Another Des Moines?

Ohio and Michigan have recently developed an adversarial relationship over the water quality of Lake Erie. Earlier this month, the Environmental Law & Policy Center (ELPC) filed suit against the EPA in the Northern District of Ohio. The point of the lawsuit was to compel the EPA to either accept or reject Ohio’s list of impaired waters, which includes only certain sections of Lake Erie (http://www.toledoblade.com/Courts/2017/05/17/Second-suit-filed-against-EPA-over-Lake-Erie-in-federal-court.html).  The Ohio list of impaired waters, submitted in the fall of 2016, has still not been accepted or rejected (http://elpc.org/issues/wtol-cbs-news-toledo-elpc-sues-epa-push-ohio-list-lake-erie-impaired/).

Each state is required to submit a list of the waterways in their respective territories that they view as “impaired,” which is another way to say “not clean.” The EPA is then supposed to accept or reject each list within thirty days of receiving it. To be more specific, the Clean Water Act has established certain limits on the amount of pollutants that can be discharged into a water source, and each polluter has to abide by the limitations accordingly (https://aglaw.osu.edu/blog/sun-04302017-752pm/what’s-behind-latest-lawsuit-lake-erie’s-water-quality). The specific statute is here: https://www.gpo.gov/fdsys/pkg/CFR-2011-title40-vol22/xml/CFR-2011-title40-vol22-sec130-7.xml. States are specifically supposed to identify “point sources” of pollution, which are locations from which pollutants are discharged. (As you may remember from our series of posts on the Des Moines Water Works case, agricultural discharges are not counted as point sources and are therefore exempted from this requirement).

Things got complicated when Michigan, which also borders parts of Lake Erie, included Lake Erie on its list. On top of that, the EPA promptly approved their list of impaired waters, thereby designating Lake Erie (at least on the Michigan side of things) as a water source that needs investment and cleaning.

Ohio has recently taken a step in the right direction, however, by passing Senate Bill #2, a surprisingly comprehensive environmental action proposal that includes many water management components. The bill has a specific focus on nutrient runoff into water systems and contains a goal of reducing phosphorus runoff in Lake Erie 40% by 2025. It also contains a mandate for the state to clean up the residue left over from dredging and factory-related waste removal processes that are contaminating the lake bottom. While this bill is certainly a positive development, much more needs to be done – in the private sector especially – to enable lasting change.

The EPA has just now accepted Ohio’s list of impaired waters without including Lake Erie in the list. In other words, they have ruled that, in Ohio’s case, Lake Erie does not need to be classified as “impaired.” This is quite confusing, given that the exact same body of water was classified as “impaired” in the Michigan list. As you can imagine, there has been a strong reaction to this decision by many Ohio environmental interest groups in the legal, scientific, and public health sectors. The primary concern on the environmental side is the harmful algal blooms that are a result of the runoff from synthetic agricultural input use on farms (http://elpc.org/issues/courthouse-news-elpc-sues-epa-dragging-feet-ohio-water-pollution/). Legal groups are pointing out that the EPA can’t have it both ways – impaired in Michigan and not impaired in Ohio. The EPA reasoned that Ohio has enough voluntary measures in place to ensure that the health of Lake Erie is maintained (http://elpc.org/uncategorized/toledo-blade-us-epa-wont-push-ohio-declare-lake-erie-impaired/). Environmental groups, however, are claiming that voluntary incentives can only go so far, and that a ruling of “impaired” for Lake Erie’s waters would be extremely helpful for the water quality in the lake (http://elpc.org/issues/cleveland-plain-dealer-lake-erie-ohio-epa-please-call-impaired/).

This case creates an interesting parallel to the Des Moines Water Works case. In both cases, agricultural inputs are the cause of significant water pollution; farmers are unable to do otherwise because of the system in which they must work; environmental groups are responding with legal action; and bureaucracy is predictably getting in the way. As agriculture continues to become more mechanized and environmental interests become more coherent, we are bound to see an increasing number of such conflicts. When these conflicts arise, we will again be faced with this unfortunately familiar crossroads – environmental health vs. agricultural necessity. There are plenty of ideal solutions to this problem. For instance, farmers could diversify their crops, but they are unable to do so because the only way they can make a living is to grow the commodity crops that the market accepts. Another great solution would be to tackle the legal side of the issue and restructure the agricultural subsidy scheme, an outdated funding mechanism from the WWII era, but the endless levels of bureaucratic and governmental stratification mean that such a process would take an extraordinary amount of time and money. Lawyers are needed to tackle this legislative problem, but, in the meantime, I believe that there are possibilities for helpful collaboration between the two sectors that remain unutilized as of yet. Farmers and environmentalists may seem to want very different things, but at the end of the day they both need the water in Lake Erie to be clean and usable – one for field irrigation purposes and the other for public health and social purposes. They both also want to preserve the watershed around the lake for agricultural use (we all need to eat), natural resource habitat, and recreation possibilities. In the end, both sides are ultimately interested in the health and utilization of the natural resources in the Lake Erie watershed, and there are possibilities for partnership in many areas. My two preferred options are below:

1)      Legislation. It is unfortunate that many environmental groups aren’t willing to do the grunt work required for lasting change. Instead of investing in the legislative process that our unique Constitutional structure has given us, they sue federal agencies and mire themselves in reactive fighting rather than proactive change. Rather than waste energy on attacking every single issue out there, environmental nonprofits, agencies, and interest groups should focus their energy on a select few realistic legislative efforts that have the potential to create incremental but lasting change.

2)      Conservation. Conservation is (in my opinion) the best and most important area in which the two sectors can collaborate. It capitalizes on their shared interests – maintaining the quality of the land, enhancing the cleanliness of natural resources, utilizing the land in a sustainable manner, etc. – and it does so through a long-term legal framework that ensures future compliance. It also negates their differences in terms of methodology because it focuses on the broad, over-arching goal of land conservation rather than the small disputes about how each acre should be utilized. The law is the perfect tool for enacting this kind of collaboration. It can be done through the government avenue via legislation, it can be done in the nonprofit sector through advocacy and education, or it can be done in the private legal sector through conservation easements and agricultural easements.

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