Toledo Blade Editorial: A Crusade for Lake Erie

Editorial: A Crusade for Lake Erie

Lake Erie has found a champion in U.S. District Judge James Carr. The judge last week ruled that the U.S. Environmental Protection Agency has some answering to do for the way it handled the Ohio’s seemingly lax oversight of the lake’s environmental well-being.

Even though Gov. John Kasich’s Ohio EPA finally relented last month and admitted that Lake Erie is so polluted that it qualifies as impaired under the terms of the Clean Water Act, Judge Carr is pressing forward.

Chicago-based Environmental Law & Policy Center and Toledo-based Advocates for a Clean Lake Erie filed the lawsuit last year to force just such a designation. Invoking federal law should trigger federal oversight of a Lake Erie cleanup, which should have more teeth than the voluntary measures the Kasich administration has insisted for years will be enough to solve the pollution problem.

But even though the U.S. EPA has instructed Ohio officials to revisit their science on the matter and Ohio authorities have given Lake Erie the impaired label the lawsuit’s plaintiffs were seeking, Judge Carr is not ready to call the case closed.

He has taken both agencies to task and signaled that he intends to retain jurisdiction over the case. If the environmental regulators who are supposed to recognize pollution fouling the source of drinking water for millions of Great Lakes residents do not, apparently the judge is ready to take on that watchdog role.

And even though the impairment designation was an important step, it was just the first step in what will undoubtedly be a long and arduous process of cleaning up the lake.

The phosphorus pouring out into the open lake each year has fueled toxic algae blooms that threaten Lake Erie’s sport fishing and tourism, Toledo’s drinking water, the region’s economic revitalization, and our quality of life.

Agricultural runoff is the main culprit in this phosphorus runoff, but tracking exactly how much comes from where in the watershed of the lake’s western basin will require study. More than that, setting limits on this pollution and helping farmers meet them will be no easy task.

The Kasich administration wants the General Assembly to expand the definition of agricultural pollution to include phosphorus runoff. This would give the state’s agriculture department more authority and also would allow the state to set phosphorus limits in ways it cannot do now.

Predictably, the state’s powerful agricultural lobby is already pushing back, calling regulation premature and recommending more study and a slower pace.

Ohio’s farmers need a healthy Lake Erie with drinkable, fishable, swimmable water too. And Lake Erie is going to need more than one champion. Now it is time for a few lawmakers in Columbus to join Judge Carr’s cause.

Great Lakes Now: Federal judge orders U.S. EPA to enforce Clean Water Act in Ohio

By Gary Wilson

Activist: Agencies “not willing to act in the public interest”

A federal judge said last week that the U.S. Environmental Protection Agency had “given Ohio a pass” on declaring Lake Erie officially “impaired” for waters with toxic algae going back to 2012 and 2014. The opinion written by Judge James Carr excoriated both the Ohio and the U.S. EPA’s for not living up to requirements under the Clean Water Act going back to 2012.

An “impaired” designation requires a state to implement a plan to remediate the deficiency. Ohio has consistently declined to designate the open waters of Lake Erie as “impaired” in spite of ample and long-standing scientific evidence to the contrary.

Ohio has instead, with the knowledge of its overseer, the U.S. EPA, parsed the law and played a game of “administrative pushball” according to Judge Carr where it tried to push responsibility for declaring the lake impaired back to the U.S. EPA based on an agreement with other states and Canada.

Michigan has declared its portion of Lake Erie impaired.

In the opening remarks of the decision, the judge set the table by recounting details of the 2014 Toledo water crisis where 500,000 people were told that their water was “not fit to drink or use for any other household purpose.”

The case before the judge was brought by Chicago’s Environmental Law and Policy Center (ELPC) and the Toledo nonprofit Advocates for a Clean Lake Erie (ACLE). The groups sued saying that the U.S. EPA had missed deadlines in holding Ohio accountable for declaring whether or not the open waters of Lake Erie were “impaired.”

The judge’s ruling sent the case back to the U.S. EPA and gave the agency 30 days to either approve or disapprove of Ohio’s “impaired” waters list. Perhaps sensing a legal defeat, Ohio has recently moved closer to declaring Lake Erie’s open waters impaired and has indicated a receptiveness to tighter regulations to control nutrient runoff from farms. Legislation with tighter regulations on farm activity is said to be in the works in the Ohio legislature. The administration of Gov. John Kasich has consistently yielded to the requests of farmers who say voluntary measures to control pollution runoff will work.

Slow path to health

Judge Carr wrote in his decision that the U.S. EPA said that remediation of Lake Erie after an “impaired” designation could take between eight and 23 years.

Carr noted that in 1988 Ohio’s General Assembly moved to eliminate phosphorus from laundry detergent that also plagued Lake Erie in a law passed in 1990. .

The judge said similar legislative action to deal with nutrient runoff from farms “appears to be the most expeditious and effective means of accomplishing the goals of the Clean Water Act.”

“More importantly, it could probably do so in substantially less time than the potential twenty-three years it will otherwise take,” Judge Carr wrote.

