TOLEDO, OH – Lake Erie Waterkeeper, Food & Water Watch, and Waterkeeper Alliance have been approved to intervene in a federal lawsuit in Ohio District Court, Board of Lucas County Commissioners et al. v. U.S. Environmental Protection Agency (EPA). The groups filed their complaint today.

The groups will join the City of Toledo, Lucas County, and Environmental Law and Policy Center in challenging EPA’s unlawful approval of the Western Lake Erie Total Maximum Daily Load (TMDL), officially known as the Maumee Watershed Nutrient TMDL. TMDLs are Clean Water Act plans to restore polluted waterways—in this case, the plan is required to reduce harmful algae caused by too much phosphorus pollution flowing into Lake Erie. One of the dominant sources of Lake Erie’s excess phosphorus is factory farm manure. However, the TMDL fails to hold factory farms accountable for their discharges and runoff. The groups will ask the court to vacate and set aside the deficient clean up plan and direct EPA to issue a new plan that complies with federal law and addresses factory farm manure pollution.

For decades, phosphorus pollution caused primarily by agriculture has severely impaired Lake Erie, fueling massive harmful algal blooms visible from space. Algal blooms can span hundreds of square miles, threatening aquatic ecosystems, recreation, and drinking water for over 12.5 million people. In 2014, Ohio declared a state of emergency when these toxic blooms contaminated drinking water for nearly half a million Toledo residents. 

After years of refusing to address the problem and a series of lawsuits forcing action, state and federal regulators approved a grievously inadequate clean up plan in September 2023. The plan places no restrictions whatsoever on the watershed’s increasing number of factory farms and their massive amounts of excessively applied, untreated manure, despite the central role they play in polluting the world’s largest freshwater system. The TMDL’s failure to do so—and EPA’s approval of the plan notwithstanding its deficiencies—violate the Clean Water Act.

At the same time the court granted the advocacy groups’ motion to intervene in the case, it denied a bid from numerous Big Ag lobby groups to intervene in defense of the lax regulation, reasoning that EPA adequately represents their interests. 

Food & Water Watch Staff Attorney Emily Miller said: “EPA has been giving factory farms a free pass to pollute our waterways for decades, time and again refusing to hold these polluting operations accountable as federal law requires. We refuse to stand by and allow the Agency to double down on this failed approach when one of our country’s most important freshwater resources is at stake. With the court’s decision, communities and advocates who rely on Lake Erie will have a chance to fight for a TMDL that forces the worst polluters to finally clean up their act.”

Lake Erie Waterkeeper Executive Director Sandy Bihn said: “The excessive and increasing overapplication of untreated manure from confined animals results in large amounts of phosphorus discharges to waterways, one of the main sources and reasons for Lake Erie’s harmful algae blooms. Farmers using commercial fertilizer phosphorus have reduced phosphorus land applications by over 40%, but even these improvements are not enough to counteract the increase in confined animal manure phosphorus. Even if all of the phosphorus reductions required by the TMDL are achieved, it would not offset the growing harmful impact of this manure pollution or restore water quality. With the court’s decision, Lake Erie Waterkeeper will be able to present the evidence showing how disastrous this plan is for Lake Erie and what Ohio and USEPA must do to protect it.”  

Waterkeeper Alliance Senior Attorney Kelly Hunter Foster said: “Reducing phosphorus pollution coming from Concentrated Animal Feeding Operations is key to restoring western Lake Erie but EPA approved a TMDL that allows this pollution to continue unabated. Adopting an ineffective TMDL that does not address pollution discharges from major regulated sources violates the Clean Water Act and improperly permits this industry to continue expanding and overapplying manure to lands throughout the watershed without adequate pollution controls—practices that coincided with the return of large harmful algal blooms in the lake.”

Background:

Board of Lucas County Commissioners et al. v. U.S. EPA was initially filed in May 2024 in federal court in the Northern District of Ohio. Attorneys for EPA responded in July; groups moved to intervene in December. That same month, the court permitted the Ohio EPA, which shares responsibility for creating and implementing the clean up plan, to intervene in defense of the TMDL. The court has yet to set a briefing schedule for the case. The case number is 3:24-cv-00779.