Harmful Algal Blooms: Ohio Senate Bill 1 and the Challenge of Agricultural Regulation

• Author: Brandi L. Staley
• Position: J.D., magna cum laude, 2017, Capital University Law School; B.S. Environmental and Natural Resources, 2014, Clemson University. I would like to thank the staff and board of Volume 45 of the Capital University Law Review, Professor Dennis Hirsch of Capital University Law School, and Martha Horvitz of the Ohio Environmental Protection Agency for...
• Pages: 795-834

HARMFUL ALGAL BLOOMS: OHIO SENATE BILL 1 AND THE CHALLENGE OF AGRICULTURAL REGULATION BRANDI L. STALEY * I. INTRODUCTION Summer plans were ruined for those who frequented Lake Erie in 2011. 1 Harmful algal blooms (HABs) spanned across the water and made it unsafe to swim. 2 And even though cancelled summer plans were extremely inconvenient, this was only the beginning of a growing problem for Ohioans. 3 To make matters worse, in August 2014 a large algal bloom at the mouth of the Maumee River crippled Toledo’s drinking water. 4 Nearly 500,000 residents were forbidden to use water from their tap. 5 A Toledo mother who was nursing her baby reported she was afraid to shower because she did not want to get a skin rash she could pass on to the newborn. 6 These fears are rational because HABs are toxic to humans and animals. 7 Lake Erie is sick, and a crisis like the one in Toledo was the Copyright © 2017, Brandi L. Staley. * J.D., magna cum laude , 2017, Capital University Law School; B.S. Environmental and Natural Resources, 2014, Clemson University. I would like to thank the staff and board of Volume 45 of the Capital University Law Review, Professor Dennis Hirsch of Capital University Law School, and Martha Horvitz of the Ohio Environmental Protection Agency for their excellent guidance and tireless revisions of my work. 1 Michael Wines, Spring Rain, Then Foul Algae in Ailing Lake Erie , N.Y. TIMES (Mar. 14, 2013), http://www.nytimes.com/2013/03/15/science/earth/algae-blooms-threaten-lake-erie.html?_r=0 [http://perma.cc/UV5J-MY23]. 2 Id. Lake Erie is a popular tourism destination, especially during the summer, and HABs harm the economic security of the region. Resources Available to Communicate About Harmful Algal Blooms , OHIO TRAVEL ASS’N (Aug. 27, 2015), http://www.ohiotravel.org/aws/OHTRV/pt/sd/news_article/110861/_PARENT/layout_detai ls/false [http://perma.cc/5TA2-YPUL]. “In the eight Ohio Counties alone, [tourism] accounts for $12.9 billion in annual visitor spending, supporting 119,591 jobs, and contributes $1.7 billion in federal, state and local revenue.” Id. 3 Laura Arenschield, Toledo Bearing Full Brunt of Lake Erie Algae Bloom , COLUMBUS DISPATCH (Aug. 4, 2014, 8:10 AM), http://www.dispatch.com/content/stories/local/2014/ 08/04/this-bloom-is-in-bad-location.html [http://perma.cc/R2TH-B5LG]. 4 Id . 5 Id. 6 Maria Gallucci, Lake Erie Algae Bloom Crisis Is Putting Pressure on Ohio, Farm States to Tackle Agricultural Pollution Problems , INT’L BUS. TIMES (Aug. 16, 2014, 7:00 AM), http://www.ibtimes.com/lake-erie-algae-bloom-crisis-putting-pressure-ohio-farm-states-tackle-agricultural-1660240 [http://perma.cc/HL4C-8YD7]. 7 See Cyanobacteria Blooms FAQs , CENTERS FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/nceh/hsb/hab/cyanobacteria_faq.pdf [http://perma.cc/53AM-45FV]. ( continued ) 796 CAPITAL UNIVERSITY LAW REVIEW [45:795 push scientists and government agencies needed to take steps to solve this alarming and growing problem. 