Ohio Gov. Kasich’s term is up in 2019 leaving the governor’s seat open.

ELPC’s Learner has advice for citizens voting in this years gubernatorial race. “People should be asking the candidates for governor, what action are you going to take to reduce pollution that has led to toxic blue-green algae blooms that threaten safe, clean drinking water for more than a half a million people in the Toledo area,” Learner says.

Neither the U.S. EPA or the Ohio EPA has commented on the judge’s ruling.

The National Oceanic and Atmospheric Administration begins its annual forecasts of Lake Erie algae blooms for 2018 in early May.


Toledo Blade: Data Shows Lake Erie Impairment Declaration Was Justified in 2010

April 13, 2018
Data Shows Lake Erie Impairment Declaration Was Justified in 2010
By Tom Henry

Although Ohio has joined Michigan in declaring the open waters of western Lake Erie as impaired, new data shows there was scientific justification to do that as far back as 2010 — four years before the Toledo water crisis.

The data was generated for the Ohio Environmental Protection Agency after the U.S. EPA told the state agency back in January to rethink the Kasich administration’s steadfast refusal over many years to declare the open water as impaired. The administration’s reversal on that front undoubtedly will mean unprecedented controls on agriculture and tighter sewage regulations.

Tim Davis, a former National Oceanic and Atmospheric Administration algae researcher in Ann Arbor, told attendees of the annual Lake Erie Foundation conference that the science — though not developed until a few weeks ago — shows the lake’s open water should have been declared impaired in 2010.

The conference was held Thursday at W.W. Knight Nature Preserve.

Mr. Davis explained a complicated formula he and other algae researchers were asked to develop by the Ohio EPA once it looked like the U.S. EPA was headed toward defeat in the lawsuit brought against it by the Chicago-based Environmental Law & Policy Center on behalf of Toledo-based Advocates for a Clean Lake Erie.

The formula has a metric scientists developed for determining years in which algal blooms grow particularly strong. Once at least two years of excessive blooms have been documented over a consecutive six-year period, then the impairment declaration should have been made. That was back in 2010, said Mr. Davis, also a Bowling Green State University algae researcher.

Joining Mr. Davis in developing that protocol were BGSU algae colleagues George Bullerjahn and Mike McKay, as well as Tom Bridgeman, University of Toledo algae specialist and newly named director of UT’s Lake Erie Center; Justin Chaffin, who heads algae research for Ohio Sea Grant and Ohio State University’s Stone Laboratory, and others. The work was done in collaboration with the Ohio EPA and the U.S. EPA, Mr. Davis said.

“It was the lawsuit that caused this [research project],” Mr. Davis added. “Even though they [the Ohio EPA] weren’t defendants, they were getting heat from the U.S. EPA.”

Lake Erie has more than 200 types of algae. Most of it — especially that known as diatoms — are healthy and contribute to the food chain.

Even small blooms of the bad stuff — microcystis and other forms of cyanobacteria classified as harmful algal blooms because of the toxins they produce — are considered normal.

But the report by Mr. Davis and others shows five of the last six years have produced blooms well beyond what scientists believe is acceptable, and that Lake Erie has had unacceptably large and toxic blooms two-thirds of the time since 2002.

Based on the formula, the absolute earliest Lake Erie could have its impairment declaration scientifically justified for removal would be 2023, Mr. Davis said.

“But that would be highly unlikely,” he added.

Many conference attendees who have followed algae issues for years were annoyed it took the Kasich administration so long to come around but weren’t surprised to learn the science shows the declaration should have been made eight years sooner.


Press Release: Federal Judge Carr Orders U.S. EPA to Move Quickly to Comply with Clean Water Act and Protect Lake Erie


Contact: Judith Nemes

Federal Judge Carr Orders U.S. EPA to Move Quickly to Comply with Clean Water Act and Protect Lake Erie from Impairment by Harmful Algae Blooms 

U.S. EPA admonished for its “whiff of bad faith” in ignoring its obligations under the Clean Water Act

TOLEDO, Ohio — U.S. District Judge James G. Carr issued a decision late Wednesday directing the U.S. Environmental Protection Agency to make clear, within 30 days, its position on the impairment of Lake Erie’s open waters. The Court’s order recognized that an “about face” at the 11th hour by U.S. EPA in January 2018 had effectively “adopted and endorsed” the Environmental Law & Policy Center’s argument in its lawsuit that the U.S. EPA’s initial approval of Ohio’s failure to determine open waters of Lake Erie are impaired by pollution violated the Clean Water Act.

Judge Carr held that U.S. EPA’s “legal maneuvering” in withdrawing its original decision at the last minute created a “whiff of bad faith” – after years of delay – in order to defer a final ruling at this time.

“The time for Ohio pollution reduction standards and actions is now,” said Howard Learner, ELPC’s Executive Director.  “As Judge Carr stated in his Opinion: ‘That would mean that much sooner, rather than later, the right of all persons dependent upon a clean, toxic-algae-free Lake Erie for access to safe drinking water could be accomplished and guaranteed.’

