E&E News: In Reversal, EPA Yanks Approval of Ohio’s Lake Erie Assessment


In Reversal, EPA Yanks Approval of Ohio’s Lake Erie Assessment
By Ariel Wittenberg

U.S. EPA says it no longer approves of Ohio’s decision to omit parts of Lake Erie from a list of impaired waters that environmentalists say is critical to reducing toxic algae blooms there.

At issue is Ohio’s 2016 Integrated Water Quality Monitoring and Assessment Report, which found shorelines and areas of Lake Erie near drinking water intakes were impaired, but not its open waters.

EPA’s initial approval of the report in May was dubbed a “rubber stamp” by environmental groups. They responded with a lawsuit.

Now, the agency is withdrawing that approval, saying it has re-evaluated the report and “determined that the submission is incomplete and thus not fully consistent with the requirements of Section 303(d) of the Clean Water Act and EPA’s regulations.”

In a letter to Ohio regulators, EPA’s newly confirmed Office of Water assistant administrator, David Ross, said the state did not fully consider all of the readily available data on nutrient pollution in the open waters of Lake Erie that fall within the state’s boundaries.

“The EPA acknowledges that the EPA Region 5 previously approved Ohio’s 2016 List in full,” Ross writes. “The EPA, however, is now exercising its inherent authority to reconsider prior decisions in order to ensure conformity of this action to the applicable statutory and regulatory requirements with respect to the open waters of Lake Erie within Ohio’s boundaries.”

The letter comes just three months after the federal government filed a response to the litigation from the Environmental Law & Policy Center and Advocates for a Clean Lake Erie, saying the groups “fail to state a claim upon which relief can be granted.”

An EPA spokeswoman declined to comment further on the letter to Ohio and the ongoing case, saying, “EPA does not comment on pending litigation.”

Designating a body of water as impaired means the state and federal government must design action plans and restore the waters to a healthy quality.

Those actions could involve setting a “pollution diet,” or total maximum daily load (TMDL), for phosphorus and nitrogen entering Lake Erie.

In their lawsuit, the groups argued that devising action plans for parts of the lake, rather than all of it, would not fully address the algae bloom problem there.

Madeline Fleisher, an ELPC attorney, called Ross’ letter a “vindication” because EPA is conceding it was wrong to approve Ohio’s analysis.

But, she said, that’s not enough to end the lawsuit. “The EPA letter admits that they were wrong, but it essentially says, ‘We are not going to do anything about it,'” she said.
Fleisher noted that EPA is now asking Ohio to resubmit a new evaluation by April 9, essentially asking the state to redo its analysis in its regularly scheduled 2018 water quality report.

That request is contrary to EPA’s own regulations, Fleisher says, which require the agency to do its own evaluation of impairment designations it disagrees with.

“If a state has not gotten it right, then kicking it back to them for a do-over may not take things farther,” she said.

ELPC and Advocates for a Clean Lake Erie have asked the U.S. District Court for the Northern District of Ohio to make a ruling in the case requiring EPA itself to assess whether the open waters of Lake Erie are impaired.

“What really matters is actually solving the problem Lake Erie is suffering from, and this letter is not sufficient to do that,” Fleisher said.



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