Another lawsuit filed over Ohio’s list of impaired waters

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

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

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

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

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

Ohio Senate Passes CAUV Bill

Source: Peggy Hall, Ohio Agricultural Law Specialist

Ohio’s Senate has settled on its solution for fixing Ohio’s CAUV formula. The Senate unanimously passed S.B. 36  yesterday after the Senate Ways and Means Committee adopted two amendments to the bill.  The legislation aims to stem recent increases in property taxes for farmland enrolled in Ohio’s Current Agricultural Use Valuation (CAUV) program.   The Senate’s bill will ensure that the CAUV formula “sticks to valuing farmland based on agricultural production,” stated the bill’s sponsor, Sen. Cliff Hite (R-Findlay).

In addition to including new factors in the CAUV formula,  making changes to the capitalization rate calculation and addressing rates used for conservation lands (explained in detail in our earlier post on S.B. 36), the bill passed by the Senate yesterday contained two new provisions:

  • A three year phase-in of the changes to the CAUV formula, which would begin the first tax year after 2016 in which a county’s sexennial appraisal or triennial update occurs.  The purpose of the phase-in is to reduce the financial impact of lowered property valuations on school districts.
  • Replacement of the seven year rolling average determination of the equity yield rate with an equity yield rate that equals the 25-year average of the “total rate of return on farm equity” determined by the United States Department of Agriculture but that cannot exceed the loan interest rate used in the debt factor of the capitalization rate computation.

Last week, Ohio’s House passed legislation containing different solutions for revising the CAUV program in H.B. 49 (see our summary of H.B. 49 here).  Senate leaders yesterday indicated a willingness to work with the House to resolve the differences between the two bills.  H.B. 49 is now before the Senate Finance Committee.

Read S.B. 36 as amended here.  The Legislative Service Commmission’s summary of the bill is here.

USDA Seeks Public Comment on Postponed GIPSA Rules

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

The Grain Inspection, Packers and Stockyards Administration (GIPSA) is delaying the implementation of the Farmer Fair Practices rules. GIPSA is a USDA agency that facilitates the marketing of livestock, poultry, meat, cereals, oilseeds, and related agricultural products. One purpose of GIPSA is to promote fair and competitive trading practices for the benefit of consumers and agriculture.

On April 11, 2017, the USDA announced that GIPSA delayed the implementation of the Farmer Fair Practices rules until October 19, 2017. The delayed Farmer Fair Practices rules were originally set to be effective on December 20, 2016. According to the USDA, the delayed rules would protect chicken growers from retaliation by processors when growers explore opportunities with other processors, discuss quality concerns with processors, or when refusing to make expensive upgrades to facilities. GIPSA concludes that the Farmer Fair Practices rules alleviates these issues. However, several livestock groups argue that the delayed rules would have adverse economic effects on the livestock industry.

Opportunity for Public Comment

During the delay, the USDA is seeking public comment on the Farmer Fair Practices rules. The comment period offers the agricultural community an opportunity to suggest what action the USDA should take in regard to the Farmer Fair Practices rules. The USDA asked the public to suggest one of four actions that the USDA should take:

  1. Let the delayed rules become effective
  2. Suspend the delayed rules indefinitely
  3. Delay the effective date of the delayed rules further, or
  4. Withdraw the delayed rules

After receiving public comments, the USDA will consider the comments and make an informed decision regarding the delayed Farmer Fair Practices rules. According to Drovers, Secretary of Agriculture Sonny Perdue recently visited Kansas City, Missouri to speak with farmers, ranchers, and industry members. During the event, Secretary Perdue responded to a question about the GIPSA rule. “We’re going to look at it very closely,” said Perdue. The full Drovers article is here.

More information on the delayed GISPA rules is here. Leave a public comment on the delayed rules here by clicking “Comment Now.”

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

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

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

A background on impaired waters

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

In order to meet that objective, the CWA sets forth “effluent limitations,” or in other words, the amount of pollution allowed to be discharged.  Polluters have different effluent limitations dependent on a number of variables. The states are to “identify” the waters where the “effluent limitations [from certain polluters] are not stringent enough” to meet water quality standards.   The specific polluters to be examined are:  1) point sources, and 2) public treatment works either in existence on July 1, 1977 or approved under the CWA before June 30, 1974.  For reference, point sources are defined as “any discernable, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” Point sources are not “agricultural storm water discharges and return flows from irrigated agriculture.”

