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.