The city of Toledo gave the lake legal rights to combat farm pollution—and others may soon follow.
The city of Toledo gave the lake legal rights to combat farm pollution—and others may soon follow.
April 9, 2019
In the sweltering summer of August 2014, nearly half a million people in the city of Toledo, Ohio were told not use their tap water for drinking, cooking, or bathing for more than two days. Sourced from nearby Lake Erie, the water had been contaminated by microcystins, a class of toxins caused by microcystis, a blue-green algae that was blooming throughout the southwestern corner of the lake. If it comes in contact with the skin, microcystin causes rashes; if ingested, it can also cause vomiting and liver damage.
“It was jarring,” says Markie Miller, a Toledo resident and organizer with Toledoans for Safe Water (TfSW). “I felt really paranoid and vulnerable.”
Miller recalls the chaos that ensued: bottled water was cleared out of the stores; citizens lined up in the hot August sun to wait for rationed water; and hoarding and fighting ensued. Scientists and conservation experts agreed that the algae blooms had been caused, at least in part‚ by agricultural runoff from the region’s surrounding vast farmland. It was the first time Miller could recall hearing phrases like “nutrient runoff” or “phosphorus pollution” in the news.
“Until the problem [of ag runoff] found its way into our intake well, we never talked about it,” Miller says. But the problem had been festering for a while; as early as 2011, scientists had recorded a larger bloom in the Great Lake directly north of the city. But the 2014 water crisis became a “boiling point” that prompted citizen involvement.
Then, in February 2019, Ohio voters passed the Lake Erie Bill of Rights, a first-of-its-kind measure that permits Toledo’s citizens to file lawsuits against polluters in defense of the Lake’s “Rights of Nature.”
Now, as the algae season grows near, and climate change threatens to extend the window when blooms occur, the Bill of Rights is pitting farmers against environmentalists in a battle that could set an important precedent for other parts of the country.
And, with the help of newly released data, some advocates are also pointing to animal agriculture—and in particular concentrated animal feeding operations (CAFOs)—as the culprit. A report released today by the Environmental Working Group and the Environmental Law & Policy Center states that “unregulated animal factory farms are funneling nutrient-rich pollution into Lake Erie.”
After the water crisis, “people started to ask questions,” says Miller. “The push wasn’t driven by elected officials or government agencies. It was driven by people going to those authorities and asking, ‘Why was this kept quiet? How did it get to this point?’ We couldn’t look away any longer.”
After several years of organizing, a small but mighty force of nearly a dozen concerned citizens succeeded in bringing a controversial referendum to voters in the city. Then, 61 percent of the registered voters who turned out for the special election passed legislation to amend the city’s charter to give Lake Erie the right to “exist, flourish, and naturally evolve.”
Rights of Nature philosophy recognizes the natural world as inherently independent and views humankind as stewards tasked with protecting resources rather than controlling them.
“We weren’t the first to focus on Rights of Nature,” Crystal Jankowski, also an organizer with TfSW, tells Civil Eats. “Native tribes have long used this philosophy. We took their millennia of knowledge and modernized it [for] our legal system,” she says about the grassroots effort in Ohio.
TfSW was aided by the Community Environmental Legal Defense Fund (CELDF), a nonprofit, public-interest law firm based in Pennsylvania. Pioneers in the community rights movement, in 2008 CELFD worked with lawmakers in Ecuador to draft Rights of Nature language to add to the country’s constitution. Activists in Bolivia soon followed, as did others in New Zealand and India, who mobilized to gain rights recognition for specific bodies of water in their countries. Several indigenous groups in the U.S. have also since moved to formally adopt Rights of Nature philosophy for important natural resources in their communities.
Ohio’s Wood County, south of Toledo and bordered on the northwest by the Maumee River, is defined by generations of proud agricultural tradition. It’s one of 17 Ohio counties that make up the Maumee watershed’s more than 4 million acres, the largest watershed in the Great Lakes. More than 70 percent of Wood County’s land is in agricultural use.
Groups opposed to the Lake Erie Bill of Rights have argued that the legislation will directly impact farms in the region by hurting their bottom line. Hours after the ballot measure passed, Drewes Farm—a fifth-generation operation that produces corn, soybeans, wheat, and alfalfa—filed a lawsuit against the city of Toledo. In the filing, plaintiff Mark Drewes calls the Lake Erie Bill of Rights “vague,” “unconstitutional,” and “unlawful.”
