Category Archives: Environmental

U.S. EPA Wants Public Comments on Regulatory Reform

The U.S. Environmental Protection Agency (EPA) is seeking public input on EPA regulations that may be appropriate for repeal, replacement, or modification.   The request for comments is in response to President Trump’s Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” which required the heads of agencies such as the EPA to evaluate existing regulations and make recommendations to repeal, replace, or modify regulations that create unnecessary burdens on the American people.

In announcing the agency’s regulatory reform plans, EPA Administrator Scott Pruitt stated that, “EPA will be listening to those directly impacted by regulations, and learning ways we can work together with our state and local partners, to ensure that we can provide clean air, land, and water to Americans.”  Pruitt also issued harsh criticism of “misaligned regulatory actions from the past administration.”

Consistent with President Trump’s Executive Order, Pruitt appointed several EPA staff to a Regulatory Reform Task Force that will guide the agency’s reform efforts.  In establishing the public comment process, the Task Force is asking entities significantly affected by federal regulations, including state, local and tribal governments, small businesses, consumers, non-governmental organizations, and trade associations to provide comments that will help the Task Force identify regulations that:

  • Eliminate jobs or inhibit job creation;
  • Are outdated, unnecessary or ineffective;
  • Impose costs that exceed benefits;
  • Create serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;
  • Rely on data, information or methods that are not publicly available or sufficiently transparent for reproducibility;
  • Derive from Executive Orders or other Presidential directives that have been rescinded or modified.

The comment period offers the agricultural community an opportunity to raise concerns with EPA regulations that may negatively impact agricultural production.   Note that agencies such as the EPA do not base regulatory decision-making on the total number of comments for or against an issue; it is not like a popular ballot vote.  Instead, the EPA must base its regulations on information contained in public comments as well as on scientific data, expert opinions, and facts.  After receiving comments in this initial public participation period, the EPA will likely develop recommendations for regulatory reform.  If so, the agency must offer the public additional opportunity to comment on its reform proposals.

The EPA will accept public comments on regulatory reform until May 15, 2017.  Instructions for submitting comments are available here.  The agency has already received over 18,000 comments on its online docket, which is available here.  Members of the public may request that the EPA allow more time to submit comments, and the EPA may consider late-filed comments if their decision-making schedule permits it.  However, commenters should be aware that agencies do not have to consider late comments.

The EPA is also hosting public meetings around the country on regulatory reform in regards to different topics such as water, chemical safety and pesticides.  A list of the public meetings is available here.

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Contentious Des Moines Water Works Litigation Comes to an End

Federal court dismisses Clean Water Act lawsuit against Iowa drainage districts

A federal district court has dismissed the controversial Des Moines Water Works lawsuit that put the agricultural community on edge for the past two years.  While the decision is favorable for agriculture, it didn’t resolve the question of whether the water utility could prove that nitrates draining from farm fields are harming the utility’s water sources.  The court’s dismissal prevents Des Moines Water Works from further asserting such claims.

The lawsuit by the Des Moines Water Works (DMWW) utility sued irrigation districts in three Iowa counties for allowing discharges of nitrates through drainage infrastructure and into the waterways from which the utility drew its water.  In addition to claiming that the discharges violate the federal Clean Water Act’s permitting requirements, DMWW also asserted nuisance, trespassing, negligence, takings without compensation, and due process and equal protection claims under Iowa law.   The utility sought monetary damages for the cost of removing nitrates from its water as well as an injunction ordering the drainage districts to stop the discharges with proper permits.

The federal district court first certified several questions of state law to the Iowa Supreme Court to clarify whether Iowa law provided immunity to the drainage districts for DMWW’s claims.   On January 27, 2017, the Iowa Supreme Court responded in the positive, explaining that Iowa drainage districts had been immune from damages and injunctive relief claims for over a century because drainage districts “have a limited, targeted role—to facilitate the drainage of farmland in order to make it more productive.”  The Iowa court also clarified that Iowa’s Constitution did not provide a basis for DMWW’s constitutional arguments.

