Legislative Committees Take Shape

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

The 133rd Ohio General Assembly and 116th United States Congress have released their committee assignments for the upcoming legislative terms.  Chamber leaders like the House Speaker or party leaders generally select committee chairs and members, but the members themselves often have an opportunity to preference their assignments.  Below are the lists of representatives and senators on each of the agriculture-related committees, with brief biographies of committee leaders included.  Ohio readers may note that the agriculture committees for the U.S. House and U.S. Senate only have one member each from Ohio: Representative Marcia Fudge and Senator Sherrod Brown.

Here are the names to know for agriculture:

Ohio House of Representatives Agriculture and Rural Development Committee

  • Chairman J. Kyle Koehler (R-Springfield). Representative Koehler is a third term member of the Ohio House, and received a Bachelor’s of Science in Computer Science from Wright State University.  He worked for a number of years as a software engineer for government contractors, as well as working for his family business, K.K. Tool Company.
  • Vice-Chair J. Todd Smith (R-Germantown). Representative Smith is entering his first full term as a member of the Ohio House, and is a pastor in his home community.
  • Ranking Member Juanita O. Brent (D-Cleveland). Representative Brent is a first term member of the Ohio House, and has experience in non-profit and community engagement work.
  • Jack Cera (D-Bellaire)
  • Randi Clites (D-Ravenna)
  • Paula Hicks-Hudson (D-Toledo)
  • Don Jones (R-Harrison County)
  • Darrell Kick (R-Loudonville)
  • Mary Lightbody (D-Westerville)
  • Susan Manchester (R-Lakeview)
  • Don Manning (R-New Middletown)
  • John Patterson (D-Jefferson)
  • Jena Powell (R-Arcanum)
  • Tim Schaffer (R-Lancaster)
  • Bill Seitz (R-Cincinnati)
  • Reggie Stoltzfus (R-Minerva)
  • Casey Weinstein (D-Hudson)

Ohio Senate Agriculture Committee

  • Chairman Frank Hoagland (R-Mingo Junction). Senator Hoagland is a first term member of the Ohio Senate.  He owns a small business, and has nearly 30 years of experience as a Navy SEAL.
  • Vice-Chair Brian Hill (R-Zanesville). Senator Hill is entering his first full term in the Ohio Senate.  He holds a Bachelor’s Degree in Animal Science and an Associate’s Degree in Applied Science from Ohio State.  Senator Hill raises beef cattle and grows crops on his family farm, and previously served as a Muskingum County Commissioner.  Before entering the Ohio Senate, Senator Hill served in the Ohio House, where he chaired the House Agriculture and Rural Development Committee.
  • Ranking Member Sean J. O’Brien (D-Bazetta). Senator O’Brien is a first term member of the Ohio Senate, and previously served three terms in the Ohio House.  He holds a law degree from the University of Akron, and served as a prosecuting attorney for a number of years.
  • Teresa Fedor (D-Toledo)
  • Bob Hackett (R-London)
  • Stephen Huffman (R-Tipp City)
  • Stephanie Kunze (R-Hilliard)
  • Tina Maharath (D-Canal Winchester)
  • Rob McColley (R-Napoleon)
  • Bob Peterson (R-Washington Court House)
  • Joe Uecker (R-Miami Township)

