Archive for April, 2012

(Posted by Trent Dougherty, OEC Director of Legal Affairs)

One of the region’s greatest champions for the progress of environmental law, and a friend of and trusted resource for the Ohio Environmental Council, Professor Ken Kilbert at the University of Toledo College of Law and his research team are contributing to the battle against harmful algal blooms in Lake Erie with their new white paper, Legal Tools for Reducing Harmful Algal Blooms in Lake Erie, available at http://law.utoledo.edu/ligl/habs.

Harmful algal blooms (HABs), excessive growths of toxin-producing cyanobacteria, have reached crisis proportions in recent summers in Lake Erie.  Triggered primarily by excess phosphorus, HABs cause economic and ecological harm and threaten public health.

The white paper highlights the legal tools currently available for controlling key sources of phosphorus in Ohio by describing the complex web of federal and state laws.  Additionally, the paper makes recommendations for using these existing tools and for changing the law in Ohio to help reduce the formation of HABs in Lake Erie.

The federal Clean Water Act, supplemented by state law, has been relatively successful in reducing phosphorus pollution from point sources in Ohio, although there is still room for improvement.  By contrast, nonpoint sources are virtually unregulated by federal law, and Ohio law only partially fills the regulatory gap.

Recommendations set forth in the white paper include:

  • Promulgate numeric water quality criteria for phosphorus.
  • Designate the Lake Erie watershed “in distress,” triggering more nutrient controls.
  • Establish minimum best management practices applicable to all farming operations and streamline enforcement of them.
  • Broaden the statutory definition of “concentrated animal feeding facility” to include more animal feeding operations.
  • Establish more stringent phosphorus effluent limits for publicly owned treatment works.
  • Require more NPDES permit holders to monitor for phosphorus.
  • More aggressively enforce against home sewage treatment systems that contribute significantly to phosphorus pollution.
  • Encourage water quality trading.
  • Enact legislation restricting the application of phosphorus-containing fertilizer on lawns.
  • Prioritize grant funding for projects that reduce phosphorus loading.

The paper is part of a multi-disciplinary research and public outreach project partially funded by a grant from the National Sea Grant Law Center.  The project also included two workshops earlier this year in Toledo and Columbus featuring experts from science, government and law addressing best practices and legal tools for reducing HABs in Lake Erie.  Workshop materials and other information about HABs and Lake Erie also are available at http://law.utoledo.edu/ligl/habs.

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(Posted by Trent Dougherty, OEC Director of Legal Affairs)

Earlier this week, the Ohio House of Representatives (on ALMOST a party-line vote) approved version 2.0 of the Ohio Implementation of the Great Lakes Compact.  This version of the Compact Implementation, HB473, is far better than the bill that Governor Kasich rightfully vetoed this past summer when the vetoed the bill.  However, as some of our previous posts point out, there are serious flaws in the bill.

The biggest flaw by far, at least from a public-interest lawyer’s point of view, is the significant limitation on standing for users of the waters of the basin to appeal a permit.  Unless it is proven that a person “has a direct economic or property interest that is or may be adversely affected by a decision or order of the chief,”[1] the doors to judicial review are barred.

No current Ohio statute slams the door on otherwise impacted parties by qualifying appellate standing on purely adverse effects on economic or property interests.[2]  According to a decision by Southern Ohio’s 4th District Court of Appeals in Yost v. Jones, “In order to establish standing, a party must show that the challenged action has caused, or will cause, the party an injury in fact, be it economic or otherwise.”[3]  However, that is not to say that the “adversely affected” requirement allows outside parties to bring actions for any arguable grievance.  Personal distaste or a lack of confidence in a particular agency’s ability or willingness to enforce a specific provision is not enough to satisfy the legal concepts of “adversely affected” or “aggrieved” for the purposes of standing.[4]  In order to get standing to appeal most agency decisions, showing that the agency action caused injury to a parties economic or property interests is sufficient, but in no case is it necessary.  Requiring such would be inconsistent with Ohio’s statute on administrative procedure and leave many aggrieved parties without judicial recourse.

The questions surrounding the logic of this limitation on basic common law understanding of aggrieved person abound:

Q. What makes water withdrawal permits from 1/3 of the state so special that only a select class of aggrieved person’s can appeal?

A. Nothing.

Q. Why can’t the Franklin County Court of Common Pleas or any of the County Courts in the Basin be trusted to determine standing under the common law definition of “aggrieved person?”

