Recent Blog Posts
Here’s our gathering of recent agricultural law news you may want to know:
- The Ohio Department of Agriculture will hold a hearing on April 5, 2018 at 9 a.m. to receive testimony on proposed amendments to the Agricultural Pollution Abatement Program. The amendments are largely alterations of the format and structure of the rule to allow for easier reading, and do not impact the substance of the rule in many situations. Two changes to the substance of the rules is the addition of a duty to prevent pollution from “residual farm products,” which means bedding, wash waters, waste feed, silage drainage and some mortality composting, and clarification of the investigation and enforcement process. Read the ODA’s summary of the changes here. Hearing information is here.
- Considering solar leasing on your farm? If so, sit in on the Solar Leasing for Agricultural Landowners webinar on April 4 at Noon. The free webinar features our colleague Prof. Shannon Ferrell of Oklahoma State, who will remove some of the mystery of solar leasing for landowners. More information is here.
- Several groups have filed a lawsuit against the USDA for its March 12 withdrawal of the Organic Livestock and Poultry Practices rule finalized during President Obama’s tenure. The rule would have established animal welfare standards for organic producers. Read more about the organizations’ claims in this post by our Ag & Food Law Consortium partner, the National Sea Grant Law Center.
- Another Consortium partner of ours, Penn State Law, has prepared a comprehensive summary of the current status and legal developments for the problematic Rover Pipeline that is affecting many landowners in Ohio and other states. The summary is here.
- Ohio legislative activity:
- The Apiary Immunity bill, H.B. 392, passed the Ohio House on March 21 and was introduced in the Ohio Senate on March 26. The bill proposes limited liability for registered apiary owners.
- Rep. Fedor (D-Toledo) and Rep. Sheehy (D-Toledo) introduced HCR 25, a resolution encouraging the U.S. EPA Administrator to declare the open waters of Western Lake Erie as impaired, consistent with the Ohio EPA’s recent water quality report we reported on earlier this week.
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 firstname.lastname@example.org, 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.
Amidst a great deal of controversy, President Trump signed the “Consolidated Appropriations Act, 2018” on March 23. The omnibus $1.3 trillion spending package includes a number of provisions that affect agriculture, not all spending related. One glaring omission from the bill that agriculture wanted, however, was language allowing the EPA to withdraw the Waters of the United States (WOTUS) rule. Otherwise, the new law contains fixes and clarifications for several key legal issues agriculture has faced in the past year and funding for important agricultural programs.
Section 199A tax deduction revised
Sellers of grain who were hoping to capitalize on the IRC § 199A 20% gross sales deduction when selling grain to their cooperative will be disappointed that the spending bill has removed the deduction and that the removal is retroactive to January 1, 2018. Congress enacted new provisions that will address sales to cooperatives. According to my colleague and tax expert Kristine Tidgren at Iowa State, “the cooperative patron is subject to a new bifurcated calculation and a hybrid 199A deduction. Essentially, the fix gives the cooperative patron a deduction that blends the new 199A deduction with the old 199 DPAD deduction (all within the new 199A). Depending upon their individual situations, cooperative patrons may be advantaged, disadvantaged, or essentially treated the same by selling to a cooperative rather than selling to a non-cooperative.” Read more of Kristine’s analysis here.
CERCLA emissions reporting for livestock goes away
The spending bill incorporates provisions of the “Fair Agricultural Reporting Methods Act” proposed earlier by a bi-partisan group of Senators concerned about a court ruling that subjected farms to air emissions reporting under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (explained in our previous post). The EPA had delayed the reporting requirement to May 1, 2018. The reporting mandate is removed under the new law, however, which states 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. A “farm” is an area used to produce crops or livestock that have a total value of $1,000 or more.
Electronic logging device rule further delayed
We’ve reported several times on the Electronic Logging Device (ELD) rule that would require commercial agricultural haulers to utilize electronic technology that automatically records hours-of-service data. The Federal Motor Carrier Safety Administration (FMCSA) issued several waivers that delayed the requirement. The new spending bill effectively voids the ELD rule until September 30, 2018, by prohibiting the FMCSA from using its funds during that time to implement, administer, or enforce provisions regarding the use of electronic logging devices by operators of commercial motor vehicles transporting livestock or insects.
County-level ACRE pilot program to be established
The spending bill directs USDA to create a 2018 pilot program for county-level agriculture risk coverage (ARC) payments for the 2017 crop year. Farm Service Agency offices in each State will have the opportunity to provide agricultural producers a supplemental payment to ensure that there are not significant yield calculation disparities between comparable counties in the State.