In addition, the lawsuit argues that if the farm “is forced to stop fertilizing crops,” it could “place Drewes Farms in breach of leases and contracts and deprive it of the benefits of its leases and contracts that are dependent upon ongoing fertilization.”
The farm has received support from the Ohio Farm Bureau Federation, the largest agricultural advocacy group in the state.
“Mark’s farm is an example of the right way of doing things,” Adam Sharp, executive vice president of the Ohio Farm Bureau, told The Progressive Farmer in March. “He’s employing a variety of conservation practices, water-monitoring systems, water-control structures, and uses variable-rate-enabled equipment—and yet he’s vulnerable to frivolous lawsuits.”
Drewes has asked for a preliminary and permanent injunction to prevent enforcement of the law and on March 18, the City of Toledo agreed to preliminarily hold off on enforcing the measure. On the same day, attorneys filed on behalf of the Lake Erie Ecosystem and TfSW a request for recognition as defendants in the case as well as a motion to dismiss Drewes’ lawsuit.
Thomas Fusonie, Mark Drewes’ attorney, sent Civil Eats the following statement on behalf of his client: “The City of Toledo’s Lake Erie Bill of Rights is an unlawful attack on the constitutional rights of family farms like the Drewes’ throughout the Lake Erie watershed, which purports to impose significant liability as farmers head into planting season, and the Drewes felt compelled to challenge it. The Court has preliminarily enjoined the enforcement of LEBOR [the Lake Erie Bill of Rights]. The Drewes are cautiously optimistic that the Court will ultimately determine LEBOR to be unconstitutional and unlawful.”
Not all farmers in the area share Drewes’ feelings. Joe Logan, a local farmer and president of the Ohio Farmers Union, is quick to acknowledge that Lake Erie’s pollution problem is fueled by agricultural practices in the region. But he doesn’t interpret the new measure to mean that farmers can’t fertilize their fields. He tells producers who feel threatened by the Bill of Rights that their livelihoods are not in jeopardy if they aren’t over-fertilizing their fields or applying manure haphazardly. “We [didn’t] get into the situation with the phosphorus levels we have right now without having a few bad actors,” he says.
The organizers behind the Bill of Rights say it was never their intention to hurt the region’s farmers. Nevertheless, this is the picture that has been painted by groups opposed to the measure. “We want agriculture in the region to be more diversified,” TfSW’s Miller says. “We want the Lake Erie Bill of Rights to force sustainable change in the industry.”
The industry doesn’t take kindly to the idea of being forced to do anything—especially not when it comes to conservation practices. In the meantime, Lake Erie’s neighbors are waiting to see what will come of the lawsuit and others that have been rumored to follow it.
Vickie Askins and her husband, Larry, are Wood County residents and members of the local farmers union. Vickie also serves as the coordinator for the Ohio Environmental Stewardship Alliance, a citizens’ action group. For 15 years, she has traversed the region, rallying against the establishment of factory-scale animal farms, which she pinpoints as a crucial element in Lake Erie’s pollution woes.
Despite a reduction in easily identifiable sources of pollution through investment in the area’s sewage treatment facilities and wastewater treatment plants, as well as historic lows for phosphorus fertilizer sales in Ohio, and the removal of phosphate detergents and lawn care products from the marketplace, phosphorus-fueled algal blooms continue to be the norm for Lake Erie.
“We believe that most of the pollution is coming from agriculture in the western Lake Erie basin and mostly from manure generated by intensive animal production,” Askins tells Civil Eats. She points to the growth of CAFOs in Ohio, Michigan, and Indiana over the decades as mirroring the timeline of the Lake’s most recent pollution problem.
The report from the Environmental Working Group and the Environmental Law & Policy Center supports this belief. Using state permitting data, satellite imagery, and aerial photos, the authors identified animal operations working in the Maumee watershed in Ohio, Indiana, and Michigan. Their analysis showed that many of these facilities are small and medium-sized, which enabled them to operate outside of Ohio’s permitting requirements even though they may “house thousands of animals.”
The organizations found that the number of animals in the Maumee watershed more than doubled, from 9 million to 20.4 million, between 2005 and 2018. They estimate that, as a result, 69 percent of all the phosphorus added to the watershed each year comes from factory animal farms in Ohio.