Turning to the party’s claims in light of the Iowa Supreme Court’s ruling, the federal district court focused on the drainage district’s motion to dismiss DMWW’s claims based on the doctrine of redressability, which requires a showing that the alleged injury is likely to be redressed by a favorable decision.  The doctrine of redressability concludes that a plaintiff cannot have standing to sue and therefore cannot proceed in a case if the defendant doesn’t have the power to redress or remedy the injury even if the court granted the requested relief.

The drainage districts argued that they could not redress DMWW’s Clean Water Act claims because the districts had no power to regulate the nitrates flowing through the drainage systems.  The court agreed, stating that “DMWW seeks injunctive relief and the assessment of civil penalties against the drainage districts arising from alleged duties and powers that the districts simply do not possess under Iowa law.  DMWW may well have suffered an injury, but the drainage districts lack the ability to redress that injury.”

The federal district court also dismissed DMWW’s remaining claims against the drainage districts.  DMWW argued that the immunity given the drainage districts as described by the Iowa Supreme Court prevented DMWW’s remaining claims and thus violated the U.S. Constitution’s Equal Protection, Due Process, and Takings Clauses.  The federal district court found these contentions to be “entirely devoid of merit” and dismissed the state law claims of nuisance, trespassing, negligence, takings, due process and equal protection.  Because none of the counts against the drainage districts survived the court’s scrutiny, the court dismissed and closed the case.

What does the decision mean for agriculture?

The DMWW case was a futile but somewhat inventive attempt to allocate liability for nitrate pollution to the agricultural community.  “Unregulated agricultural discharges into Iowa’s rivers, lakes and streams continue to increase costs to our customers and damage Iowa’s water quality and environment,” said DMWW’s CEO Bill Stowe upon filing the lawsuit.  A public poll by the Des Moines Register soon after Stowe brought the DMWW lawsuit showed that 42% of the respondents agreed with him in believing that farmers should pay for nitrate removal from DMWW’s waters, while 32% thought those who lived in Des Moines should pay to remove the nitrates.

If the goal is to force agriculture to reduce nutrient run off or pay for the cost of removing nutrients from waterways, the DMWW case tells us that suing those who oversee agricultural drainage infrastructure projects is not the proper mechanism for accomplishing that goal.  So will the next strategy be to sue the farmers who use the nutrients and the drainage infrastructure?

One challenge in suing farmers directly for nutrient runoff, and the issue that was not addressed in DMWW, is whether nutrient runoff from farm fields carried through drainage systems constitutes a “point source” that requires regulation under the Clean Water Act, or whether nutrient runoff fits within the agricultural exemption under the Clean Water Act.  That law defines a “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged,” but states that point sources do not include “agricultural storm water discharges and return flows from irrigated agriculture.”  What we still don’t know after two years of DMWW litigation is whether a court would put the transport of agricultural nutrients through drainage systems in the point source definition or would consider it an agricultural exemption from the point source definition.

A second challenge in an attempt to bring agricultural nutrients under the Clean Water Act is whether a plaintiff could prove the actual origin of a downstream nutrient—who applied the nutrient that ended up downstream?  DMWW sought to minimize this challenge by suing the drainage districts that oversee the entire region.   But DMWW still would have had to trace the nutrients to the region, a difficult task.

Meanwhile, the agricultural community expects that its voluntary efforts to reduce nitrate and phosphorus runoff from farm fields will positively impact water quality and reduce the possibility of more litigation like the DMWW case.   A multitude of voluntary efforts are underway, such as Iowa’s Nutrient Reduction Strategy and the flourish of cover crops in the Western Lake Erie Basin.  Ohio has also added a regulatory approach that requires farmers to engage in fertilizer application training.   Let’s hope these initiatives will reduce nutrient impacts before another party is willing to point its finger and agriculture and pursue a lawsuit like DMWW.

Read the federal district court’s decision in DMWW here.  Our previous post on DMWW is available here.