A. No reason – these courts hear administrative appeals under Ohio’s Administrative Procedures Act (ORC 119) on a regular basis.

Q. Will the number of permit appeals gum-up the judicial system?

A. Not at all.  In fact, I was informed by ODNR that, if implemented in 2011, this Bill would have resulted in just 6 permits for the year – not a very daunting docket even in the highly unlikely event that all permits were appealed.

Q. Is there a cottage industry of trial lawyers waiting in the weeds to make money filing frivolous appeals?

A. Of course not.

The answer to each of these questions is obvious — there is no logic to it.

Such patent distaste and distrust for the legal system and for the judicial branch as made certain in this Draconian limitation on access to the court cannot be permitted to remain law.  The proposed limitation on standing for recreational anglers, subsistence fishers, boaters, and other users of the Lake and its tributaries is UNFAIR, UNJUSTIFIED, and UNPRECEDENTED.

Thankfully, HB 473 moves to the Ohio Senate next week to continue the discussion on how to make this bill better and at the very least unlock the courthouse door.


[1] Proposed Ohio Rev. Code § 1522.21(B)

[2] See e.g., Ohio Rev. Code §§ 3745.06, 4517.58, and 4903.221.

[3] Id. at *4 [emphasis added].

[4] Yost v. Jones, 2002 Ohio 119, *3 – *4 (4th Dist. 2002).

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Positive step, but more needs to be done

( Posted by Grant Maki, Law Fellow, Ohio Environmental Council)

The regulations that U.S. EPA released recently to limit air pollution from oil and natural gas operations have been anticipated for a long time. The rules will greatly reduce emissions of methane, benzene, and Volatile Organic Compounds (VOCs).  These controls are extremely welcome because natural gas extraction currently accounts for 40% of the United States’ emissions of methane, a greenhouse gas that is 20 times more potent than CO2.

These pollutants have been linked climate change, smog formation, and health problems such as asthma attacks and cancer.

Once the rules are fully implemented in 2015, EPA estimates that total emissions from natural gas drilling operations will be reduced by:

  • 290,000 tons of VOCs
  • 1.7 million tons of methane
  • 20,000 tons of hazardous chemicals, including benzene

The rules are a significant improvement over current federal and state regulations. This substantial response is prime evidence that U.S. EPA takes the risks that these gas drilling operations pose to human health and the environment seriously enough to warrant concrete action.

A key component of the rule, which will require companies to use what is known as a “green completion” to capture fugitive gasses that escape from the well during fracturing, however, will not go into effect until 2015.  Until then, drilling operators will be required to burn off fugitive gasses with a flare.

This “flaring” will drastically reduces pollution compared to letting the gas escape, but it far is less effective than capturing the gasses with modern control technologies.

This two-and-a-half year delay before the rules are fully implemented reduces their effectiveness, and is entirely unnecessary.  Ohio’s shale plays are being exploited by national and multinational companies that have the resources to do the right thing, starting now.  In fact, many states already require “green completions,” and US EPA estimate that about half of the horizontal fracturing wells in the country are already utilizing “green completion” technology.

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(Posted by Trent A. Dougherty, Esq., Director of Legal Affairs, Ohio Environmental Council)

Polluted stormwater runoff is one of the only significantly growing sources of water pollution to urban and suburban waters and watersheds across Ohio. As the Clean Water Act attacked point source discharges for 40 years, pollution from streets and roofs plague communities each time it rains.  Rain that once soaked into unpaved ground, now runs in torrents over impervious parking lots into storm drains and to local streams and rivers.  Cleaning up that polluted runoff costs money to treat, requires enormous amounts of energy to transport and treat stormwater.  The stormwater leads to increased bacteria pollutant loads and increased risk of damaging floods.

Towns and cities across the state and across the country are struggling with how to fix and replace failing and outdated water infrastructure and meet new demand to manage stormwater and protect clean water.  These communities are usually having to make these decisions on already strapped, shoestring budgets.

Yet, there is an answer – Green Infrastructure.

According to a report released today by American Rivers, the Water Environment Federation (WEF), the American Society of Landscape Architects (ASLA), and ECONorthwest, Banking on Green: How Green Infrastructure Saves Municipalities Money and Provides Economic Benefits Community-wide, demonstrates that green infrastructure practices can offer more cost-effective solutions relative to traditional infrastructure approaches. The report also details additional potential benefits of green infrastructure such as lower energy expenses, reduced flood damage and improved public health.