United States House of Representatives Agriculture Committee

  • Chairman Collin Peterson (D-Minnesota). Representative Peterson represents the western portion of Minnesota, which is predominantly rural and agricultural.  He grew up on a farm, and was a Certified Public Accountant.  He has many years of legislative experience at the state and federal level, and takes a keen interest in federal tax policy and conservation as it pertains to agriculture.
  • Vice-Chair Alma Adams (D-North Carolina). Representative Adams’ district includes much of Charlotte, North Carolina and the surrounding areas.  She taught art for over 40 years, and received her Ph.D. in Art Education and Multicultural Education from the Ohio State University in 1981.  She has many years of legislative experience at the local, state, and federal level, and takes a keen interest in nutrition and education.
  • Ranking Member K. Michael Conaway (R-Texas). Representative Conaway represents much of central Texas.  He has a business background, having worked with former-President George W. Bush as the chief financial officer for Bush Exploration, an oil company.
  • David Scott (D-Georgia)
  • Jim Costa (D-California)
  • Marcia Fudge (D-Ohio)
  • Jim McGovern (D-Massachusetts)
  • Filemon Vela (D-Texas)
  • Stacey Plaskett (D-U.S. Virgin Islands)
  • Abigail Spanberger (D-Virginia)
  • Jahana Hayes (D-Connecticut)
  • Antonio Delgado (D-New York)
  • TJ Cox (D-California)
  • Angie Craig (D-Minnesota)
  • Anthony Brindisi (D-New York)
  • Jefferson Van Drew (D-New Jersey)
  • Josh Harder (D-California)
  • Kim Schrier (D-Washington)
  • Chellie Pingree (D-Maine)
  • Cheri Bustos (D-Illinois)
  • Sean Patrick Maloney (D-New York)
  • Salud Carbajal (D-California)
  • Al Lawson (D-Florida)
  • Tom O’Halleran (D-Arizona)
  • Jimmy Panetta (D-California)
  • Ann Kirkpatrick (D-Arizona)
  • Cindy Axne (D-Iowa)
  • Glenn ‘GT’ Thompson (R-Pennsylvania)
  • Austin Scott (R-Georgia)
  • Rick Crawford (R-Arkansas)
  • Scott DesJarlais (R-Tennessee)
  • Vicky Hartzler (R-Missouri)
  • Doug LaMalfa (R-California)
  • Rodney Davis (R-Illinois)
  • Ted Yoho (R-Florida)
  • Rick Allen (R-Georgia)
  • Mike Bost (R-Illinois)
  • David Rouzer (R-North Carolina)
  • Ralph Abraham (R-Louisiana)
  • Trent Kelly (R-Mississippi)
  • James Comer (R-Kentucky)
  • Roger Marshall (R-Kansas)
  • Don Bacon (R-Nebraska)
  • Neal Dunn (R-Florida)
  • Dusty Johnson (R-South Dakota)
  • Jim Baird (R-Indiana)
  • Jim Hagedorn (R-Minnesota)

United States Senate Agriculture, Nutrition, & Forestry Committee

  • Chairman Pat Roberts (R-Kansas). Senator Roberts has served in both houses of Congress since the 1980s, and was the first person to have been the chair of both the House and Senate agriculture committees.  His educational background is in journalism, and he served in the U.S. Marine Corps.
  • Ranking Member Debbie Stabenow (D-Michigan). Senator Stabenow has served in both houses of Congress, and began her career in public service at the county and state level in the late 1970s.  She has long taken an interest in agricultural issues, and serves as a co-chair of the U.S. Senate Great Lakes Task Force.
  • Sherrod Brown (D-Ohio)
  • Mitch McConnell (R-Kentucky)
  • Patrick Leahy (D-Vermont)
  • John Boozman (R-Arkansas)
  • John Hoeven (R-North Dakota)
  • Amy Klobuchar (D-Minnesota)
  • Joni Ernst (R-Iowa)
  • Michael Bennet (D-Colorado)
  • Cindy Hyde-Smith (R-Mississippi)
  • Kirsten Gillibrand (D-New York)
  • Mike Braun (R-Indiana)
  • Robert P. Casey Jr. (D-Pennsylvania)
  • David Perdue (R-Georgia)
  • Tina Smith (D-Minnesota)
  • Chuck Grassley (R-Iowa)
  • Richard Durbin (D-Illinois)
  • John Thune (R-South Dakota)
  • Deb Fisher (R-Nebraska)

As these committees take action over the next two years, we will do our best to keep you in the know.  Stay tuned to the Ohio Ag Law Blog for updates.

