Lake advocacy group withdraws from lawsuit

Larry Limpf

An organization that has been co-plaintiff for more than four years in lawsuits attempting to force the U.S. Environmental Protection Agency to clean up Lake Erie has withdrawn from that action as it nears a mediated settlement.
The Chicago-based Environmental Law and Policy Center filed an initial suit in Federal District Court in Toledo in July 2017 and refiled February 2019, on behalf of Advocates for a Clean Lake Erie, now known as Lake Erie Advocates.
Judge James Carr has presided over the case from the outset and requested mediation by another federal judge in Cleveland that was held Sept. 20 of this year. A proposed settlement is expected to be approved this month.
Lake Erie Advocates informed ELPC of its decision to withdraw in a recent letter.
Mike Ferner, LEA coordinator, said the goal of the lawsuit which affects the Ohio portion of the 8,300 square-mile Western Lake Erie watershed, is to compel the U.S. EPA to enforce the Clean Water Act and require the Ohio EPA to draft what are called Total Maximum Daily Loads to identify pollution sources and amounts, set binding limits and recommend remediation actions.
He said the OEPA started drafting them recently under pressure from the lawsuit.
Dissolved Reactive Phosphorus from the feces and urine of animals in Confined Animal Feeding Operations is a contentious issue in the suit. The plaintiffs contend the wastes from CAFOs are a main driver of toxic algal blooms which have plagued the lake.
“We hoped we were finally on track to bring Lake Erie back to health since the Clean Water Act helped rescue the lake in the 1970’s,” said Ferner. “But after examining over 30 of the OEPA’s draft TMDLs, it’s clear their approach is environmentally bankrupt on two major points.”
First, they reject widely accepted science by denying the essential role of Dissolved Reactive Phosphorus and leave it out of their calculations, he said. Secondly, the draft TMDLs only recommend what he described as “warmed-over H2Ohio” fixes” like cover crops, buffer strips and grassed waterways that dozens of studies show do little good.
The H2Ohio Initiative was started by the administration of Gov. Mike DeWine. The program offers funding to farmers who implement conservation practices that limit agricultural phosphorus from fertilizer running off fields into tributaries of Lake Erie.
The Ohio Department of Agriculture and Gov. DeWine announced in July that H2Ohio was being expanded into 10 additional counties in the Western Lake Erie Basin: Seneca, Huron, Erie, Wyandot, Richland, Shelby, Sandusky, Marion, Ottawa and Crawford counties.
Farmers in the original participating counties, Williams, Fulton, Lucas, Defiance, Henry, Wood, Paulding, Putnam, Hancock, Van Wert, Allen, Hardin, Mercer and Auglaize, will continue receiving incentives during the program’s second year and have already enrolled more than one million acres of cropland in the program.
The state’s most recent operating budget provides $120 million over the next two years to fund farmers who adopt measures to reduce phosphorus runoff with the goal of preventing algal blooms in Lake Erie.
“After taking this deep dive into the inner workings of the Clean Water Act and Ohio politics we can only conclude the government agencies we pay to protect our environment instead protect the status quo so animal factory operators can keep using Lake Erie as a free toilet for millions of confined animals,” Ferner said. “The flood of liquid manure they spread on fields directly over the highest concentration of drainage tile in the country is what’s poisoning Lake Erie and the operators are getting away with ecocide.”
Following are LEA’s specific reasons for withdrawing as stated in the letter to ELPC:
1) The OEPA has said in public filings it intends to use only reductions in Total Phosphorus, not Dissolved Reactive Phosphorus to determine progress in reducing the flood of excess nutrients going into Western Lake Erie. The letter calls that “scientifically outdated.”
2) Lake Erie Advocates has previously investigated “best management practices” funded by taxpayers through the H2Ohio program and found that several of them – grassed waterways, buffer strips and no-till, not only fail to reduce DRP, but actually increase the amount going into waterways above the lake.
3) From the statements made by the U.S. EPA and the U.S. Department of Justice at the mediation hearing, it is clear their modus operandi is to do as little as possible and protect the polluters for as long as possible.


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