Category Archives: Environmental

Changes to Ohio’s Lake Erie Commission will impact agriculture and Lake Erie water quality

By Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

The Ohio legislature recently enacted a bill expected to enhance Ohio’s efforts to address water quality in Lake Erie.  Senate Bill 2, a far reaching environmental bill, contains several revisions to the Ohio Lake Erie Commission (OLEC) and Ohio’s Lake Erie Protection and Restoration Strategy.

The purpose of OLEC is to advise on the development, implementation, and coordination of Lake Erie programs and policies and to oversee the management of the Lake Erie Protection Fund.   For Ohio agriculture, the most important of S.B. 2’s revisions to OLEC is the expansion of OLEC’s purpose to include “issues related to nutrient-related water quality.”  This change reveals a new focus on nutrient impacts on Lake Erie’s water quality and a resulting charge for OLEC to implement the Ohio EPA’s current plan for reducing phosphorous levels in the Lake by 40% by 2025.

Furthermore, S.B. 2 broadens and strengthens OLEC’s role in coordinating and funding policies, programs and priorities related to Lake Erie.  Coordination with the federal government is encouraged, as is consideration of the efforts of Ohio and other Great Lakes states and countries, as well as any agreements between those states and countries and Ohio.  OLEC must also publish a Lake Erie Protection and Restoration Strategy that describes the commission’s goals and its planned uses for the Lake Erie Protection Fund.  Demonstration projects and cooperative research are now acceptable uses of the fund, in addition to the previously established use of data gathering.

S.B. 2 enhances coordination between OLEC and the Great Lakes Protection Fund (GLPF) board by bringing two members of the GLPF’s board onto OLEC’s board, which currently consists of the directors of Ohio’s EPA, Department of Natural Resources, Department of Health, Department of Agriculture, Department of Transportation and Department of Development, along with five additional members appointed by the governor and approved by the Senate.  S.B. 2 requires the Governor to select the two GLPF board members who will serve on the OLEC board.

Changes in S.B. 2 also call for OLEC to develop public education and outreach programs about their work and issues facing Lake Erie and to expand fundraising efforts to support their programs—namely through the promotion of the sale of Lake Erie license plates.  A number of provisions regard the disposal of construction and demolition debris and dredging in Lake Erie.

The revisions in S.B. 2 are likely to better equip OLEC to carry out strategies for improving Lake Erie’s water quality.  Most notably, the new law will shift some of OLEC’s focus to combating water quality problems associated with nutrient pollution, a change that will surely affect Ohio agriculture.

S.B. 2 is available here in its entirety.  Refer to the first four pages of the bill for the revisions to OLEC.   More information about OLEC is here.

Leave a comment

Filed under Environmental

EPA Announces Plan to Repeal WOTUS Rule

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

On June 27, 2017, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) announced their plan to repeal the Obama Administration’s Waters of the United States (WOTUS) Rule.  The EPA and the Corps’ proposal involves two steps.  First, the agencies propose to “rescind” Obama’s WOTUS rule and “re-codify,” or re-enter, the definition of WOTUS “that existed prior to 2015” into the federal regulations.   The pre-2015 rule would serve as a placeholder until the agencies are able to carry out the second part of their plan.  The second part of the plan involves developing and proposing a new definition of WOTUS.  This announcement comes several months after President Trump called for either a repeal or revision of the WOTUS Rule in his February 28, 2017 Executive Order (EO).  The EO was quickly followed by the EPA and other agencies filing a Notice of Intention to Review and Rescind or Revise the Clean Water Rule (Notice).  The EO can be found here, and the Notice here.

What was the Obama Administration’s WOTUS Rule?

The WOTUS Rule went into effect on August 28, 2015.  The Rule expanded the meaning of “waters of the United States,” or those waters protected under the Clean Water Act (CWA), to include “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.”  Furthermore, the Rule stated that tributaries are WOTUS when they flow into navigable waters, even if their flow was not constant.  The rule also elaborated on the meaning of “adjacent waters.”  For more information about the WOTUS Rule, see our blog post from earlier this year.  The Rule as it was released in the summer of 2015 can be found here.

How will “Waters of the United States” be defined?

  In the short term

Step one of the EPA and the Corps’ plan calls for a repeal of the Obama Administration’s definition of WOTUS, and a reimplementation of the WOTUS rule that existed prior to 2015.  In order to do this, the agencies are proposing a rule.  The proposed rule calls for the Code of Federal Regulations—in particular, 33 C.F.R. §328.3, to be amended to reflect the previous definition of WOTUS.  Notably, this definition does not include the Obama Administration’s expanded descriptions of “tributaries” or “adjacent waters.”  Furthermore, there is no mention of “significant nexus.”  This interim definition of WOTUS proposed by the EPA and the Corps can be found in the proposed rule, here.