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The Ag Law Harvest

Written by: Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

As our readers can probably tell by now, there has been a lot happening in the agricultural law world over the past couple of weeks.  From the Lake Erie Bill of Rights going on the ballot in Toledo to a new court decision on wedding barns, we’ve done our best to keep you in the know.  While the legislative sessions in Congress and the Ohio General Assembly have started to shift into a higher gear, covering those bills will take up a lot of space, so be on the lookout for a legislative update soon.

For now, here’s our latest gathering of agricultural law news that you may want to know:

Yep, more WOTUS.  The U.S. EPA has announced new public hearings regarding its proposed revised definition of Waters of the United States.  The hearing will be held on Wednesday, February 27th and Thursday, February 28th at the Reardon Convention Center in Kansas City, Kansas.  For those who wish to provide input, but are unable to make the trip, the U.S. EPA will accept written comments from the public online at http://www.regulations.gov with the docket ID number: EPA-HQ-OW-2018-0149.  The online comment portal will accept new submissions until April 14th.  The text of the proposed rule, which the U.S. EPA released just in time for Valentine’s Day, is available on the online comment portal page as well as in the Federal Register.  For more information about either attending the meeting or submitting a comment to the U.S. EPA, visit the Federal Register’s webpage here.  For more information about WOTUS rulemaking, see our most recent WOTUS blog post, or visit the U.S. EPA’s webpage here.

Conservation funding for federal lands could be restored under U.S. Senate bill.  In a sign of bipartisanship, the U.S. Senate passed the National Resources Management Act by a vote of 92-8.  If the House approves and it receives the President’s signature, the bill would modify a number laws addressing the management and conservation of federal lands, and would also restore funding to the Land and Water Conservation Fund, which had expired last fall.  This fund primarily supports the protection of federal public lands and waters, but it also promotes voluntary conservation on private lands and awards grants to states for the acquisition and development of parks and outdoor recreation sites.  Also in the bill are two specific changes of note for Ohio.  First, section 6004(c) of the bill would increase the cap on total spending for the Ohio & Erie National Heritage Canalway from $10 million to $20 million.  Second, section 2502 of the bill would extend the Lewis and Clark National Historic Trail from Illinois to Pennsylvania, which will include portions in Ohio.  You can read the full text of the bill and see the official analyses on Congress’s website here.

FFA charter amendments approved by Congress and the President.  Citing issues arising from the U.S. Department of Education’s not filling seats on the National FFA Board of Directors, the National FFA sought an amendment to its charter.  Congress originally granted the charter in 1950, and any changes to the charter must be done so by an act of Congress.  One of the major changes sought by National FFA was a reduction in the number of seats on the board of directors that must be appointed by the Department of Education.  By not filling all of the seats on the Board of Directors, the National FFA faced difficulty making decisions because it often could not meet its quorum for meetings.  The new amendments reduce the organization’s reliance on an appointment to its board of directors by the U.S. Department of Education, which increases the organization’s ability to self-govern.  You can read the text of the bill on Congress’s website here, or visit the National FFA’s webpage on frequently asked questions about the charter revision here.

The PACT Act is back.  The Prevention of Animal Cruelty and Torture Act has been reintroduced into the U.S. House of Representatives.  The act would allow for significant fines and up to seven years in prison for those convicted of animal crushing, creating animal crushing videos, or distributing animal crushing videos.  The bill defines crushing as “actual conduct in which one or more living non-human mammals, birds, reptiles, or amphibians is purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury.”  However, the bill does contain exceptions for conduct that is related to “customary and normal veterinary, agricultural husbandry, or other animal management practice[s];” “the slaughter of animals for food;” legal hunting, trapping, and fishing activities; research; defense of a human; and euthanizing an animal.  Many in the agriculture community have opposed the bill, arguing that it is duplicative in light of animal protections created by the states and that it risks courts and juries interpreting the language too broadly.  At this time, the bill has only been introduced in the U.S. House and referred to the Judiciary Committee.

