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Listen to Legal with Leah, a podcast featuring Ohio Farm Bureau’s Policy Counsel Leah Curtis discussing topics impacting farmers and landowners.

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Ty Higgins [00:00:00] Time for another Legal with Leah. I’m Ty Higgins, joined by Ohio Farm Bureau Policy Counsel Leah Curtis. There is yet another lawsuit about the health of Lake Erie targeting farmers about their role in water quality for the entire Western Lake Erie Basin. Let’s talk more about it, Leah. Got a lot to cover here. Not the first time we’ve had this type of subject matter in the courts. It’s happened a few times now.

Leah Curtis [00:00:22] So this is technically the fourth time that these parties have been in the courts. So ELPC has filed against US EPA regarding this same body of water. One case was dismissed voluntarily. Second was dismissed by the court. The third ended up with the TMDL consent decree. So the TMDL that is in place for and is the subject of this lawsuit was actually in part created through that last litigation.

Ty Higgins [00:00:52] ELPC, by the way anti-agriculture activist group and not going to give them a whole lot of air in the room here. But just wanted to lay that out there as to who’s bringing this suit into the court once again. So you mentioned the TMDL was developed, Total Maximum Daily Load. Explain what that is and why that is back in the court this time around.

Leah Curtis [00:01:09] So a TMDL, as you said, Total Maximum Daily Load. It essentially creates a plan and limits for discharges of certain substances into a body of water. And that’s done to address water quality, whatever that water body is for: recreation, drinking water, etc. So TMDLs are not uncommon. We have them across the state for various types of water bodies all across the country. Lots of different water bodies have a TMDL. So those are fairly normal. This was developed by Ohio EPA for the Maumee watershed to address Lake Erie’s water quality challenges. And again, that impaired status came through litigation and through the last lawsuit that was filed by the ELPC as well as the others in the area.

Ty Higgins [00:01:58] We should mention ELPC, as Leah mentioned, is part of this. Also government leaders at the county level there in Lucas County and also the city of Toledo involved in this as well. They’re arguing that this TMDL is not enough for agriculture. What are they saying?

Leah Curtis [00:02:12] So their arguments are essentially that agriculture should have been regulated more and differently under this TMDL. TMDLs typically have limits for things like wastewater treatment plants, factories, etc. But of course, that’s not what agriculture is, and for good reason, the law doesn’t treat agriculture the same as those different entities that directly discharge into waterways. So really, the goal of the litigation here is to try to create new regulations through a court case, through litigation, new limitations on agriculture in whatever way possible.

Ty Higgins [00:02:44] As I mentioned, not just a lawsuit against EPA, but a direct attack on Ohio agriculture. So our members want to know Leah, what are we doing about it?

Leah Curtis [00:02:51] So keep in mind that this TMDL was created by Ohio EPA with their scientific expertise. But also, this is a transparent process. It goes through public engagement, public comment. And so we have to look at that in that process and make sure that we’re using the processes in the law. So Ohio Farm Bureau, along with a coalition of 10 other national and Ohio agricultural groups, filed a motion to intervene in this case. And that way agriculture can have a voice in it, and agriculture can tell their story that that there are thousands of farmers that have enrolled millions of acres into the H2Ohio program, into other federal conservation programs. And the results are there. They show that there is a distinct downward trend in dissolved reactive phosphorus over the last five years.

Ty Higgins [00:03:38] You can get a full list of the groups we’re working with on this lawsuit at ohiofarmbureau.org. You mentioned that motion to intervene. Explain to us what that means and why it’s important in this case.

Leah Curtis [00:03:48] So intervening as a party means that we in that group of ag coalition partners, we have our own counsel and we are going to be a part of this lawsuit going forward. So our counsel will be there for any arguments, for any briefings, for any settlements that might happen. And it allows us to ensure that agriculture is being represented in this case because you never want somebody else to tell your story. So we will be there. We will be advocating, we will be accurately representing agriculture and what is actually happening here in the state of Ohio. Because at the end of the day, it is our farmers that are the ones that are doing the work to address water quality. They are the ones that are out there in the fields putting in the practices, taking those risks on on how they do things a little bit differently maybe to make sure that they address water quality, and they are the ones that are making the difference. And we want to make sure that their story is also a part of this.

Ty Higgins [00:04:41] You and I talk all the time about how quickly these cases go through. This is going to be quite a time frame in order to get to an end result here.

Leah Curtis [00:04:50] Yeah, most most cases move fairly slowly. You know, it’s not a secret. The the last litigation took over two years. So it’s very likely that this will be the same. There’s lots of machinations that happen in court. So it’s probably not going to be a quick process. But the the important thing is that we as agriculture will be there and we will be a part of the whole thing. We won’t be sitting on the sidelines watching what’s happening.