Eleven major agricultural groups — seven from Ohio and four on the national level — have asked Senior U.S. District Judge James Carr to let them join the U.S. Environmental Protection Agency and others in a landmark case in federal court that could affect how the state is allowed to manage western Lake Erie in the future.
The case, brought by the Board of Lucas County Commissioners, the Midwest-based Environmental Law & Policy Center, and the city of Toledo, is a reboot of one that appeared to have been settled by past negotiations.
It pertains to a future planning document called a Total Maximum Daily Limit, or TMDL, that is required under the federal Clean Water Act for impaired bodies of water such as western Lake Erie because of its ongoing bouts with toxic algae since 1995.
The lawsuit targets the U.S. EPA and its administrator, Michael Regan, as well as its Midwest regional director, Debra Shore, who has oversight over the Great Lakes. It contends the agency and those two leaders within it allowed the Ohio EPA to fulfill its obligation last summer by submitting a TMDL that the plaintiffs contend is weak, ineffective, and meaningless.
In a motion recently filed with the court, those 11 agricultural groups claim they have a right to defend themselves from a case that could directly impact their industry.
The groups include the Ohio Pork Council, the Ohio Dairy Producers Association, the Ohio Cattlemen’s Association, the Ohio Poultry Association, the Ohio Farm Bureau Federation, the Ohio Soybean Association, the Ohio Corn & Wheat Growers Association, the American Farm Bureau Federation, the National Pork Producers Council, the National Corn Growers Association, and United Egg Producers.
Together, they have asked the court to consider them as a coalition known as “Agricultural Associations” for purposes of this lawsuit.
“Agricultural Associations’ members raise livestock or grow crops within the Maumee Watershed and thus have a significant interest in any new limits and restrictions on the amount of phosphorus that may enter the Maumee River and, ultimately, the Western Lake Erie Basin,” according to the motion.
The groups, through a team of attorneys at the Crowell & Moring LLP law firm in Washington, said they need to either be recognized as defendants or as intervenors in the case to “protect the interests of their members.”
According to a memorandum in support of the motion, those groups “have long sought to protect their members’ interest in rational CWA regulation that is protective of water quality, while adhering to the federalism-preserving provisions of the CWA.”
It further stated that those ag-based groups “have a significant stake in this proceeding” and that members “would be directly subject to any new wasteload allocations and load allocations that plaintiffs argue are required.”
“Likewise, they would be directly impacted by any specific actions, deadlines, or monitoring requirements that plaintiffs argue are necessary to provide reasonable assurances that the pollutant reductions are achieved,” the memorandum continues. “Moreover, plaintiffs suit calls into question the interpretation of the CWA’s exclusion of ‘agricultural stormwater discharges’ from the Act’s permitting requirements.”
The coalition claims there is precedent for its request based on a ruling in a similar case involving the Chesapeake Bay, which has been held up as a model for the western Lake Erie TMDL.
“U.S. EPA cannot adequately represent its public interest in implementing the CWA while also representing the Agricultural Associations’ private interest against unreasonable or unjustified permitting and land management requirements,” its memorandum states.
Following a status conference on Oct. 2, Judge Carr set an Oct. 18 deadline for the Board of Lucas County Commissioners, the ELPC, and the city of Toledo to respond to the request for inclusion by the agricultural interests. He also set a Nov. 8 deadline for those ag-based groups to respond to whatever objections are raised.
Ohio Farm Bureau Federation Executive Vice President Adam Sharp said in a statement issued by the organization on Wednesday that the group believes the lawsuit “is nothing more than an unjustified push for more restrictive regulations for Ohio farmers, based on a radical agenda against agriculture and not on science and common sense.”
“At the heart of our united action to intervene in this case is to give Ohio agriculture a voice against the blatant lies, meritless attacks and frivolous lawsuits that aim to satisfy an agenda against farmers that goes far beyond water quality,” Mr. Sharp’s statement said. “Those attacks have to be put to a stop.”
The group also provides its perspective in an article on its website .
The plaintiffs “intend to oppose the Farm Bureau’s effort to interfere with this litigation,” according to Fritz Byers, a Toledo attorney who represents the Lucas County Commission.
“They don’t meet the legal test for intervention,” Mr. Byers said. “And their public relations campaign is similarly designed to mislead the public about the ongoing contamination of Lake Erie, which the available science proves and which we here in Lucas County can readily see.”
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