Category Archives: Water

Case watch: Lake Erie Bill of Rights battle ends

Written by Peggy Kirk Hall and Ellen Essman

In the not-too-surprising news category, a federal court has invalidated the Lake Erie Bill of Rights (LEBOR) that Toledo residents passed last year to recognize and protect legal rights for Lake Erie.  What is surprising, however, is how the court reached its decision to strike down LEBOR, even in the wake of a law passed by the Ohio legislature in July of 2019 that denies legal standing right to nature and prevents a person from bringing a court action on behalf of nature or any ecosystem.

The verdict came exactly one year after Drewes Farm Partnership filed its federal lawsuit to prevent enforcement of LEBOR a day after Toledoans passed the measure.  Drewes Farm asserted that LEBOR violated the farm’s rights under the First Amendment, Equal Protection Clause, and Due Process Clauses of the Fifth and Fourteenth Amendments.  Drewes Farm also argued that LEBOR exceeded the City of Toledo’s authority because it usurped the power of the state and the federal government by interfering with international relations, invalidating state and federal permits, invalidating state law, altering the rights of corporations, and creating new causes of action in state courts.  In April 2019, the state of Ohio joined the lawsuit as a fellow plaintiff.  Proponents of LEBOR unsuccessfully attempted to join in the litigation.

Did the plaintiffs have the right to bring the case?

The opinion begins with the court’s “standing” analysis.  Toledo argued that Drewes Farm and Ohio did not have legal standing to bring the lawsuit against the City.  Legal standing requires that a plaintiff (1) suffers an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.  Failing to meet the legal standing requirement would force dismissal of the lawsuit.  Without a finding in favor of legal standing, the court wouldn’t be able to determine LEBOR’s validity.

The central issue in whether the parties had legal standing was the injury in fact requirement, according to the court.  To challenge LEBOR, the plaintiffs must demonstrate “concrete and particularized” injury that is “actual or imminent, not conjectural or hypothetical.”  The court determined that the state of Ohio met this requirement because it suffered an injury, “at least on paper,” from LEBOR’s invalidation of Ohio laws, regulations, licenses and permits and because the state “could” be sued under LEBOR.  The judge also found that Drewes Farm demonstrated injury in fact since any Toledo resident “could” sue the farm for violating LEBOR.

In its brief attention to the second component of standing, that the injury is fairly traceable to the defendant, the court determined that the potential injuries were traceable to Toledo because its city charter was amended by voters to include the LEBOR language.  Even though the City itself did not legislatively enact LEBOR, had actually attempted to keep the issue off the ballot due to concerns that it was unconstitutional, and had not indicated any intent to enforce LEBOR, the court concluded that “the City is a proper defendant in the suit.”  The court also found that invalidating LEBOR would redress the plaintiffs’ injuries, the final requirement for legal standing.

LEBOR violates due process

The court next directly examined only one of the many constitutional claims against LEBOR, the Fourteenth Amendment’s right to due process, and specifically focused on one element of due process:  clarity of the law.  The court stated that if a law is vague and unclear, it can “trap the innocent by not providing fair warning and invite arbitrary enforcement by prosecutors, judges, and juries.”  Pointing to language in LEBOR such as the right of Lake Erie and its watershed to “exist, flourish, and naturally evolve,” and Toledoans’ right to a “clean and healthy environment,” the court questioned what type of conduct would violate the broad language and how a judge or jury would determine the line between “clean and unclean and healthy and unhealthy.”  Spreading even a small amount of fertilizer could possibly violate LEBOR, the court said, as well as countless other activities such as catching fish, pulling weeds, planting corn, or driving a gas-powered vehicle.  Not surprisingly, the court concluded that the language is void for vagueness.  While LEBOR’s language sounds powerful, the court explained, it has no practical meaning, contains merely “aspirational statements” rather than rules of law, and violates constitutional due process.

What about other constitutional claims?

