Evaluating the Use of Mandatory Edge-of-Field Buffers as a Land Use Tool to Combat Harmful Algal Blooms.

• Author: Mischler, Madeline

CONTENTS INTRODUCTION I. HARMFUL ALGAL BLOOMS AND HOW THEY ARE BEING ADDRESSED A. Federal Government 1. The Clean Water Act, TMDLs, and the Coastal Zone Management Act 2. Federal Funding and Agreements B. State Government 1. Statutes and Regulations 2. Voluntary Programs II. THE TAKINGS CLAUSE AND EDGE-OF-FIELD BUFFERS A. Federal Takings Law 1. Cedar Point 2. Per Se Physical Takings 3. Exactions 4. Eminent Domain B. Federal Takings Law Applied to the Edge-of-Field Buffer Statute C. Ohio Law 1. Takings Law 2. Eminent Domain D. Ohio Law Applied to the Edge-of-Field Buffer Statute 1. Eminent Domain 2. Home Rule 3. Analogous Law a. Setback Requirement b. Building Code III. ALTERNATIVES CONCLUSION INTRODUCTION

In August 2014, Lake Erie, off the shores of Toledo, Ohio* experienced a harmful algal bloom resulting in high levels of toxic microcystin bacteria in the lake. (1) The microcystin bacteria entered Toledo's water supply, which forced the city to shut off water for nearly half a million residents in the metropolitan area for almost three days. (2) Agricultural runoff of fertilizer (3) is one of the primary causes of these algal blooms on the Ohio coast of Lake Erie. (4) In the months after this massive algal bloom, the Ohio General Assembly enacted legislation that, in part, amended existing statutes to impose mandatory requirements for farmers' use of fertilizer and manure on their land. (5)

Improving fertilizer application methods and timing is a key land use tool for reducing algal blooms, but it is only one of many best management practices (BMPs) that landowners and agricultural producers (6) ("farmers") should follow to combat this problem. (7) As climate change threatens to exacerbate algal blooms in Ohio and across the country, (8) states should expand their efforts to combat these blooms to include more binding requirements on agricultural operations to reduce nutrient pollution runoff. (9) One such solution is to impose binding BMPs on agricultural operations. (10) Installing riparian buffer strips along the edge of farm fields is a commonly encouraged, voluntary BMP. (11) These edge-of-field buffers act to filter out nutrients from fertilizers after they run off the field but before they enter waterways that lead to waterbodies such as Lake Erie. (12)

Permanent "buffers" are strips of land that often include grass, trees, shrubs, and other vegetation. (13) They reduce nutrient loading--most importantly, phosphorous--and are a valuable land use tool when paired with other land management practices. (14) This Note will largely focus on edge-of-field buffers. (15) Buffer width will depend on the landscape of the farm, particularly the slope of the land, but the most effective buffers are typically at least fifteen meters wide. (16) Experts do suggest that depending on which plants comprise the buffer, narrower buffers (0.5-1.2 meters) can still effectively reduce some nutrient runoff. (17) One general reason that these edge-of-field buffers are not a first-choice BMP is that they take up productive crop and pasture space, so farmers would have to reduce the total acreage available for their crops and pastures. (18)

Climate change is a substantial and unmanageable factor in efforts to reduce algal blooms, (19) which makes reducing pollutant runoff a crucial land management goal. Voluntary cost-share programs to help farmers implement BMPs for fertilizer application, especially Ohio's recently established program, (20) are a great start to addressing this issue, but statutory land use tools with enforcement power could serve as an additional, more effective and enduring tool for combatting nutrient pollution. In 2015, Minnesota enacted a law requiring all owners of land abutting certain waterways to either construct fifty-foot-wide vegetated buffers or comply with other specific shoreline criteria. (21) This Note will evaluate the legality of a similar state law that would require commercial farming operations (22) and concentrated animal feeding operations (23) to construct buffers along the edge of their fields to prevent nutrients from running off into abutting waterways.

Part I explains existing tools for combatting algal blooms and why, alone, they may not do enough to prevent future catastrophic blooms. Part II further explains Minnesota's buffer statute and evaluates a similar proposed statute that would require agricultural producers to construct edge-of-field buffers along the edge of their properties and explains that these statutory buffers do not amount to a compensable taking under the U.S. and Ohio constitutions. These edge-of-field buffers are neither a per se taking nor a taking under the regulatory takings doctrine. Part II also explains why, if a court does determine that the proposed statute is a taking, states still may want to consider exercising eminent domain. Part III details potential alternatives to the proposed statute.