Rural broadband grant program funded
The law allocates $600,000,000 for the USDA to conduct a new broadband loan and grant pilot program under the Rural Electrification Act. At least 90 percent of the households to be served by the project receiving a loan or grant under the pilot program must be in a rural area currently without sufficient access to broadband.
Conservation funding maintained
The spending bill maintains full funding levels for farm bill conservation programs and exempts farms participating in conservation programs from obtaining System for Award Management (SAM) and Data Universal Numbering System (DUNS) numbers. The Great Lakes Restoration Initiative received $300 million to carry out activities that would support the Initiative and the Great Lakes Water Quality Agreement, including grants for research, monitoring, outreach, and implementation.
Research funding increased
In stark contrast to significant cuts proposed by the White House, the spending bill contains the largest increase in research funding in over a decade. Research programs at the USDA would grow by $33 million, to $1.2 billion. The funding includes a $25 million increase to a $400 million budget for the Agriculture and Food Research Initiative (AFRI) established by the 2008 Farm Bill, surprisingly still $300 million shy of the 2008 Farm Bill’s proposed funding level.
Readers can dig into the 878 pages of the Consolidated Appropriations Act of 2018 here.
The Federal Motor Carrier Safety Administration (FMCSA) has issued a second 90-day waiver from the Electronic Logging Device (ELD) rule for agricultural transportation. The agency had previously issued a waiver that was set to expire on March 18, 2018. The ELD rule requires commercial haulers to utilize electronic technology that automatically records hours-of-service (HOS) data. Read our previous post on the ELD rule here.
The reason for delaying the ELD rule for agriculture, according to the agency, is to provide more time for the agency to address agriculture’s unique needs. Agriculture has argued that HOS provisions that mandate a ten hour off-duty period for drivers put agricultural commodities like livestock, fish, bees, and plants at risk by extending the transportation period. Although the HOS rule contains several exemptions for agriculture, such as for personal conveyances and for transport of commodities within a 150-air mile radius of the source, many argue that the exemptions need further clarification and that electronic logging device technology does not recognize the agricultural exemptions. In addition to delaying the ELD compliance date for agriculture, FMCSA also promises to provide further guidance on the Hours-of-Service exemptions and their relationship to the ELD rule. guidance should help drivers understand if and how the ELD rule applies to their transportation of agricultural goods.
Late last year, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) issued a 90-day waiver to the Electronic Logging Device (ELD) rule for livestock and agricultural commodity haulers in response to a multi-party petition by agricultural groups. The waiver is set to expire on March 18, 2018. Agricultural groups are now awaiting the agency’s response to a second petition they’ve filed, which seeks another waiver and limited exemption from the ELD rule for agriculture before the March 18 waiver expiration date. There is also talk that Congress will delay the ELD rule for agriculture, as proposed by H.R. 3282, but time is running out for a legislative fix.
The ELD rule, which became effective last December 18, requires commercial haulers to utilize electronic technology that automatically records hours-of-service (HOS) data rather than using the current practice of recording data on paper logs. Congress directed the Secretary of Transportation to adopt regulations requiring ELD use in commercial motor vehicles that are involved in interstate commerce and operated by drivers who are required to keep records of duty status (RODS). The purpose of the rule is to create a safer work environment for drivers by making it easier and faster to accurately track, manage, and share the data.
The intent of the 90-day waiver for agriculture was to provide the agency more time to clarify the rule’s applicability to agriculture, which included considering agricultural exemptions from the rule. Agricultural groups also asked the agency to review and clarify the HOS, RODS and Commercial Driver’s License (CDL) exemptions for agriculture. While it hasn’t yet responded to the second petition to extend the ELD waiver, the FMSCA did recently provide additional explanations of the ELD rule’s application to agriculture, along with clarifications of HOS and CDL requirements. That information is available on the agency’s website.
How does the ELD rule apply to agriculture?
Here’s a summary of the FMSCA’s explanation of how the ELD rule applies to agricultural situations:
- The following are “agricultural exemptions” from HOS regulations, which would also remove the vehicle or driver from the ELD rule:
- “Covered farm vehicles,” which means vehicles that are:
- Registered in a state with a license plate or other designation that allows law enforcement to identify it as a farm vehicle;
- Operated by the owner or operator of a farm, or an employee or family member of the owner or operator;
- Used to transport agricultural commodities, livestock, machinery, or supplies to or from a farm;
- Not used in for-hire motor carrier operations;
- 26,000 pounds or less and operating anywhere in the country, or 26,001 pounds or more and operated anywhere in the state of registration or operated across state lines within a 150-air mile radius of the farm.