The court surprisingly didn’t tackle the many other constitutional issues raised by Drewes Farm and the State.  But in its “severability” analysis, the court did briefly touch on the constitutionality of LEBOR’s preemption of state and federal laws.  LEBOR contains a severability clause stating that a determination of one part of LEBOR as invalid does not invalidate the remaining parts of LEBOR.  According to the court, this severability clause is valid only if the constitutional and unconstitutional parts of LEBOR are capable of separation and can stand by themselves.  The court concluded that once the vague rights are stripped away, the remaining parts of LEBOR are meaningless.

The court then took the opportunity to note that LEBOR’s attempt to preempt Ohio law in the name of environmental protection would fail on its own merits.  Lake Erie’s health falls well beyond Toledo’s authority and rights to govern its internal affairs, and enacting laws that conflict with Ohio law is a “textbook example of what municipal government cannot do,” said the court.

Protecting Lake Erie is a worthy goal

In a slightly sympathetic nod to LEBOR supporters “frustrated by the status quo,” the court notes that using a democratic process to protect Lake Erie is a well-intentioned goal but LEBOR simply fails to achieve the goal.  Careful drafting by Toledoans could result in valid legislation that would reduce water pollution, the court explains, while highlighting an ordinance in Madison, Wisconsin that restricted the use of phosphorus-containing fertilizers in the city and withstood a legal challenge.

It comes as no surprise

Echoing what many had already concluded, the court criticized LEBOR’s authors for ignoring legal principals and constitutional limitations and stated that LEBOR’s invalidation should come as no surprise.  “This is not a close call,” the court says.  “LEBOR is unconstitutionally vague and exceeds the power of municipal government in Ohio.  It is therefore invalid in its entirety.”

Now what?

LEBOR has met the end of its road, but it never really stood a chance of actual enforcement due to its clearly unconstitutional language.  LEBOR’s proponents often claimed that the purposes of LEBOR were to gain more attention to Lake Erie’s poor water quality and to push the concept of recognizing legal rights for nature and ecosystems a bit further down the road.  Were they successful?  Will Toledoans give up, or will they regroup and carefully draft new legislation to protect their water?

Farmers in Ohio now have absolute certainty that they will not be sued for violating Lake Erie’s “rights,” but such a lawsuit never really stood a chance of actual success due to LEBOR’s clearly unconstitutional language.  And let’s not forget the new language in Ohio Revised Code §2305.01 stating that “nature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas; no person, on behalf of or representing nature or an ecosystem, shall bring an action in any court of common pleas; and no person shall bring an action in any court of common pleas against a person who is acting on behalf of or representing nature or an ecosystem.”

And what about Lake Erie’s water quality?  New voluntary programs are rolling out from Governor DeWine’s H2Ohio plan.  But many claim that more forceful measures are necessary.  Other litigation over the lake’s water quality lingers, and Ohio has listed the Western Lake Erie Basin as “impaired” and must develop a plan to address Total Maximum Daily Loads of pollutants in the lake.  It’s no surprise that even though it’s the end of the road for LEBOR, conflicts over solving Lake Erie’s water quality problems will continue.

Read the U.S. District Court’s opinion on LEBOR here.  For our in-depth look at LEBOR, click here.  We review other Lake Erie legal activities here.

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Ohio Legislation on the Move

Written by Ellen Essman

The year is still fairly new, and 2020 has brought with it some newly-introduced legislation in the Ohio General Assembly.  That being said, in 2020 the General Assembly also continues to consider legislation first introduced in 2019.  From tax exemptions to CAUV changes, to watershed programs and local referendums on wind turbines, here is some notable ag-related legislation making its way through the state house.

New legislation

  • House Bill 400 “To authorize a nonrefundable income tax credit for the retail sale of high-ethanol blend motor fuel”

HB 400 was introduced after our last legislative update in November, so while it was first introduced in 2019, it still technically qualifies as “new” to us.  Since its introduction, the bill has been discussed in two hearings in the House Ways & Means Committee.  The bill would give owners and operators of gas stations a tax rebate of five cents per gallon for sales of ethanol.  To apply, the fuel would have to be between 15% and 85% ethanol (E15).  If passed, the tax credit would be available for four years.  The bill is meant to encourage gas station owners in Ohio to sell E15, which is much more readily available in other states.  The bill is available here.