“We’re pleased that the federal district court directed U.S. EPA to comply with the Clean Water Act and make a clear determination within 30 days that Lake Erie’s open waters are impaired by pollution,” Learner said. “The court agreed with our legal position that U.S. EPA and Ohio EPA have improperly dragged their feet for years instead of stepping up to take prompt and necessary actions to protect Lake Erie from toxic algae blooms.

“The judge’s decision requires the U.S. EPA and Ohio EPA to issue strong standards to prevent pollution from agricultural runoff in order to avoid toxic algae blooms and protects safe clean drinking water in Lake Erie for people in the Toledo area,” Learner said.

Environmental Law & Policy Center, Advocates for a Clean Lake Erie and two of the group’s officers are co-plaintiffs in the lawsuit.

Read Judge Carr’s order here.


Toledo Blade: Judge Slams EPA for Lake Erie Impairment Controversy

April 11, 2018
Judge Slams EPA Over Lake Erie Impairment Controversy
By Tom Henry

In a decision hailed by environmental advocates as a major victory for clean drinking water, Senior U.S. District Judge James G. Carr accused the U.S. Environmental Protection Agency and the Ohio Environmental Protection Agency of botching the Lake Erie impairment controversy and, at one point, went so far as to say the federal agency demonstrated a “whiff of bad faith.”

The judge’s 25-page order, filed in Toledo on Wednesday night, gives the U.S. EPA 30 days to reconsider its failure to challenge the Ohio EPA’s controversial Oct. 20, 2016, finding that the open water of western Lake Erie did not meet criteria the state agency believed was necessary under the Clean Water Act to be designated as impaired.

An algae bloom from Lake Erie appears in the boat basin at International Park in Toledo in 2017.

The U.S. EPA accepted the state’s finding last year, first without formally acting on it.

Then, two days after it was sued by the Chicago-based Environmental Law & Policy Center and Toledo-based Advocates for a Clean Lake Erie last May, the federal agency passed the report through its administrative process but said it was deferring to the state of Ohio’s judgment not to list the open water as impaired.

The two groups sued, claiming the U.S. EPA missed an important deadline and failed to make a final decision one way or the other. In his ruling, Judge Carr agreed that’s not good enough and remanded the case back to the federal agency.

Although the Kasich administration finally did an about-face after years of resistance on behalf of agriculture by declaring the western basin impaired on March 22, the lawsuit remains active because it is focused on the U.S. EPA’s actions as a regulator. Judge Carr said he will continue to “retain jurisdiction over this suit and all matters affecting it.”

Lake Erie’s western basin has been plagued by chronic bouts of algae toxic enough to make people sick or possibly even die since 1995. The impairment controversy has drawn a lot of attention, because the designation allows for unprecedented controls on sources of algae-forming pollution, which today is primarily agricultural runoff.

“Ohio’s persistent failures came to a head in 2016,” according to Judge Carr’s order, which said the state’s reluctance to declare western Lake Erie as impaired goes back to at least 2012. That’s two years before Toledo’s high-profile 2014 water crisis, when the city’s tap water was so fouled by an algal toxin that the metro area’s 500,000 residents were told by health officials to avoid it for almost three days.

The state agency could have made the declaration in biennial reports submitted in 2012, 2014, or 2016, but its “rebuke put the U.S. EPA in a difficult position,” the judge wrote.

While stating the federal agency “had, in effect, given Ohio a pass,” the judge also wrote that Ohio ignored its “opportunity and its duties” as a regulator. Judge Carr further stated that the U.S. EPA compounded Ohio’s inaction with more inaction by failing to act on the state’s 2016 report for nearly five months. The judge wrote that lack of oversight occurred despite Ohio’s “unmistakable failure to do what it promised the U.S. EPA it would do after 2014.”

He seemed particularly upset by the U.S. EPA waiting until a federal holiday — Jan. 15, Martin Luther King, Jr., Day and one day before his Jan. 16 deadline for motions — to tell the Ohio EPA in writing it was having second thoughts about the state’s refusal up to that point to declare western Lake Erie impaired.

Judge Carr said he was never notified — formally or informally — by the U.S. EPA, and heard about the new development in a roundabout way, from a clerk who passed down word from the ELPC.

“Defendants’ oversight amplifies the whiff of bad faith arising from the timing of its inexplicably delayed notice to plaintiffs’ counsel,” he wrote.

The judge also said he recognizes that farm runoff is much more complicated than sewage discharges and other point sources. In his decision, he noted that U.S. EPA counsel stated during oral arguments that meaningful reductions in farm runoff could take eight to 23 years.

Howard Learner, ELPC executive director, said he was impressed by the tone of Judge Carr’s remarks.

He said the judge called out both agencies for “bad faith and procedural maneuverings” and said the Ohio EPA “has dodged and weaved its statutory obligations over the years.”

“The judge, in effect, is saying ‘Quit playing games,’” Mr. Learner said. “This is a good day for the public and a good day for safe, clean drinking water.”

Mike Ferner, ACLE founder, said he hopes Judge Carr retains jurisdiction for a long time.

