Category Archives: Environmental

ODA again revises “watersheds in distress” rule

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. 

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The Ag Law Harvest

Movement on Ohio “Watersheds in Distress” rules.  As we have reported on several times this summer, Governor John Kasich signed an executive order on July 11, 2018 directing ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission (OSWC) to designate” certain watersheds “as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment.”  Since that time, ODA has submitted a proposed rule dealing with Watersheds in Distress.  Amendments were made to the proposed rule after evaluating the first set of public comments, and ODA is now resubmitting the rules package.  ODA reopened the proposed rule for public comments, but it closed the comment period on September 7, 2018.  Information about the proposed rules, as well as how and where to comment, can be found here (click on the “Stakeholder Review” tab and then the “Soil and Water Conservation – Watersheds in Distress OAC 901:13-1” drop down option).  A draft of the newly amended proposed rules is available here.

WOTUS woes continue.  The Obama administration’s hotly contested “Waters of the United States” Rule is back in the news, and this time, where it applies is dependent on where you live.  A background on the rule can be found in our previous blog post.  The rule basically expanded which bodies of water qualify as “waters of the United States,” which in turn protected more waters under the Clean Water Act.  The rule became effective in 2015.  Since that time, U.S. District Courts in North Dakota and Georgia have issued preliminary injunctions against Obama’s WOTUS Rule, which means it cannot be carried out in twenty-four states.  Additionally,  last summer, the EPA and Army Corps of Engineers, under the direction of President Trump, announced their plan to repeal Obama’s WOTUS Rule and replace it with the definition of WOTUS “that existed prior to 2015” until a new definition could be developed. Trump’s  rule was published on February 6, 2018, giving the administration until 2020 to come up with a new definition.   However, in a ruling on August 16, 2018, in a U.S. District Court in South Carolina, Judge David Norton determined that the Trump administration “failed to comply with” requirements of the Administrative Procedure Act when it enacted its rule.  This means that the Trump rule repealing and replacing the definition of WOTUS is invalidated.  As a result of Judge Norton’s decision, in the remaining twenty-six states without an injunction, the Obama administration’s version of the rule has been reinstated.  Ohio is one of the twenty-six states where the Obama rule currently applies.  Will the Trump administration and the EPA respond to Norton’s decision by announcing yet another new WOTUS rule?  Follow the Ag Law Blog for any updates.  In the meantime, the country remains nearly split in half by which version of the WOTUS rule is carried out.

Regulators, meet “meat.”  Under a new Missouri law, it is a criminal offense to misrepresent a product as “meat” if there is, in fact, no meat.  Missouri’s revision of its meat advertising laws took effect on August 28th, and has been dubbed by many as the first attempt by a state to regulate what qualifies as meat.  Defining meat as “any edible portion of livestock, poultry, or captive cervid carcass,” the law prohibits “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.”  Violations are treated as a misdemeanor, with a fine up to $1,000 and possible jail time.  The Missouri Department of Agriculture has said that it intends to enforce the law, but that it plans to give affected companies until the start of next year to bring their labels into compliance.  Supporters of the law, like the Missouri Cattlemen’s Association, argue that it will provide consumers with accurate information about their food, and also protect meat producers from unfair labeling of plant-based or lab-grown meat alternatives.  Opponents have already filed a lawsuit to prevent enforcement, arguing that the law restricts free speech and improperly discriminates against out-of-state producers of meat alternatives.  The named plaintiff on the lawsuit is Turtle Island Foods, an Oregon company that does business under the names Tofurky and The Good Foods Institute.  The company makes plant-based food products, and is joined in its opposition by the American Civil Liberties Union of Missouri and the Animal Legal Defense Fund.  Beyond Missouri, the National Cattlemen’s Beef Association has listed the issue as a top policy priority for this year, and the U.S. Cattlemen’s Association has petitioned the USDA to adopt stricter labeling requirements.  As this issue develops, the Ag Law Blog will keep you updated.