  • House Bill 485 “To remove a requirement that owners of farmland enrolled in the CAUV program must file a renewal application each year in order to remain in the program”

Introduced on January 29, 2020, HB 485 would make it easier for farmers to stay enrolled in the Current Agricultural Use Valuation (CAUV) program.  CAUV allows agricultural land to be taxed at a much lower rate than other types of land.  If HB 485 were to pass, instead of filling out and turning in a CAUV renewal application every year, owners of agricultural land would simply have to submit documentation on the annual gross income of the land to the county auditor each year. The CAUV bill can be found here.

Legislation from 2019 still being considered

  • House Bill 24 “Revise Humane Society law”

In November, we reported that HB 24 passed the House unanimously and was subsequently referred to the Senate Committee on Agriculture & Natural Resources.  Since that time, the committee has held two hearings on the bill. The hearings included testimony from the bill’s House sponsors, who touted how the bill would improve humane societies’ public accountability. The bill would revise procedures for humane society operations, require humane society agents to successfully complete training in order to serve, and would establish procedures for seizing and impounding animals. It would also remove humane societies’ current jurisdiction over child abuse cases and make agents subject to bribery laws. Importantly, HB 24 would allow law enforcement officers to seize and impound any animal the officer has probable cause to believe is the subject of an animal cruelty offense.  Currently, the ability to seize and impound only applies to companion animals such as dogs and cats.  You can read HB 24 here.

  • House Bill 109 “To authorize a property tax exemption for land used for commercial maple sap extraction”

HB 109 was first introduced in February of 2019, but has recently seen some action in the House Ways & Means Committee, where it was discussed in a hearing on January 28, 2020.  The bill would give owners of “maple forest land” a property tax exemption if they: (1) Drill an average of 30 taps during the tax year into at least 15 maple trees per acre; (2) use sap in commercially sold maple products; and (3) manage the land under a plan that complies with the standards of reasonable care in the protection and maintenance of forest land.  In addition, the land must be 10 contiguous acres. Maple forest land that does not meet that acreage threshold can still receive a tax exemption if the sap produces an average yearly gross income of $2,500 or more in the three preceding years, or if evidence shows that the gross income during the current tax year will be at least $2,500.  You can find the text of the proposed bill here.

  • House Bill 160 “Revise alcoholic ice cream law”

Have you ever thought, “Gee, this ice cream is great, but what could make it even better?” Well this is the bill for you! At present, those wishing to sell ice cream containing alcohol in Ohio must obtain an A-5 liquor permit and can only sell the ice cream at the site of manufacture, and that site must be in an election precinct that allows for on- and off-premises consumption of alcohol.  This bill would allow the ice cream maker to sell to consumers for off-premises enjoyment and to retailers who are authorized to sell alcohol. HB 160 passed the House last year and is currently in Agriculture & Natural Resources Committee in the Senate.  Since our last legislative update, the committee has had three hearings on the bill. In the hearings, proponents testified in support of the bill, arguing that it would allow their businesses to grow and compete with out of state businesses. Senators asked questions about how the ice cream would be kept away from children, how the bill would help business, and about other states with similar laws. To read the bill, click here.

  • Senate Bill 2 “Create watershed planning structure”

In 2019, SB 2 passed the Senate and moved on to the House Energy and Natural Resources Committee. If passed, this bill would do four main things. First, it would create the Statewide Watershed Planning and Management Program, which would be tasked with improving and protecting the watersheds in the state, and would be administered by the ODA director.  Under this program, the director of ODA would have to categorize watersheds in Ohio and appoint watershed planning and management coordinators in each watershed region.  The coordinators would work with soil and water conservation districts to identify water quality impairment, and to gather information on conservation practices.  Second, the bill states the General Assembly’s intent to work with agricultural, conservation, and environmental organizations and universities to create a certification program for farmers, where the farmers would use practices meant to minimize negative water quality impacts. Third, SB 2 charges ODA, with help from the Lake Erie Commission and the Ohio Soil and Water Conservation Commission, to start a watershed pilot program that would help farmers, agricultural retailers, and soil and water conservation districts in reducing phosphorus.  Finally, the bill would allow regional water and sewer districts to make loans and grants and to enter into cooperative agreements with any person or corporation, and would allow districts to offer discounted rentals or charges to people with low or moderate incomes, as well as to people who qualify for the homestead exemption.