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Pipelines, Property, and You: What Ohio Property Owners Impacted by Pipeline Projects Should Know

Written by:  Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program

Several major pipeline projects, which plan to crisscross the state, are in the final stages of preparation. As part of the planning process for a project, pipeline builders plot the path that the pipeline will travel across the state. That path inevitably crosses private landowners’ property. Some landowners may feel overwhelmed trying to understand the rights of private pipeline companies to cross private property in Ohio. The frequently asked questions discussed below should help answer some of the common questions about pipeline projects in Ohio.

Can a pipeline company come on to my property to conduct a survey?

Yes. Prior to building a pipeline, pipeline companies must select a route where the pipeline is to be constructed. A pipeline project usually crosses private property along a proposed route. When a pipeline must cross private property along the project’s route, the pipeline company will ask the landowner for an easement that allows for pipeline construction on the property. However, even before signing an easement, a survey of the property may be necessary to determine the feasibility of constructing a pipeline on the property. Therefore, a pipeline company may need to enter a landowner’s private property to conduct a survey.

In Ohio, the law allows private companies that are organized “for transporting natural or artificial gas, petroleum, coal or its derivatives . . . through tubing, pipes or conduits” to enter upon private land to examine or survey for pipelines. This means that a pipeline company organized for these specific purposes does have the right in Ohio to enter onto a landowner’s property to conduct a private survey for the purpose of pipeline construction.

A pipeline company is telling me that they might use Eminent Domain to acquire my property. Is that legal?

Most likely, yes. A pipeline company may negotiate an easement with landowners which compensates landowners in exchange for the right to build a pipeline. However, landowners may not want to give a pipeline company the right to cross their property. In that scenario, pipeline companies have the option of crossing a landowner’s property by using eminent domain. Eminent domain is the taking of private property for public purposes with compensation.

In Ohio, the same law that allows for companies that are organized “for transporting natural or artificial gas, petroleum, coal or its derivatives . . . through tubing, pipes or conduits” to enter upon private land for survey also allows those same companies to use eminent domain to take private land. The law states that a company organized for the above purpose “may appropriate so much of such land, or any right or interest [to the land], as is deemed necessary for the laying down or building of pipes . . .” This suggests that pipeline companies have the power of eminent domain in Ohio.

Some argue that the law only grants eminent domain rights for transporting gas, and does not extend the right of eminent domain for the transport of gas derivatives such as ethane. While there is not strong legal support for this argument, it is under litigation in Ohio courts.

To use eminent domain, the pipeline company must prove that the landowner and the company were not able to reach an agreement about granting a pipeline easement and that the taking of the pipeline easement is “necessary.” A pipeline company must establish that the taking of property will serve a “public use.” Ohio courts have noted that the term public use is flexible. Accordingly, Ohio courts have held that private pipelines are a public use if those pipelines provide an economic benefit to Ohio. After establishing necessity and public use, the pipeline company must follow the procedures for eminent domain in Ohio Revised Code Chapter 163.

For an interstate pipeline that runs between Ohio and another state, federal law could allow a company to use eminent domain to obtain land from unwilling landowners. Federal law states that a company may acquire property rights for a gas pipeline if the company has obtained a Certificate of Public Convenience and Necessity from the Federal Energy Regulatory Commission and the company and landowner have not been able to agree on compensation for the pipeline easement. See 15 USC §717(F).

What about the pipeline cases that are in court right now, do those affect my rights?

Ohio landowners have probably heard about several high-profile pipeline projects that are planning to cut across the state. Some landowners have challenged the construction of these pipeline projects on their property.  These landowners are challenging the right of the pipeline companies to use eminent domain to acquire an easement on their property. Two pipeline projects in Ohio are of particular interest: Kinder Morgan’s Utopia Project and Rover Pipeline LLC.

A court in Wood County, Ohio decided in 2016 that Kinder Morgan’s Utopia Project, which plans to run across Ohio and into Canada, did not have eminent domain authority. The court concluded that the pipeline did not “serve the public of the State of Ohio or any public in the United States.” The court based its conclusion on the fact that Utopia did not provide a benefit to Ohio. However, Kinder Morgan quickly appealed that case to Ohio’s Sixth Circuit Court of Appeals. Therefore, this opinion is on hold while a higher court decides whether it agrees with the lower court’s interpretation of the eminent domain law.

