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Opinions divided on need for phosphorus regulation

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Indiana Lawyer Focus

Fishing, boating and swimming are popular summer pastimes in Indiana, but increasingly, Hoosiers looking for a relaxing weekend at the lake are being warned to avoid the water altogether due to pollution.

The U.S. Environmental Protection Agency shows that in 2010, phosphorus was the cause of impairment for 7,023 acres of Indiana’s lakes, reservoirs and ponds. In excess, the nutrient can cause thick, foul-smelling mats of algae called algal blooms.

phosphorus In this photo provided by Jill Hoffman of Clear Choices Clean Lakes, an algal bloom forms a thick mat next to the Lake Tippecanoe seawall. (Photo courtesy Lyn Crighton, Tippecanoe Watershed Foundation )

Phosphorus can come from a variety of sources, including fertilizers, and some environmentalists say that regulating the use of phosphorus-fertilizers will reduce its presence in waters. But so far, efforts to institute laws restricting the use of phosphorus have generated little support.

Local concerns

In the far northeastern corner of the state, Steuben County is home to 101 lakes, including Lake James, the third largest lake in the state, and Clear Lake. The Clear Lake Town Council and the County Commissioners of Steuben each adopted ordinances in 2007 restricting the use of phosphorus-fertilizers (p-fertilizers) in an effort to control algal blooms. The Steuben commissioners requested a public hearing on the ordinances with the Office of the Indiana State Chemist. The ordinances made it a Class C infraction to apply p-fertilizers, but allowed for agricultural use and application to vegetable and flower gardens, trees and shrubs, and newly planted lawns.

After the public hearing in 2009, the state chemist ruled that residents had been unable to prove that “special circumstances” existed that would justify the ordinances. The chemist’s office also wrote that Steuben County and Clear Lake had not listed local enforcement of the ordinances as a high priority, and “no enforcement strategy was presented to effect an ordinance.”

For people like Rep. Dick Dodge, R-Pleasant Lake, the ruling was a frustrating setback. Dodge lives about 20 miles south of Clear Lake and five miles south of the Steuben County seat of Angola. He introduced legislation earlier this year that would create a state law restricting phosphorus, similar to the Clear Lake ordinance. House Bill 1425 stalled in the Committee on Natural Resources without a hearing. Dodge said he thinks the bill failed due to opposition from lawn care and agriculture lobbyists, but also because of resistance from the state chemist’s office.

“The enforcement of any violation of the ban would be enforced by the state chemist’s office,” he said. “The thing that I see is they just don’t want to take on that additional responsibility, which they’d be required to do under the legislation.”

dodge Dodge

Robert D. Waltz, state chemist & seed commissioner, said in an email to Indiana Lawyer that “HB 1425 did not pose any enforcement or registration or reporting responsibilities for this Office.”

Waltz was the person who signed the letter that nullified Steuben County’s local ordinances.

Rep. Ryan Dvorak, D-South Bend, co-authored HB 1425 with Dodge. He said Indiana needs to do more to reduce phosphorus in the state’s waters. Even though phosphorus can come from a variety of sources, Dvorak said, “I think it’s generally acknowledged that phosphorus is something we can take steps to address. One obvious way is to go after something as simple as fertilizer.”

Other states

Only 12 states have laws restricting the use of p-fertilizer, and in some, those laws are not statewide.

In Michigan, lawmakers adopted legislation calling for statewide restrictions of p-fertilizers based on the apparent successes of a similar ordinance in the city of Ann Arbor.

Ann Arbor began restricting p-fertilizer use in 2007. Since then, research supported by the city and performed by University of Michigan ecologist John Lehman and his graduate students has shown measurable reductions in phosphorus in the Huron River in the two years following the ordinance as compared to 2003 through 2005.

The city of Ann Arbor reports on its website that while the research cannot say with certainty whether the ordinance alone caused a decrease in phosphorus levels, the reductions averaged 28 percent in 2008 and 17 percent in 2009. Contributing factors may include less construction activity in the Ann Arbor area, storm water infrastructure improvements and greater environmental awareness by residents.

dvorak Dvorak

Michigan’s new law, which takes effect on Jan. 1, 2012, will prohibit the application of p-fertilizers to lawns unless a new lawn is being established or a soil test indicates a phosphorus deficiency. The new law also regulates the application of lawn fertilizer near surface waters and prohibits its application on frozen ground or water-saturated ground.

Educational efforts

Justin Schneider, an attorney with Indiana Farm Bureau, said that the bureau supports educational efforts regarding phosphorus. He said the bureau supported the educational component of HB 1425, but it had expected to see greater efforts to inform the public about p-fertilizers by now.

“The first thing is always education, and if education doesn’t work, then you try other alternatives,” he said.

Marija Watson, water resources project manager for the Indiana Wildlife Federation, said that the IWF has held six educational workshops around the state this year regarding p-fertilizers. She said groups like Clear Choices Clean Water and Indiana Clean Lakes Foundation were also working hard to inform Hoosiers about how their use of p-fertilizers can affect waterways.

Todd Janzen, a partner with Plews Shadley Racher & Braun, has represented agricultural organizations and owner/operators of the large livestock farms known as confined feeding operations. Runoff from such farms includes phosphorus, a component of animal manure.

Janzen said that the Indiana Department of Environmental Management’s Water Pollution Control Board has instituted new soil-testing guidelines for farmers, effective July 1, 2012. He explained that traditionally, farmers have put manure on their fields based on the predicted nitrogen needs of upcoming crops. Nitrogen is absorbed more quickly, but phosphorus lingers in the soil longer, so next July, farmers will begin sampling for phosphorus content before applying fertilizer.

“Many of the large farms have already been limiting how much phosphorus they put on land, so they’re sort of ahead of the curve,” he said. “If agriculture was worried about phosphorus limitations, they’re coming, whether they’re worried about them or not.”

Federal regulation

Dvorak said Indiana historically has been remiss in its enforcement of policies designed to curb water pollution.

“I think a lot of people are of the opinion that we’re going to wait until the feds make us do something about it,” he said. But the authority of the EPA is limited – particularly after a recent decision in the California courts.

janzen Janzen

The case’s debate concerned the enforceability of the Code of Federal Regulations, Title 40, Part 122, Section 23, which explains the regulation of concentrated animal feeding operations (CAFOs).

In National Pork Producers, et al. v. United States Environmental Protection Agency, the 5th Circuit Court of Appeals vacated portions of the EPA’s 2008 regulations that obligated large livestock producers to apply for a National Pollutant Discharge Elimination System permit. The court also struck the 2008 imposition of liability upon CAFOs for failing to apply for a permit – regardless of whether they discharged pollutants to federally regulated waters.

The court concluded that those rules exceeded the EPA’s permissible authority under the federal Clean Water Act.

Next steps

Dodge said he’s introducing his p-fertilizer bill again in 2012.

“And the legislation does not prevent people from using it, in fact, when you’re starting a new lawn, that phosphorus is kind of a necessity in getting a new lawn growing,” he said. “If someone feels they need it, they’re required to do a soil test to determine the fact that there’s a need to use phosphorus, then that would be permitted.

“If it’s used properly, it’s not really a problem. But if it’s applied at the wrong time, and maybe the ground cannot properly absorb it, then it runs off into the water stream.”•
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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