Nebraska wind farms sue to enforce contract and keep utility from flying off into the sunset.  Three Nebraska windfarms in a power supply contract with the Nebraska Public Power District (NPPD) have filed suit to prevent the utility from backing out of the contract.  The wind farms filed a complaint in federal court in Nebraska on January 30th, alleging that NPPD expressed its intention to terminate a power purchase agreement, and that doing so would be wrongful.  The complaint explains NPPD’s position that the wind farms materially violated the contract by investing in other businesses and operations.  The plaintiffs disagree that there was a breach, but say that even if there was, NPPD cannot terminate the contract because it knew of the transactions.  The plaintiffs also note that NPPD has eminent domain power.  They argue that by terminating the contract, NPPD knows that the wind farms will likely enter default with creditors.  This could allow NPPD to acquire the rights of the wind farms through a foreclosure sale or eminent domain.  To prevent NPPD from terminating the contract, the parties requested, and were granted, a temporary restraining order until March 1st that requires NPPD to honor the contract.  The case is cited as Laredo Ridge Wind, LLC v. Nebraska Pub. Power Dist., No. 8:19-cv-45 (D. Neb.).

Wisconsin Supreme Court asked to decide scope of agency power to regulate agriculture.  A Wisconsin court of appeals has certified two cases to the Wisconsin Supreme Court, asking the court to determine the extent of the Wisconsin Department of Natural Resource’s authority to regulate agriculture in order to protect groundwater.  A certification represents a lower court seeking guidance on an issue that the lower court believes it is not in the best position to decide without knowing what the higher court thinks.  These cases are important for Wisconsin because they pertain to a law passed in 2011 that restrained authority of state agencies to act beyond express grants of authority by the state legislature.  Specifically, the cases ask whether the Wisconsin DNR can impose conditions on issuing a permit beyond the conditions stated in a statute.  The affected parties in the cases range from dairy farms to manufacturers and from food processors to municipal water utilities.  Environmental groups hope that state agencies may take a more expansive look at environmental impacts when reviewing permit applications.  The two certification orders are available here and here.

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Long-awaited WOTUS rewrite published

Written by Ellen Essman, Senior Research Associate

Well, it’s been a while since we’ve written about the Waters of the United States (WOTUS), so everyone had to know we were overdue for WOTUS news!

On December 11, 2018, the Environmental Protection Agency (EPA) and the Army Corps of Engineers announced the Trump Administration’s so-called “straightforward” new definition of WOTUS under the Clean Water Act (CWA).  Publication of the proposed rule was delayed due to the federal government shutdown in December and January.  The proposed rule was finally published in the Federal Register on February 14, 2019.  Interested parties can comment on the proposed WOTUS rule until April 15, 2019.  Information on how to comment can be found here, and the proposed rule in its entirety can be found here.

Out with the old WOTUS…

The new definition would replace the 2015 definition of WOTUS promulgated under the Obama Administration.  The 2015 definition is codified at 33 CFR 328.  The 2015 definition defined waters of the United States as:

  1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
  2. All interstate waters including interstate wetlands;
  3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
    • Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
    • From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
    • Which are used or could be used for industrial purpose by industries in interstate commerce;
  4. All impoundments of waters otherwise defined as waters of the United States under the definition;
  5. Tributaries of waters identified in paragraphs (a) (1) through (4) of this section;
  6. The territorial seas;
  7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) (1) through (6) of this section.
  8. Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with the EPA.

The 2015 definition also noted that “[w]aste treatment systems, including treatment ponds or lagoons designed to meet requirements of CWA…are not waters of the United States” (emphasis added).

…In with the new WOTUS

The Trump Administration’s new proposed definition of WOTUS would make significant changes to the definition listed above.  Under the new proposed rule, section (a) of §328.3 would define waters of the United States as:

