Tag Archives: agricultural pollution

A new Lake Erie battle: Lucas County sues U.S. EPA over western basin water quality

Disagreements over how to improve the health of Lake Erie have led to yet another federal lawsuit in Ohio.   This time the plaintiff is the Board of Lucas County Commissioners, who filed a lawsuit in federal court last Thursday against the U.S. EPA.  The lawsuit accuses the U.S. EPA of failing to enforce the federal Clean Water Act, which the county believes has led to an “alarming” decline in the water quality of western Lake Erie.

The Clean Water Act requires states to monitor and evaluate water quality and establish water quality criteria, and also to designate a water body as “impaired” if it does not meet the criteria.   Once a water body is on the impaired waters list, the state must create Total Maximum Daily Loads (TMDLs) for the water body.  TMDLs determine the maximum amounts of each pollutant that can enter a water body and still allow the water to meet the established water quality criteria.  Plans for reducing a pollutant would be necessary if the pollutant exceeds the TMDLs.  The state’s efforts to establish the water quality criteria, designate impaired waters and develop TMDLs are subject to review and approval by the U.S. EPA, who must ensure that the states are taking adequate action pursuant to the Clean Water Act.

Lucas County alleges that the U.S. EPA has failed in its Clean Water Act obligations by allowing Ohio to refuse to prepare TMDLs for the western basin of Lake Erie.  Even after another court battle forced the designation of the western basin as “impaired,” the county explains, Ohio’s EPA declared the western basin to be a low priority for TMDL development and has not yet proposed either TMDLs or an alternative plan for addressing the basin’s impaired water status.   Lucas County argues that since Ohio has not established TMDLs for the impaired waters of Lake Erie, the U.S. EPA must step in and do so.

The county also contends that the lack of state and federal action on the impaired waters status of the western basin has forced Lucas County to expend significant resources to maintain and monitor Lake Erie water quality for its residents.  According to Lucas County, such actions and costs would be unnecessary or substantially reduced if the U.S. EPA had fulfilled its legal obligations to ensure the preparation of TMDLs for the western basin.

Agricultural pollution is an explicit concern in the county’s complaint.  The development of TMDLs for the western basin would focus needed attention and remedial measures on pollution from agricultural operations, Lucas County states.  The county asserts that TMDLs would establish a phosphorous cap for the western basin and methods of ensuring compliance with the cap, which would in turn address the harm and costs of continued harmful algal bloom problems in Lake Erie.

The remedy Lucas County requests is for the federal court to order the U.S. EPA to either prepare or order the Ohio EPA to prepare TMDLs for all harmful nutrients in the western basin, including phosphorous.  The county also asks the court to retain its jurisdiction over the case for continued monitoring to ensure the establishment of an effective basin-wide TMDL.

This is not the first TMDL lawsuit over the western basin.  In early February of this year, the Environmental Law and Policy Center (ELPC) and the Toledo-based Advocates for a Clean Lake Erie filed a lawsuit that similarly alleges that the U.S. EPA has failed to require Ohio to establish TMDLs for the western basin, which is still ongoing.  See our summary of that case here.  The case followed an earlier and successful push by the ELPC to order Ohio to declare the western basin as impaired, which the state had refused to do previously.  We explain that history here.

The newest round of litigation again highlights differences in opinion on how to remedy Lake Erie’s phosphorous pollution problem.   Like the TMDL lawsuits, a successful effort by the Toledoans for Safe Water to enact the Lake Erie Bill of Rights was also predicated on claims that Ohio and the federal government aren’t taking sufficient action to protect Lake Erie.  Lucas County made it clear that it isn’t satisfied with the state of Ohio’s approach of providing funding to promote voluntary practices by farmers to reduce phosphorous pollution, despite stating that the county isn’t “declaring war on agriculture.”  In its press conference announcing the current lawsuit, the county explained that the state’s voluntary approach won’t provide the “sweeping reforms we need.”  On the other hand, the Ohio Farm Bureau has argued that the TMDL process for Lake Erie can take years longer and be less comprehensive than the voluntary practices farmers are pursuing.  Still others believe that more research will help us fully understand the phosphorous problem and identify solutions.

As battles continue over the best approach to improving Lake Erie’s water quality, maybe all could at least agree that litigation is costly, in many ways.  An alternative but perhaps more challenging path would be appreciation of the concerns on both sides of the issue and cultivation of collaborative solutions.  Let’s hope we can find that path.  In the meantime, we’ll keep you up to date on the continuing legal battles over water quality in Lake Erie.

Read the complaint in Board  of Lucas County Commissioners vs. U.S. EPA here.

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The Legal Challenges to the Lake Erie Bill of Rights Begin

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

Toledo’s Lake Erie Bill of Rights (LEBOR) has been in the headlines a lot lately, and certainly on the minds of farmers in the Lake Erie watershed.  So far, the Ag Law Blog has focused attention on what LEBOR iswhy it was on the ballot, and what types of defenses agricultural producers can raise if sued.  Because voters approved the ballot measure, the focus now shifts to how LEBOR will be treated in the courts.

