Category Archives: Water

Case Watch: The Lake Erie Bill of Rights Lawsuit

The media storm that surrounded the controversial Lake Erie Bill of Rights (LEBOR) has quieted, but the federal lawsuit over LEBOR has heated up.  Just a month ago, Toledo residents voted to approve LEBOR.  The measure establishes rights within the City’s charter for the Lake Erie Ecosystem to “exist, flourish, and naturally evolve” as well as rights to self-government and a clean and healthy environment for the citizens of Toledo.  LEBOR states that corporations or governments that violate these rights can be liable for harm caused and also cannot use existing federal and state laws or permits in defense of the violations.   Drewes Farm Partnership filed a lawsuit in federal court the day after LEBOR passed.  The farm’s complaint asks a federal court to declare LEBOR unconstitutional on several grounds and also claims that LEBOR violates state laws.   Recent developments in the past week prompted us to provide this quick update on the lawsuit:

City of Toledo agrees to a preliminary injunction.  The court announced on March 18 that the City of Toledo agreed to the entry of a Preliminary Injunction Order.  Drewes Farm requested the injunction when it filed the lawsuit.  The court stated that the purpose of a preliminary injunction “is merely to preserve the relative positions of the parties until a trial on the merits can be held” and noted that the City of Toledo has not “commenced or initiated any action against Drewes Farms or others pursuant to LEBOR.”  Toledo therefore agreed to the injunction and to maintain its current position of not taking any action to enforce LEBOR.

Lake Erie Ecosystem and Toledoans for Safe Water ask to join the lawsuit.    Also on March 18, two attorneys filed a motion asking the court to allow the Lake Erie Ecosystem and the Toledoans for Safe Water to “intervene” in the case as defendants.  Federal rules allow a party to file a motion to intervene and become a party to ongoing litigation as either a matter of right or with permission of the court.  The attorneys argue that the parties should be allowed to intervene as of right because they have significant legal interests that will be impaired by the case and that the City of Toledo can’t adequately represent those interests.  They also ask the court to allow permissive intervention because the parties have a claim or defense that share a common question of law or fact with the main action.  The court has asked Drewes Farm and Toledo to file briefs in response to the motion to intervene. Note that the two attorneys representing the Lake Erie Ecosystem and the Toledoans for Safe Water have worked with the Community Environmental Legal Defense Fund, the organization that assisted with the petition initiative that resulted in the adoption of LEBOR.

Lake Erie Ecosystem and Toledoans for Safe Water file a motion to dismiss the lawsuit.  On the same day as filing a motion to intervene, the attorneys also filed a motion to dismiss the case on behalf of the Lake Erie Ecosystem and Toledoans for Safe Water.  The motion argues that Drewes Farm does not have legal “standing” to bring the case, which is based upon federal constitutional law that states that a federal court cannot have jurisdiction over a case unless the plaintiff demonstrates that he or she has suffered concrete and particularized “injury in fact” that is fairly traceable to the defendant’s conduct and that the requested remedies will redress the alleged injuries.  Lake Erie and the Toledoans for Safe Water argue that Drewes Farm has not stated a concrete injury or actual or imminent harm due to LEBOR and therefore cannot meet the standing requirement.

City of Toledo files its answer to the complaint.  Yesterday, the City of Toledo filed its answer to the complaint filed against it by Drewes Farm.  Toledo presents sixteen defenses to the farm’s allegations, which include a general denial of the complaint and other defenses based upon arguments that:  the farm does not have legal standing, has not stated a claim or stated actual or imminent harm and has based its harm on premature speculation; that the City itself is immune and has acted properly, in good faith, and as authorized or required by law to act; that the relief requested by the farm would violate the rights of the citizens of Toledo; that the farm has a duty to mitigate its damages; and that the farm failed to join necessary parties and has not stated a basis for the relief requested.   Toledo asks the court to dismiss the case and award all costs of the lawsuit to the City of Toledo.

What’s next? Now the parties must wait for the court to act on the motion to intervene, motion to dismiss, and/or the City of Toledo’s request to dismiss the case.  We’ll keep watching the case and will let you know when the court makes a ruling on any of these requests.

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Legal defenses for agricultural production activities

Whether producing crops, livestock, or other agricultural products, it can be challenging if not impossible for a farmer to completely prevent dust, odors, surface water runoff, noise, and other unintended impacts.   Ohio law recognizes these challenges as well as the value of agricultural production by extending legal protections to farmers.  The protections are “affirmative defenses” that can shield a farmer from liability if someone files a private civil lawsuit against the farmer because of the unintended impacts of farming.  A court will dismiss the lawsuit if the farmer successfully raises and proves an applicable affirmative legal defense.

