More legal wrangling over Lake Erie

By Matt Reese

Over the last 10 years, it seems almost as certain as the likelihood of a green hue in parts of Lake Erie in late summer. If Jamie Farr loves Tony Packo’s, there is a pretty solid chance the good folks of Toledo are trying to sue someone regarding water quality in Lake Erie and are directing their emerald-water ire at Ohio agriculture.

“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,’” said Peggy Kirk Hall, director of agricultural law, Ohio State University Agricultural and Resource Law Program in a recent article. “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.”

A Total Maximum Daily Load (TMDL) is part of an EPA plan to help restore a stream or lake to a healthy state. A TMDL identifies the link between the impairment of the water and a pollutant, then prescribes pollutant load reductions needed to address the problem. The sources of pollutants are classified under a TMDL as either point sources or nonpoint sources, both of which are evaluated for needed reductions. Point sources include all sources regulated under the National Pollutant Discharge Elimination System permitting program, including wastewater treatment facilities, industrial facilities, and some stormwater. Nonpoint sources include all remaining sources of a pollutant as well as natural background loads. Agriculture is considered as a nonpoint source in the TMDL.

Now, since agriculture is a nonpoint source, with small amounts of nutrient loss coming from a very large landmass subject to both manmade and natural inputs, it is virtually impossible to accurately pinpoint, implement practices and monitor results under the TMDL process. Nonetheless, Toledo leaders have taken extensive legal action to push for the Maumee TMDL through legal action, said Jordan Hoewischer, director of water quality and research for Ohio Farm Bureau in a recent Ohio Ag Net Podcast.

“They said they wanted a TMDL. They got a TMDL, they’re just not happy with it, and so we’re not sure what the ending is on that,” Hoewischer said. “A TMDL is typically something that, at least in my opinion, is square peg for a round hole. It’s very easy to set daily load and periodic loads from municipalities, but for these farm fields where we’re not seeing direct discharge, it makes that very troublesome. I think that’s been the crux of it. How does the EPA actually treat this the same as a point source like a municipality? I think it’s a dangerous precedent considering that in the Western Lake Erie Basin there’s a few million acres. How do you determine the load that should be coming off of those fields based on a wide variety of soil tests, soil types, land uses and other things? On the surface, I really don’t understand how it could be applied.”

Yet the lawsuits continue out of Toledo to try to force the issue. It seems there are different underlying motives behind the ongoing legal action, some legitimate.

“At this point they think zero progress has been made. They see a green lake every summer to some degree and feel like we still haven’t hit the mark. It’s understandable. Ten years ago, they went through a weekend without water and they feel a little neglected. They feel that agriculture is turning a blind eye to what’s going on, but that couldn’t be further from the truth. We just need time for these different things we’ve done to take hold,” Hoewischer said. “We’re not saying that the lake is fine, but we have made a significant amount of progress. I firmly believe that the lake isn’t sick, it just has a pimple every summer. The fishing is great. Recreation is great. We just have this algal bloom that pops up in various sizes and various places throughout the summer, but overall, the lake is thriving. I think the citizens around the lake would say the same thing. Yet there’s just this drum beat that’s coming from some people who maybe have ulterior motives against agriculture. Sometimes people who aren’t very fond of meat production can use water quality and manure application as a back door to wield a different sword against meat production. But whatever that motive is, we need to stick up for what our farmers are doing and the progress we’ve made. We’re pretty proud of that progress and we think that we’re heading in the right direction.”

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