The U.S. EPA and the Ohio EPA declined comment. Both agencies said they are still reviewing the order.


Fixing Lake Erie’s Harmful Algae Problem Will Take Real Facts and Real Plans

by Madeline Fleisher

As a lawyer, I spend a fair bit of time arguing, but it’s important for those arguments to rest on actual facts.  Here’s a fact pretty much everyone who cares about Lake Erie agrees on: harmful algal blooms are a big problem for the lake.  Thanks to an ELPC lawsuit, the Ohio Environmental Protection Agency is finally recognizing that fact means all of western Lake Erie should be designated as impaired under the Clean Water Act.  That “impairment” designation is a key trigger for comprehensively addressing the phosphorus pollution – primarily from agricultural sources of manure and fertilizer – that drives harmful algal blooms and the toxins they produce.  The Clean Water Act requires such pollution to be addressed through a “Total Maximum Daily Load,” or TMDL, that sets an overall cap on the amount of pollution going into a water body and maps out a strategy for achieving pollution reductions to meet that cap.

Ohio EPA is now saying it doesn’t need to prepare a TMDL for western Lake Erie because there are already state and federal plans in place to meet a target of reducing phosphorus discharges by 40% by 2025 under the Great Lakes Water Quality Agreement (GLWQA), an accord between the United States and Canada.  That begs the question what facts do we have about what Ohio’s preferred approach will accomplish?  For answers, I think it’s reasonable to turn to the U.S. EPA “Action Plan” summarizing federal and state efforts under the GLWQA.

There are three facts that jump out from this Action Plan to show that Ohio, other states, and the U.S. EPA must do more to stop massive harmful algal blooms and toxic water pollution in western Lake Erie:

1)  We need much broader adoption of agricultural “best management practices” in order to reduce phosphorus discharges into western Lake Erie by 40%.

The U.S. Action Plan offers a useful peek at the research to date on how much reform will be needed to agricultural practices to achieve the targeted 40% phosphorus reduction.  These include a USDA study showing that a 43% reduction would be achieved through improved nutrient management, erosion control, and cover crops only if those practices were adopted for 95% of cropped acres in the western Lake Erie watershed.  Similarly, a 2016 analysis indicated that subsurface placement of fertilizer to avoid it being washed off of fields by precipitation would achieve less than 30% total phosphorus reductions even if adopted across all row crop acreage in the Maumee River watershed, the main contributor of phosphorus pollution to western Lake Erie.  Data from the last few years suggests only 60% of farmers in the western Lake Erie basin using soil testing to determine nutrient application rates; only 25% have adopted subsurface placement of fertilizer; and only 20% utilize cover crops. These have all been identified as key practices to achieve the target of reducing phosphorus 40% by 2025.  There’s clearly a lot more ground to cover in the next seven years.

2) Voluntary steps and business-as-usual practices called for under the current “Action Plan” approach aren’t enough.

In a prime candidate for understatement of the year, U.S. EPA says that “implementing a suite of conservation practices on nearly every acre in the watershed through voluntary programs may not seem realistic or feasible.”   This is followed by an observation – stuck in a footnote – that, in order to reach the phosphorus reduction target for the Maumee River watershed alone, farmers would have to implement 770,000 acres of additional cover crops and more than a million additional acres of subsurface placement.  U.S. EPA proposes that could be achieved based on a survey showing there are enough farmers “willing to adopt” those conservation practices.  But that hope rings hollow when the same practices face real practical obstacles to adoption, such as the cost of equipment, lack of information, and other technical barriers.  Meanwhile, U.S. EPA’s own analysis of the annual phosphorus reductions that would be achieved by 2019 under “the key federal and state programs and projects at work in the basin” showed they’re actually on track to achieve only a third of the phosphorus reductions needed to meet the 40% target.  The search for new approaches to reducing phosphorus pollution continues; but in the meantime, it’s clear that, as ELPC Executive Director Howard Learner told the Wall Street Journal, “It’s time for the foot-dragging to come to an end” in moving forward with available solutions.

3) Climate change is making our job harder.

Although the Trump Administration’s Action Plan never mentions the term climate change, even the current U.S. EPA can’t ignore research showing that “precipitation and discharge has increased in the past decade, which accounts for ~35% of the increase in [phosphorus] loading since 2002.”  That trend is in keeping with predictions by U.S. EPA’s federal sister agency, the National Oceanic and Atmospheric Administration, that climate change has driven and will continue to drive increased rainfall in the Great Lakes region, especially in the spring.   The U.S. EPA Action Plan notes that this increased rainfall is a key variable in determining whether phosphorus control measures will be effective, since “annual load delivery is highly dependent on storm events.”  (That’s science-speak for “a lot more phosphorus gets washed into Lake Erie in years with big rainstorms.”)  Even the federal government’s optimistic assumptions about voluntary changes in farming practices won’t reduce phosphorus pollution enough in very wet years like 2011 and 2015, and climate change means we face even more of those years in the future.

