A new Lake Erie lawsuit targets TMDL

By Peggy Kirk Hall, director of agricultural law, Ohio State University Agricultural and Resource Law Program

A new chapter is developing in the legal battle over resolving water quality problems in the Western Lake Erie Basin. Earlier this month, the Lucas County Board of Commissioners, City of Toledo, and Environmental Law & Policy Center filed a federal lawsuit against the U.S. Environmental Protection Agency (EPA). The lawsuit targets the EPA’s approval of Ohio’s Total Maximum Daily Load (TMDL) plan for the Maumee River Watershed. If it feels like déjà vu, that’s because it is. In the 10 years since Toledo experienced a drinking water crisis caused by harmful algal blooms in the Western Basin, there have been four federal lawsuits demanding a plan for improving water quality in the lake and a legal battle to protect the lake with a “Lake Erie Bill of Rights.”

The current litigation arises from a 2023 settlement agreement that led the Ohio EPA to create the TMDL for the Maumee River Watershed. A TMDL establishes a framework for future decisions that affect water quality by identifying the links between sources of impairment and pollutant load reductions necessary to reduce impairment and attain water quality standards. The EPA reviewed and approved Ohio EPA’s Maumee River TMDL last year, against opposition from environmental groups and the parties in the current lawsuit. That approval of the TMDL is the source of the new lawsuit.

According to the plaintiffs, the EPA should not have approved the Maumee River Watershed TMDL because it “will not remediate Lake Erie.” The parties claim that the plan “fails to limit pollution caused by dissolved reactive phosphorus and does not meaningfully address the concentrated feeding operations, or CAFOs, that are responsible for polluting the watershed.” In support of their argument, the parties cite the following five “legal defects” in the plan, each an alleged violation of the Clean Water Act: 

  1. Failure to set Dissolved Reactive Phosphorous (DRP) limits.
  2. Failure to set an adequate “margin of safety” that accounts for lack of knowledge about the relationship between effluent limitations and water quality.
  3. Failure to assign waste load allocations to discharging CAFOs.
  4. Failure to apportion load allocations to all nonpoint sources.
  5. Inadequate implementation plan and failure to provide reasonable assurances.

The lawsuit asks the federal court to vacate the current Maumee River Watershed TMDL and order the EPA to prepare a new TMDL that “will actually clean up Lake Erie.”

What does this mean for Ohio agriculture?

If the plaintiffs are successful, the lawsuit could result in the preparation of a new TMDL for the Western Basin. The current Maumee River Watershed TMDL plan prepared by the Ohio EPA encourages an “adaptive management” approach for agricultural activities, based on voluntary adoption of management practices coupled with monitoring and progress evaluation. A new TMDL could more directly affect agricultural activities, particularly if the EPA agrees with the plaintiffs’ arguments that the TMDL should assign waste load allocations to discharging CAFOs and apportion load allocations to all nonpoint sources. But remember that the EPA approved the current TMDL plan, suggesting that the agency will not be inclined to make significant alterations if the court orders it to prepare a new plan.

Other than the possibility of a new TMDL, the lawsuit does not directly affect agricultural operations right now. It does not name any specific farms or bring them into the litigation. The lawsuit does not affect current voluntary efforts to reduce water quality impacts, such as H2Ohio. 

Nor is the litigation likely to generate additional lawsuits against agricultural operations that currently comply with all applicable laws, a question we’ve heard from some producers in the Maumee River watershed. Several Ohio laws provide defenses to such lawsuits and those laws will continue to be in effect throughout the federal litigation, unless the Ohio legislature makes any changes to the laws. Those legal defenses, explained in our law bulletin on “Laws that Provide Defenses for Agricultural Production Activities,” apply to operations that meet the specific requirements of the laws and include:

  • The Fertilizer Applicator Certification Training (FACT) defense for claims involving the application of nitrogen, phosphorous, potassium and plant nutrients.
  • The Right to Farm Law defense and exemption from Statutory Nuisance for allegations that agricultural activities are creating a nuisance that unreasonably interferes with health, comfort, or property rights.
  • The Ohio Agricultural Pollution Abatement Law for nuisance claims involving “agricultural pollution,” defined as the failure to use practices to abate erosion, or degradation of waters of the State by residual farm products, manure, or soil sediment.
  • The Confined Animal Feeding Facilities (CAFF) defense for nuisance claims against farms operating under a CAFF permit.

What happens next?

The EPA is likely to respond to the complaint with a request that the federal court dismiss the claim, and we probably won’t see a decision on that request before the end of the year. If the court declines to dismiss the case, the plaintiffs must then convince the court that the current TMDL plan does not comply with the Clean Water Act. Arguments will focus on the five legal defects presented by the plaintiffs. As has been true for the previous litigation, a decision would take a year or more. Yet again, we await the outcome of another Lake Erie lawsuit.

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