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'Lake Erie Bill of Rights' now in federal court as groups fight for clean water

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Toledo, OH (WNWO) - In August of 2014, Toledoans were advised not to drink their water for three days. Harmful algal blooms invaded Lake Erie making it toxic.

“It has to get to the point where it’s in good condition,” said Mike Ferner who lives about 50 yards from the lake. Two years after the water crisis, he started 'Advocates for a Clean Lake Erie'.

“It’s a living breathing thing. Thousands of species of wildlife depend on it. Human beings depend on it for drinking water,” said Ferner.

According to the Ohio Environmental Protection Agency, 63 public water systems in the state get their drinking water from Lake Erie. That includes campgrounds, public parks, businesses and the city of Toledo.

“You know it wasn’t the threat of losing our water - it had already happened,” said Markie Miller who formed Toledoans for Safe Water in 2016. “We’re not gonna go away. We live here and defending what that looks like and what that means is very important to all of us who’ve been involved.”

Which is why they put together the “Lake Erie Bill of Rights” known as LEBOR. Two years and more than 10,000 signatures later the issue made it on the ballot.

Campaign finance records show BP Corporation North America, which owns a refinery in Oregon, paid $302,000 to fight the Lake Erie Bill of Rights. More than $130,000 of that went to two companies in Virginia for radio ads, consulting, and direct mailings targeting voters. Those companies are registered to Mary Cheney who is the daughter of former Vice President Dick Cheney. Before the White House he was the CEO of a major oil company.

“Corporations are holding communities hostage,” said Miller.

Even with big money against the initiate voters wanted change. In February during a special election it passed with more than 60% of the vote.

“And it was just an incredible feeling to be told, no, no, no, the whole journey, and to keep pushing through those obstacles – then put it to the people and the people say yea,” said Miller.

LEBOR is currently part of Toledo’s City charter. It provides that Lake Erie has a right to exist and evolve, it prohibits governments and corporations from violating those rights, and allows residents of Toledo – or the city itself – to sue on behalf of the lake, even if they were not directly affected by the defendant’s actions.

“I like to think that it’s a well-intentioned bill, but it’s legally flawed,” said Kenneth Kilbert, Professor and Director of the Legal Institute of the Great Lakes at the University of Toledo.

He specializes in environmental law and pointed to at least three weaknesses with the bill. He says LEBOR:

-Creates a cause of action to be heard in state court – which cities cannot do.

- Extends the Ohio law into parts of four states and Canada

- Does away with state or federal permits or laws contrary to LEBOR– turning constitutional law on its head.

“This may all sort itself out when someone brings a suit to enforce those rights,” said Kilbert.

Right now those lawsuits are on hold because of another one. The Drewes Farms Partnership based in Custar, Wood County, says the charter amendment is unconstitutional.

“The law’s just passed, we get about 10 minutes to celebrate, it’s not even on the books yet, and everybody wakes up to a lawsuit,” said Miller.

A judge has issued a temporary injunction while he hears both sides. That means no one can sue until this case is settled and its deemed constitutional.

The city would not comment because of the pending lawsuit but Mayor Wade Kapzukiewicz is in favor of protecting the lake. He’s called out agricultural companies for their pollution that causes harmful algal blooms.

According to the Ohio Department of Agriculture there are 248 large factory farms in Ohio - 77 of those in the Western Lake Erie Basin.

“They’re dumping more than the sewage of Chicago and Los Angeles," said Ferner. They dump on the land- it’s untreated, and we’re wondering why we have a problem with the lake.”

The Ohio EPA sets limits for pollutants like phosphorus and mercury allowed into the water. It’s also responsible for enforcing discharge permits. Professor Kilbert says federal law does not really touch that type of pollution and state law has not been that vigorous against it. Local group says that's why they're so passionate about the lake’s bill of rights.

“We have the right to change the law when it no longer works for us,” said Miller.

The Ohio Farm Bureau says LEBOR would negatively affect farmers who’d have to always worry about a possible lawsuit even if they follow the law. A bureau spokesperson tells NBC 24 they are working with farms to find new ways to limit runoff.

“The lake’s in the exact same condition it was a couple of years ago and this summer it’s probably gonna run into the same problems," said Ferner.

Last May the Ohio EPA finally declared Lake Erie impaired. Ferner says the agency is still not doing anything to make it better, which is why he and others joined another lawsuit suing the agency in February. They say the EPA cannot acknowledge the lake is in bad shape, then do nothing about it. Now it’s a waiting game until the judge makes his decision.

“But if I were a betting person," said Kilbert, "my bet would be that the LEBOR will probably fall in a court challenge.”

It will likely set precedent for similar cases across the country and even if it fails advocates say their mission is not over.

“Doing another initiative, working at a larger scale with other communities along the shoreline," said Miller, "I mean, we’ll just keep trying, we’ll keep coming back."

When I asked the Ohio EPA if it's doing enough to keep the water clean it said the state has made progress to improve water quality in Lake Erie, but there is more work to be done.

As for the ongoing lawsuit with the city of Toledo and Drewes Farms the judge has not yet ruled on the case.

The Ohio legislature just added an amendment to the budget bill trying to stop state lawsuits regarding "rights of nature."

NOAA projects the severity of harmful algal blooms this year will be greater than last year because of the rain last month. So if you remember the algae in 2013 or 2017 it's expected to be near similar levels.

Senator Sherrod Brown says, “The concern for Lake Erie is real and keeping our Lake clean is a top priority. The voters have spoken and the statehouse needs to step up and do more to protect Lake Erie. Ohioans understand the urgency of protecting our Great Lake, and I’ll continue working with local and federal partners to keep Lake Erie clean.”

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