Green infrastructure refers to practices like green roofs, rain gardens, bioswales, and pervious pavement that capture and treat rainwater and runoff. These measures reduce the amount of polluted runoff — the water that mixes with oil, pesticides, and other pollutants as it rushes over streets, parking lots and yards into local streams.

The report, among other impressive real-life case studies of green infrastructure at work, highlights Ohio’s own Cuyahoga Falls. The City of Cuyahoga Falls used FEMA funds to acquire four flood-damaged residential properties located in a neighborhood which has suffered from repetitive flooding. The City intends to demolish the structures and turn parts of the newly created open-space into a series of rain gardens to mitigate localized flooding in the area. The innovative design measures of this Rain Garden Reserve create an additional 5 five acres of storage for runoff, and enhances outdoor educational and recreational opportunities for the community.

Many people have no idea that the roads, rooftops, and parking lots near them can contribute significantly to local flooding. In fact, the Federal Emergency Management Agency estimates that 25% of economic losses caused by flooding are a result of urban drainage.

Implementing green infrastructure practices can help communities drastically avoid the costs of flooding damages by reducing runoff, addressing the problem before it starts.

Green Infrastructure, like pervious pavement, green roofs, and rain gardens can save communities money, save energy, protect public health, and keep flood waters at bay.  Local communities need to invest in Green Infrastructure, and the Governor and his EPA need to incentivize the use of these cost-effective, and cost-cutting practices.

Check out the recent report, Banking on Green, to learn more about the cost-effectiveness of green infrastructure practices and the benefits they can provide to communities beyond clean water!

Read the report at www.americanrivers.org/goinggreen

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The third in our Three-Part Series on HB 473 – Great Lakes Compact Implementation

( Posted by Grant Maki, Law Fellow, Ohio Environmental Council)

The Great Lakes Compact is an agreement between the Great Lakes state to manage their water consumption to protect our shared water and ecological resources.  Each state that signed the Compact must pass its own legislation to give it effect.  In this three part series, we are looking at ways that Ohio’s proposed implementing legislation falls short of protecting our waters or complying with the Compact.

Our first installment examined how HB 473 would restrict Ohioans’ rights to appeal administrative decisions.  The second installment noted that the proposed legislation would leave the tributaries that flow into Lake Erie out to dry.

In this final installment, we will look at the problems caused by and provisions that allow water users to average their withdrawals over a 90 day period, and by provisions that allow for potentially unending exemptions for “experimental” permits.

The Compact’s Framework

The Compact requires each Great Lakes state to establish thresholds that determine the amount of water that can be withdrawn without a permit.  Anyone who wants to withdraw more than the threshold amount must seek a permit.  The Compact requires states to ensure that permitted water withdrawals will not individually or cumulatively cause a significant harm to the quality or quantity of the water in the source watershed.

90 Day Averaging

Under HB 473, a water user only has to apply for a permit if their average usage per day over a 90 day period exceeds certain thresholds.  For example, most rivers that flow into Lake Erie are subject to a threshold of 1 million gallons per day, averaged over a 90 day period.

This opens the door for water users, such as oil and gas operations, to withdraw and/or consume quantities of water in excess of permit thresholds without having to obtain a permit.  For example, a facility could withdraw 6 million gallons of water over a few days and not consume any more water over the remainder of the 90-day period and not trigger the bill’s proposed gallons-per a day threshold for needing to seek a permit.

But such huge spikes in water usage could have serious consequences for fish and wildlife, which survive or perish based on minimum environmental conditions.  For example, walleye eggs and fry, as well as migrating steelhead trout, are particularly vulnerable to insufficient flow levels.  A short-term but intensive withdrawal could reduce the flow of a stream to the extent that these drivers of the Lake Erie fishery would be confined to small heated pools, which would kill them within hours.

Think of it this way.  If you were to withdraw all the air from a person’s home for 15 minutes and then open the windows, the oxygen levels would be just fine, averaged over 90 days.  But the residents of the home would all be dead.

That is why we are pushing to get the permitting requirements to kick in based on daily water withdrawals.

Potential Loophole for “Experimental Use” Permits

HB 473 provides for “experimental use” permits to allow the testing and development of innovative new water use strategies.  We are fully supportive of experimental use permitting.  But there are two problems with the way these permits would be handled under HB 473.

The first problem stems from a subtlety of the proposed language.  Section 1522.131 states that the Department of Natural Resources may refuse to issue an experimental use permit if it would result in a significant adverse impact on the source watershed.  But this implies that the chief may also issue the permit, even knowing that it will cause an adverse impact.  This is contrary to the Compact, and to sound natural resource management principles.