The authors call for “permits for all of Ohio’s commercial animal operations, regardless of size,” which, they say, “would allow state regulators to track how many facilities exist, how many animals they house, and how much manure they produce.”
A 2017 report issued by the Ohio Environmental Council (OEC) came to a similar conclusion. Analyzing public data, the report found that the Ohio Department of Agriculture (ODA) issued permits for 231 CAFFs, or Concentrated Animal Feeding Facilities, in Ohio in 2017. However, this figure doesn’t account for the “thousands” of smaller, yet still intensive, operations that are outside of the ODA’s permitting requirements, the organization noted.
The OEC reported that in 2017, permitted facilities in Ohio housed more than 66 million animals, producing almost 900,000 solid tons of manure and more than 1.5 billion gallons of liquid manure. In the western Lake Erie watershed, the 64 permitted operations alone produced nearly a quarter of the solid manure in the state and almost half of the liquid manure.
Manure is commonly spread or sprayed on farmland as fertilizer. But Askins doesn’t believe there’s enough usable land in the watershed for this manure to be spread at what she calls “an agronomic rate.” In a press release announcing the OEC report, Adam Rissien, then director of clean water for the organization and author of the report, agreed, stating that his research showed that manure is applied excessively on fields in the western Lake Erie basin over 70 percent of the time.
In 2014, the Askinses filed a lawsuit, which was ultimately unsuccessful, against the U.S. Environmental Protection Agency (EPA), the Ohio EPA, and the ODA claiming Ohio’s CAFO permitting process was in violation of the U.S. Clean Water Act. The lawsuit focused on the Ohio legislature’s approval in 2000 of a bill that moved part of the National Pollutant Discharge Elimination System (NPDES) permitting program for CAFOs from the Ohio EPA to the ag department without first obtaining approval from the U.S. EPA.
Askins calls ODA’s permitting procedures a “scheme,” saying that numerous loopholes exist in a process devoid of public scrutiny. In particular, she points to the program’s “distribution and utilization” method of manure management, which allows manure to be sold by a CAFO to a third-party manure broker, as one of the largest loopholes. When this happens, the farmer who buys the manure has little accountability for what eventually happens to the nutrient.
The Farmers Union’s Joe Logan, who has been through the state’s Certified Livestock Manager training geared toward manure brokers or applicators, agrees. He says the loopholes leave the organization “off the hook.”
Logan also questions many farmers’ focus on applying liquid manure, because it is more likely to seep into waterways. On his own operation, he has encountered firsthand the issue of trying to control runoff despite using various techniques and technologies to prevent it.
“I expect that there are hundreds, if not thousands, of farms experiencing the same thing across Ohio,” Logan says. “My personal opinion is that it would be wiser to use more solid compounds in conjunction with some processing.”
The Maumee watershed in Wood County is in an area that was historically swampland. Called the Great Black Swamp, legislation was passed in 1859 that allowed the construction of ditches to drain the swamp—similar to the tile drainage system in Iowa—and dramatically transformed the landscape. Lake Erie Waterkeeper, a program of the International Waterkeeper Alliance, notes that “[t]here are three miles of man-made ditches to every mile of natural stream” in the region.
“These fast-track pipes are taking all of the liquid and dissolved phosphorus straight to the water,” says TfSW’s Markie Miller. “We need to come up with a unique solution for our region.”
The watershed also must contend with the increasingly obvious impacts of climate change, such as heavier rainfall events, which have been documented as a contributor to Lake Erie’s pollution woes.
Lawmakers are taking note: In mid-March, Ohio Governor Mike DeWine announced that his 2020-2021 proposed budget includes an allocation of $900 million for water quality improvement efforts in the state. The funding measure awaits approval by Ohio’s legislature.
In the meantime, TfSW has received information requests from around the world due to global media coverage of the Lake Erie Bill of Rights. “The number of communities that have connected with us to ask how we got the initiative on the ballot has been absolutely amazing,” says the group’s Crystal Jankowski.
According to her, community members in the municipalities that dot Lake Erie in both the U.S. and Canada have also been in touch. Jankowski says they mirror her group several years prior: frustrated residents wishing to protect the body of water in their backyard.
“As far as I can tell, they are starting to mobilize,” she adds, “which is a beautiful thing.”
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