- Drivers who transport agricultural commodities, including livestock, live fish and bees, within a 150-air mile radius of the farm.
- Once a driver operates beyond the 150-air mile radius, HOS regulations apply and the driver must use an ELD for movement beyond the 150-air mile mark.
- Note that FMCSA has recently published proposed guidance on this exemption for vehicles traveling to pick up an agricultural commodity or returning from a delivery point and for trips beyond 150 air-miles from the source of the agricultural commodity. The proposed guidance is here.
- Also note that drivers transporting commercial bees or livestock in interstate commerce are exempt from the HOS 30-minute break requirement when bees or livestock are on the vehicle.
- If a vehicle or a combination of vehicles (truck and trailer) has a gross vehicle weight rating (GVWR), a gross combination weight rating (GCWR), a gross vehicle weight (GVW), or a gross combination weight (GCW) of 10,001 pounds or more and the operation is not otherwise excepted as described above, FMCSA regulations generally apply to the driver but the driver is not subject to the ELD rule in the following situations:
- A driver operates within a 100-air mile radius of the normal work reporting location and works no longer than 12 hours per day. This is the same exception that applies to preparation of a logbook.
- A driver uses paper RODS no more than 8 days in any 30-day period.
- A vehicle is older than model year 2000.
- Non-business related transportation of horses and other animals:
- The ELD rule does not apply to the transportation of horses and other animals to shows and events, as long as the transportation is not business related or for-hire (even if prize and scholarship money is offered).
- Note that FMCSA has recently updated its guidance for non-business related transportation of horses, available here.
What if the ELD rule applies to an agricultural situation?
Drivers who are subject to the new ELD rule must understand and be able to use ELDs by the required deadline, which FMCSA states includes knowing how to annotate and edit RODS, certify RODS, and collect required supporting documents. Drivers must also know how to display and transfer data to safety officials when requested. For information about meeting the ELD requirements, visit the FMSCA’s ELD page.
For more information on FMCSA regulations and agriculture
Learn more about the ELD rule and other FMCSA regulations that might apply to agriculture in this excellent publication by our colleagues, Tiffany Dowell Lashmet at Texas A&M and Beth Rumley at the National Agricultural Law Center: Outline for Analyzing Federal Motor Carrier Safety Administration Regulation: Applicability for Agriculture.
Here’s our gathering of recent agricultural law news you may want to know:
Ohio Department of Agriculture to hold hearing on produce safety rules. ODA will have a public meeting on March 8, 2018, to receive testimony on proposed produce safety rules. The proposed regulations closely resemble the federal FSMA regulations that establish standards for production, harvest and handling of fruits and vegetables. ODA is proposing the changes to ensure that Ohio farmers have to meet only one set of standards and that Ohio's standards will be accepted when Ohio produce is shipped to other states. The ODA’s public notice containing links to the rules package is here.
Report criticizes Ohio’s Beef Checkoff Program. The Organization for Competitive Markets and Ohio Farmer’s Union released a report claiming that Ohio’s Beef Checkoff Program is in need of reform because it lacks adequate oversight of the collection, administration and expenditure of checkoff dollars. The report is available here.
Understanding farm equipment trades under the new tax law. The federal Tax Cuts and Jobs Act eliminated like-kind exchange treatment for personal property, meaning that farm equipment trades will be treated as taxable events and there will be no tax deferral for §1231 gains or §1245 recapture. Our colleague Kristin Tidgren at Iowa State has written an excellent analysis of the impacts of this tax law change, available here.
Plaintiffs ask court to vacate EPA’s XTendiMax registration. In an opening brief filed by the National Family Farm Coalition and others against U.S. EPA and Monsanto, petitioners claim that the EPA violated the Federal Insecticide, Fungicide and Rodenticide Act by: failing to examine if the dicamba-based XTendiMax product’s use would significantly increase the risk of unreasonable adverse effects on the environment and create significant socioeconomic and agronomic costs to farmers; relying solely on label conditions to mitigate product harm even though the label did not address vapor drift by the product; and amending the label without any data or analysis of the new label conditions . The petitioners want the EPA to revoke the product’s registration.