USDA taps Commodity Credit Corporation to aid farmers.  Readers are no doubt aware of global trade disputes in which other countries have increased tariffs on American agricultural exports.  Given the extensive news coverage, the Harvest will not attempt to cover the dispute in depth; however, one point that has been less covered is the tool that the USDA has selected to provide relief to impacted farmers: the Commodity Credit Corporation.  What is it?  The Commodity Credit Corporation (CCC) is a federal government entity created during the Great Depression in 1933 to “stabilize, support, and protect farm income and prices.”  Since 1939, it has been under the control of the Secretary of Agriculture, although it is managed by a seven member Board of Directors.  CCC is technically authorized to borrow up to $30 billion from the U.S. Treasury at any one time, but due to trade agreements, that number is, in reality, much smaller.  This gives USDA access to billions of dollars in funding without having to go to Congress first.  The money can be used to provide loans or payments to agricultural producers, purchase agricultural products to sell or donate, develop domestic and foreign markets, promote conservation, and more.  CCC has no staff, but is instead administered through other USDA agencies, largely the Farm Service Agency and Agricultural Marketing Service.  On August 27th, Secretary of Agriculture Sonny Perdue announced that USDA plans to tap the Commodity Credit Corporation for up to $12 billion worth of aid to farmers affected by recent tariffs.  The Market Facilitation Program will provide direct payments to eligible corn, cotton, dairy, hog, sorghum, soybean, and wheat producers, and the Food Purchase and Distribution Program will purchase up to $1.2 billion in select commodities.  For more about the Commodity Credit Corporation, check out its website.

Bayer reports increasing number of lawsuits against newly acquired Monsanto.  Bayer, the German pharmaceutical and life sciences company that acquired Monsanto early this summer, has indicated that there are an increasing number of lawsuits in the United States alleging that its weed killers cause cancer.  According to the Wall Street Journal, there were roughly 8,700 plaintiffs seeking monetary damages from Bayer as of late August, a sharp increase from the 5,200 plaintiffs just months earlier.  Many of these lawsuits involve cancer patients who claim that Monsanto’s glyphosate-containing herbicides like Roundup caused their cancer.  As we reported in a previous edition of the Harvest, one person’s successful lawsuit against Monsanto resulted in a San Francisco jury award of $289.2 million for failing to warn consumers of the risks posed by its weed killers.  Monsanto is expected to file motions for a new trial and for the judge to set aside the verdict, and may ultimately appeal the decision.  These cancer-related claims come at a time when another Monsanto product, Dicamba, is causing great controversy.  Stay tuned to the Ag Law Blog as these lawsuits continue to develop.

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Agricultural Nutrients Targeted in Clean Lake 2020 Bill and Kasich Executive Order

Recent actions by the Ohio legislature and Governor Kasich will affect the management of agricultural nutrients in Ohio.   The Ohio General Assembly has passed “Clean Lake 2020” legislation that will provide funding for reducing phosphorous in Lake Erie.  Governor Kasich signed the Clean Lake 2020 bill on July 10, in tandem with issuing Executive Order 2018—09K, “Taking Steps to Protect Lake Erie.”  The two actions aim to address the impact of agricultural nutrients on water quality in Lake Erie.

The Clean Lake 2020 legislation provides funding for the following:

  • $20 million in FY 2019 for a Soil and Water Phosphorus Program in the Ohio Department of Agriculture (ODA). In utilizing the funds, ODA must:
    • Consult with the Lake Erie Commission and the Ohio Soil and Water Conservation Commission to establish programs that help reduce total phosphorus and dissolved reactive phosphorus in the Western Lake Erie Basin and must give priority to sub-watersheds that are highest in total phosphorus and dissolved reactive phosphorus nutrient loading.
    • Create specific programs that include the purchase of equipment for (1) subsurface placement of nutrients into soil; (2) nutrient placement based on geographic information system data; and (3) manure transformation and manure conversion technologies; soil testing; tributary monitoring; water management and edge-of-field drainage management; and an agricultural phosphorus reduction revolving loan program.
    • Not use more than 40% of the funds on a single program or activity.
  • $3.5 million for county soil and water conservation districts in the Western Lake Erie Basin for staffing costs and for soil testing and nutrient management plan assistance to farmers, including manure transformation and manure conversion technologies, enhanced filter strips, water management, and other conservation support.
  • $2.65 million for OSU’s Sea Grant—Stone Laboratory on Lake Erie to construct new research lab space and purchase in-lake monitoring equipment including real-time buoys and water treatment plant monitoring sondes.
  • A $2 million obligation increase for the Ohio Public Facilities Commission allocated to the costs of capital facilities for state-supported and state-assisted institutions of higher education.