1. HARMFUL ALGAL BLOOMS AND HOW THEY ARE BEING ADDRESSED

   Harmful algal blooms (HABs) occur in lakes and ponds under conditions of increased lighting, warm water temperature, and increased nutrients. (24) These conditions cause naturally existing cyanobacteria to multiply rapidly, resulting in an algal "bloom." (25) HAB events produce toxins that can cause serious health problems in humans and animals, including death. (26) Warmer waters are a key component in HABs' formation, so it is clear that climate change contributes to this problem. (27) The key nutrients that cause algal blooms are nitrogen and phosphorous, which enter waterbodies through multiple channels, such as agricultural runoff and runoff from urbanized areas. (28) In the Lake Erie watershed and freshwater systems generally, phosphorous is the main cause of HABs. (29) Approximately 80 percent of the phosphorous that enters the Lake Erie watershed comes from agricultural runoff into the Maumee River, which empties into Lake Erie. (30)

   1. Federal Government

      The two key sources of pollutants that contribute to HABs are point sources and nonpoint sources. A point source is "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, ... [or] concentrated animal feeding operation ... from which pollutants are or may be discharged." (31) Point sources "do[] not include agricultural stormwater discharges and return flows from irrigated agriculture." (32) The Clean Water Act (CWA) (33) requires point source polluters to obtain National Pollutant Discharge Elimination System (NPDES) permits before discharging pollutants into waterways. (34) The EPA issues NPDES permits, but will delegate this authority to state governments when a governor submits a state NPDES permitting program proposal and the EPA approves it. (35) Anyone who violates an NPDES permit (for example, by discharging a higher volume of pollutants than an NPDES permit allows) or discharges a pollutant without an NPDES permit can face civil or criminal penalties. (36) The CWA does not define nonpoint source, but it is generally considered as "land runoff," which includes agricultural runoff. (37) Nonpoint sources such as agricultural runoff pose an increasingly complex problem for regulating pollutants that enter into waterbodies because they "are virtually unregulated by" the CWA. (38) Although point sources contribute to HABs, nonpoint sources currently account for a much larger volume of pollutants entering the Lake Erie watershed. (39)

      1. The Clean Water Act, TMDLs, and the Coastal Zone Management Act

         The CWA requires states to identify and submit to the EPA a section 303(d) list of impaired waters within the state. (40) States include this section 303(d) list, along with information to satisfy other CWA reporting requirements, in their biennial Integrated Water Quality Monitoring and Assessment Report ("Integrated Report"). (41) A state must rank the section 303(d) list based on "severity of the pollution and the uses to be made of such waters," and must identify which specific pollutants cause most of the waters' impairment. (42) States must go through this process every two years and reevaluate which existing state pollution control measures are inadequate to meet water quality standards for waters within their jurisdiction. (43) Based on these lists, states develop Total Maximum Daily Loads (TMDLs) that target the identified pollutants causing waterbody impairment. (44) TMDLs establish the maximum amount "of loading that a water can receive without violating water quality standards" and represent the state's goal for the sum of pollutants coming from point and nonpoint sources. (45) The EPA does not establish a deadline for states to develop TMDLs after receiving approval of their section 303(d) list of impaired waters. (46) When the EPA does not approve a state's section 303(d) list and proposed TMDL, the EPA must establish its own list and TMDL within thirty days of disapproval. (47) The state will then adopt the EPA's 303(d) list and TMDL into its "continuing planning process." (48) After either EPA approval or the EPA providing its own TMDL to the state, the state must "allocate the allowable pollution load among all of the pollution sources" in the impaired waters. (49) The state must "then specify a plan to reduce the pollutant sources to ensure that the daily load is not exceeded." (50)

         Some consider TMDLs a potential tool for reducing nonpoint source nutrient pollution, but TMDLs ultimately fall short of providing meaningful pollution abatement because they do not impose enforceable requirements. (51) The EPA's 2002 TMDL guidelines explain that TMDLs should include the origin of point and nonpoint sources for identified pollutants, (52) which helps states guide their nutrient pollution abatement efforts. (53) TMDLs essentially establish a waterbody-wide pollutant "diet." (54) Thus, establishing TMDLs can act as a guide for states and "spur a state to take steps to reduce the...