There will inevitably be a lot of argument about these facts as Ohio tries to address harmful algal blooms on Lake Erie.  But they certainly point to valid questions about the adequacy of the current “Action Plan.”  I hope that Ohio and U.S. EPA will answer those questions with real facts going forward.

Wall Street Journal: Researchers Race to Thwart Toxic Algae Outbreaks

April 7, 2018
Researchers Race to Thwart Toxic Algae Outbreaks
By Kris Maher

Ed Weinberg thinks he has developed the best way to stop the toxic blooms of blue-green algae that have been fouling bodies of water from the Florida Everglades to the Great Lakes and beyond.

The algae feed on phosphorus from farms and wastewater treatment plants that makes its way into rivers and lakes. Mr. Weinberg’s solution deploys tiny beads of engineered resin that can absorb the mineral from water and extract it for reuse.

“It’s simple yet elegant chemistry,” said Mr. Weinberg, a chemical engineer who is among the finalists in a $10 million competition that is one of a number of both public and private efforts to solve a growing problem in U.S. waterways.

Researchers are racing to find solutions to outbreaks of blue-green algae that are increasing in frequency and severity. Carpets of stinking algae have sickened people and animals and hurt the fishing and tourism industries.

In 2014, the drinking water for nearly half a million people in Toledo, Ohio, was contaminated by the toxin microcystin produced by the algae.

“When you’re dealing with an issue as large and complex as we are right now, the more solutions the better,” said Christopher Winslow, who coordinates federal- and state-funded research into algal blooms at Ohio State University. He isn’t involved in the competition, which is privately run.

So far, research has been focused in four main areas, Mr. Winslow said: removing toxins from water, understanding how toxins affect the human body, understanding how blooms grow and preventing blooms in the first place.

Stopping the blooms is taking on more urgency. In March, the Environmental Protection Agency announced a plan to meet a goal of cutting phosphorus entering Lake Erie by 40% through voluntary efforts by 2025. Also last month, Ohio declared the shallow western basin of Lake Erie “impaired,” a step toward tighter regulations of phosphorus from farms and wastewater plants.

Algal blooms in Lake Erie were a problem in the 1960s. The blooms faded after regulations were implemented that required wastewater treatment plants to cut phosphorus.

But in the mid-1990s the blooms returned, and they have been surging more recently. Today, scientists point to farm runoff as a major cause of blooms.

For Lake Erie, the Maumee and Sandusky rivers are the greatest contributors of phosphorus, with 87% of phosphorus coming from sources that include farms. Environmental groups want tighter limits on use of fertilizer, which typically contains phosphorus.

“It’s time for the foot-dragging to come to an end,” said Howard Learner, president of the Environmental Law & Policy Center, based in Chicago, which sued the state of Ohio in federal court last year, arguing it should declare Lake Erie impaired. A ruling in that case is pending. “We know what causes it. It’s manure and excess fertilizer.”

Joe Cornely, a spokesman for the Ohio Farm Bureau Federation, said farmers are already taking steps to manage fertilizer more effectively. “We recognize that more needs to be done,” he said. “Our approach is, as soon as we figure out something that we know is going to work, let’s take that step.”

Researchers are exploring a variety of solutions. Some are working on ways to remove phosphorus from manure directly. Others are testing materials that could be inserted in drainage tiles under the soil on farms to remove phosphorus before it reaches rivers.

Mr. Weinberg, a 66-year-old from Richboro, Pa., outside Philadelphia, wanted a site with plenty of manure to test his technology last fall. He found a horse farm in Maryland with a pond thick with algae. He filled burlap sacks with his beads and put them in open crates, creating a makeshift filter in a drainage creek that flowed into the Chesapeake Bay.

He said he was able to replicate his lab results for removing phosphorus, and said there is no reason his technology couldn’t be applied at commercial farms in Ohio where phosphorus eventually makes its way into Lake Erie.

The competition in which he is a finalist is offering a $10 million prize for the best phosphorus-removal technology. It is sponsored by the nonprofit Everglades Foundation and the Scotts Miracle-Gro Foundation, a charitable organization affiliated with the fertilizer company.

The numbers of teams competing have been winnowed from more than 100 from 13 countries, to 10 from the U.S., Canada, the Netherlands and China, according to officials working on the competition.

Toledo Blade: What Will Lake Erie’s Impairment Mean for Northwest Ohio?

What Will Lake Erie’s Impairment Mean for Northwest Ohio?
By Tom Henry

Though hailed as a rare victory for environmentalists, the Kasich administration’s reversal on the western Lake Erie impairment issue is only a “key first step” in litigation that may keep the state of Ohio tied up in court for years over cleanup strategies, according to the Chicago-based legal advocacy group that forced the administration’s hand on the issue.

Howard Learner, Environmental Law & Policy Center executive director, told The Blade less than five hours after the governor’s dramatic change of-heart was made public Thursday that his group’s U.S. District Court lawsuit against the U.S. Environmental Protection Agency is anything but over. The ELPC brought the case on behalf of Toledo-based Advocates for a Clean Lake Erie, which was founded in response to the city’s 2014 water crisis by activist and former city councilman Mike Ferner.

