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 revisio ns 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, F arm

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 HARM FUL 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-the-

bay/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 COMMISSI ONERS 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 creatio n 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 RESPO NSE 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).