A second high-profile pipeline case involves the right of Rover Pipeline LLC to use eminent domain for an interstate pipeline project. The Federal Energy Regulatory Commission issued this pipeline project a certificate of public convenience and necessity on February 2, 2017. As a result, Rover Pipeline LLC is moving forward with construction on landowners’ property, because a federal court found that the pipeline company has eminent domain authority.

So how do these court cases affect landowners? First, landowners should be aware that other pipeline projects in Ohio likely have eminent domain authority, if they meet the requirements for eminent domain described by Ohio law. Second, landowners should be aware that that the pipeline case that began in Wood County and is currently being appealed is still pending. It is important to note that this case is reviewing the Utopia Project’s right to use eminent domain in Ohio. Therefore, this does not mean that all pipeline companies in Ohio no longer have the right to use eminent domain to acquire private property in Ohio. Instead, this case will determine the fate of that particular pipeline project and whether or not that project has the right to use eminent domain to acquire an easement. In the meantime, pipeline companies continue to have the right to use eminent domain in Ohio.

More information on pipelines in Ohio and resources for landowners considering signing an easement is available here.

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A Worrisome Week for WOTUS

Written by: Ellen Essman, Law Fellow, and Peggy Hall, Asst. Professor, OSU Agricultural & Resource Law Program

 The controversial “Waters of the United States” (WOTUS) Rule suffered two governmental assaults this week.   We reported earlier this year about litigation over the Rule and a Senate Resolution urging withdrawal of the Rule.   Actions this week in the House of Representatives, the White House and the EPA echo the Senate’s sentiments and push the Rule further towards its demise.

The House Resolution

In the U.S. House of Representatives, Ohio’s Representative Bob Gibbs introduced a resolution on February 27, 2017 stating that the Rule should be vacated.  House Resolution 152 declares that the Clean Water Act (from which the Rule derives) is one of the nation’s most important laws whose success requires cooperative federalism, under which federal, state and local governments have a role in protecting water resources.   Based upon the foundation of cooperative federalism, “Congress left to the States their traditional authority over land and water, including farmers’ field, non-navigable, wholly intrastate water (including puddles and ponds), and the allocation of water supplies.”  The Resolution asserts that the latest revision to the Rule, however, claimed broad federal jurisdiction over water that encroaches upon the authority of the States and undermines the Clean Water Act’s historical exemptions from federal regulation.  The Resolution also claims that the EPA failed to follow proper processes when issuing the Rule.

 The Executive Order

 President Trump’s executive order  (EO) issued on February 28, 2017 calls for the EPA and the Army for Civil Works (“Civil Works”, a part of the Army Corps of Engineers) to “rescind or revise” the WOTUS Rule.  It is important to note, however, that the EO does not abolish the Rule; it simply orders the two agencies to review the Rule and try to adapt it to the Trump administration’s policies.   The EO includes a policy statement explaining that it is in the best interest of the United States to keep “navigable waters… free from pollution,” but there is also a strong interest in promoting economic growth, so any changes to the Rule must balance both of those interests.  The EO also gives the Attorney General the discretion to communicate any potential changes to the WOTUS Rule to federal courts with pending WOTUS litigation.

The EO further directs the EPA and Civil Works, when revising or rescinding the WOTUS Rule, to construe “navigable waters” as Justice Scalia did in the Supreme Court case Rapanos v. U.S.   Under the Clean Water Act, “navigable waters” are defined as “waters of the United States, including territorial seas.”  This means that the terms “navigable waters” and “waters of the United States” are interchangeable.   In Rapanos, Justice Scalia, who wrote the decision for a plurality of the Court, asserted that navigable waters/WOTUS cannot be “ordinarily dry channels through which water occasionally or intermittently flows.”  Instead, they must be “relatively permanent, standing or flowing bodies of water,” or wetlands with a “continuous surface connection” to permanent water bodies.   Scalia’s interpretation is at odds with the interpretation contained in the Obama administration’s WOTUS Rule.