Mr. Learner said he wants the court to retain jurisdiction over the case, and that his group will seek remedies and enforceable timelines for western Lake Erie from Judge James Carr, who is hearing arguments.

Judge Carr, he said, is still expected to issue a ruling over the U.S. EPA’s role in the impairment controversy this April or May. He said the judge will be asked to address the ELPC’s claim that the federal EPA’s original actions as a regulator were “arbitrary and capricious” when it allowed Ohio to go without an impairment designation while, at the same time, approving Michigan’s plan. Unlike Ohio’s, Michigan’s plan had an impairment designation for the same body of water.

“This [impairment designation by the state of Ohio] is a key first step by the Ohio EPA in recognizing the reality that western Lake Erie is impaired by pollution. Next, clear steps must be taken by the U.S. EPA and the Ohio EPA to address it,” Mr. Learner said.

Western Lake Erie — the warmest, shallowest, and most biologically diverse and dynamic part of the Great Lakes region — has been plagued by various species of algae for decades. Blade archives show some forms of it existed at least as far back as the 1930s.

Much of the problem before the federal Clean Water Act was enacted in 1972 came from point sources, especially sewage treatment plants. That problem has largely been addressed by the modern era of sewage treatment, which came after the CWA took effect.

In recent years, the main culprit has been nonpoint sources, mostly agricultural runoff that is much more diffuse and harder to track than what comes out of a sewage pipe.

Experts once thought the improvements made in the 1970s would keep algae suppressed for good. But since 1995, the lake’s open water has been chronically plagued by a type of algae known as microcystis, which — at 3.5 billion years old — is one of Earth’s oldest-living organisms but was often a runner-up to other types of algae until 23 years ago.

An impairment designation for a lake that has been plagued by algae outbreaks on and off throughout modern times may sound like over-the-top government minutia.

But it’s important in legal circles because it now means the full powers of the federal Clean Water Act must be used to restore western Lake Erie to health. That includes a requirement for Ohio and Michigan to set up what’s known as a “total maximum daily load,” or TMDL. In short, that will put a cap on how much fertilizer can enter the western basin’s rivers and streams, and will be used to better pinpoint sources of pollution on an individual basis.

The U.S. EPA and the Ohio EPA have thus far engaged in a “shell game” by passing responsibility for the lake back and forth, Mr. Learner said.

“The state of Ohio needs to do a TMDL for the Maumee River basin area and enforce protection standards,” he said. “That’s the next critical step.”

Though the Ohio EPA is not the target of the ELPC’s lawsuit, it has felt heat from it because of how it works in tandem with the U.S. EPA, the prime defendant. Other defendants include U.S. EPA Administrator Scott Pruitt, and acting U.S. EPA Region 5 chief Robert Kaplan, who has since been replaced by Cathy Stepp, Region 5’s new administrator. In her role, Ms. Stepp manages the U.S. EPA’s Great Lakes National Program. Region 5 oversees the Great Lakes states of Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin, as well as 35 federally recognized tribal governments.

A turning point in the case came in January, when the U.S. EPA reversed course and said it had erred by approving a list of impaired bodies of water the Ohio EPA submitted on Oct. 20, 2016, an exercise done once every two years. The federal EPA said that, upon further examination, Ohio’s list was “incomplete and thus not fully consistent with the requirements” of the federal Clean Water Act and U.S. EPA regulations in general.

The Kasich administration steadfastly held tight to its policy of favoring agricultural programs with voluntary incentives over stronger regulations. But several people interviewed said at that point it was clear Ohio wasn’t picking up on the federal government’s signals.

“Clearly, the ELPC lawsuit has spurred the U.S. EPA and the Ohio EPA has responded,” Mr. Learner said.

He said the ELPC wants the court to retain jurisdiction so that Ohio’s program for addressing western Lake Erie becomes more meaningful and enforceable.

“We are entitled to the certainty going forward. We don’t want to be in the middle of a procedural shell game,” Mr. Learner said. “We’re not dealing with a theoretical issue here. We’re dealing with a practical problem.”

He said his group will seek a court order that addresses phosphorus and nitrogen. Both are common fertilizers. But most of the programs to date — including the non-binding goal of a 40 percent nutrient reduction by 2025 embraced by Ohio, Michigan, and Ontario — were written for phosphorus.

Phosphorus is most closely linked to algae growth, but nitrogen is more closely linked to its toxicity. Nitrogen also is the driver behind the dominant species of algae in Lake Erie’s Sandusky Bay, planktothrix. Both it and microcystis produce the same toxin, microcystin.

“It’s not that pollution has to be reduced to zero,” Mr. Learner said. “The purpose is to reduce it to the point in which the water isn’t impaired.”

He said it’s “pretty clear the litigation forced the hand of the U.S. EPA and the Kasich administration.”

“Do I think they would have done what they’re doing without a lawsuit being filed?” Mr. Learner asked. “No.”

Lucas County Commission President Pete Gerken agreed.