  1. Waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including the territorial seas and waters which are subject to the ebb and flow of the tide;
  2. Tributaries of waters identified in paragraph (a)(1) of this section;
  3. Ditches that satisfy any of the conditions identified in paragraph (a)(1) of this section, ditches constructed in a tributary or that relocate or alter a tributary as long as those ditches also satisfy the conditions of the tributary definition, and ditches constructed in an adjacent wetland as long as those ditches also satisfy the conditions of the tributary definition;
  4. Lakes and ponds that satisfy any of the conditions identified in paragraph (a)(1) of this section, lakes and ponds that contribute perennial or intermittent flow to a water identified in paragraph (a)(1) of this section in a typical year either directly or indirectly through a water(s) identified in paragraphs (a)(2) through (6) of this section or through water features identified in paragraph (b) of this section so long as those water features convey perennial or intermittent flow downstream, and lakes and ponds that are flooded by a water identified in paragraphs (a)(1) through (5) of this section in a typical year;
  5. Impoundments of waters identified in paragraphs (a)(1) through (4) and (6) of this section; and
  6. Adjacent wetlands to waters identified in paragraphs (a) (1) through (5) of this section.

Every other type of water in this proposed definition relates back to the waters described in (1), which the EPA describes as “traditional navigable waters.” For example, tributaries that are WOTUS would be those bodies of water that empty into or connect to traditional navigable waters.  Similarly, lakes and ponds are WOTUS under the definition if they are traditional navigable waters themselves, or if they flow regularly into traditional navigable waters.  An EPA fact sheet, available here, is very helpful in understanding what is included under the proposed WOTUS definition. It describes the six proposed categories of WOTUS in layman’s terms, and provides examples of bodies of water that fall under each category.

The newly proposed rule also greatly expands the list of waters that are not waters of the United States in section (b):

  1. Waters or water features that are not identified in paragraphs (a)(1) through (6) of this section;
  2. Groundwater, including groundwater drained through subsurface drainage systems;
  3. Ephemeral features and diffuse stormwater run-off, including directional sheet flow over upland;
  4. Ditches that are not identified in paragraph (a)(3) of this section;
  5. Prior converted cropland;
  6. Artificially irrigated areas, including fields flooded for rice or cranberry growing, that would revert to upland should application of irrigation water to that area cease;
  7. Artificial lakes and ponds constructed in upland (including water storage reservoirs, farm and stock watering ponds, and log cleaning ponds) which are not identified in paragraph (a)(4) or (a)(5) of this section;
  8. Water-filled depressions created in upland incidental to mining or construction activity, and pits excavated in upland for the purpose of obtaining fill, sand, or gravel;
  9. Stormwater control features excavated or constructed in upland to convey, treat, infiltrate or store stormwater run-off;
  10. Wastewater recycling structures constructed in upland, such as detention, retention and infiltration basins and ponds, and groundwater recharge basins; and
  11. Waste treatment systems.

Notable differences between 2015 rule and proposed rule

Just glancing at the two rules, it is obvious that there are major differences in how WOTUS is defined.  EPA has a useful fact sheet (highly recommended reading) outlining the “key proposed changes” and how they compare to the 2015 WOTUS rule, as well as to the pre-2015 WOTUS rule.  Overall, it appears that the number of water bodies considered WOTUS would decrease under the proposed rule.  EPA argues that limiting the number of waters classified as WOTUS would give more power to the states to regulate waters as they see fit.

One major change is that under the proposed rule, tributaries that are “ephemeral” (meaning they’re not around for a great deal of time, and/or may be there because of rainfall or snowmelt, etc.), are not considered to be WOTUS.  Similarly, the number of ditches considered to be WOTUS would decrease under the new rule. Upland ditches and ephemeral ditches would no longer fall under WOTUS. The number of wetlands considered WOTUS would also take a hit under the new rule.  Wetlands would either have to “abut” other WOTUS or “have a direct hydrological surface connection” to WOTUS in a “typical year” to fall under the new definition. Furthermore, wetlands would no longer be considered to be “adjacent,” and therefore connected to WOTUS, if they are “physically separated from jurisdictional waters by a berm, dike, or other barrier.” Finally, you guessed it— the number of lakes and ponds considered WOTUS would also be reduced, since they would no longer connect through “adjacent” wetlands.

What’s next?