Since SB 2 moved on to the lower chamber, the House Energy and Natural Resources Committee has held multiple hearings on the bill, and has consented to two amendments.  The first amendment would keep information about individual nutrient management plans out of the public record. Similarly, the second amendment would keep information about farmers’ agricultural operations and conservation practices out of the public record. The text of SB 2 is available here.

  • Senate Bill 234 “Regards regulation of wind farms and wind turbine setbacks”

SB 234 was introduced on November 6, 2019.  Since that time, the bill was assigned to the Senate Energy & Public Utilities Committee, and three hearings have been held. The bill would give voters in the unincorporated areas of townships the power to have a referendum vote on certificates or amendments to economically significant and large wind farms issued by the Ohio Power and Siting Board. The voters could approve or reject the certificate for a new wind farm or an amendment to an existing certificate by majority vote.  The bill would also change how minimum setback distances for wind farms might be measured.  The committee hearings have included testimony from numerous proponents of the bill. SB 234 is available here.  A companion bill was also introduced in the House.  HB 401 can be found here.

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Filed under Animals, Business and Financial, Environmental, Food, Property, Renewable Energy, Tax, Uncategorized, Water

Ohio tackles “TMDL” for Lake Erie’s Western Basin

For the last several years, the state of Ohio and the U.S. EPA have been plagued with objections and lawsuits—from states, local governments, and environmental groups—concerning Ohio’s list of impaired waters and development of total maximum daily loads (TMDLs) for the Western Basin of Lake Erie. (Some of our past blog posts on the subject are available here, here, and here.) Under the Clean Water Act (CWA), states are required to submit a list of impaired, or polluted, waters every two years.  Typically, designating a water body as impaired triggers a review of pollution sources, determinations of TMDLs for different pollutants, and an action plan for meeting those TMDLs.  Ohio repeatedly failed to include the Western Basin in its list of impaired waters, even though the area has been subject to pollution-caused algal blooms in recent years.  When the state finally listed the Western Basin waters as impaired in 2018, it still did not develop the accompanying TMDL for the area.  However, Ohio’s TMDL drought ended last week.

Ohio EPA announced on February 13, 2020, that it would develop TMDLs for the Western Basin “over the next two to three years.” This decision will ultimately affect farmers in the watershed, as it is likely that the Ohio EPA would create TMDLs for phosphorus, nitrogen, and other fertilizers in the Western Basin. Consequently, farmers may have to reduce the amounts they put on their fields, and/or implement additional measures to keep such inputs from running off into the water.

So, Ohio listed the Western Basin as impaired and is working on TMDLs for the area—the controversy is over, right?  Not so fast.  Lucas County, Ohio and the Environmental Law & Policy Center filed a lawsuit against the U.S. EPA that is still ongoing.  (We last discussed this lawsuit here.) Basically, the plaintiffs in the suit are arguing that the U.S. EPA violated the CWA when it allowed the Ohio EPA to designate the Western Basin as impaired in 2018, but did not make the state develop TMDLs.  Even though Ohio has since promised to implement TMDLs for the area, the outcome of the case will still weigh in on the crucial question of whether the U.S. EPA can make states create TMDLs for impaired waters under the CWA.  In addition, the U.S. District Court case applies to Ohio’s 2018 impaired waters list, whereas Ohio EPA’s recent announcement concerns the 2020 list.  Finally, it’s doubtful that environmental groups and others will stop their efforts just because Ohio has now promised to create TMDLs—it’s almost a certainty that the debate over pollution in the Western Basin and the best ways to remedy the problem will persist.

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Is this the final word on WOTUS, or is the rule just being kicked downstream?