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

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

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

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

The current lawsuit

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

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

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

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

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

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

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

CAUV Changes Proposed Again, This Time in the State’s Budget Bill

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

The Ohio legislature continues to consider Current Agricultural Use Valuation (CAUV) this session. However, the latest discussion is not of Senate Bill 36, introduced by Senator Cliff Hite on February 7, 2017 (read more about that bill here).  Instead, the current discussion centers on a new proposal in House Bill 49, Ohio’s “budget bill.”  The House Finance Committee is currently considering that bill.

The budget bill proposal would require the equity yield rate used in the CAUV capitalization rate to equal the greater of the 25-year average of the total rate of return on farm equity published by the USDA or the loan interest rate.  The capitalization rate is used to calculate a valuation from an annual profit for an average Ohio farm, considering only agricultural factors.   The bill also proposes a holding period of 25 years for calculating equity build-up and land value appreciation in the formula.

The budget bill proposal also places a ceiling on the taxable value of CAUV land used for conservation purposes by requiring land to be valued as though it included the least productive soil.  The proposed changes to the CAUV program would be phased in over two reassessment update cycles.  The bill would also reconcile the proposed changes with the current formula by specifying that during the first three-year cycle in each county (beginning with tax year 2017), the tax value of CAUV land would include one half of the difference between its value under the new versus the old formula.

Time may soon tell whether Ohio lawmakers will address the agricultural community’s concerns about property tax increases and if so, whether it will prefer the House’s budget bill or the Senate’s proposal.   The budget bill is available here–see page 652 of that document for the changes to the CAUV formula.  The Senate’s bill, which has received four hearings before the Senate Ways and Means Committee, is available here.

U.S. EPA Wants Public Comments on Regulatory Reform

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

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

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

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

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

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

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

Clearing the Fence Row and Trimming Back Overhanging Branches

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

Farmers are gearing up for spring and preparing to plant crops and graze livestock. Part of spring-cleaning may involve clearing partition fence rows at the edge of fields and trimming back overhanging branches above the fence. Overgrown tree branches can affect crops and pose a hazard to agricultural equipment. Removing trees that obstruct the fence row, noxious weeds tangled in the fence, and other unwanted vegetation is a serious matter for Ohio farmers. Ohio law provides for ways to clear a partition fence shared between two neighboring properties. Ohio law also cautions against damaging trees when trimming overhanging branches.

Clearing the fence row

This section only applies to the removal of vegetation in the fence row. Clearing overhanging trees above the fence is a separate matter discussed further below.

A partition fence is a fence that follows the division line between adjoining properties of two owners. The term “fence row” refers to the strip of land that is on either side of the fence. In order to keep a fence in good condition, owners should occasionally clear the fence row of obstructions caused by vegetation. Clearing a fence row keeps noxious weeds, brush, briers, and other vegetation from spreading onto a neighbor’s property. Ohio law provides several methods for a landowner to clear the fence row legally.

The easiest way to clear the fence row is to ask a neighbor to clear his or her side of the partition fence. Ohio law creates a duty for owners on either side of a partition fence to clear brush, briers, thistles and other noxious weeds in a strip four feet wide along the line of the fence, after a landowner gives notice to a neighbor asking them to do so. It is best to be polite, patient, and clear when speaking with a neighbor about when you would each like to clear the fence row. A landowner and a neighboring owner should try to establish a timeline to clear each side of the fence row.

What if a landowner asks a neighbor to clear the fence row on their side of a partition fence and they refuse? Once a landowner asks a neighbor to clear a fence row, that neighbor has ten days to do so. If a neighbor does not clear it within ten days, the landowner can ask the local board of township trustees to arrange for the fence row to be cleared.

After a landowner notifies the trustees that a neighbor refused to clear the fence row within ten days, the township trustees must view the property to determine if there is just cause for the complaint. Next, if there is a cause for the complaint, the trustees will enter into a contract with a third party to clear the fence row and certify the associated costs to the county auditor. The county auditor will bill the neighboring landowner for the work to clear the fence row. The auditor will assess these costs against the neighboring landowner by adding these costs to his or her property tax bill.

Trimming back overhanging branches

Landowners have the right to trim vertically and remove overhanging obstructions from above their side of the fence. Ohio courts recognize this privilege to remove obstructions, but not without limitations. Ohio courts do not permit landowners to cause harm to the other side of the property line. A landowner should be careful not to damage the neighbor’s trees or trespass on to the neighbor’s property when trimming overhanging branches. Landowners may be liable to a neighbor if they recklessly damage a neighbor’s tree when removing overhanging branches.

