, 43068-3399. Interested members of the public are invited to attend and participate. Written comments are also welcomed, and information about where to send such comments can be found here. Below, we will outline the proposed changes to each rule in turn.
- OAC 901:13-1-11
OAC 901:13-1-11 currently only applies to land application of manure in watersheds in distress. The proposed changes to the rule would also make it applicable to the land application of “nutrients,” or “nitrogen, phosphorous, or a combination of both,” in watersheds in distress. Under the proposed amendments, those responsible “for the land application of nutrients on more than fifty acres” of agricultural land would not be allowed to “surface apply nutrients:”
On snow-covered or frozen soil;
When the top two inches of soil are saturated from precipitation; and
In a granular form when the local weather forecast for the application area contains greater than a fifty per cent chance of precipitation exceeding one inch in a twelve-hour period.
The same restrictions would apply for manure. If either manure or nutrients are “injected into the ground,” “incorporated within twenty-four hours of surface application,” or “applied to a growing crop,” however, the above restrictions would not apply.
The proposed changes would also alter and remove some language currently in the rule. The new rule would also remove the date restrictions on the surface application of manure that currently exist, as well as the requirement that the responsible party keep records of the local weather forecast. A document with the proposed amendments can be found here.
- OAC 901:13-19
Proposed changes to OAC 901:13-19 would require those who apply nutrients to more than fifty acres annually in a watershed in distress to “develop and operate in conformance with a nutrient management plan.” The original rule only applies to those applying manure. The new rule would also require “an attestation to the completion” of nutrient management plans to be “submitted” to the Director of ODA. The Director would also be given the power to “establish a deadline for all NMPs to be completed,” which would have to happen twelve to thirty-six months after the designation of a watershed in distress. The Director would also have the power to request NMPs from producers. The new rule would further require ODA to audit at least five percent of the attestations every year. Attestations would have to be completed each time an NMP is updated.
As for the content in the NMPs, the proposed rule would remove date prohibitions on manure application. The proposed rule also prescribes the form that NMP plans for nutrient application must take, as well as the information that must be included. The proposed rule would also change some language around so that parts that once only applied to manure would apply to nutrients, as well. The proposed changes to OAC 901:13-19 can be found here.
- OAC 901:13-1-99
OAC 901:13-1-99 contains the civil penalties for violating any of the rules in 901:13-1. The proposed changes to this section would reflect the changes to the other sections discussed above by including penalties for violating the new rule provisions.
More meetings will be held to determine which watersheds are “distressed”
In addition to the proposed rules for watersheds in distress, activity is also taking place on which particular watersheds within the Western Lake Erie Basin will actually be designated “distressed.” To this end, the Ohio Soil and Water Conservation Commission has held several public meetings throughout the summer and fall to examine the question. Today, November 1, 2018, the Commission will hold yet another public meeting, where a vote on which watersheds are designated “distressed” may occur.
Stay tuned to the Ag Law Blog for updates on watershed in distress designations and the accompanying proposed rules!
In an ongoing attempt to carry out Governor Kasich's executive order to establish nutrient management requirements for agricultural nutrients within "watersheds in distress," the Ohio Department of Agriculture (ODA) has made a second revision to its proposed rule package. According to ODA, the proposed watersheds in distress rules "create a uniform, state-wide standard that governs the application of manure and fertilizer on frozen, snow-covered and rain-soaked ground" within areas designated as "watersheds in distress." pursuant to Ohio Admin. Code 1501:15-5-20. Those proposed standards include the following:
- Manure and nutrient application restrictions. Owners, operators and applicators shall not surface apply manure and nutrients (nitrogen and phosphorus) on more than 50 acres of land used for agricultural production on snow covered, frozen and saturated soil or when there's a greater than 50% chance that precipitation would exceed one-half inch in 24 hours, unless the manure or nutrients are injected, incorporated with 24 hours or applied to a growing crop.
- Compliance with 590 standards. Owners, operators and applicators must follow the conservation practices in USDA's “Field Office Technical Guide,” also known as the “590 standards.”
- Nutrient management plan (NMP) requirements. Owners and operators within watersheds in distress must develop and comply with NMPs if applying nutrients on more than 50 acres or producing, applying, or received more than 350 tons or 100,000 gallons of manure annually by deadlines established by ODA, must submit an attestation of NMP completion to ODA, and must produce a copy of the plan within five days of a demand by ODA. The rule outlines the requirements and standards for NMPs.
- Ongoing compliance. Owners and operators must update NMPs and attestations once every three years or when conditions change.
- Enforcement. The rule includes penalities for failure to comply with rule provisions.
ODA proposed the first rule package in July, accepted public comments on the rule, and published a revised rule package for public comments. In response to the second round of comments, ODA has made another revision to the rule. The agency states that it is now amending the rule "to require the Department to conduct an audit of at least 5% of the attestations submitted to determine compliance regarding completion of nutrient management plans." Explaining the purpose of the revision, ODA states that "support was voiced from certain stakeholders regarding the flexibility of farmers to apply manure and nutrients during the winter months when conditions were favorable and safe to apply. In contrast, other stakeholders raised concerns that agricultural operations would no longer have any restrictions on the application of manure and nutrients. Stakeholders also raised concerns regarding the Department’s ability to enforce the new proposals."
The proposed watersheds in distress rule package is here and the business impact analysis for the rules is here. The public may submit comments on the proposal to ODA at AGReComments@agri.ohio.gov until October 5, 2018.
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.