Written by Ellen Essman

There’s always something going on with the waters of the United States (WOTUS) rule.  Last September, we wrote a post about how the 1986/1988 WOTUS rule would replace the 2015 Obama rule until the Trump administration finalized its new rule.  Well, the final rule was just announced by the EPA on January 24, 2020.  So, what does the new rule categorize as “waters of the United States?” Are there any differences between the rule as it was proposed in February of 2019 and the final rule? Will this version of WOTUS stick?

What is (and isn’t) WOTUS now?

The Trump EPA’s WOTUS rewrite maps out which waters are and are not waters of the United States. The following are WOTUS in the new rule:

      • The territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide;
      • Tributaries;
      •  Lakes and ponds, and impoundments of jurisdictional waters; and
      • Adjacent wetlands.

Notably, this definition is a great deal shorter than the 2015 iteration of the rule, meaning that less waters fall under the rule. For a refresher on the 2015 rule, we discussed it at length here.

In addition, the new rule contains a much longer list of waters that are not WOTUS:

      • Waters or water features that are not identified in the definition of WOTUS, above;
      • Groundwater, including groundwater drained through subsurface drainage systems;
      • Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools;
      • Diffuse stormwater run-off and directional sheet flow over upland;
      • Ditches that are not territorial seas, waters used in foreign commerce, or tributaries, and those portions of ditches constructed in some adjacent wetlands;
      • Prior converted cropland;
      • Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease;
      • Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters that are connected the territorial seas, or waters used in interstate or foreign commerce;
      • Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;
      • Stormwater control features constructed or excavated in upland or in nonjurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
      • Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in non-jurisdictional waters; and
      • Waste treatment systems.

A draft version of the final rule is available here, and the EPA has a webpage with more information on the rule here.

Changes made to proposed rule

The most significant difference between the proposed rule and the final rule is the treatment of some waters connected by ephemeral streams.  Ephemeral streams are those streams that only last for a short time after precipitation.  In the proposed version of the rule, if upstream perennial and intermittent tributaries were connected to a water of the United States by an ephemeral stream, they were not WOTUS.  The final rule changes this, and such tributaries are WOTUS if they have a surface water connection to a downstream water of the United States during a normal year.  To make a long story short, the final rule protects some bodies of water that the proposed rule left out.

So, WOTUS is set in stone now, right?

Not exactly.  In addition to the ongoing lawsuits over the brief recodification of the 1986/1988 rules, (see our post here), it is almost certain that environmental groups and some states will file lawsuits against the new WOTUS rule.  Additionally, while many in the world of agriculture cheer the new rule, there are other groups that have already spoken out against it.  For example, the group Public Employees for Environmental Responsibility (PEER), which includes many EPA employees, scientists, and lawyers, filed a lengthy complaint against the rule with the Inspector General. In the complaint, PEER argues that the new rule violates EPA’s “Scientific Integrity Policy,” which EPA employees must follow when making decisions. PEER alleges that top employees at the EPA did not follow this policy when writing the rule because the rule was not based on science, and EPA staff with expertise in the area were not consulted. While the new rule is currently the law of the land, we’ll have to wait and see how long it will last.  Challenges like the PEER complaint will have to be addressed, as well as an inevitable wave of lawsuits. Like the 2015 rule, the lawsuits and challenges will likely alter and/or interrupt the implementation of this so-called “final” rule.

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The Ohio Ag Law Blog–In Deep Water—EPA and states face lawsuits over water pollution

Written by Ellen Essman

Lawsuits against the U.S. EPA and individual states seem to be a popular strategy to address water pollution problems.  Last April, we wrote about Lucas County, Ohio and its suit against the EPA over water quality in the western basin of Lake Erie.  Since that time, a federal judge has given another lawsuit concerning Lake Erie, filed by the Environmental Law & Policy Center (ELPC), the green light.  But not all litigation concerns Ohio waters—recently, Maryland’s attorney general was directed to sue the EPA and Pennsylvania over water pollution in the Chesapeake Bay.   Here are summaries of these two developments.