8 HABs are a toxic form of algae that is found in both freshwater and saltwater ecosystems. 9 They are formed by excess nutrients that flow into waterways, which feed the algae and allow it to grow. 10 Nitrogen and phosphorus are the most common and problematic naturally occurring nutrients for Lake Erie . 11 For example, nitrogen and phosphorus originate from sources like fertilizer and manure, which flows into water sources such as lakes and rivers in the form of runoff. 12 Therefore, agriculture plays an important role in the production of HABs and should be a key industry to regulate. This is an issue that has economic, health, and environmental concerns, and these impacts span across more than just Northwestern Ohio. 13 HABs Cyanobacteria—also known as HABs—release toxins called cyanotoxins, which are “among the most powerful natural poisons known. They can make people, their pets, and other animals sick.” Id . 8 See Michael Wines, Behind Toledo’s Water Crisis, a Long-Troubled Lake Erie , N.Y. TIMES (Aug. 4, 2014), http://www.nytimes.com/2014/08/05/us/lifting-ban-toledo-says-its-water-is-safe-to-drink-again.html [http://perma.cc/2W46-RTUM]. 9 See Lorraine C. Backer & Dennis J. McGillicuddy, Jr., Harmful Algal Blooms: At the Interface Between Coastal Oceanography and Human Health , 19 OCEANOGRAPHY, June 2006, at 94, 94, https://tos.org/oceanography/assets/docs/19-2_backer.pdf [https://perma.cc/ 7K8A-G9K9]; CARY B. LOPEZ ET AL., INTERAGENCY WORKING GRP. ON HARMFUL ALGAL BLOOMS, HYPOXIA, & HUMAN HEALTH, SCIENTIFIC ASSESSMENT OF FRESHWATER HARMFUL ALGAL BLOOMS 1 (2008), https://www.whoi.edu/fileserver.do?id=41023&pt=10&p=19132 [https://perma.cc/2Q4J-KSYH]. 10 See Causes and Prevention , U.S. ENVTL. PROTECTION AGENCY, https://www.epa.gov/nutrient-policy-data/causes-and-prevention#what1 [https://perma.cc/ W6LG-933W]. 11 Id . 12 Nitrogen & Phosphorus , CHESAPEAKE BAY FOUND., http://www.cbf.org/about-thebay/issues/dead-zones/nitrogen-phosphorus [http://perma.cc/U9N8-UHAC]. See also Timothy D. Searchinger, Cleaning Up the Chesapeake Bay: How to Make an Incentive Approach Work for Agriculture , 16 SE. ENVTL. L.J. 171, 185 (2007). The Chesapeake Bay in Maryland has also had serious problems with HABs. Many efforts have been undertaken to curb agricultural pollution in this area in order to preserve the bay. Id . at 174–75. See also Jack Tuholske & Kenneth Kilbert, Moving Forward: Legal Solutions to Lake Erie’s Harmful Algal Blooms , LUCAS COUNTY, OHIO BOARD COUNTY COMMISSIONERS 15 (Apr. 15, 2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2667107 [http://perma.cc/V7PJ-4F5Y] (phosphorus and nitrogen loading from agricultural sources stimulate growth of certain bacteria that contribute to the creation of hypoxia. Hypoxia occurs when there is an oxygen deficit that prevents proper photosynthesis and plant growth beneath the water.). 13 See Colin Miner, Assessing Algal Blooms’ Economic Impact , N.Y. TIMES (Nov. 27, 2009, 8:36 AM), http://green.blogs.nytimes.com/2009/11/27/assessing-algal-blooms-economic-impact/?_r=0 [http://perma.cc/EQX3-TAJ2]. This issue is impacting multiple ( continued ) 2017] HARMFUL ALGAL BLOOMS 797 are a very real challenge for states all over the country; but Ohio and the Great Lakes region have been dealing with HABs on and off for decades. 14 HABs have been plaguing Ohio waterways, and scientific research allows us to better understand how serious the problem is. 15 In April 2009, the results of the 2007 National Lake Survey were released. 