Agency Response to the Executive Order

EPA Administrator Scott Pruitt and Civil Works acting Secretary Douglas Lamont didn’t waste any time responding to Trump’s EO.  On the same day Trump signed the Order, the agencies filed a Notice of Intention to Review and Rescind or Revise the Clean Water Rule.  In the notice, the agencies explain their intentions to follow the EO, review the Rule and consider adopting Justice Scalia’s interpretation of navigable waters.   The agencies state that they will utilize new rulemaking to “provide greater clarity and regulatory certainty concerning the definition of ‘waters of the United States.’”

 Refresher:  What’s in the WOTUS Rule?

The Obama Administration’s WOTUS Rule was released in the Federal Register on June 29th, 2015, and went into effect on August 28th, 2015.  According to the EPA and the Army Corps of Engineers at the time, the rule was meant to “clarify the scope of ‘waters of the United States’…protected under the Clean Water Act.”  In particular, the Rule states that a number of bodies of water qualify as WOTUS, such as: “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters, and other waters that have a significant nexus to interstate waters.”  The Rule elaborates on the definition of “tributaries,” which are WOTUS if they flow “to a traditional navigable water, an interstate water, or the territorial seas,” regardless of whether the flow is year-round, seasonal, or due to precipitation.  Tributaries flowing into navigable and interstate waters that have “a bed and banks,” as well as “an indicator of ordinary high water mark” qualify as WOTUS under the Rule.  “Adjacent waters” means “all waters located in whole or in part within 100 feet of the ordinary high water mark” of WOTUS, as well as “all waters within the 100-year floodplain” of WOTUS.   Numerous different kinds of water can be “adjacent,” such as “wetlands, ponds, lakes, oxbows,” and “impoundments.”   More information about the WOTUS Rule is available here.

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Des Moines Water Works Lawsuit: What’s happened, what’s next?

Written by:  Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

The Parties

The Board of Trustees of the Des Moines Water Works (DMWW) brought a lawsuit against thirteen Iowa drainage districts.  DMWW is the biggest water provider in Iowa, serving the largest city, Des Moines, and the surrounding area. Drainage districts were first created in Iowa in the 1800s to drain wetlands and allow for agriculture in those areas.  In Iowa, the counties are in charge of drainage districts.  Individual landowners can tile their land so that it drains water to the ditches, pipes, etc. that make up the counties’ drainage districts.  Eventually, that water ends up in Iowa’s rivers.  The thirteen drainage districts being sued by DMWW are located in the Raccoon River watershed in Buena Vista, Sac, and Calhoun counties.  DMWW is located downstream from the drainage districts in question.

Background of the Lawsuit

On March 16, 2015, the Board of Trustees for the DMWW filed a complaint against the thirteen drainage districts in the U.S. District Court for the Northern District of Iowa, Western Division.  DMWW alleged that the drainage districts did not act in accordance with the federal Clean Water Act (CWA) and provisions of the Iowa Code because they did not secure the applicable permits to discharge nitrates into the Raccoon River.  In order to serve its customers, DMWW uses the Raccoon River as part of its water supply.

DMWW has to meet maximum contaminant levels prescribed under the federal Safe Drinking Water Act.  Nitrate is a contaminant with a maximum allowable level of 10 mg/L.  In its complaint, DMWW cited record levels of nitrate in water from the Raccoon River watershed in recent years.  DMWW alleged that the nitrate problem is exacerbated by the “artificial subsurface drainage system infrastructure…created, managed, maintained, owned and operated by” the thirteen drainage districts.  DMWW alleged that the drainage district infrastructure—“pipes, ditches, and other conduits”—are point sources.  DMWW points to agriculture—row crops, livestock production, and spreading of manure, as a major source of nitrate pollution.

DMWW also cited a number of costs associated with dealing with nitrates, including the construction of facilities that remove nitrates, the operation of those facilities, and the cost associated with acquiring permits to discharge the removed waste.  In their complaint, they generally asked the court to make the drainage districts reimburse them for their cleanup costs, and to make the drainage districts stop discharging pollutants without permits.