Environmental Law & Policy Center vs. EPA

We wrote about this lawsuit in February 2019, when ELPC had just filed its complaint.  Essentially, ELPC contended that the U.S. EPA violated the Clean Water Act (CWA) when it allowed the Ohio EPA to designate Lake Erie as an impaired water body without instituting a Total Maximum Daily Load (TMDL) for pollutants going into the lake.  You can get more details on this case by reading our blog post, here.  Subsequently, EPA moved to dismiss the complaint.  In addition, Lucas County joined ELPC as co-plaintiffs.

On November 13, 2019, the U.S. District Court for the Northern District of Ohio denied EPA’s motion to dismiss.  Judge James Carr ruled that the case can go forward, finding that ELPC “plausibly alleges that Ohio EPA has clearly and unambiguously refused to develop a TMDL for Western Lake Erie.” This means that the action will go forward and that ELPC will be able to argue the case on the merits.  You can read the ruling here.

Maryland to sue EPA, Pennsylvania

Meanwhile, in Maryland, the governor recently sent a letter to the state’s attorney general asking him to “commence litigation” against the EPA for “failing to enforce the Chesapeake Bay” TMDL, and against its upstream neighbor, Pennsylvania, for “repeatedly falling short of necessary pollution reduction goals.” At the center of this controversy is Pennsylvania’s draft Watershed Implementation Plan (WIP), which Maryland’s governor alleges will cause Pennsylvania to fall far behind its 2025 pollution reduction targets in addition to not meeting the TMDL.  The governor asserts that by accepting Pennsylvania’s WIP with very few changes, the EPA is failing to enforce Pennsylvania’s compliance with the established TMDL.

What’s next?

It typically takes these types of lawsuits a while to work through the courts. The way the courts decide these cases will affect how TMDLs are viewed.  Are TMDLs necessary under the CWA and enforceable, as the plaintiffs claim? Or are TMDLs simply soft goals and guidelines for reducing pollution that EPA does not necessarily have to enforce?  Ultimately, outcomes of these cases could have implications for agricultural runoff, which can be a contributor to pollution in both Lake Erie and the Chesapeake Bay.

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Filed under Conservation Programs, Environmental, Uncategorized, Water

The Ohio Ag Law Blog–The Ag Law Harvest

Written by Ellen Essman and Peggy Hall

The holidays are almost here, 2019 is almost over, but the world of ag law isn’t taking a break.  From cannabidiol, to Ohio bills on water quality and wind power, to a cage-free egg law in Michigan, here’s the latest roundup of agricultural law news you may want to know:

FDA warns companies about cannabidiol products. If you’ve been following the hemp saga unfold over the past year, you know that the Food and Drug Administration (FDA) has been contemplating what to do with cannabidiol, or CBD from derived hemp products.  In addition to manufacturing standards, FDA has also considered how CBD products are marketed and labeled.  Although FDA has issued no official rules on CBD marketing and labeling, the agency has warned a number of companies that their marketing of CBD violates the Federal Food, Drug, and Cosmetic Act (FD&C Act). On November 25, FDA sent warning letters to 15 companies.  FDA asserts that the companies “are using product webpages, online stores and social media to market CBD products in interstate commerce in ways that violate the FD&C Act.”  In particular, FDA is apprehensive about those companies who market CBD products in ways that claim they can treat diseases or be used therapeutically for humans and animals.  Since CBD has not been approved by FDA or found safe for these uses, companies cannot make such claims.  You can see FDA’s news release for more information and for the list of companies.

It won’t be as difficult for financial institutions to serve hemp related businesses.  Federal agencies and state bank regulators released a statement clarifying what is required of banks when hemp businesses are customers.  Since hemp was removed from the federal list of controlled substances, banks no longer have to file a Suspicious Activity Report on every customer involved in growth or cultivation of hemp just because they grow hemp.  This action will make it easier for those legally cultivating hemp to work with banks and obtain loans for their farms.  For more information, the agencies’ press release is available here.