“I think they were about to lose in federal court,” Mr. Gerken said. “They wanted to make the designation before they were told to do that.”

He and the other two county commissioners — Tina Skeldon Wozniak and Carol Contrada — were among the first government officials calling for an impairment designation.

Former Mayor Paula Hicks-Hudson resisted until last September, about six weeks before the election last November in which she lost to Mayor Wade Kapszukiewicz. She declined despite heckling and protesting by Mr. Ferner and his group members, including a high-profile incident outside One Government Center in which Mr. Ferner put algae-infested water and dead fish into the government building’s public fountain.

Mr. Kapszukiewicz supported an impairment designation throughout his campaign, and said the day before he announced his candidacy that he would consider joining the ELPC in its lawsuit if elected.

Ms. Hicks-Hudson said her change of heart came after seeing an unusual bloom in the Maumee River anchored off Promenade Park, just as a major regatta sponsored by ProMedica was about to begin. She said she was disheartened by the sight of the scum, especially in a part of downtown that is to symbolize the city’s rebirth.

For Ms. Skeldon Wozniak, the impairment designation will mean more accountability.

She said Ohio can take its lead from the Chesapeake Bay, the largest ecosystem operating under a TMDL program. It involves multiple states.

“This plan has accountability and teeth,” Ms. Skeldon Wozniak said.

Ms. Contrada, a lawyer, said the Clean Water Act “acts for the people,” and that the writing was on the wall for the Kasich administration once the U.S. EPA changed course in January.

“It gave a road map to the Ohio EPA to follow,” she said. “It really takes a multitude of voices to move a bureaucracy.”


Cleveland Plain Dealer: Lake Erie’s Western Basin ‘Impaired’

Lake Erie’s Western Basin ‘Impaired,’ Ending Years of Resistance by Kasich Administration

By James F. McCarty

CLEVELAND, Ohio – Environmentalists across the Great Lakes states hailed the announcement Thursday that, after years of resistance, the Kasich administration relented and designated the waters of the Western Basin of Lake Erie impaired.

Toxic algal blooms have plagued the shallow, warmer end of the lake for more than a decade, fed by agricultural runoff from farms in the Maumee River watershed near Toledo.

Although details of the ruling have not yet been worked out, environmental groups predict it will result in stricter regulations for agriculture and others that release nutrients into the lake’s western tributaries.

Supporters of the impairment designation have argued it is necessary to save Lake Erie from toxic algae by opening more opportunities for funding and better coordination of restoration efforts.

Ohio’s change of heart came after the Chicago-based Environmental Law & Policy Center sued the U.S. EPA in federal court, and the EPA subsequently withdrew its approval of the state’s decision to keep Lake Erie off a list of impaired bodies of water.

Ohio had been the last holdout, declining to join Michigan and Ontario in declaring the lake impaired. OEPA Director Craig Butler had argued that the impaired waters designation was “immaterial.” Until now, only the Western Basin’s shoreline and drinking water intakes were designated impaired.

Historically, Ohio had sided with agriculture, supporting voluntary incentives from farmers on reducing fertilizers and other nutrients that flow off fields and into waterways. Eventually, the phosphorus and nitrates reach the lake and feed the pervasive and harmful algae blooms.

The new assessment came about based on research findings by Ohio State University’s Sea Grant College Program, Bowling Green State University, University of Toledo, the National Oceanic and Atmospheric Administration, and the U.S. EPA.

“For 2018, the Ohio EPA is proposing to designate the open waters of Lake Erie’s Western Basin as impaired for recreation due to harmful algae and drinking water due to occurrences of microcystin bacteria, Butler said in a prepared release.

Butler said the state has invested more than $3 billion to improve Lake Erie’s water quality, but warned that the impaired designation should not be considered a “magic bullet” to improve the lake.

Environmentalists agreed but called the designation a promising first step.

“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,” said Howard Learner, Executive Director of the Environmental Law & Policy Center.

In 2014, bacteria from an algal bloom entered Toledo’s drinking water system and forced it to be shut down for two days.

Congresswoman Marcy Kaptur of Toledo, and co-chair of the House Great Lakes Task Force, welcomed Thursday’s decision as “long overdue.”

“As I have said many times, anyone can look out at the now annual progression of green slime and tell you that the water is ‘impaired,’ ” Kaptur said in a prepared statement.

Toledo Blade: Kasich administration declares Lake Erie open waters as impaired

Kasich Administration Declares Lake Erie Open Waters as Impaired
By Tom Henry

The Kasich administration — after years of resistance on behalf of agriculture — announced Thursday it will declare the open waters of western Lake Erie as impaired, marking a reversal on what has arguably been northwest Ohio’s most contentious water-policy issue.

Although details of the impairment designation are still to be worked out, it will invariably mean tighter rules for agriculture and others that release nutrients into western Lake Erie tributaries.

“This decision that took massive public insistence and a federal court suit is way overdue, but let’s get down to work now,” said Mike Ferner, founder of Advocates for a Clean Lake Erie, a Toledo-based citizens group that lobbied heavily for the impairment designation. “An impaired designation kicks off a process under the Clean Water Act that includes finding out exactly who the polluters are and the amounts from each. It must be completely transparent, with public involvement every step of the way. ACLE will be vigilant to see that this declaration actually means something.”

