In early August of 2014 — almost seven years ago — a harmful algae bloom (HAB) in Lake Erie caused the water to be shut off for almost a week in the Toledo area. That caused that city’s voters to overwhelmingly pass the Lake Erie Bill of Rights (LEBOR) in 2019, which gave the city the ability to oversee and regulate pollution runoff coming from industry and agriculture that was causing the HAB.

Fast forward to this summer and the courts have largely ruled LEBOR invalid due to complex problems of enforcement, and the Ohio Country Journal declared it “dead in the water.” But that doesn’t mean the issues have gone away. 

“Experts agree that the solution to the HABs problem in Lake Erie is to drastically reduce the amount of phosphorus entering the lake,” University of Toledo School of Law professor Kenneth Kilbert wrote for the Ohio State Law Journal late last year.

“Experts also agree that most of the phosphorus entering Lake Erie is from agricultural stormwater runoff of manure and fertilizer in Ohio,” Kilbert continued. “Unfortunately, however, existing laws are doing a lousy job of controlling agricultural stormwater runoff of phosphorus into the lake.”

What is at issue is “CAFO” farms, an acronym for “Concentrated Animal Feeding Operations.” These are large livestock farms that have, according to the EPA, a singular farm with more than 1,000 head of beef cattle, 700 dairy cows or 2500 swine, to name the larger species. Because different states define and maintain these CAFOs differently, it is tough to gauge how many of them there are, and how much feces and urines runoff they produce, which causes the phosphorus increase.

At best guess, there are about 15,000 of the larger CAFOs in the United States, with about 250 of those large ones in Ohio.

What has brought this into discussion this summer was a recent poll released in mid-May that found that 81% of registered northwest Ohio voters (from Erie, Lucas, Ottawa and Sandusky counties) want stronger rules and regulations on CAFO facilities.

The interpretation of those results were quite different, depending on which side of the issue one stand on.

Toledo Mayor Wade Kapszukiewicz said the Ohio legislature was “hopelessly out of touch” with northwest Ohio residents because of their insistence on voluntary incentives instead of more mandatory testing for runoff problems.

“The state of Ohio’s approach … has been all carrot and no stick. They’ve been willing to throw money at the problem but have not been willing to impose the most perfunctory and rudimentary regulations. In this case, they haven’t shown the willingness to stop issuing permits for these CAFOs,” the mayor said.

Northwest Ohio state Sen. Teresa Fedor, whose district includes Toledo, had this to say in a release: “We all remember the three days in August 2014 when Toledo’s water supply was shut down due to the poisonous toxins from algal blooms in Lake Erie. Nearly seven years later, it’s very frustrating to see that little progress has been made to reduce the amount of phosphorous entering the western Lake Erie basin despite the voluntary efforts of our local farmers.”

The Ohio Farm Bureau, not surprisingly, takes a different view.

“Ohio has strict permitting,” Brandon Kern, the senior director of state and national policy for the Ohio Farm Bureau Federation said recently. “There are strict recordkeeping requirements as a part of the regulations here in Ohio and every CAFO at the end of every year, they have to submit this report that’s reviewed by the EPA in Ohio just to be able to operate. I think it’s a farce to say that we rely strictly on voluntary measures and not regulatory measures.”

Regulating agricultural interests has always been problematic, not just here in Ohio, but nationally as well. Farmers have never liked urban politicians taking a role in how farming regulations; that independence has always been at play.

The regulations also must have national leadership that oversee state interpretations; for instance, the HAB problems in western Lake Erie come as much from agricultural interests in southeastern Michigan as they do from northwestern Ohio. 

Gov. Mike DeWine has touted his $2 billion H2Ohio program that funds mostly voluntary pollution-mitigation efforts that he hopes will reduce the amount of phosphorus running off fields and into Lake Erie. But in a recent editorial, the Toledo Blade newspaper doesn’t think that approach is nearly enough

“We already know that no amount of voluntary measures — well funded and necessary as they may be — are enough to save the lake,” the Toledo Blade wrote in their editorial, titled “No More Manure Madness.”

“In fact, after nearly spending nearly all of his two terms in office promising the same thing, Mr. DeWine’s predecessor, John Kasich was forced to admit that voluntary measures had resulted in no measurable change in the amount of algae-feeding pollution flowing through the Maumee River watershed,” the paper wrote.

It’s a difficult problem to solve. Larger factory farms produce food more cheaply, but with some environmental costs. And without a doubt, the public wants cheaper food. But as Toledo has learned, the environmental problems flow downstream and eventually end up on their doorstep.

“The problem with regulating CAFOs … is not one of legal authority, but political will,” Abigail Andre, a professor at the Vermont School of Law and graduate of the The Ohio State University Moritz College of Law, wrote recently. “With no major statutory impediments to regulation, whether the [state and federal agencies] tackle this challenge will rest on its willingness to change the EPA’s decades long abdication of regulatory responsibility.”

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