By Tom Henry
The U.S. Environmental Protection Agency has reversed itself on the western Lake Erie impairment issue, admitting it was wrong to approve a Kasich administration plan that has fundamentally kept the status quo of voluntary incentives for agricultural runoff intact.
While stopping short of agreeing it should immediately designate the lake’s open water as impaired, the federal agency said in a Jan. 12 letter to Ohio EPA Director Craig Butler it has reevaluated the state’s submission from Oct. 20, 2016, and determined it is “incomplete and thus not fully consistent with the requirements of Section 303(d) of the Clean Water Act and EPA’s regulations.”
It further stated the Kasich administration’s submission did not adhere to its obligations to assemble and evaluate all data and information about nutrients in Lake Erie within the state’s boundaries.
Howard Learner, executive director of Chicago-based Environmental Law & Policy Center, told The Blade on Tuesday morning the U.S. EPA’s reversal is a significant development that should lead to court-ordered action for the lake and the Toledo metro region’s 500,000 people who depend on it for drinking water.
“The effect of what’s going on here is the U.S. EPA has confessed error on the merits of the case,” Mr. Learner said. “The U.S. EPA is recognizing the factual reality that western Lake Erie water is impaired by [agricultural] pollution.”
The letter, signed was shared on a federal holiday — Martin Luther King, Jr. Day — with the ELPC. The ELPC was preparing to meet a Tuesday deadline set by Senior Judge James G. Carr of U.S. District Court for a motion for summary judgment. The motion is 188 pages long.
The ELPC represents Advocates for a Clean Lake Erie, which was founded by activist Mike Ferner in response to the 2014 Toledo water crisis. The two groups sued the U.S. EPA several months ago over the lack of an impairment designation. The judge has indicted he wants that case resolved by this April or May, before the 2018 algae season.
“Courts shape remedies all of the time. The judge is in a position now to tell the agencies it’s time to step up to the plate,” Mr. Learner said. “It’s not permissible for agencies to violate the Clean Water Act by pretending the western basin of Lake Erie is not impaired when clearly it is.”
The U.S. EPA, which approved the Ohio plan to maintain the status quo May 19, wants all of the state’s remaining data on western Lake Erie nutrient pollution by April 9. The ELPC said in its motion for summary judgment it is seeking a more “expeditious resolution.”
Mr. Butler said the U.S. EPA told him prior to issuing the letter that it was reversing itself, and that the Ohio EPA is “working on developing a response.”
“We’ve never said there’s not a problem in the lake,” Mr. Butler said. “We think this designation as impaired or not doesn’t impact our path forward. Our commitment is as strong as it’s ever been. This is an ongoing, never-ending focus for us.”
Mr. Butler also revealed that the state agency’s reluctance to designate the lake as impaired goes beyond a desire to maintain the status quo. He said the U.S. EPA cannot define itself what exactly it takes for a body of water as large as western Lake Erie to be designated as impaired.
Mr. Butler characterized the ELPC’s push for an impairment designation as “an academic argument.”
He declined to predict how Judge Carr will rule.
A spokesmen for the U.S. EPA said their the agency planned to provide The Blade a response Wednesday.
Judge Carr has presided over several major environmental cases involving Lake Erie, including years of litigation on Ottawa River restoration efforts and the city of Toledo’s consent order with the U.S. EPA over sewage overflows.
Michigan declared its much smaller portion of western Lake Erie impaired in 2016.