March 26, 2018

Howard A. Learner

ELPC Litigation Driving Results: Ohio EPA Recognizes Reality that Lake Erie Is “Impaired” by Pollution and Key Next Steps

It’s been a very good week for the Great Lakes!

First, after years of foot-dragging and inaction, the Ohio EPA reversed course, recognized reality and declared western Lake Erie to be “impaired” by pollution – mostly from agricultural runoff – that causes toxic blue-green algae, which harms ecological and human health and causes economic damage.  ELPC’s litigation against the U.S. EPA to overturn its flawed approval of the Ohio EPA’s “non-impairment” finding has driven this result.  The Ohio EPA’s reversal of its position is the key first step.  The next steps will be enforceable pollution limits and meaningful actions to reduce agricultural runoff of phosphorus and nitrates, principally from fertilizer and manure, into the Maumee River system that flows into Maumee Bay and causes algae blooms in western Lake Erie.

Second, Congress’ omnibus budget, which passed and was signed into law, includes full funding of $300 million for the Great Lakes Restoration Initiative, rejecting the Trump Administration’s zeroing-out of federal funds for this successful program.  Kudos to the Healing Our Waters coalition, which includes ELPC and many of our colleagues, on this important result.

Here’s a summary of the breakthrough for cleaning up pollution in western Lake Erie, which led to 500,000 people in the Toledo area being without safe drinking water for 72 hours in summer 2014.

For many years, the Ohio EPA refused to declare that the open waters of western Lake Erie waters are impaired by pollution under Section 303(d) of the Clean Water Act.  The State of Michigan did find that western Lake Erie is impaired by pollution, and the U.S. EPA approved that finding in February 2017.  However, the U.S. EPA also approved Ohio EPA’s non-impairment decision for western Lake Erie in May 2017.

The Environmental Law & Policy Center (ELPC) filed a lawsuit in the U.S. District Court for the Northern District of Ohio in July 2017 on behalf of both ELPC and Advocates for a Clean Lake Erie (ACLE).  We contend that the U.S. EPA’s approval of the Ohio EPA’s non-impairment finding in 2016 was arbitrary and capricious and contrary to law under the Clean Water Act and the Administrative Procedure Act.  As a matter of law and common sense, ELPC contends that the same water body – western Lake Erie – cannot legally be both impaired and non-impaired.  Moreover, as a matter of science and common sense, western Lake Erie is visibly and factually impaired by pollution.

ELPC’s legal team (Senior Attorney Madeline Fleisher and Executive Director Howard Learner, and pro bono counsel Michael Barsa) presented our case in detailed legal motions and briefs to the federal district court.  Madeline presented oral argument before U.S. District Court Judge James G. Carr in a hearing that extended for 2-1/2 hours in early March.   Judge Carr indicated that he will rule soon.

In January 2018 the U.S. EPA belatedly issued a letter withdrawing its approval of Ohio EPA’s 2016 non-impairment determination and notifying state officials that the Ohio EPA’s findings were “incomplete and thus not fully consistent with the requirements” of the federal Clean Water Act and U.S. EPA regulations in general.

Now, on March 22, 2018, the Ohio EPA released a new Clean Water Act report finally recognizing reality by designating the open waters of the western basin of Lake Erie as “impaired” by harmful algal blooms.

The Ohio EPA’s and U.S. EPA’s actions and timing here are direct result of this litigation and clearly directed at heading off or altering Judge Carr’s upcoming decision in ELPC’s lawsuit.   We expect Judge Carr to issue to his decision soon in which ELPC is asking the District Court to:  (1) Declare that the U.S. EPA’s 2017 approval of the Ohio EPA’s non-impairment finding was arbitrary and capricious and contrary to law; (2) Retain jurisdiction in this case for an appropriate remedy; and (3) Grant such additional and further relief as may be just and equitable.  The effect of Ohio EPA’s impairment decision on the Judge’s pending decision is not yet clear, but we will continue to pursue any necessary additional remedies to ensure full implementation of the Clean Water Act to protect western Lake Erie.

The Ohio EPA’s change in position is a significant victory and important first step. However, ELPC will need to keep up the pressure on the U.S. EPA and the Ohio EPA to follow up on this Clean Water Act designation with the key next steps:  enforceable standards requiring significant on-the-ground actions to reduce the agricultural manure and fertilizer runoff into the water that causes harmful algal blooms in western Lake Erie.

Howard explained what happens next in the detailed new Toledo Blade article:  “The necessary next step for Lake Erie is strong, enforceable standards to reduce the pollution that causes toxic blue-green algae, threatening safe drinking water, and crippling tourism,” Mr. Learner said.  “What Will Lake Erie’s Impairment Mean for Northwest Ohio?” (March 24, 2018)

ELPC’s communications team responded rapidly to the media interest in this important development and quickly issued ELPC’s press release on the Ohio EPA’s change of position:

“We are pleased that Gov. Kasich is now stepping up to recognize Western Lake Erie is impaired by pollution, but that’s only the key first step,” said Howard Learner, Executive Director of the Environmental Law & Policy Center. “The necessary next step for Lake Erie is strong, enforceable standards to reduce the pollution that causes toxic blue-green algae, threatening safe drinking water, and crippling tourism.”

“ELPC sued U.S. EPA to drive this result because the facts clearly pointed to Western Lake Erie’s open waters being impaired by pollution. Even with today’s announcement, ELPC will continue our effective legal advocacy until enforceable protections are in place. The stakes are too high for anything less.

Please see some of the many news articles at the following web links below

Cleveland Plain Dealer, “Lake Erie’s Western Basin ‘impaired,’ ending years of resistance by Kasich administration” (March 23, 2018)

Toledo Blade, “What Will Lake Erie’s Impairment Mean for Northwest Ohio?” (March 24, 2018)

Toledo Blade, “Kasich administration declares Lake Erie open waters as impaired” (March 23, 2018)

Toledo Blade, “Editorial:  Impairment designation a welcome victory for Lake Erie” (March 22, 2018)

Bloomberg BNA Environment and Energy, “‘Impaired’ Western Lake Erie Label May Mean More Farm Regulation” (March 22, 2018)

CBS News, “Toxic Algae Leads Ohio to Designate Western Lake Erie as “Impaired”” (March 22, 2018)

US News & World Report, “Algae Leads to ‘Impaired’ Designation for Western Lake Erie” (March 22, 2018)

ELPC hopes and believes that the Ohio EPA’s new impairment finding is a watershed (pun intended!) moment for cleaning up pollution of western Lake Erie in order to achieve vitally important ecological, economic and public health improvements and safe clean drinking water for all.