It’s important to remember that this new WOTUS rule is not currently effective—they are just proposed rules, open to public comment.  In the meantime, due to litigation, what qualifies as WOTUS depends on which state you live in, as we discussed in Harvest posts here and here.  EPA has a map depicting which definition of WOTUS currently applies where—in some states, the 2015 rule applies, and in others the pre-2015 rule applies.  Obama’s 2015 rule applies in Ohio at this time.  If the proposed rule makes it through the rulemaking process and goes into effect, it will replace the 2015 and pre-2015 rules, and barring any other lawsuits, will apply nationwide.  The ultimate implementation of this rule is anything but certain; changes and challenges to the rule are likely to occur.  The Ag Law Blog will keep readers updated on all the WOTUS discussion yet to come.

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Wedding Barns: Exempt from Township Zoning or Not?

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

The answer to the question in the title is still ‘it depends,’ but the answer is more likely yes when the barn is also a winery.  A recent court decision found that a barn in Medina County where weddings occur qualifies for the agricultural zoning exemption because of the barn’s use for wine production, marketing, and sales.

The decision represents the culmination of a battle between Medina County’s Litchfield Township and Forever Blueberry Barn, LLC that began in 2015.  The township filed suit that year, alleging that Forever Blueberry Barn was operating a rental facility for wedding receptions in violation of the township zoning ordinance.  At first, the trial court sided with the township and issued an injunction; however, Forever Blueberry Barn was able to lift that injunction by convincing the trial court that the agricultural zoning exemption’s vinting and viticulture provisions apply.

The first time the case went to the Ninth District Court of Appeals, the township won a brief victory when the appellate court ordered the trial court to review its decision and determine specifically whether or not the viticulture exception applied to the barn in question.  Essentially, the court of appeals believed that the trial court was convinced that the exemption should apply, but the trial court’s responsibility is to also explain why.

The second time on appeal, which resulted in the decision just recently issued, the Ninth District believed that the lower court appropriately examined and applied the agricultural zoning exemption’s vinting and viticulture provisions.  The Ninth District relied on case law from the Ohio Supreme Court instructing lower courts to “liberally construe” exemptions from restrictive zoning provisions.  The agricultural zoning exemption in Ohio Revised Code § 519.21 qualifies as an exemption from restrictive zoning provisions.  Specifically, it exempts “buildings or structures that are used primarily for vinting and selling wine and that are located on land any part of which is used for viticulture.”  That case, which is cited as Terry v. Sperry, 2011-Ohio-3364, is available here.

One of the big issues the second time on appeal involved what is known as the burden of proof.  The township argued that the barn owner had to prove that the barn’s primary use was vinting and selling wine by clear and convincing evidence.  This is a fairly high standard in civil cases, and courts often reserve the higher standard for accusations of things such as fraud or breach of fiduciary duties.  Essentially, the township wanted to see receipts and written business plans that the barn owner did not have.

However, the court said that determining the barn’s primary use must only be proven by a preponderance of the evidence, which asks simply whether it is more likely that the barn was used primarily for vinting rather than for some other purpose.

Here, the court was persuaded by testimony of the barn’s owner that the barn was primarily used for vinting and selling wine.  The member’s testimony included statements that:

  • Part of the barn will be used as a tasting room where wine will be sold directly to the public during established business hours;
  • The barn itself may be rented out for private events, including weddings, on the condition that a certain quantity of wine is purchased for the event;
  • Grapevines had been planted on the property and had started producing mature grapes.

As to this last point, the court noted that even one grapevine is sufficient to count as the growing of grapes.  The court again cited the Ohio Supreme Court’s Terry v. Sperry decision, which said that there is no minimum number of vines needed for a farm to qualify as engaging in viticulture.

It is important to note that this decision in Litchfield Twp. v. Forever Blueberry was not unanimous.  One judge dissented, believing that the primary use of the barn is as an event venue, with vinting activities being merely peripheral.  This dissent demonstrates the continued lack of a consensus on the application of this statute to wedding barns, even in cases with evidence of wine making activities.

What are our main takeaways from this case?