WOTUS battles continue. It’s becoming more difficult to keep up with litigation as we await the Sixth Circuit Court of Appeals’ lift of the nationwide stay on the 2015 WOTUS rule. New York, California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington and the District of Columbia filed a lawsuit against the U.S. EPA and U.S. Army Corp. of Engineers for suspending the 2015 rule, delaying it for two years, and reinstating the previous rule. Several environmental groups filed a similar lawsuit challenging the agencies’ actions in federal court in South Carolina. The American Farm Bureau and several other agricultural groups and the states of Texas and Louisiana then each filed lawsuits in the Texas, seeking a nationwide injunction to keep the 2015 rule from going into effect. Now we wait. More on the rule here.
Ohio legislation on the move:
- Idle and orphan wells. House Bill 225 revises Ohio's idle and orphaned well program and increases funding for the program. Sponsored by Thompson (R-Marietta). Approved by the House on January 17, 2018; first hearing before the Senate Energy & Natural Resources Committee held on February 20, 2018.
- Hunting licenses. House Bill 272 would expand hunting and fishing license exemptions for grandchildren of landowners and partially disabled veterans. More information here. Sponsored by Householder (R-Glenford) and Kick (R-Loudonville). Second hearing proponent testimony heard on February 13 before the House Energy & Natural Resources Committee.
- Riparian buffers. House Bill 460 would exempt qualifying riparian buffers in the Western Basin of Lake Erie from property taxation, reimburse local taxing units for their consequent loss of income and require soil and water conservation districts to assist landowners with establishing and maintaining riparian buffers. Sponsored by Patterson, (D-Jefferson) and Sheehy (D-Oregon). Second hearing proponent testimony heard on February 13 before the House Energy & Natural Resources Committee.
- Township laws. House Bill 500 proposes several changes to township laws, including allowing limited zoning authority over agriculture in platted subdivision areas and requiring township approval before a county vacates a public township road. Introduced in the House by Cafagna (R-Genoa Township) on February 13 and referred to the State and Local Government Committee on February 20.
For other agricultural and food law updates from around the country, check out the National Agricultural Law Center’s Ag & Food Law Blog. The Ohio State University Agricultural & Resource Law Program is proud to be a partner in the National Agricultural Law Center's Agricultural & Food Law Consortium.
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.
Here's a gathering of recent agricultural law news from OSU's Agricultural & Resource Law Program:
CERCLA air emissions reporting further delayed. The Circuit Court that ruled that farms are not exempt from air emissions reporting under CERCLA has delayed the starting date for farms to begin reporting until at least May 1, 2018. Hopefully, the additional time will bring more clarity to livestock operations that could be subject to the reporting requirements about how to determine ammonia and hydrogen sulfide emissions, two substances that could trigger the reporting requirement. Read more in our previous post or on the US EPA’s website.
WOTUS rule also delayed. The U.S. EPA and U.S. Department of Army finalized a new rule on January 31, 2018 that would delay the effective date of the WOTUS rule to 2020. The rule, revised by the EPA in 2015 and tied up in litigation since then, has been on hold due to a stay ordered by the Sixth Circuit Court of Appeals. That stay could be lifted as a result of last week’s U.S. Supreme Court holding that courts of appeal are not the proper forum for challenges to the rule. More on the court’s decision here and on the WOTUS rule here.
National Organic Program proposed rule comment period open. Amendments to the National List of Allowed and Prohibited Substances allowed for organic production or handling are under consideration. USDA’s Agricultural Marketing Service is taking comments on the proposed rule until March 19, 2018. More information is here.
Ohio invasive plants list revised. The Ohio Department of Agriculture has finalized a revised list of invasive plants that may not be sold or distributed in Ohio. The list of 36 plants is available here.
Agricultural fertilizer applicator certification exam now available. As a result of regulatory revisions, a producer who applies fertilizer to 50 acres of more of land in agricultural production may now meet Ohio’s certification requirement by passing a written exam rather than attending educational sessions. Exam locations and registration are here and OSU’s training manual is here.
Ohio legislation on the move:
- Wind turbine setbacks. Senate Bill 238 proposes changes to the application process and setbacks for “economically significant” wind farms capable of generating five megawatts or more. Sponsored by Dolan (R-Chagin Falls). First hearing before the Senate Energy & Natural Resources Committee.
- Riparian buffers. House Bill 460 would exempt qualifying riparian buffers in the Western Basin of Lake Erie from property taxation, reimburse local taxing units for their consequent loss of income and require soil and water conservation districts to assist landowners with establishing and maintaining riparian buffers. Sponsored by Patterson, (D-Jefferson) and Sheehy (D-Oregon). First hearing on January 30 before the House Energy & Natural Resources Committee.