            In the long term

The second step of the EPA and the Corps’ plan calls for the agencies to perform a “substantive re-evaluation” of the definition of WOTUS.  Any re-evaluation of the definition will likely take Trump’s EO into account, which called for the EPA and other agencies to, in any “[f]uture [r]ulemaking,” “consider interpreting the term ‘navigable waters’” as Justice Scalia did in Rapanos v. U.S.   The CWA defines “navigable waters” as “waters of the United States, including territorial seas.”  Thus, “navigable waters” and “WOTUS” are one in the same.  Scalia’s interpretation rejected the idea that navigable waters and WOTUS could come from channels where water flow was only occasional.   Justice Scalia asserted that navigable waters/WOTUS must be, for the most part, permanent bodies of water.  Given the language in Trump’s EO, it is likely that the second step of the plan will involve a proposed rule that includes a definition of WOTUS that closely resembles Scalia’s interpretation.  More information on Scalia’s interpretation can be found in our earlier blog post.

It is important to keep in mind that even if the EPA and the Corps successfully repeal and replace the previous administration’s definition of WOTUS, it is still very likely that opponents will challenge any new definition.  Furthermore, both the short term and long term parts of the plan have to go through the rulemaking process, including a comment and review period, before they can become effective. As a result, the debate over the meaning of WOTUS is likely far from finished.

Leave a comment

Filed under Environmental, Uncategorized

Bill before Ohio Legislature proposes more funding for plugging abandoned oil and gas wells

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

The Ohio House of Representatives is considering a bill that would affect farmers and rural landowners by requiring the Ohio Department of Natural Resources Division of Oil and Gas Resources Management (ODNR) to plug abandoned oil and gas wells within 60 days, under certain circumstances.   Introduced by Rep. Andy Thompson (R-Marietta), House Bill 225 would permit a landowner to report an idle or abandoned well to ODNR, who then must inspect the well and plug it if it’s deemed “distressed-high priority.”

Inspection of Idle or Abandoned Wells

Under HB 225, ODNR would be required to inspect an idle or abandoned well within 30 days after a landowner reports the existence of such a well on their property.  No later than 60 days after the inspection, ODNR would be required to provide the landowner with a report concerning the idle or abandoned well that categorizes the well as one of the following:

  • Distressed-high priority;
  • Moderate-medium priority; and
  • Maintenance-low priority.

HB 225 would require ODNR to adopt rules to define these three categories. In adopting these rules, ODNR must include a description of the criteria for an idle or abandoned well to fit within a particular category.

Plugging an Idle or Abandoned Well

If a well is categorized as distressed-high priority, it must be plugged by ODNR within six months after the report.  Perhaps most interesting for Ohio landowners, HB 225 could increase the amount of funding available for landowners who choose to plug a well on their property themselves.  Currently, landowners may arrange to have the well plugged by a third party.  Under current Ohio Revised Code 1509.071(D), a landowner may be reimbursed for plugging costs; however, wells are plugged on a priority basis until the funds for the program are depleted.  ODNR administers this law, otherwise known as the Orphan Well Program.  More information on the current program is here.

Under HB 225, landowners would be permitted to take an income tax deduction for compensation paid by ODNR to reimburse landowners’ costs to plug an abandoned or improperly plugged oil or gas well. Current law requires ODNR to approve an application for reimbursement by a landowner.  A landowner’s application must comply with oil and gas plugging laws and regulations for safety and environmental reasons.

Proposed Increase in Funding Under the Oil and Gas Well Fund

HB 225 would likely increase the funds available to Ohio landowners for plugging idle or abandoned wells. Ohio law currently requires that 14% of the current Oil and Gas Well Fund be dedicated to plugging idle and abandoned wells. HB 225 would require ODNR to dedicate 45% of the fund to plug idle and abandoned wells.  ODNR would also be required to issue quarterly reports regarding expenditures associated with plugging wells.  ODNR may therefore offer more funding to landowners to plug wells, because of the increase in funding and the requirement to show expenditures on the plugging of wells.

However, the proposed increase in funding may lead to an increase in ODNR’s expenditures on plugging wells.  The proposed increase could also drive the number of wells that the state plugs.  Under the strict timeline requirements that HB 225 proposes, ODNR may subsequently plug more wells after a landowner notifies ODNR of abandoned wells on their property.