16 This study showed that greater than 36% of 19 randomly sampled Ohio lakes had detectable levels of algae, which was a significantly larger percentage than other reporting states. 17 Cities throughout Ohio have spent hundreds of thousands of dollars to combat foul taste and odor in drinking water linked to the accumulation of algae. 18 To this end, Ohio has pioneered legislation to tackle the toxic blooms found in local waterways and beloved lakes around the state . 19 Ohio Senate Bill 1 was signed into law and became effective July 3, 2015 with bipartisan support. 20 This bill amends and adds provisions to the Ohio Revised Code to combat HABs and their causes. 21 The sections most relevant to the discussion in this Comment require that any application of fertilizer or manure comply with new preventative measures. 22 At the time the legislation was passed, the primary focus was states; for example, if the State of Washington was forced to shut down bodies of water during razor clam season, they could lose more than $22 million in revenue. Id. 14 See Jack Tuholske & Kenneth Kilbert, Moving Forward: Legal Solutions to Lake Erie’s Harmful Algal Blooms , LUCAS COUNTY, OHIO BOARD COUNTY COMMISSIONERS 5 (Apr. 15, 2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2667107 [http://perma .cc/V7PJ-4F5Y]. 15 See STATE OF OHIO, HARMFUL ALGAL BLOOM RESPONSE STRATEGY FOR RECREATIONAL WATERS 5 (2016) [hereinafter RESPONSE STRATEGY], http://www.epa.ohio. gov/portals/35/hab/HABResponseStrategy.pdf [http://perma.cc/VBJ4-9KPW]. 16 Id . 17 Id . 18 Spencer Hunt, Toxic Algae in Hoover Reservoir Cost City $723,000 , COLUMBUS DISPATCH (Feb. 3, 2014, 1:58 PM), http://www.dispatch.com/content/stories/local/2014/ 02/03/toxic-algae-in-hoover-cost-city-723000.html [http://perma.cc/NGL9-6P3Y] (Toxic Algae at Hoover Reservoir in spring of 2014 caused drinking water to smell and taste like “licking a carp” but showed no signs of toxins). 19 See Amy Graves, What You Need to Know About Ohio’s New Nutrient Law , OHIO FARM BUREAU (Apr. 23, 2015), https://ofbf.org/news-and-events/news/4604 [http://perma.cc/MJ3W-WHV7]. 20 Jeff Grim, Ohio Legislative Service Commission, Final Analysis Sub. S.B. 1, at 1, https://www.legislature.ohio.gov/download?key=2901&format=pdf [https://perma.cc/CWF8-LU3K]. 21 Amended sections include: § 333.30 of Am. Sub. H.B. 59 of the 130th General Assembly and § 6109.10 of the Ohio Revised Code. Newly enacted sections include: §§ 903.40, 905.326, 905.327, 1511.10, 1511.11, 3745.50 and 6111.32. See Sub. S.B. 1, 131st Gen. Assemb. (Ohio 2015). 22 See OHIO REV. CODE ANN. §§ 903.40, 905.326, 939.08–09 (West 2016). 798 CAPITAL UNIVERSITY LAW REVIEW [45:795 HABs present in Lake Erie. However, HABs continue to expand their reach, and therefore, the Ohio legislature needs to as well. 23 This Comment explores the challenges of regulating agriculture as an industry. The Ohio legislation appears to be one of the most expansive bills regulating when and how farmers can apply fertilizer compared to similar preventative legislation in other states. 24 Whether Ohio has gone far enough by enacting this legislation is the key question. Ohio has made significant strides in protecting water quality while attempting to regulate agriculture. 25 However, states all over the country are responding to this crisis. 26 The regulatory burden on agriculture is extremely light despite the fact algal bloom formation is directly linked to this...