Governor Kasich’s Executive Order contains two parts:

  • Directs the ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission to designate the following Hydrologic Unit Code (HUC) watersheds or portions of watersheds in the Maumee River Basin as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment: Platter Creek Watershed, Little Flat Rock Creek Watershed, Little Auglaize River Watershed, Eagle Creek Watershed, Auglaize River, Blanchard River, St. Mary’s, Ottawa River.”
  • If the Soil and Water Commission consents to a designation of a watershed in distress, ODA, the Ohio Department of Natural Resources and the Ohio EPA “should recommend a rule package that establishes the following . . . nutrient management requirements for all nutrient sources; development of associated management plans for agricultural land and operations within the designated watershed boundaries; requirements for the storage, handling, land application, and control of residual farm products, manure, and erosion of sediment and substances attached thereto within the designated watershed boundaries.”

The legislation containing Clean Lake 2020 provisions—S.B. 299– is available here.  Governor Kasich’s Executive Order is here, and a fact sheet issued with the Executive Order is here.

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Legislators propose “Clean Lake 2020 Plan” funding to reduce Lake Erie phosphorus

A pair of companion bi-partisan bills just introduced in the Ohio Senate and Ohio House of Representatives would provide significant funding to help meet Ohio’s goal of reducing phosphorus loading by 20% in Lake Erie by 2020.  The sponsors of S.B. 299 are Senators Gardner (R-Bowling Green) and O’Brien (D-Bazetta) and Representatives Arndt (R-Port Clinton) and Patterson (D-Jefferson) are the sponsors of H.B. 643.  The legislation is a “targeted funding solution bill,” according to Rep. Arndt, “providing both [general revenue funds] and capital funding for a variety of strategies that scientists, Lake Erie advocates, agriculture leaders, and others believe can help achieve our phosphorus reduction goals.”

The proposed legislation includes the following:

  • A “Soil and Water Conservation Support Fund” of up to $3.5 million to support county soil and water conservation districts in the Western Lake Erie Basin for staffing and to assist in soil testing, nutrient management plan development that would also include manure transformation and manure conversion technologies, enhanced filter strips and water management.
  • A “Soil and Water Phosphorus Program” of up to $20 million, to be established by the Ohio Department of Agriculture to reduce phosphorus in sub-watersheds of the Western Lake Erie Basin. The bill requires that the programs be supported with the purchase of equipment for subsurface placement of nutrients into the soil; nutrient placement based on geographic information system data; soil testing; variable rate technology; manure transformation and manure conversion technologies; tributary monitoring and water management and edge-of-field drainage management.
  • $3.5 million for Ohio State’s Sea Grant—Stone Laboratory on Lake Erie to construct new research lab space and purchase in-lake monitoring equipment.
  • Up to $10 million for the Healthy Lake Erie Initiative to reduce open lake disposal of dredged materials into Lake Erie.

Both bills were immediately referred to committee, with proponent testimony heard before the Senate Finance Committee on May 15 and the House Finance Committee on May 16.  The Lake Erie Foundation, Nature Conservancy, Ohio Environmental Council, Soil and Water Conservation Districts and Ohio Farm Bureau testified in support of the legislation.

The legislators also introduced Senate Joint Resolution 6 and House Joint Resolution 16 on May 9 that propose to submit a constitutional amendment authorizing the issuance of up to $1 billion in general obligation bonds to pay for the Lake Erie clean water improvements for voter approval at the November 6, 2018 general election.  The resolutions were also referred to the respective finance committees but were not on the committees’ recent agendas.

Read S.B. 299 here or H.B. 643 here.

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The Western Lake Erie Impaired Waters Saga Continues

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 epa.tmdl@epa.ohio.gov, 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.

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Implications of the U.S. Supreme Court’s WOTUS ruling

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 wait and see what happens next.

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US EPA reneges approval of Ohio’s impaired waters list

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.

Going forward

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.

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