In our latest law bulletin, we summarize Ohio’s affirmative defenses that relate to production agriculture.  The laws afford legal protections based on the type of activity and the type of resulting harm.  For example, one offers protections to farmers who obtain fertilizer application certification training and operate in compliance with an approved nutrient management plan, while another offers nuisance lawsuit protection against neighbors who move to an agricultural area.  Each affirmative defense has different requirements a farmer must meet but a common thread among the laws is that a farmer must be a “good farmer” who is in compliance with the law and utilizing generally accepted agricultural practices.  It is important for farmers to understand these laws and know how the laws apply to a farm’s production activities.

To learn more about Ohio’s affirmative defenses for agricultural production activities, view our latest law bulletin HERE.

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Long-awaited WOTUS rewrite published

Written by Ellen Essman, Senior Research Associate

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

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

Out with the old WOTUS…

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

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

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

…In with the new WOTUS

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

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

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

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

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

Notable differences between 2015 rule and proposed rule

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

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

What’s next?

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

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“Watersheds in distress” rules don’t clear the JCARR hurdle

The legislative Joint Committee on Agency Rule Review (JCARR) has voted  to send the “watersheds in distress” rule revisions back to the Ohio Department of Agriculture (ODA).   JCARR reviews administrative rules to make sure they follow legal requirements, which we explained in a previous blog post.   The “watersheds in distress” rules seek to address agricultural nutrient impacts on water quality, also explained in an earlier post.  At its meeting yesterday, JCARR members voted 8 to 1 to recommend that ODA revise and refile the rules for consideration at JCARR’s next meeting on January 22, 2019.

The January 22 meeting date effectively removes Governor Kasich’s administration from the rules revision.  Kasich issued an executive order last July directing his agencies to prepare the controversial rule package.  But the incoming DeWine Administration will control the fate of the rules since DeWine takes office on January 14, 2019.    JCARR is apparently counting on the new administration to take a different approach on agricultural nutrient pollution reduction.

“There will be a new administration and we’ll have maybe more productive talks,” stated JCARR’s chair, Sen. Joe Uecker (R-Loveland).  “The DeWine Administration has demonstrated an interest on working with stakeholders on this issue.”

The lack of stakeholder involvement was a common concern voiced by JCARR members, who stated that the rules had been rushed and did not involve all of the interested parties.  Several committee members also suggested that the rules are inconsistent with legislative intent and will have a significant adverse impact on farmers.  The Ohio Soybean Association, Ohio Corn & Wheat Growers Association, and Ohio Farm Bureau echoed those criticisms to JCARR members while several local residents, local groups and the Ohio Environmental Council testified that the rules would not sufficiently protect water quality.

If ODA fails to refile the rules proposal for the January meeting, JCARR will have 31 days to recomend that the Ohio General Assembly invalidate the rules.  That action would allow each chamber five days to pass a resolution invalidating the rules; if the concurrent resolution does not pass within that time period, the rules would stand.  Alternatively, ODA could remove the proposal from JCARR’s agenda and refile revised rules at a later date, a likely course of action for the incoming DeWine administration.

Read the minutes of the December 10, 2018 JCARR meeting, which will be posted here.  The proposed rules are here and here.

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The Ag Law Harvest

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

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

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

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

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

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Answering your questions about surface water drainage rights

New law bulletin explains Ohio surface water drainage law

The drainage of surface water is undoubtedly important to agricultural landowners.  A question we often hear is whether someone can interfere with the surface water drainage on someone else’s property.  The answer to this question lies in Ohio’s “reasonable use doctrine,” which establishes guidelines for when a landowner has a legal right to affect the drainage of surface water onto another property.  Our new law bulletin, “Surface Water Drainage Rights,” explains this important legal doctrine.

Here is a quick summary of the bulletin:

  • A landowner does not have an absolute privilege to deal with surface water as he or she pleases but does have a legal right to alter the flow of surface waters from the property.
  • However, a landowner has a legal duty of “reasonable use” when affecting surface water drainage and can be liable if a harmful interference with the flow of surface water is “unreasonable.”
  • To determine whether land uses and drainage interferences are “reasonable” or “unreasonable,” Ohio courts will examine four important factors:  the utility of the land use or drainage use, the gravity of harm caused to others, the practicality of avoiding the harm, and the fairness of requiring other landowners to bear harm from the drainage interference.
  • A harmed party can seek damages for injuries resulting from an “unreasonable” drainage interference. Options for pursuing damages include hiring an agricultural attorney to send a “demand letter” or file a negligence claim or using the small claims court for damages that are $6,000 or less.
  • Another way to resolve a drainage interference is to work with the county Soil and Water Conservation District or county engineer’s office to develop a drainage improvement project. Landowners may use the drainage petition process, which requires all landowners within the area benefitted by drainage improvement project to pay for the project through property assessments.

For a detailed explanation of drainage rights, read the full bulletin here.

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