All together, DMWW filed ten counts against the drainage districts.  In addition to their claim that the drainage districts had violated the CWA and similarly, Iowa’s Chapter 455B, DMWW also alleged that the continued nitrate pollution violated a number of other state and federal laws.  DMWW maintained that the pollution was a public, statutory, and private nuisance, trespassing, negligence, a taking without just compensation, and a violation of due process and equal protection under the U.S. and Iowa Constitutions.  Finally, DMWW sought injunctive relief from the court to enjoin the drainage districts to lessen the amount of nitrates in the water.  In many of the counts, DMWW asked the court for damages to reimburse them for their costs of dealing with the pollution.

On May 22, 2015, the defendants, the thirteen drainage districts, filed their amended answer with the court.   On January 11, 2016, the district court filed an order certifying questions to the Iowa Supreme Court.  In other words, the district court judge submitted four questions of state law to the Iowa Supreme Court to be answered before commencing the federal trial.  The idea behind this move was that the highest court in Iowa would be better equipped to answer questions of state law than the district court.

Iowa Supreme Court Decision

The Iowa Supreme Court filed its opinion containing the answers to the four state law questions on January 27, 2017.  All of the questions were decided in favor of the drainage districts.  The court answered two questions related to whether the drainage districts had unqualified immunity (complete protection) from the money damages and equitable remedies (actions ordered by the court to be taken or avoided in order to make amends for the harm caused) requested by DMWW.  Both were answered in the affirmative—the court said that Iowa legislation and court decisions have, throughout history, given drainage districts immunity.  Iowa law has long found the service drainage districts provide—draining swampy land so that it could be farmed—to be of great value to the citizens of the state.  To that end, the law has been “liberally construed” to promote the actions of drainage districts.  What is more, judicial precedent in the state has repeatedly found that drainage districts are not entities that can be sued for money damages because they are not corporations, and they have such a limited purpose—to drain land and provide upkeep for that drainage.  The law has further prohibited receiving injunctive relief  (obtaining a court order to require an action to be taken or stopped), from drainage districts.  Instead, the only remedy available to those “claim[ing] that a drainage district is violating a duty imposed by an Iowa statute” is mandamus.  Mandamus allows the court to compel a party to carry out actions that are required by the law.  In this case, those requirements would be draining land and the upkeep of the drainage system.

The second two questions considered by the court dealt with the Iowa Constitution.  The court determined whether or not DMWW could claim the constitutional protections of due process, equal protection, and takings.  They also answered whether DMWW’s property interest in the water could even be “the subject of a claim under…[the] takings clause.”  The court answered “no” to both questions, and therefore against DMWW.  Their reasoning was that both DMWW and the drainage districts are subdivisions of state government, and based on numerous decisions in Iowa courts, “one subdivision of state government cannot sue another…under these clauses.”  Additionally, the court found that “political subdivisions, as creatures of statute, cannot sue to challenge the constitutionality of state statutes.”  Consequently, they reasoned that the pollution of the water and the resulting need to remove that pollution did “not amount to a constitutional violation” under Iowa law.  The court also found that since the water in question was not private property, the takings claim was not valid.  A takings claim only applies to when the government takes private property.  What is more, the court added that regardless of its status as a public or private body, DMWW was not actually deprived of any property—they still had the ability to use the water.  Therefore, the Iowa Supreme Court answered all four state law questions in the drainage districts’ favor, and against DMWW.

What’s next?

The Iowa Supreme Court found that the questions of state law favored the drainage districts, but that is not necessarily the end of this lawsuit.  Now that the questions of state law are answered, the U.S. District Court for the Northern District of Iowa, Western Division, can decide the questions of federal law.  If any of the numerous motions for summary judgment are not granted to the drainage districts, a trial to decide the remaining questions is set for June 26, 2017.  The questions left for the district court to decide include a number of U.S. Constitutional issues.