- Poultry and livestock on residential property. House Bill 175 would prevent county and township zoning authorities from prohibiting the keeping and breeding of chickens, fowl, goats, rabbits and similar small animals for noncommercial purposes on any residential property and would establish housing standards for such animals. Sponsored by Brinkman (R-Cincinnati). First hearing on January 30 before the House Agriculture and Rural Development Committee.
- Apiary immunity. House Bill 392 would provide persons who register their apiaries with immunity from personal injuries resulting from bee stings. Read our post. Sponsored by Stein (R-Norwalk). Reported out of House Economic Development, Commerce & Labor Committee on January 23.
- Alfalfa products. Senate Resolution 382 recognizes the existence of two alfalfa products in accordance with the Ingredient Definition Committee of the Association of American Feed Control Officials. Sponsored by LaRose (R-Hudson). Second hearing before the Senate Agriculture Committee scheduled for February 6.
- Barn as official state structure. House Bill 12 proposes designating the barn as the official historical architectural structure of Ohio. Passed House on 3/22/17, second hearing before the Senate Agriculture Committee scheduled for February 6.
- Idle wells. House Bill 225 revises Ohio’s idle and orphaned oil and gas well program. Read our post. Sponsored by Thompson (R-Marietta). Passed House on January 17, introduced in Senate on January 22.
- Labor camps. House Bill 490 proposes to exempt certain residential buildings from agricultural labor camp laws. Introduced in the House by Stein (R-Norwalk) on January 30.
- Energy resources. House Concurrent Resolution 22 expresses support for the importance of Ohio’s energy resources and infrastructure in furthering Ohio’s economic development. Introduced in the House by Hill (R-Zanesville) on January 16.
For other agricultural and food law updates from around the country, check out the National Agricultural Law Center’s Ag & Food Law Blog.
The U.S. Supreme Court ruled earlier this week in National Association of Manufacturers v. Department of Defense that a federal district court is the proper forum for challenges to the substance of the “Waters of the United States” (WOTUS) rule. The holding brings clarification for parties raising similar types of challenges under the federal Clean Water Act, who often filed cases in both the district and appellate courts due to confusion over which court has jurisdiction over the cases. Litigants can now be sure that the case should originate with the federal district court, which provides greater access for similar challenges but could create more inconsistent rulings around the country. The court’s decision arrives at an odd time, with the evolving WOTUS landscape now focused on formulation of a new WOTUS rule to replace the rule that is under fire.
The court’s reasoning
The Supreme Court’s decision in this case is not surprising, a result of attention to the express language of the Clean Water Act rather than to several interpretations advanced by the government. The Clean Water Act places authority over Clean Water Act challenges in the federal district courts, with seven exceptions that are to be heard by the appellate courts. The federal government argued that two of those exceptions applied to its drafting of the WOTUS rule. The court disagreed, concluding that WOTUS does not establish an “effluent limitation” nor does it result in the issuance or denial of a permit as argued by the government. The court recognized that it would likely be more efficient and uniform for such challenges to be heard by an appellate court, but that would require a rewriting of the statute.
WOTUS uncertainty remains
The Supreme Court sent the case back to the Sixth Circuit Court of Appeals with an order to dismiss the WOTUS petitions before that court, which consisted of all appellate cases challenging the rule that were previously transferred to the Sixth Circuit by the Judicial Panel on Multidistrict Litigation. Note that the Sixth Circuit had issued a nationwide stay of the WOTUS rule in 2015 pending determination of whether the rule was a valid exercise of agency authority. That stay will presumably disappear with the Sixth Circuit’s dismissal of the case, but some claim that the Sixth Circuit could seek to continue to enforce the nationwide stay. A federal district court in North Dakota had previously issued an injunction against the WOTUS rule in North Dakota and a dozen other states, so that injunction would continue to prevent implementation of the rule in those states if the Sixth Circuit removes its stay.
Further complicating the status of the WOTUS rule are the actions taken by the Trump administration, which issued a proposed rule last November to delay the rule’s effective date to 2020 and a second proposal last February to replace WOTUS with the rule that was in place previously while the EPA develops a new definition of WOTUS. The EPA has not finalized either of those rules. The federal district courts with WOTUS cases currently before them could choose to stay their cases pending the current administration’s rulemaking process. Alternatively, one of the federal district courts could issue a nationwide injunction against the rule.
Consistent with its history, WOTUS remains unclear. Agricultural interests will have to continue to wait and see what happens next.
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.