July 07, 2023
Columbus, Ohio – The Environmental Law & Policy Center (ELPC) is extremely disappointed with Ohio EPA’s final plan submitted to U.S. EPA on June 30 that is supposed to be a blueprint for cleaning up persistent toxic algae outbreaks in western Lake Erie. The Ohio EPA recognizes that agricultural runoff pollution is responsible for 90% of the phosphorus that causes the toxic algae outbreaks. To be effective, the Total Maximum Daily Load (TMDL), or “pollution diet” should sufficiently limit phosphorus discharges of manure from industrial livestock facilities, also known as concentrated animal feeding operations (CAFOs), and commercial fertilizer. ELPC submitted extensive comments to Ohio EPA on its draft plan earlier this year, but this final version offers no meaningful improvements.
Ohio EPA started this process only after ELPC and Lucas County Board of Commissioners sued U.S. EPA for not requiring Ohio EPA to clean up Lake Erie. A consent decree approved by the federal court in May 2023 states that Plaintiffs ELPC and Lucas County are prevailing parties, and requires Ohio EPA to develop a TMDL for western Lake Erie. U.S. EPA has until September 28, 2023 to decide how to proceed.
“Ohio EPA’s TMDL is fundamentally defective and does not comply with the Clean Water Act’s requirements. It will not alleviate the algae bloom crisis plaguing western Lake Erie year after year,” said Rob Michaels, Senior Attorney at ELPC. “This is a moment of truth for U.S. EPA. If the federal agency is committed to solving Lake Erie’s persistent algae bloom problem, it must disapprove Ohio EPA’s plan. Both the law and common sense require it.”
“The Ohio EPA plan is essentially a permission slip to keep spending massive sums of public money to encourage voluntary pollution reduction from agriculture, none of which have put a dent in the problem,” Michaels said. “The TMDL doesn’t even set a target for the pollutant driving the algae outbreaks – dissolved reactive phosphorus (DRP). Instead, it only sets a target for total phosphorus, which won’t clean up the lake because DRP makes up only 20% of total phosphorus and is much harder to reduce.”
ELPC noted that Ohio’s TMDL also fails to assign pollution reduction allocations to CAFOs, even though CAFOs discharge DRP every time they apply liquid manure on fields with subsurface tile drainage, which nearly all fields in the Maumee River watershed have.
“Equally disconcerting is that the TMDL fails to include a meaningful implementation plan,” said Michaels. “Instead, it recites a laundry list of ongoing programs and initiatives that have long been failing to solve the problem. Because of these major deficiencies, the TMDL fails to provide ‘reasonable assurances’ that necessary reductions will be achieved, as required by state and federal regulations. The TMDL must be designed to succeed. U.S. EPA should reject Ohio’s plan and design a lawful and effective one.”