Group Wants Lake Erie on Pollution Diet

Ohio Court Rejects EPA Motion to Dismiss Case on TMDL for Western Lake Erie

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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An environmental legal group's lawsuit is attempting to force the EPA to put western Lake Erie on a pollution diet, following years of algae blooms. (Photo by Jesse Allen and Robert Simmon; courtesy of Wikicommons)

OMAHA (DTN) -- An environmental legal group is attempting to force the EPA to put western Lake Erie on a pollution diet after the state of Ohio has yet to take regulatory action in response to repeated algae blooms that have harmed drinking water in places like Toledo.

Such a pollution diet, called a total maximum daily load, or TMDL, would place limits on how much fertilizer farmers in the Lake Erie basin would be allowed to use.

A lawsuit filed by the Environmental Law and Policy Center last year will be allowed to proceed after the U.S. District Court for the Northern District of Ohio in mid-November denied an EPA motion to dismiss the case.

Two days after the court decision, Republican Gov. Mike DeWine unveiled the voluntary "H2Ohio" initiative to invest in a number of steps to address phosphorous runoff into Lake Erie.

The plan includes increasing implementation of agricultural best practices and the creation of wetlands, improving wastewater infrastructure, replacing failing home septic systems and preventing lead contamination in high-risk daycare centers and schools.

The Environmental Law and Policy Center filed its lawsuit last February, challenging EPA's approval of Ohio's 2018 impaired waters list. The Lucas County, Ohio, Board of Commissioners, home of the city of Toledo, filed a similar lawsuit against EPA in April 2019.

In that list, the state designated western Lake Erie as an impaired waterbody. That triggered the state's obligation to create a TMDL to reduce the amount of pollution runoff into the lake. That has not been completed.

In the lawsuit, the plaintiffs argue EPA's approval of the list in the "face of Ohio's decision not to develop a TMDL violates the CWA (Clean Water Act)."

The plaintiffs also argue the state is not taking seriously the impairment of Lake Erie.

"Rather than fulfill that duty -- or begin to take even preliminary steps toward its fulfillment -- the state agency explained that Lake Erie was a 'low' priority for TMDL development," the lawsuit argues.

In its order to reject EPA's motion to dismiss the case, the court said there was reason to believe the agency was not fulfilling its duty to set a TMDL in Lake Erie.

"Taken together, these circumstances generate a plausible inference that Ohio has submitted 'no TMDL' for western Lake Erie," the court said. "The hands of the TMDL clock are, according to the complaint's allegations, stuck, and likely to remain stuck for the indefinite future. U.S. EPA's counter-arguments are unavailing.

"According to ELPC's well-pleaded complaint, Ohio EPA is essentially delaying, and intends to continue to delay indefinitely, a TMDL for western Lake Erie in favor of alleged half measures. Even more significantly, perhaps, Ohio does not have a plan to change course should those measures fail to remediate Lake Erie. And while I recognize that 'states may pursue reasonable courses to reducing pollution in addition to establishing TMDLs,' it is equally true that 'nothing in the CWA provides that states may pursue these courses in place of, or as a means of indefinitely delaying, a TMDL."

In August 2014, Toledo residents were warned not to drink water during a three-day period due to the algae bloom. Questions were raised about the cause of the bloom in Lake Erie, and the finger was pointed at nutrient runoff from farms as a culprit.

In February last year, Toledo voters approved a so-called Lake Erie "bill of rights" that empowers Toledo citizens to file lawsuits on behalf of the lake, potentially threatening farmers who operate in states bordering the lake, as well as in Canada.

A month after the Toledo vote, Mark Drewes, a farmer from Custer, Ohio, filed a federal lawsuit alleging the measure violates his constitutional rights. The case remains in court.

The state of Iowa in recent years implemented a voluntary nutrient-reduction strategy. The plan was widely criticized by environmental interests that wanted the state to mandate conservation practices.

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Todd Neeley

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