  • There is still no consensus on whether wedding barns are exempt from township zoning.
  • One producing grapevine can be sufficient to establish a viticulture activity.
  • Renting out barns for events must still be secondary to the barn’s vinting use.

The case is cited as Litchfield Twp. Bd. of Trustees v. Forever Blueberry Barn, L.L.C., 2019-Ohio-322 (9th Dist.), and the full text of the decision is available here.

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New Lake Erie lawsuit filed against U.S. EPA

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

We can’t say that Lake Erie is back in the news, because lately it hasn’t left the news.  However, there is a new lawsuit in federal court that seeks further action from either the U.S. Environmental Protection Agency (“EPA”) or the Ohio EPA regarding Lake Erie water quality.  Filed on February 7, 2019 by the Environmental Law & Policy Center (“ELPC”) and the Toledo-based Advocates for a Clean Lake Erie, this new lawsuit alleges that the U.S. EPA improperly signed off on action taken by the Ohio EPA to designate Lake Erie as an impaired water body without implementing a Total Maximum Daily Load (“TMDL”) to restrict discharges such as agricultural runoff.  The plaintiffs weren’t necessarily unhappy about the designation, but they were not happy about the lack of a TMDL.

Designating a waterway as impaired indicates low water quality, and triggers requirements to take action to improve water quality.  A state must classify its waterways, and that classification guides the selection of which types of regulations to impose and the priority of fixing a waterway.  The Ohio EPA’s designation of Lake Erie as impaired under the federal Clean Water Act was motivated by a previous lawsuit brought by the ELPC.  In that lawsuit, a federal court ordered the U.S. EPA to review the Ohio EPA’s compliance with the federal Clean Water Act, which is something the plaintiffs in this new case want the court to order again.  That case remains pending, and is cited as Environmental Law and Policy Center v. U.S. EPA, Case No. 17-cv-1514 (N.D. Ohio).

The plaintiffs allege that the new designation alone is not enough, and that the Ohio EPA must take more action.  The complaint in the new lawsuit alleges that the Ohio EPA must establish a TMDL for western Lake Erie.  Under the federal Clean Water Act, TMDLs identify the maximum amounts of a pollutant that a body of water can handle in order to meet water quality standards.  The U.S. EPA describes these as a “starting point or planning tool for restoring water quality” that states often use as targets when crafting comprehensive plans to attain water quality.  The complaint alleges that the Ohio EPA must prioritize creating a TMDL for western Lake Erie, but the Ohio EPA has said that it hopes to pursue an alternative approach to water quality attainment without the need for a TMDL.  The plaintiffs do not believe that this is enough.

But why then is the new lawsuit against the U.S. EPA, and not the Ohio EPA?  Congress granted the U.S. EPA oversight over water quality for federally navigable waters, or Waters of the United States, which include Lake Erie.  The complaint alleges that by approving Ohio’s designation of Lake Erie without a plan and timeline to reach water quality standards, the U.S. EPA made an improper and arbitrary decision under the federal Clean Water Act.  The plaintiffs want the U.S. EPA to rescind its approval of the Ohio EPA’s action.  After this, the U.S. EPA would have to require the Ohio EPA to submit a new binding plan to bring Lake Erie into attainment with water quality standards, or the U.S. EPA can decide that Ohio has refused to submit a plan and exercise its authority to create its own plan for Ohio.  The complaint also seeks an award of attorney’s fees and costs to cover the expenses incurred by the plaintiffs in bringing the lawsuit.

Click HERE to view the complaint.  The case is cited as Environmental Law & Policy Center v. U.S. EPA, Case No. 3:19-cv-00295 (N.D. Ohio).  Stay tuned to the Ag Law Blog for more updates on litigation involving Lake Erie.

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In the Weeds: Taking a Closer Look at the Lake Erie Bill of Rights

Lake Erie once again made headlines when the Ohio Supreme Court recently decided that a “Lake Erie Bill of Rights” (LEBOR) initiative could be placed on the Toledo ballot on February 26, 2019.  The decision raised alarm in Ohio’s agricultural community and fears that, if passed, the measure will result in litigation for farmers in the Lake Erie watershed.