On February 26th, Toledo held a special election, with one of the ballot questions being whether to amend the City of Toledo’s charter to adopt LEBOR.  While less than 9 percent of Toledo’s registered voters cast a ballot, the majority of those who did voted in favor of amending the city’s charter to include LEBOR.

On February 27th, the Drewes Farm Partnership filed a complaint and initiated a lawsuit in federal court against the City of Toledo.  Family owned and operated, this Wood County based grain farm operates wholly within the Lake Erie watershed.  Drewes Farm utilizes both manure and commercial fertilizers, and states in its complaint that it follows industry best practices, scientific recommendations, and all legal requirements such as keeping records and not applying fertilizer on snow covered ground.  Two of the family members obtained Fertilizer Applicator Certificates, and the Ohio Department of Agriculture certified the farm under its Ohio Agricultural Stewardship Verification Program.

The complaint specifically alleges violations of Drewes Farm’s rights under the First Amendment, Equal Protection Clause, and Due Process Clauses of both the Fifth and Fourteenth Amendments.  Further, the complaint argues that LEBOR exceeds the City of Toledo’s authority by intruding on state and federal powers by attempting to meddle with international relations, invalidate state and federal permits, invalidate state law, alter the rights of corporations, and create new causes of action in state courts.  Drewes Farm requests that the court 1) grant it a preliminary and permanent injunction to prevent LEBOR’s enforcement, 2) invalidate LEBOR, and 3) grant the plaintiff an award for costs and fees.

The following day, Drewes Farm filed a motion for a preliminary injunction.  Parties use preliminary injunctions as a way to enforce the status quo and prevent the other parties from acting in a way that would cause further harm.  If granted, the preliminary injunction would prevent the enforcement of LEBOR against the Drewes Farm Partnership during the course of the litigation.  At the end of the case, there would be a determination of whether Drewes Farm should receive a permanent injunction, which would prevent LEBOR from being enforced against it after the case has ended.

The party who brings the motion must argue and prove four elements in order for the court to grant the motion for a preliminary injunction:

First, that the movant has a likelihood of success on the merits, meaning that it is likely that the movant will win the underlying case.  Drewes Farm’s motion examines each of the grounds that it believes violates its constitutional rights and state and federal law.  Drewes Farm argues that it can win on each of the dozen grounds it examines, and that it need only show a likelihood of success on one ground to satisfy this element.

Second, that the movant could suffer irreparable harm without a preliminary injunction, meaning that without a preliminary injunction, the other party may take action to harm the movant in a way that it will not be able to recover.  Here, Drewes Farm cites court cases explaining that the loss of one’s constitutional rights for any amount of time constitutes irreparable harm, and that a likelihood of success also demonstrates irreparable harm.

Third, that the issuance of an injunction will not cause greater harm.  This element balances the previous element to see whether the injunction is fair.  Where the second element looks at the harm to the movant, the third element looks at whether a preliminary injunction will harm others.  Here, Drewes Farm argues that others will not be harmed by the granting of a preliminary injunction because it will merely allow the farm to continue operating as required under the law and its permits using best practices.  Further, Drewes Farm mentions that the other farms in the watershed will actually experience a benefit from the prevention of LEBOR’s enforcement.

Fourth, that the issuance of a preliminary injunction would serve the public interest.  Here, Drewes Farm cites additional court cases explaining that the enforcement of constitutional rights is inherently in the public interest.  Further, it argues that the State of Ohio holds its portion of Lake Erie in trust “for all Ohio citizens, not just those residing in a single municipality.”

If the court is satisfied that Drewes Farm has established each of the four elements, it may grant a preliminary injunction.

At this time, the City of Toledo has not filed any responses to the complaint or motion; however, procedural rules require it to respond in a timely manner.  Because it has not filed anything with the court, it is unclear how the City of Toledo intends to defend or respond.  However, since enforcement of LEBOR had not been commenced against the Drewes Farm Partnership, it is possible that Toledo will challenge the plaintiff’s standing to sue at the present time.

The case is cited in court records as Drewes Farm Partnership v. City of Toledo, Ohio, 3:19-cv-00343 (N.D. Ohio).  Stay tuned to the Ag Law Blog for updates about the case.

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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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In the Weeds: Taking a Closer Look at the Lake Erie Bill of Rights

Lake Erie once again made headlines when the Ohio Supreme Court recently decided that a “Lake Erie Bill of Rights” (LEBOR) initiative could be placed on the Toledo ballot on February 26, 2019.  The decision raised alarm in Ohio’s agricultural community and fears that, if passed, the measure will result in litigation for farmers in the Lake Erie watershed.

The OSU Extension Agricultural and Resource Law Program took a close look at LEBOR.  Specifically, we wanted to know:

  • What does Toledo’s Lake Erie Bill of Rights petition mean?
  • What does the petition language say?
  • What happened in the legal challenges to keep the petition off the ballot?
  • Have similar efforts been successful, and if not, why not?
  • Who has rights in Lake Erie?
  • What rights do business entities have?

We examine all of these questions, plus a number of frequently asked questions, in a new format called “In the Weeds.”  While many of our readers know of our blog posts and law bulletins, explaining this issue required something different.  Using “In the Weeds” is a way for us to dig into a current legal issue more in depth.