The Future of HB 225

At a committee hearing earlier this month, witnesses testified that there are likely hundreds of wells that haven’t been discovered because they’ve been farmed over and covered by urban development. According to Rep. Thompson, most of the orphan wells that have been identified emit methane gas in addition to often contributing to the runoff of oil and brine into the soil. Rep. Thompson also noted that it is estimated that the current program for plugging abandoned wells in Ohio would take 20 years or more to plug the more than 600 known orphan wells in the state. Members of the Ohio Oil and Gas Association voiced support for HB 225, noting that the taxes levied on oil and gas production should be used to correct problems that have arisen from the early days of the industry.

More information on HB 225 is here.  Ohio’s current law regarding plugging idle and abandoned wells is here, under R.C 1509.071(D).

Leave a comment

Filed under Environmental, Oil and Gas

Ohio’s Western Basin of Lake Erie will not be listed as ‘impaired’

EPA reaches decision on Ohio’s list of impaired waters

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

The United States Environmental Protection Agency (EPA) has finally rendered a decision on Ohio’s list of impaired waters following several months of delay and two lawsuits filed to compel the EPA to make a decision. (For a background on impaired waters and the two lawsuits, check out our previous blog posts here and here.)   On May 19, 2017, the EPA decided to accept the Ohio EPA’s proposed list of impaired waters for the State of Ohio.  Ohio’s list does not include the open waters in the Western Basin of Lake Erie.   However, the State of Michigan’s list of impaired waters previously approved by the EPA does include the open waters in its portion of the Western Basin of Lake Erie.

The EPA explained that the agency deferred to Ohio’s judgment not to include the open waters of the Western Basin of Lake Erie on the impaired waters list.  “EPA recognizes the State’s ongoing efforts to control nutrient pollution in the Western Basin of Lake Erie,” stated Chris Korleski, EPA’s Region 5 Water Division Director and previously Ohio’s EPA Director.   “EPA understands that Ohio EPA intends to evaluate options for developing objective criteria (e.g., microcystin or other metrics) for use in making decisions regarding the Western Basin for the 2018 list.  EPA expects the development of appropriate metrics, and is committed to working with you on them.”

For now, the EPA appears satisfied with Ohio’s plan for addressing nutrient reductions in Lake Erie’s Western Basin.  It is possible, however, that additional lawsuits could be filed against the EPA in order to reconcile Ohio and Michigan’s different designations of water in the same general area.

Read the EPA’s Approval of Ohio’s Submission of the State’s Integrated Report with Respect to Section 303(d) of the Clean Water Act here.

 

Leave a comment

Filed under Environmental, Uncategorized

Another lawsuit filed over Ohio’s list of impaired waters

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

On May 17, 2017, the Environmental Law & Policy Center (ELPC) and two of its members filed suit against the U.S. Environmental Protection Agency (EPA) in the U.S. District Court for the Northern District of Ohio.  ELPC filed the lawsuit to compel the EPA to either accept or reject Ohio’s list of impaired waters.  In April, the National Wildlife Federation and other groups sued the EPA in the U.S. District Court for the District of Columbia for the same reason.  For more information on the first lawsuit and a more thorough background on the topic, read our previous blog post.

Federal regulation under the Clean Water Act requires states to submit lists every two years of waters they determine to be impaired.  The regulation also requires the EPA to either accept or reject the state listings within thirty days.  The Ohio Environmental Protection Agency submitted its list of impaired waters on October 20, 2016.  The list did not include the open waters of the western basin of Lake Erie.  The EPA has not made a decision on Ohio’s list.

To make the situation more complex, Michigan did include its share of the open waters of the western basin of Lake Erie on its list.  What is more, the EPA approved of Michigan’s impaired waters list.  The plaintiffs in both of these lawsuits seem to hope that forcing the EPA to make a decision on Ohio’s impaired list will resolve the differences in the two states’ listing of waters in the same general area of Lake Erie.

ELPC filed the lawsuit in the Toledo office of the U.S. District Court for the Northern District of Ohio, citing its proximity to Lake Erie, and in particular, to the pollution problem in the western basin of the lake.   ELPC’s press release on its lawsuit is available here.

 

 

 

 

 

 

 

Leave a comment

Filed under Environmental

What’s Behind the Latest Lawsuit on Lake Erie’s Water Quality?

Groups sue EPA over lack of impaired waters decision

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

The National Wildlife Federation (NWF) and five other environmental and outdoor groups (Plaintiffs) sued the United States Environmental Protection Agency (EPA) last week in the U.S. District Court for the District of Columbia.  The Plaintiffs filed the lawsuit due to EPA’s failure to approve or disapprove the list of impaired waters submitted by the Ohio Environmental Protection Agency (OEPA) within the time limit required by law.  The Plaintiffs are particularly concerned that the EPA’s lack of a decision on the impaired waters list may affect pollution in Lake Erie’s waters.