The OSU Extension Agricultural and Resource Law Program took a close look at LEBOR.  Specifically, we wanted to know:

  • What does Toledo’s Lake Erie Bill of Rights petition mean?
  • What does the petition language say?
  • What happened in the legal challenges to keep the petition off the ballot?
  • Have similar efforts been successful, and if not, why not?
  • Who has rights in Lake Erie?
  • What rights do business entities have?

We examine all of these questions, plus a number of frequently asked questions, in a new format called “In the Weeds.”  While many of our readers know of our blog posts and law bulletins, explaining this issue required something different.  Using “In the Weeds” is a way for us to dig into a current legal issue more in depth.

For answers to the questions above and more, CLICK HERE to view the new “In the Weeds: The Lake Erie Bill of Rights Ballot Initiative.”

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Lake Erie Bill of Rights issue to go to Toledo voters

Written by Ellen Essman, Senior Research Associate

The Ohio Supreme Court recently decided that a “Lake Erie Bill of Rights” initiative could be placed before Toledo residents in a special election February 26, 2019.   The Lake Erie Bill of Rights (LEBOR) is a proposed amendment to the Toledo City Charter.  Josh Abernathy, an opponent to the initiative, brought the lawsuit, seeking a “writ of prohibition”—meaning he wanted the Ohio Supreme Court to determine that the Lucas County Board of Elections must remove LEBOR from the special election ballot.

The Supreme Court began its analysis in the case by explaining that in order to obtain a writ of prohibition in an election case, the party bringing suit must prove all of the following:

  • The board of elections exercised quasi-judicial power,
  • The exercise of that power was unlawful, and
  • The party bringing suit has no adequate remedy in the ordinary course of law.

The Supreme Court examined the three elements in reverse order.  It quickly answered the third element in the affirmative—reasoning that because the election was so imminent, Abernathy did “not have an adequate remedy in the ordinary course of the law,” because any other suit, such as an injunction, would not be finished prior to the election.

The Supreme Court determined that the second element was not satisfied.  It reasoned that the “exercise of power” was not “unlawful,” because “a board of elections has no legal authority to review the substance of a proposed charter amendment and has no discretion to block the measure from the ballot based on an assessment of its suitability.”  In doing so, the Supreme Court pointed to past cases it had decided, as well as the language in Article XVIII, Section 9 of the Ohio Constitution, which must be read with Section 8, both provided above.  Section 9 says that a charter amendment can “be submitted to” the voters “by a two-thirds vote of the legislative authority,” as well as through a petition signed by 10 percent of the voters in the municipality.  Then, as is explained above, the board of elections must pass an ordinance to include the proposed amendment on the ballot.  After that, the Supreme Court found, based on precedent and the language of the Constitution, the only responsibility of the board of elections is to put the charter amendment on the ballot—the board has no other authority.

Finally, the Ohio Supreme Court concluded that since the second element was not met, there was no reason to address the first element—whether or not “the board’s exercise of authority was quasi-judicial.”  Abernathy also argued that the board of elections should not have put LEBOR on the ballot due to the doctrine of claim preclusion—meaning that since the Court had already decided a case concerning LEBOR, the board should not have the power to place it on the ballot afterwards.  The Supreme Court disagreed, pointing once again to the language in the Ohio Constitution, which effectively says that “the board had no power to keep the proposed charter amendment off the ballot for any reason, including claim preclusion.” In sum, the Supreme Court decided that based on a reading of case law and the Ohio Constitution, the board of elections in Toledo had no option other than placing LEBOR on the ballot.  This outcome does not necessarily mean that if Toledo passes LEBOR, it is a done deal; if and when it passes, courts could determine it is unconstitutional and/or beyond the scope of the city’s power.

The case is cited as State ex rel. Abernathy v. Lucas Cty. Bd. Of Elections, Slip Opinion No. 2019-Ohio-201, and the opinion is available at https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2019/2019-Ohio-201.pdf.

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