Ohio House considers the Senate’s water quality bill.  Ohio’s House Energy & Natural Resources Committee held a hearing on Senate Bill 2 just last week.  The bill would implement a Statewide Watershed and Planning Program through the Ohio Department of Agriculture (ODA). Under the bill, ODA would be charged with categorizing watersheds in Ohio and appointing coordinators for each of the watersheds.  ODA and the coordinators would work closely with soil and water conservation districts to manage watersheds.  Ag groups such as the Sheep Improvement Association, the Cattleman’s Association, the Pork Council, the Dairy Producers Association, and the Poultry Association testified in favor of SB 2.

Ohio House committee debates wind bill.  The House Energy & Natural Resources
Committee was busy last week—in addition to SB 2, they also discussed House Bill 401.  In the simplest terms, if passed, HB 401 would allow townships to hold a referendum on approved wind projects.  This means that with a vote, townships could overturn decisions made by the Ohio Power and Siting Board (OPSB).  In the committee hearing, wind industry representatives argued that such a referendum would be harmful, since it would overturn OPSB decisions after companies have already spent a great deal of money to be approved by the Board.  They also argued that the bill singles out the wind industry and does not allow referendums on other energy projects.  Republican committee members signaled that they may be willing to revise the language of HB 401 to allow a referendum before OPSB decisions.

Iowa’s ag-gag law is paused.  In May, we wrote about Iowa’s new ag-gag law, which was the state’s second attempt to ban undercover whistleblowers and journalists from secretly filming or recording at livestock production facilities.  In response, numerous animal rights groups sued the state, claiming that the law unconstitutionally prevents their speech based on content and viewpoint.  On December 2, the U.S. District Court for the Southern District of Iowa issued a preliminary injunction, which means that the state will not be able to enforce the ag-gag law while the lawsuit against it is being considered. The preliminary injunction can be found here.

Cage free eggs coming to Michigan in 2024. Michigan lawmakers recently passed Senate Bill 174, which, among other things, will require that all birds producing eggs both in and out of the state be housed in “cage-free” facilities by 2024.  The cage-free facilities will have to allow hens to roam unrestricted with the exception of exterior walls, and some types of fencing to contain the birds.  In an indoor facility, the farmer must be able to stand in the hens’ usable floor space while caring for them.  In addition, the facilities must have enrichments for hens such as scratch areas, perches, nest boxes, and dust bathing areas. Michigan joins California, Oregon, Rhode Island, and Washington in banning non-cage-free eggs.  Note that Michigan’s law will apply to Ohio egg producers who sell eggs to buyers in Michigan.

Case watch:  hearing set in Lake Erie Bill of Rights case.   The court has set a January 28, 2020 hearing date for the slow moving federal lawsuit challenging the Lake Erie Bill of Rights (LEBOR) enacted by Toledo voters in February.  The hearing will likely focus on several motions to dismiss the case filed by the parties on both sides of the controversy, but Judge Zouhary indicated that he’ll set the agenda for the hearing prior to its date.  Drewes Farm Partnership filed the federal lawsuit against the City of Toledo in February, claiming that LEBOR is unconstitutional and violates several Ohio laws.  The State of Ohio was permitted to join the farm as plaintiffs in the case, but the court denied motions by Toledoans for Safe Water and the Lake Erie Ecosystem to join as defendants in the case.   For more on the LEBOR lawsuit, refer to this post and this post.  For our explanation of LEBOR, see this bulletin.

Stay tuned to the Ohio Ag Law Blog as we continue to track these and other developments in agricultural law through the holidays and beyond.

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Filed under ag law harvest, Animals, Environmental, Food, livestock facilities, Renewable Energy, Uncategorized, Water

Ohio Ag Law Blog–Be prepared for new waves of WOTUS lawsuits

Written by Ellen Essman

You’re never going to make everyone happy.  This is especially true when it comes to the federal definition of “waters of the United States,” or WOTUS, under the Clean Water Act (CWA).  The definition of WOTUS has changed over the years in order to adapt to numerous court decisions.  The Obama administration’s 2015 rule has been litigated so much that a patchwork of enforcement has been created across the country, with some states falling under the 2015 rule and others falling under the previous iterations of the rule from 1986 and 1988.  In fact, in New Mexico, parts of the state follow one rule and other parts follow the other.  You can see the current state breakdown here.