A background on impaired waters

In 1972, Congress made amendments to the Federal Water Pollution Control Act of 1948.  The result was what we know today as the Clean Water Act (CWA).  The very first section of the CWA states: “[t]he objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

In order to meet that objective, the CWA sets forth “effluent limitations,” or in other words, the amount of pollution allowed to be discharged.  Polluters have different effluent limitations dependent on a number of variables. The states are to “identify” the waters where the “effluent limitations [from certain polluters] are not stringent enough” to meet water quality standards.   The specific polluters to be examined are:  1) point sources, and 2) public treatment works either in existence on July 1, 1977 or approved under the CWA before June 30, 1974.  For reference, point sources are defined as “any discernable, 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.” Point sources are not “agricultural storm water discharges and return flows from irrigated agriculture.”

Those waters that states identify as not having stringent enough effluent limitations for point sources and public treatment works are called “impaired waters.”  Along with the identification of impaired waters, states must also put forth total maximum daily loads (TMDLs), or the amounts of each kind of pollutant allowed.  The CWA in its entirety is available here.

A regulation promulgated by the EPA under CWA mandates that states submit the list of waters they determine to be impaired every two years.  The list must include a description of the “pollutants causing impairment” and their total maximum daily loads (TMDLs).  The same regulation requires the EPA “to approve or disapprove such listing and loadings not later than 30 days after the date of submission.”

On October 20, 2016, OEPA submitted its list of impaired waters in the Ohio Integrated Water Quality Monitoring and Assessment Report, available here .  The list of impaired waters included parts of Lake Erie, namely the Lake Erie Central Basin Shoreline and the Lake Erie Islands Shoreline.  Significantly, OEPA did not include the open waters of the western basin of Lake Erie on its list.  The EPA has not responded to Ohio’s list by approving or disproving its listings.

Michigan submitted its impaired waters list in November 2016 and the EPA approved the report on February 3, 2017.  Michigan listed the entirety of the Lake Erie waters in the state’s jurisdiction as impaired.  This would include Michigan’s share of open waters in the western basin of Lake Erie.  Michigan’s report is here.

The current lawsuit

As discussed above, six environmental and outdoor groups based in Ohio, Michigan and Illinois sued the EPA and its national and Region 5 administrators for the lack of a decision on OEPA’s list of impaired waters.   The EPA was required to make the decision within 30 days of October 20, 2016.  The Plaintiffs gave the EPA prior warning of their intention to sue in a notice sent on December 19, 2016.  Since then, the EPA still has not come to a decision about Ohio’s list of impaired waters.

At the crux of this lawsuit is the difference between Ohio and Michigan’s listings of waters in the same general area—the western basin of Lake Erie.  Michigan listed the basin as impaired and Ohio did not.  The Plaintiffs argue that the “inaction” on the part of the EPA “allows pollution… to continue unabated” throughout Lake Erie.  Implicit in the Plaintiffs’ argument is that it seems unlikely that the EPA would allow one state to designate their Lake Erie water as impaired while the other state does not since water does not necessarily stay within state boundaries.   The Plaintiffs appear to anticipate that EPA, when forced to make a decision, will disapprove of Ohio’s listing.  Consequently, TMDLs could be established for greater areas of the Lake and water quality would likely be improved for the use and enjoyment of the Plaintiffs and their members.

As relief, the Plaintiffs asks the court to declare that EPA has violated its duty under the CWA and to require EPA to approve or disapprove OEPA’s impaired waters list within thirty days of the court’s order.   The full complaint filed in the lawsuit is available here.

What would a disapproval of OEPA’s list mean for Ohio?

If the court compels EPA to make a decision and EPA decides that OEPA was wrong to exclude the open waters of the western basin of Lake Erie as impaired, EPA regulations give the EPA the authority to take action within thirty days.   EPA actions would include identifying the waters as impaired and instituting the allowable TMDLs necessary to implement applicable water quality standards.  After a public comment period and potential revisions to EPA’s actions, it would be up to the state of Ohio to meet the EPA’s TMDLs for the impaired waters.

What would a listing as impaired mean for Ohio residents—individuals, farms, and companies?  It would probably mean increased regulations, likely in the form of reduced allowable loads of pollutants from the point sources and public treatment works discussed above.  Time, effort, and money might be necessary to comply with such changes.  Regulations and TMDLs might affect more Ohioans than before, since OEPA designated parts of Lake Erie as impaired but not others.

On the flip side, increased regulation could mean better water quality in Lake Erie for drinking, sport, and other uses.  For now, Ohioans and others who use Lake Erie’s waters or are located in areas that drain to the Lake will have to wait for the federal court to act on the lawsuit.

Leave a comment

Filed under Environmental, Uncategorized

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.

Leave a comment

Filed under Environmental, Uncategorized