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
SUMMARY

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. Ohio has pioneered legislation to regulate the agriculture industry, but going forward, the Ohio legislation is not comprehensive enough to have long-term impacts on nitrogen and phosphorus pollution in Ohio lakes and ... (see full summary)

 
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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 ASSN (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, INTL 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 HABsrelease 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 17475. 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, 939.0809 (West 2016).

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