For answers to the questions above and more, CLICK HERE to view the new “In the Weeds: The Lake Erie Bill of Rights Ballot Initiative.”

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Contentious Des Moines Water Works Litigation Comes to an End

Federal court dismisses Clean Water Act lawsuit against Iowa drainage districts

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

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

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

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

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

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

What does the decision mean for agriculture?

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

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

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

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

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

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

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Revisions Coming to the Ohio Agricultural Pollution Abatement Program?

Program revisions include new rules to address manure impacts on Ohio lakes

The Ohio Department of Natural Resources (ODNR) will hold a public hearing next week for its proposed revisions to the Ohio Agricultural Pollution Abatement Program,  a water quality program that encourages voluntary actions to manage water pollution impacts from agricultural and silvicultural land uses, provides cost-sharing for agricultural pollution prevention, and allows ODNR to take measures against those who do not voluntarily address an agricultural pollution problem.  For purposes of the program, “agricultural pollution” is the failure to use appropriate practices in farming or silvicultural operations  to abate soil erosion or water quality impacts caused by animal waste or soil sediments.  Local Soil and Water Conservation Districts are initially responsible for implementing the program, with final oversight and enforcement authority held by ODNR’s Division of Soil and Water Resources.

The rule revisions come partially as a result of the agency’s mandatory five-year review of the program.   However, several new rules–undoubtedly the most controversial proposals–are in response to the high blue-green algae levels  in Grand Lake St. Mary’s and other Ohio lakes this past summer.  Studies indicate that manure is one of the contributors to the proliferation of the blue-green algae.  A plan of action to improve the lake’s water quality developed in July by ODNR, the Ohio Department of Health and the Ohio EPA proposed several actions related to manure management, including these new rules for the Agricultural Pollution Abatement Program:

  • Declaration of a “watershed in distress.”    The rule would give the chief of ODNR’s Division of Soil and Water Resources, with the approval of the Ohio Soil and Water Conservation Commission, the authority to declare a “watershed in distress” where the watershed has aquatic life and health that is impaired by nutrients or sediment from agricultural land uses and where there is a threat to public health, drinking water supplies, recreation, or public safety and welfare.  
  • Pollution minimization in distressed watersheds.   The  distressed watershed designation requires all owners, operators and persons responsible for land application of manure in the watershed to minimize pollution by following applicable standards, methods or management practices; failure to do so is a program violation, regardless of whether pollution actually results from the failure.  
  • Land applications of manure in distressed watersheds.  After a watershed remains designated “in distress” for more than two years, the rule places restrictions on land applications of manure, including required prior approval from the state for applications between December 15 and March 1, injection or incorporation for manure applied to  frozen or snow pack ground before December 15 or after March 1 and limitations on applications during certain types of weather.  Additionally, all owners and operators in the distressed area must maintain 120 days of manure storage.
  • Nutrient management plans in distressed watersheds.  Each owner, operator or person responsible for producing, applying or receiving more than 350 tons or 100,000 gallons of manure annually in a distressed watershed must develop a nutrient management plan as specified by the regulations.

In response to the proposed new rules, the Ohio Farm Bureau has already indicated that, while it supports the general intent to address water quality issues in Grand Lake St. Marys, it is concerned that the distressed watershed provisions are too vague and may exceed ODNR’s scope of authority.  The legislature originally granted ODNR’s authority for the Ohio Agricultural Pollution Abatement Program in Ohio Revised Code Chapter 1511.  Interestingly, in the joint plan of state actions for water quality improvement at Grand Lake St. Mary’s, the state agencies admitted that they were asking the Ohio General Assembly to support “additional state regulatory authority” by way of approval of the proposed rule revisions by the legislature’s Joint Committee on Agency Rule Review (JCARR).  Whether this additional authority exceeds the scope of authority originally granted by the Ohio legislature is a question that JCARR will address in its review of the proposed rules.

The remaining proposed revisions to the agricultural pollution abatement program regulations intend to address a need for more rapid handling of pollution situations as well as problems identified through a program review conducted last year by an appointed advisory committee.   Other revisions in the rules package  include:

  • The inclusion of manure applicators as parties responsible for land application of manure, in addition to the current rule’s allocation of responsibility for the owners or operators of animal feeding operations. 
  • A number of changes designed to create more flexibility and efficiency in program oversight and administration by allowing earlier involvement of the Division of Soil and Water Resources.
  • An increase of cost share monies to a maximum of $30,000 and expansion of the types of practices eligible for cost-sharing;
  • A change throughout the rules from “animal waste” to “manure,” which includes animal excretia, discarded products, process waste water, process generated waste water, waste feed, silage drainage, and compost products from mortality composting, on farm biodigerster operations or animal excretia composting. 
  • Required facility modifications where seepage of animal manure occurs.
  • Changing “concentrated animal feeding operations” to “animal feeding operations” throughout the rule and clarifying that the program does not apply to facilities regulated through the state’s Livestock Environmental Permitting Program or NPDES permit program.

The ODNR has posted the rules package and supporting materials on its website.  The public hearing for the rules proposal will take place on November 8, 2010.

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