Ohio farmer who sued Toledo over LEBOR speaks

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Lake Erie island shore
(Farm and Dairy file photo)

In January 2019, Mark Drewes, a farmer in Wood County, Ohio, started hearing rumblings about a ballot initiative in Toledo called the Lake Erie Bill of Rights, or LEBOR. It sounded so far-fetched that he didn’t give it a second thought.

LEBOR gave Toledo citizens the right to sue polluters on behalf of the lake and declared that Lake Erie itself had a right to exist, flourish and naturally evolve.

“As it pressed on in early 2019, it became more and more obvious that they were serious,” Drewes told Farm and Dairy, in an interview. “They were going to try to grant the lake rights and give people the right to sue anybody that they felt was harming the environment.”

By the end of February 2019, he had filed a lawsuit against the bill — the first he has ever been involved in. His interview with Farm and Dairy is the first time he has spoken with the press since the lawsuit began.

At risk

Drewes Farms Partnerships grows 9,500 acres of corn, soybeans, wheat and alfalfa. The farm handles 30 million gallons of manure per year and hundreds of tons of commercial fertilizer.

Nutrient runoff from fertilizers and manure, especially phosphorus and nitrogen, is a major contributor to Lake Erie’s problems with harmful algal blooms, or HABs. Phosphorus allows blooms to grow, and nitrogen allows blooms to produce toxins.

Drewes believed farms like his were at risk of being sued because of LEBOR. Other farmers in the Ohio Corn and Wheat Growers Association and Ohio Farm Bureau agreed.

Lawsuit

Drewes and his attorneys began planning two weeks before the bill passed, Feb. 26, 2019. The day after, he filed the suit, saying the bill was unconstitutional and put the farm at risk. Ohio Farm Bureau supported Drewes.

“We knew that somebody had to stand up to it,” Drewes said. “The point I want to really emphasize is that [the bill] at its core was unconstitutional.”

Judge Jack Zouhary agreed. On Feb. 27 of this year, he ruled in favor of Drewes Farms Partnerships and the state of Ohio, which joined the lawsuit in spring 2019. Zouhary declared LEBOR invalid, saying the decision wasn’t even a close call.

The city of Toledo dropped its appeal in May.

The bill

Unconstitutional or not, LEBOR sparked international conversations about rights of nature.

“It was gonna be ground breaking,” Drewes said. “LEBOR was the first of its kind. Unfortunately, it’s not going to be the last.”

The bill was drawn up by Toledoans for Safe Water, following a three-day period in 2014 when Toledo’s water was unsafe to drink because of a harmful algal bloom in the lake.

“In 2014, I experienced firsthand what it felt like to be vulnerable in the face of environmental disaster,” Markie Miller, of Toledoans for Safe Water, said in an April 2019 statement to the United Nations. She noted that the situation was preventable and that LEBOR was designed to hold polluters accountable.

Toledoans for Safe Water did not respond to requests for interviews.

Perfect storm

But Toledo’s 2014 water crisis is likely to be a one-time event, said Chris Winslow, director of the Ohio Sea Grant College Program, which researches issues that challenge Lake Erie.

“That year … it was just a perfect storm,” he said.

A bloom developed in the lake overnight and quickly started producing toxins. Normally, blooms move across the lake, instead of staying in one place. In this case, winds came from the northeast — which, Winslow said, is unusual — and kept the bloom close to Toledo.

These conditions overwhelmed Toledo’s water treatment plant.

“They didn’t realize the water they pulled in went from clean to toxic quickly,” Winslow said.

Since then, much of the research around HABs has gone to technology for water treatment plants to track and monitor blooms and to remove toxins from water.

“I don’t think we’ll ever see the Toledo water crisis again,” Winslow said. “As long as they know the bloom is coming … they can remove the toxins.”

History

Lake Erie’s water quality problems are not new. In the 1960s, Lake Erie was polluted by excess phosphorus. But that time, it was coming from waste water treatment plants, Winslow said.

Through regulations on waste water treatment plants, the U.S. Environmental Protection Agency cut the amount of phosphorus going into the lake by two-thirds.

Now, excess phosphorus is a problem again. But, this time, it’s coming largely from farmland.

Complicated

Changing agricultural practices contributed to the problem, Winslow said.

Farmers were encouraged to switch to no-till to prevent erosion. It worked, but it also meant farmers put fertilizer on top of their soil, increasing runoff into streams and rivers when it rained.

“Most of that is not malicious intent by our agricultural community,” he said. “It’s just things that they did to grow better crops. Unfortunately, the science wasn’t there to talk about the unintended consequences.”

Legacy phosphorus is another problem. In the past, farmers didn’t know that more fertilizer didn’t always equal better crops, Winslow said. So, some used more fertilizer than they needed, and excess phosphorus built up in the soil.

In recent years, Winslow said, Ohio has had more rain. This also increases nutrient runoff.

Tension

In a 2019 press conference about a city-wide clean water campaign, Toledo Mayor Wade Kapzukiewicz criticized the state for not regulating agriculture better. He noted that while there are some things Toledo citizens can do, most of the runoff is not from the city.

“Toledoans will do their part … unfortunately, the same cannot be said for those elsewhere in the state, who are overwhelmingly causing this problem,” he said.

The mayor’s office did not respond to requests for interviews.

Ty Higgins, director of media relations for Ohio Farm Bureau, noted that farmers have been an easy target in water quality issues.

“They think if agriculture just stopped farming for one year, the lake will suddenly become crystal clear … it’s going to take a long time,” Higgins said. “But if we continue progress, we will see improvements.”

Not overnight

Winslow said cutting the amount of phosphorus running into Lake Erie by 40% would solve the HABs problem.

In drought years, with very little rain in the spring in Ohio, the blooms went away immediately.

“The problem is, that one-year solution was just because the rain went away,” Winslow said.

The issue is hitting that target every year, regardless of the rain, Winslow said. Even if all farmers starting following the best practices for conservation immediately, it could take years to solve the HABs problem because of the legacy phosphorus.

“People that live on the lake … need to know that this issue is a heavy lift,” Winslow said.

Drewes believes LEBOR organizers overlooked the conservation efforts farmers make.

“Farmers love the land,” he said. “It is what gives us our income, our stability. It is who we are.”

On his farm, Drewes’ conservation practices include the “Four Rs” — applying fertilizer from the right source, at the right time and rate, and in the right place.

“Farmers realize … that they’re part of the issue there, but I would also say that they’re a bigger part of the solution,” Higgins said.

Costs of conservation practices can be a challenge for farmers. Some programs, like the H2Ohio initiative, help fund those practices.

“We all want these harmful algal blooms to go away, but we also want farmers to keep going,” Winslow said. “We have to be willing as a community to help that sector of our community out — those growers.”

Drewes noted that Toledo organizers could still come up with another similar bill. In his decision, Zouhary alluded to the possibility as well.

“Nothing would surprise me anymore,” Drewes said.

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Reporter Sarah Donaldson is a former 4-Her and a Mount Union graduate from Columbiana County, Ohio. She enjoys playing and writing music, cooking, and storytelling in many forms. She can be reached at 800-837-3419 or sarah@farmanddairy.com.

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