Adam Sharp, Ohio Farm Bureau executive vice president, said the designation will not be the “silver bullet” many people think it is.

Ohio had been the last holdout on the issue, which gained a lot of traction after the 2014 Toledo water crisis.

During that crisis, western Lake Erie’s most notorious algal toxin, microcystin, became so strong in August that it overwhelmed the city’s Collins Park Water Treatment Plant and poisoned tap water being distributed to the metro area’s 500,000 homes and businesses. The water was never actually shut off, but the Ohio National Guard and others converged on the area to provide clean water for nearly three days while health officials declared the city’s tap water unsafe for people to drink or make body contact with.

The administration steadfastly refused to budge from its position until 1 p.m. Thursday, when it announced its change of heart. It had said all along it wanted to stick to voluntary incentives for cooperation from the agricultural industry on reducing farm fertilizers and other nutrients that foul waterways and help algae grow.

The announcement was embedded in the fourth paragraph of a news release about a draft version of the state’s 2018 water quality report that is being put out for public comment. The release shows the Ohio EPA “is proposing to designate the open waters of Lake Erie’s Western Basin (from the Michigan/Ohio state line to the Marblehead Lighthouse) as impaired for recreation due to harmful algae and drinking water due to occurrences of microcystin. Previously, only the shoreline area of the Western Basin and drinking water intakes had been designated as impaired.”

The Ohio EPA said its decision came after consultation with experts from Ohio State University’s Sea Grant College Program, Bowling Green State University, the University of Toledo, the National Oceanic and Atmospheric Administration, and the U.S. EPA.

“We have taken unprecedented steps in recent years to put Lake Erie on a better trajectory — including investing more than $3 billion to improve its water quality,” Ohio EPA Director Craig Butler said.

He added the governor “takes his responsibility to protect the lake very seriously,” and said the state remains committed to its obligations under the Clean Water Act and to examining emerging sciences and practices that can improve water quality.

Ohio EPA will present information about the draft impaired waters list through a webinar at 2 p.m. April 25. The webinar may be viewed at Ohio EPA’s Central Office in conference room A, 50 W. Town St., Suite 700, Columbus, or it can be viewed online.

The summary of each water body assessment unit is available online at the Ohio EPA’s website. The agency said viewers of that website can review specifics concerning water bodies that are impaired or delisted.

The decision came as U.S. District Judge James Carr considers a lawsuit the Chicago-based Environmental Law & Policy Center brought on behalf of ACLE. Mr. Ferner’s group was formed in response to Toledo’s 2014 water crisis.

The ELPC’s lawsuit contended the U.S. Environmental Protection Agency erred by approving the Ohio EPA’s most recent list of impairment bodies of water without including the open waters of western Lake Erie. States are required to submit such a review to the federal government once every two years. The Ohio EPA had listed several nearshore areas in its last filing, but not the lake’s open waters.

In January, the federal EPA notified state officials it had reconsidered its action and now believes the state’s last filing on Oct. 20, 2016, was “incomplete and thus not fully consistent with the requirements” of the federal Clean Water Act and U.S. EPA regulations in general.

Howard Learner, ELPC executive director, said he is pleased by the administration’s change of heart.

“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.

U.S. Rep. Marcy Kaptur (D., Toledo), who co-chairs the House Great Lakes Task Force, called the move a “long overdue” decision.

Gail Hesse, director of water programs for the National Wildlife Federation’s Great Lakes Regional Center in Ann Arbor, agreed.

“We urge the state to use all available tools and options for pollution reduction that provides long-overdue relief to the communities, businesses, and industries that have borne the brunt of damage cause by harmful algal blooms,” Ms. Hesse said.

Peter Bucher, Ohio Environmental Council water resources director, said it’s “clear that more concrete measures are needed to reduce [western Lake Erie’s algae-growing] phosphorus.”

“We are hopeful this news will lead to substantial nutrient reductions and ultimately, a cleaner Lake Erie,” Mr. Bucher said.

Toledo Mayor Wade Kapszukiewicz said the decision “is the right one and a great first step.”

The decision, though, poses a logistical challenge for the Ohio EPA, which reiterated a point it has made in the past by saying it is unsure how to create an impairment program for a body of water as large as western Lake Erie. That, the agency said, is one of the reasons it was promoting voluntary incentives and trying to get more cooperation from agriculture without heavy-handed litigation.

According to the state farm bureau, the regulatory and legal process could take five to seven years before actual nutrient-reduction steps are taken.

“The professional consensus is that the designation in and of itself means little,” Mr. Sharp said. “It does not create mandatory actions, nor does it provide federal money. It excludes Canada’s role in protecting the lake. It also will create a long and complicated bureaucratic process that may impede current progress on reducing harmful algal blooms.”

He said it’s “hard to reach the goal line when no one can explain the rules or even tell you where the goal line is.”

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