One of these issues is whether the drainage districts’ discharge of nitrates into the water constitutes a “taking” of DMWW’s private property for a public use under the Fifth and Fourteenth Amendments.   Another issue is whether the drainage districts’ state-given immunity infringes upon DMWW’s constitutional rights of due process, equal protection, and just compensation.  An important federal law question that also remains to be decided is whether the drainage districts are “point sources” that require a permit to discharge pollutants under the CWA.

How will the outcome affect other states?

Either outcome in this lawsuit will have implications for the rest of the country.  For example, if the district court sides with DMWW on all of the questions, it could open the floodgates to potential lawsuits against drainage districts and other similar entities around the country for polluting water.  Municipal and other users of the water could assert an infringement of their constitutional rights, including taking without just compensation.  Furthermore, if drainage districts are found to be “point sources,” it could mean greater costs of permitting and cleanup for drainage districts and other state drainage entities.  Those costs and additional regulations could be passed onto farmers within the watershed.  As a result, farmers and water suppliers around the country will closely follow the district court’s decisions on the remaining questions in the case.

All of the court documents and decisions concerning this lawsuit, as well as additional articles and blog posts on the topic can be found here.  Additional reading on the subject from the Des Moines Register can be found here and here.

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What’s the Buzz about the Rusty-patched Bumble Bee?

Update:  The final rule concerning the listing of the rusty patched bumble bee as endangered was originally slated to go into effect on February 10, 2017, as is described below.  On February 9, the Fish and Wildlife Service published a notice in the Federal Register explaining that they would abide by the Trump Administration’s 60-day regulatory freeze and delay the effective date until March 21, 2017.   The Federal Register entry is available here.

Will the bee’s ESA listing stand, and how might it affect agriculture?

Written by:  Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

On January 11, 2017, the U.S. Fish and Wildlife Service (FWS) published a final rule designating the rusty patched bumble bee (scientific name Bombus affinis) as an endangered species, the first bee in the continental U.S. to receive this status.  The rule was originally slated to go into effect on February 10, 2017.  If the rule is allowed to stand, it will have a number of implications for federal agencies, farmers, and other private entities.

The final rule, found in the Federal Register at 50 CFR Part 17, includes a lengthy description of the rusty patched bumble bee.  The bees have black heads, and the worker bees, as well as the male bees, have a “rusty reddish patch centrally located on the abdomen,” giving them their common name.  Necessities for the species include “areas that support sufficient food (nectar and pollen from diverse and abundant flowers), undisturbed nesting sites in proximity to floral resources, and overwintering sights for hibernating queens.”  Additionally, the bees prefer temperate areas. The rusty patched bumble bee was found in 31 states and provinces in the 1990s. From the year 2000 and on, the bumble bee has only been found in a diminished range of 14 states and provinces.  The bumble bee has been found in Ohio since 2000, but following the overall trend, at much lower rates.

Possible reversal of the rule

Since the publishing of the final rule, the Trump Administration has instituted a regulatory freeze on administrative agencies which could push back effective dates for those regulations that have not yet gone into effect by at least 60 days.  In the meantime, the Congressional Review Act (CRA) may also affect the final rule.  The CRA gives Congress 60 legislative days from either the date a rule is published in the Federal Register, or the date Congress receives a report on the rule, to pass a joint resolution disapproving the rule.  A signature by the President is the final step required to invalidate the rule.  What is more, an agency cannot submit a rule after these steps are taken that is “substantially in the same form” as the overturned rule. Historically, the CRA has not been frequently used, as success is typically only possible when a number of events align:

  1. There is a new presidential administration;
  2. Congress and the President are members of the same party;
  3. The previous President was a member of the opposing party; and
  4. The timing of rule publication or rule reporting and Congressional calendars allow for a joint resolution within the 60-day limit.

The text of the CRA is available here.  With the regulatory freeze and the possible use of the CRA, it is not clear when or even if the new rule will actually go into effect.

Importance of the rusty patched bumble bee

The rusty patched bumble bee is a pollinator species, meaning they, along with other pollinators, assist with the reproduction of flowers, crops, and grasses.  According to a FWS fact sheet, in the United States, the rusty patched bumble bee and other insects’ pollination is worth $3 billion annually.

