Editor’s note: this story was updated on 10/18/24
SALEM, Ohio — Eleven Ohio agricultural organizations, including the Ohio Farm Bureau, recently filed a motion to intervene in a case against the U.S. Environmental Protection Agency brought by an environmental law firm, City of Toledo and the Board of Lucas County Commissioners.
The purpose of the motion, filed Sept. 23, is to bring the agricultural coalition into a legal battle concerning the health of Lake Erie. At the heart of the lawsuit, brought by the Chicago-based Environmental Law and Policy Center (ELPC), is a debate over how rigorously the Clean Water Act should apply to agricultural operations, particularly concentrated animal feeding operations, or CAFOs.
The ELPC filed the lawsuit in May to go after what they see as Goliaths polluting the lake, while the farm bureau is seeking to protect the Davids, or small Ohio farmers, from adverse regulation.
“The agriculture community has been clear that they want to be a part of the solution,” said Leah Curtis, associate general counsel at the Ohio Farm Bureau, in an interview with Farm and Dairy.
Background
The ELPC accused the EPA of violating the Clean Water Act by neglecting to safeguard the lake from agricultural runoff, specifically phosphorus and nitrogen pollution from the Maumee River Watershed, which contributes to the lake’s harmful algal blooms.
Many remember in 2014 when a highly toxic algal bloom infiltrated Toledo’s water plant intake, forcing the city to turn off its water supply to residents for two days. The crisis later sparked the creation of H2Ohio, a comprehensive water quality project launched by Gov. Mike DeWine that offers funding to farmers who implement practices such as cover crops, buffer strips and controlled drainage systems.
In August, DeWine’s administration announced that, following an increase of incentives for farmers outside of the Western Lake Erie Basin, 2.2 million acres of cropland statewide had been enrolled in the program, with producers employing voluntary best management practices aimed at protecting water and soil quality.
However, despite the increased participation and the program’s significant financial investment and efforts in wetland habitat restoration, the blooms keep coming back. The National Oceanic and Atmospheric Administration’s seasonal HAB forecast found the bloom established itself earlier than usual this year, on June 24. The forecast predicted a moderately severe bloom in 2024.
The lawsuit
Historically, the Clean Water Act has been largely successful at reducing industrial pollution: Think steel mills, paper mills and oil refineries. It also sets policy for raw sewage discharges from combined sewer systems, which are designed to capture both sewage and stormwater in the same pipe. Such systems are used in hundreds of cities, where heavy rains can cause the sewers to overflow and discharge sewage into the environment.
“But what we haven’t got a handle on is agricultural pollution. And a big part of that is because, under the Clean Water Act, a lot of agricultural pollution is considered nonpoint source pollution,” said Katie Garvey, staff attorney at ELPC.
Nonpoint source pollution is hard to measure since it comes from so many different places. An EPA-approved plan for the Western Lake Erie Basin last year focused on reducing the amount of nitrogen and dissolved reactive phosphorus (DRP), a more bioavailable form of phosphorus, in the watershed. Together, they cause dangerous algal blooms in Lake Erie.
The plan, created by the Ohio EPA, set a Total Maximum Daily Load (TMDL) for the watershed. But that limit falls short of obligations under the Clean Water Act, according to the ELPC, and will not be sufficient to remediate the harmful algal blooms in western Lake Erie until the U.S. EPA sets a new one.
Additionally, the ELPC wants large-scale livestock operations to be more strictly regulated. The Clean Water Act designated CAFOs as point sources of pollution from the beginning, but the ELPC is arguing that the TMDL in Lake Erie doesn’t adequately address CAFOs as point sources of pollution.
“Ohio has failed to identify the CAFOs in the Western Lake Erie Basin and give them waste load allocations as they’re required to do under the Clean Water Act,” Garvey said. “So the shortest way to say it, maybe, is that the TMDL inaccurately places CAFO pollution in the nonpoint source bucket, whereas it should be in the point source bucket.”
If the ELPC prevails, the lawsuit could result in the EPA revising the TMDL which will have a more direct impact on agricultural activities by issuing waste load allocations to CAFOs.
The motion
The agricultural coalition believes they should have a say in the proceedings because of the possible impact on their members.
“There’s a very strong potential that there could be a significant amount of really burdensome regulation from the federal government due to this case if [the court] were to move forward and rule in [the ELPC’s] favor,” Ohio Farm Bureau’s Curtis said. Any regulation, she said, needs to consider the distinct needs and operations of both small and large farms. A one-size-fits-all approach could disproportionately hurt smaller farms, particularly from the enforcement of waste load allocations for nonpoint sources.
Farmers do not require a permit to conduct most ordinary agricultural activities that might see contaminants discharged in water. Agricultural runoff from smaller farms is often considered a nonpoint source, as it originates from a broad area and does not have a single identified point where contaminants reach the water body. However, knowingly discharging pollution from a point source is illegal without a permit.
ELPC in particular wants to see the state’s largest CAFOs that apply liquid waste to tile-drained fields defined as point sources when they discharge instead of being brushed under the rug and subject to the agricultural stormwater runoff exemption under the CWA.
But Curtis said this type of restriction would pose an onerous burden on the entire spectrum of Ohio agriculture, from 4-H setups to modest operations with some livestock to the largest industrial farms, which have already undergone Ohio’s full permitting and regulatory process.
To Garvey, something smells funny about that.
“That assertion that says that our lawsuit somehow would impact the little guy is absolutely wrong,” Garvey said, pointing to the Ohio EPA, which says there are about 150 large CAFOs in the state. According to the 2023 U.S. Ag Census, there are 75,800 farms in Ohio.
“So CAFOs are truly the biggest of the big. They’re not even the 1%. They’re the 0.2%. The largest factory farm facilities. This is a lawsuit about that, that 0.2% of the biggest outsized polluters. It does not have anything to do with the little guy.”
For her part, Curtis said the Motion to Intervene provides farmers a seat at the table.
“Our members are the ones that actually are impacted by this. So this allows them to be a part of it as well and have their voice heard.” She said she hopes the case makes clear that the TMDL has been created the way it was supposed to.
Moreover, Curtis said, farmers’ concerted efforts to better manage nutrients on their fields across the Lake Erie watershed have already yielded positive results for the health of the environment and lake.
The lake
The court’s decision could set a significant precedent for how agricultural pollution is regulated, potentially reshaping the future of farming in Ohio and the health of Lake Erie for generations to come. In the meantime, the dangerous blooms are here to stay. According to Alexandra Hounshell, research oceanographer for the National Oceanic and Atmospheric Administration, the dynamics of the blooms in the lake are changing. While some are smaller overall, the peak is lasting longer, closer to three to four weeks, as compared to prior ones.
“For the phosphorus mitigation efforts enacted in the watershed to reduce blooms, the concentration of biologically available phosphorus in the Maumee River first needs to decrease,” she said in an email, adding that recent phosphorus concentrations in the Maumee River have been nearly double those of the 1990s according to nutrient monitoring data from the National Center for Water Quality Research (NCWQR).
Over the last few years, the NCWQR monitoring data has suggested a slight decrease in phosphorus concentration in the lake, but Hounshell cautioned that the decrease is variable, with the 2024 season exhibiting concentrations consistent with 2002 to 2018.
‘The phosphorus mitigation efforts enacted in the watershed don’t lead to immediate reductions in phosphorus concentrations in either the Maumee River or western Lake Erie and need to be implemented across much of the watershed area,” she wrote. “Progress on this is happening which should lead to noticeable and impactful decreases in Maumee River phosphorus concentrations over the next few years.”