To add even more chaos to all of this confusion, the Trump administration decided to repeal and replace Obama’s 2015 rule.  In September, a rule was announced that would repeal the 2015 WOTUS rule and replace it with the 1986 and 1988 rule.  This reversion would not be permanent; the 1986/1988 rule is simply a placeholder until the EPA and Army Corps of Engineers finalize a new WOTUS rule to replace it. The repeal is set to become effective in December.  You can read our blog post on the repeal here.

Of course, there are those who are unhappy with the 1986/1988 rule being reinstated, even if only for a time.  In October, two lawsuits were filed against the EPA and Army Corps of Engineers in federal district courts.  In South Carolina, environmental groups sued because they feel that the 1986/1988 rules do not go far enough to protect waters.  On the other hand, in the New Mexico Cattle Growers’ Association sued because they feel that returning to the 1986/1988 rules goes too far in regulating water.  Below, we will briefly break down the arguments in each of these lawsuits.

South Carolina lawsuit

Following the October repeal announcement, environmental groups, including the South Carolina Coastal Conservation League and the Natural Resources Defense Council, sued the EPA and U.S. Army Corps of Engineers in the U.S. District Court for the District of South Carolina, Charleston Division, claiming that the repeal rulemaking was unlawful.  In their complaint, the environmental groups make several arguments.  They allege that the repeal rulemaking violates the Due Process Clause, Administrative Procedure Act (APA), and Supreme Court precedent.  They say that the Due Process Clause has been violated because the rulemaking was not undertaken with an open mind, instead it was already pre-judged or all but decided before the process even started.  They cite many violations of the APA—including failing to provide a “reasoned explanation” for the repeal, failing to discuss alternatives to repealing the rule, and failing to provide a meaningful opportunity for public comment on the rulemaking.  Additionally, the environmental groups claim that the repeal “illegally departs from Justice Kennedy’s” opinion in the Rapanos case. Ultimately, Kennedy’s opinion in Rapanos is what led the EPA and Corps to scrap the 1986/1988 rule and create the 2015 rule to be more consistent with that opinion.  Therefore, the environmental groups argue that going back to the 1986/1988 version would violate Kennedy’s “significant nexus” test for WOTUS, which invalidated the old version of the rule.  In other words, the environmental groups believe that going back to the 1980s rules will result in less waters being protected.

New Mexico lawsuit

The New Mexico Cattle Growers’ Association (NMCGA) sued the EPA and the U.S. Army Corps of Engineers in the U.S. District Court for the District of New Mexico.  In the complaint, NMCGA asks the court to enjoin, or stop the enforcement of the repeal rule, claiming that the rule violates the CWA, the Congressional Review Act, the Commerce Clause, the Due Process Clause, the Non-delegation Doctrine, and the Tenth Amendment.  The NMCGA’s argument hinges on the definition of “navigable waters.” Under the CWA, “navigable waters” are the same as WOTUS.  Like the environmental groups in South Carolina, NMCGA interprets the Rapanos decision as invalidating provisions of the 1986/1988 WOTUS rule.  NMCGA, however, reads Rapanos as limiting “navigable waters” to only the waters that are actually navigable, or “navigable-in-fact.” Thus, unlike the environmental groups, NMCGA believes that both the 1986/1988 rule and the 2015 rule result in more waters being regulated than is allowed under the CWA and Supreme Court decisions.

Will the tide turn on WOTUS in the future?

Despite the Trump EPA’s repeal and upcoming replacement of the 2015 rule, the future of WOTUS is anything but certain.  The lawsuits in South Carolina and New Mexico are just the latest proof of that. What is more, the lawsuits to enjoin the 2015 rule are still ongoing, and it is unclear whether they will be wiped out when the repeal rule becomes effective in December.  When the replacement rule is finally published, there is no doubt even more lawsuits will follow. It’s also important to remember that we have an election next year, so if there’s a new administration, they’ll probably put their own stamp on WOTUS.

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