The Endangered Species Act

What exactly is the process for listing a species as “endangered?”  The Endangered Species Act’s (ESA) definition of an endangered species is: “any species which is in danger of extinction throughout all or a significant portion of its range.”  Accordingly, the ESA allows the FWS to designate species as endangered or threatened as long as one (or more) of five factors apply:

  • (A)  The present or threatened destruction, modification or curtailment of its habitat or range;
  • (B)  Overutilization for commercial, recreational, scientific, or educational purposes;
  • (C)  Disease or predation;
  • (D)  The inadequacy of existing regulatory mechanisms; or
  • (E)  Other natural or manmade factors affecting its continued existence.   16 USC 1533.

In the case of the rusty patched bumble bee, the FWS found that factors (A), (C), and (E) applied.  For factor (A), which concerns loss of habitat and range, the FWS cited past encroachment by residential, commercial, and agricultural development.  Additionally, agriculture has contributed to the replacement of plant diversity with monocultures, which has resulted in loss of food for the bees.  What is more, the range of the rusty patched bumble bee has faced an 87% reduction, as well as an 88% drop in the number of recognized populations.

Concerning factor (C), FWS pointed to a number of diseases and parasites that have afflicted the rusty patched bumble bee.  Finally, for factor (E), the FWS identified more numerous hot and dry periods, pesticide and herbicide use, and reproductive issues that have contributed to the reduction of the species.  Due to its findings and the factors discussed, the FWS determined that the rusty patched bumble bee is “in danger of extinction throughout its range,” and therefore designated it as endangered.

Significance of ESA listing

After a species is labeled “endangered,” what happens next?  In order to facilitate recovery of a species, the ESA also calls for, to the “maximum extent prudent and determinable,” a critical habitat designation to be made for the species.  The term “critical habitat” does not apply to everywhere the species is found.  Instead, “critical habitat” can be certain places both inside and outside the overall “geographical area occupied by the species” that are found to be “essential” to its preservation. In the case of the rusty patched bumble bee, the FWS has not yet determined its critical habitat.

Implications for agriculture

Under the ESA, federal agencies and private entities have different responsibilities.  Federal agencies generally must make sure that any action they are involved in will not do harm to an endangered species or its critical habitat. For the most part, private entities are not affected by critical habitat unless financial aid or approval is sought from a federal agency.

Even though critical habitat concerns do not explicitly apply to private entities, the ESA does contain provisions that prohibit the importing, exporting, possession, sale, delivery, transport, shipping, receiving, or carrying of an endangered species in the United States or in foreign commerce.  What is more, the ESA prohibits the “taking” of endangered species within the United States or in the ocean.  “Take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,” an endangered species, or to attempt to do so (emphasis added).  It is important to note that “harm” is defined as “an act which actually kills or injures fish or wildlife…includ[ing] significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavior patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.” Thus, even though the designation of an endangered species and its critical habitat does not explicitly affect private entities, the definitions of “take” and “harm,” when read together, implicitly prohibit actions that are damaging to the species or its habitat.  The FWS rule defining “harm” can be found here.   The government can assess penalties against those who violate these provisions.

Farmers and other private entities should be aware of the designation of a species as endangered.  In the case of the rusty patched bumble bee, if the rule is allowed to stand, private landowners, including farmers, would not be allowed to “take” or “harm” the bee or destroy its critical habitat.   Given the important role pollinators like the rusty patched bumble bee play in making agriculture possible, we can assume that agriculture will want to protect the species.  But due to the nature of this species, it will be difficult to ascertain when a farmer’s actions do “take” or “harm” a rusty patched bumble bee.   The nature of the species and the future status of the rule create much uncertainty on how agriculture will address the rusty patched bumble bee going forward.

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Supreme Court to Hear Challenge to Waters of the United States Rule

The Supreme Court of the United States has accepted a petition to hear an appeal from a Waters of the United States (WOTUS) ruling from the Sixth Circuit Court of Appeals.  To read this post, visit aglaw.osu.edu/blog.

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