The second problem is that HB 473 doesn’t limit the number of times an applicant may renew their experimental permit, potentially allowing adverse impacts to continue indefinitely.

We propose requiring the Department of Natural Resources to deny permits that would cause significant adverse impacts.  We also suggest that experimental use permits should expire after 24 months, at which point they could be renewed if the applicant provided a reasonable justification based on the need for further testing, or a new and different approach to water use that might lead promising results.

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The second in our Three-Part Series on HB473 – Great Lakes Compact Implementation

(Posted by Grant Maki, Law Fellow at the Ohio Environmental Council)

The Great Lakes Compact is an agreement between the Great Lakes state to manage their water consumption to protect our shared water and ecological resources.  Each state that signed the Compact must pass its own legislation to give it effect.  In this three part series, we are looking at ways that Ohio’s proposed implementing legislation falls short of protecting our waters or complying with the Compact.

In our first installment, we examined how Ohio’s proposed implementing legislation—HB 473—represents an unprecedented restriction on the rights of Ohio citizens to appeal when an administrative decision causes them harm.

In this installment, we will discuss ways in which the proposed legislation fails to protect the waters that flow into Lake Erie, and how this lack of protection could eventually harm the lake as a whole.

Compact Requirements

The Great Lakes Compact gives state agencies the ability to prohibit water withdrawals that would have a significant adverse impact on the watershed that the water is being pulled from—the “source watershed.”   Section 1.2 of the Compact explains that when water is withdrawn from the watershed of a stream that flows into a Great Lake, the source watershed “shall be considered to be the watershed of that Great Lake . . . with a preference to the direct tributary stream watershed” that is the source of the water.

This language means that the Ohio DNR must not allow any significant adverse impacts to Ohio’s portion of Lake Erie.  It also requires DNR to consider any significant adverse impact to the stream watershed from which the withdrawal occurs.

Current Ohio Law

Ohio has already passed the first round of legislation to implement the Compact.  House Bill 416, passed in December 2008, defined “source watershed” as either the Lake Erie basin considered as a whole or the individual source watershed from which the withdrawal occurred, considered as a whole, just like the Compact.  This was codified in 1522.07(B) of the Ohio Revised Code.  This language is codified as the stated intent of the General Assembly in passing the Compact structure, and was based on the negotiated definition of source watershed by the regulated community and environmental groups.

It is the understanding and intent of the general assembly that Section 4.11.2 of the great lakes-st. Lawrence river basin water resources compact as enacted in section 1522.01 of the Revised Code shall be interpreted to require that a withdrawal or consumptive use will be implemented so as to ensure that the withdrawal or consumptive use will result in no significant individual or cumulative adverse impacts on the quantity or quality of the waters and water dependent natural resources of either of the following: The basin considered as a whole; or The applicable source watershed of lake Erie considered as a whole. – ORC 1522.07(B)(1)

HB 473 would leave the tributaries out to dry

In an abrupt 180 degree turn that essentially negates the agreement made by the regulated community and enviros in 2008 (not to mention the intent of the 127th General Assembly),  HB473 would change our definition of “Source Watershed” to only mean “Lake Erie as a whole.”  This definition would allow approval of water withdrawals that would cause a significant adverse impact to a tributary, as long as the Lake as a whole would not suffer a significant impact.

For example, consider the impacts of First Energy’s Bayshore Power Plant, which pulled nearly 700 million gallons of water per a day from the Maumee River.  A report commissioned by the Ohio EPA estimated that the plant’s water intake system killed more than 46 million adult fish and over 2 billion fish larva per a year.  To name just one species, the plant killed nearly 10% of the Maumee River’s walleye population annually.  That is definitely a significant impact on the Maumee River, and upon local people who depend on the walleye for their livelihood or recreation.  But at the same time, it is only a small amount of the walleye population of Lake Erie as a whole.

Under the Compact, and under current Ohio Law, the Department of Natural Resources would be able to strictly review or even deny a permit for a plant like First Energy’s because it would cause a significant impact to the Maumee.  But under the proposed language of HB 473, DNR would have little authority to deny such a permit because it would not cause a significant impact to all of Lake Erie, considered as a whole.

But the whole is only as good as the sum of its parts. A healthy Lake Erie is dependent upon the health of the tributaries, which are essential for maintaining water levels; providing habitat and spawning grounds for prized sport fish; and providing nutrients that are key to the food chain of Lake Erie.

 

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