Landowners should review their rights and responsibilities to maintain fences prior to clearing the fence row this spring. For more information on line fence law, visit the Ag Law Library here.

Addressing the Legal Side of Spring Agritourism Activities

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

Spring has sprung and many agritourism providers are busy gearing up for spring agritourism activities such as maple syrup production, school tours, and berry picking. Agritourism providers should take time this spring to review the key elements of Ohio’s new agritourism law and understand how the law affects the agritourism operation.

Ohio’s new agritourism law applies to qualifying farms, including you-pick operations and farm markets, when an agritourism activity is conducted on that farm.  A qualifying farm under the law is either at least 10 acres in size or a farm under 10 acres that grosses an average income of $2500 from production (the same requirements for qualifying for Ohio’s CAUV property tax program).  Agritourism activities include agriculturally related educational, entertainment, historical, cultural, or recreational activities.  Below are two important benefits of Ohio’s agritourism law that agritourism providers should review this spring: liability protection and zoning protection.

Liability Protection

One of the main benefits of the law is liability protection for agritourism providers against claims by participants injured as a result of an inherent risk of an agritourism activity. The law defines inherent risks to be dangers and conditions that are an integral part of the activity, including surface and subsurface land conditions, actions of wild animals and domestic animals other than vicious or dangerous dogs, dangers of farm structures and equipment, illness from contacting animals, feed or waste, and the participant’s failure to follow instructions or use reasonable caution.

There are several limitations and requirements under the law that impact this liability protection. Most importantly, agritourism providers must post signs either at the entrance to the farm or at each agritourism activity in order to receive liability protection under the law.  The signs must meet the specifications of the law.  For more information about posting signs and the law’s liability protection, our previous post on agritourism is here.

Zoning

Ohio’s agritourism law also provides some zoning protections to agritourism providers. Under the law, township and county zoning authorities cannot prohibit agritourism activities on farms.  But, townships and counties can regulate some factors related to agritourism to protect public health and safety. These factors include the size of structures used primarily for agritourism, setbacks for structures, ingress and egress from the parcel, and the size of parking areas.  A township or county that wants to regulate these limited factors must have provisions addressing the factors in the local zoning code.  We explain the zoning provisions of the agritourism law in more detail in our law bulletin, here.

Preparing for the 2017 Season

As agritourism providers prepare for the 2017 season, providers should take a few actions to ensure the benefits of the agritourism law for their operations:

  • Post the required signs at the entrance to the agritourism operation or at each agritourism activity. Also, consider adding your own signs to give instructions, guide visitors safely around the property or warn visitors of potential hazards.
  • Even with the law’s liability protection, make sure the property is as safe and clean as possible.  Spring is a good time to walk the property to identify any dangerous conditions that might put a visitor at risk and fix those conditions before inviting guests on the property.
  • Farms under 10 acres in size should take time to brush up on good recordkeeping practices. Farms that are under 10 acres may be required to prove that they qualify as a farm under the agritourism law by showing $2500 in gross receipts.  Be sure to maintain all records of farm income.
  • If starting a new agritourism activity, check the local zoning code to see if the township or county has zoning requirements for the few agritourism factors it can regulate.  Be prepared for a visit by the local zoning inspector and be ready to show the inspector that the activity falls under the new agritourism law’s zoning protections because it is “agritourism” conducted on a “farm.”

A full description of the Ohio Agritourism Law is available via our law bulletin here.

Contentious Des Moines Water Works Litigation Comes to an End

Source: Peggy Hall, Ohio Agricultural Law Specialist

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.

Contentious Des Moines Water Works Litigation Comes to an End

By: Peggy Kirk Hall, Monday, March 20th, 2017

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 doesn’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 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 the burden of proof upon the plaintiff to 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 had the case proceeded, DMWW still would have had to trace the nutrients to the region, a difficult task.

The agricultural community expects that its voluntary efforts to reduce nitrate and phosphorus runoff from farm fields will positively impact water quality and stem 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 at agriculture and pursue a lawsuit like DMWW.

Read the federal court’s decision in DMWW at http://aglaw.osu.edu/sites/aglaw/files/site-library/DMWW.pdf:

A previous post on DMWW is available at: http://aglaw.osu.edu/blog/thu-02162017-443pm/des-moines-water-works-lawsuit-what%E2%80%99s-happened-what%E2%80%99s-next