November 11, 2022
Toledo, OH. – Plaintiffs Environmental Law & Policy Center (ELPC) and Lucas County Board of Commissioners and Defendant U.S. Environmental Protection Agency have entered into a litigation consent decree now published in the Federal Register. The consent decree provides requirements and timetables for the Ohio EPA to prepare an action plan to address persistent nutrient pollution and algae impairments for Lake Erie’s western basin. The consent decree is the result of a negotiated settlement stemming from lawsuits filed by Plaintiffs ELPC and Lucas County Board under the Clean Water Act against Defendant U.S. EPA in 2019 over agricultural runoff pollution – fertilizer and manure – into the Maumee River Watershed which flows into Lake Erie, causing harmful algae blooms.
ELPC Executive Director and Senior Attorney Howard Learner said:
“For too long, the Ohio EPA has resisted calls by local governments, environmental groups and scientists to accelerate a mandatory action plan to reduce the agricultural runoff pollution – fertilizers and manure – which fuels the Lake Erie toxic algal blooms. The U.S. EPA also has failed to force Ohio to take the reasonable and necessary actions to reduce agricultural runoff pollution sufficient to clean up Lake Erie. This consent decree in Plaintiffs ELPC’s and the Lucas County Board’s Clean Water Act lawsuits is a bridge to advance effective actions to achieve the necessary outcome of a cleaner Lake Erie sooner, rather than later. That serves the public’s interest for more enjoyable outdoor recreation, better protected fisheries, and safer, cleaner water for all.”
Lucas County Commissioner Gary L. Byers said: “Finally, after three years of litigation, we have reached a pivotal point in our battle to protect Lake Erie, and now is the time for people to weigh in on the negotiated settlement in the consent decree.”
The consent decree provides:
• Ohio EPA must prepare a draft Total Maximum Daily Load (TMDL), or pollution diet, for phosphorus into the Maumee River Watershed, by December 31, 2022, as well as an implementation plan.
• Ohio EPA must release its final TMDL to U.S. EPA by June 30, 2023.
• U.S. EPA must either approve or disapprove Ohio EPA’s TMDL.
• If U.S. EPA disapproves the plan, the federal agency must prepare its own TMDL for Lake Erie.
• ELPC and Lucas County Board of Commissioners retain the right to challenge EPA’s approval or subsequent proposed plan.
• The consent decree states that Plaintiffs ELPC and Lucas County Board are “prevailing parties” in this lawsuit.
Ohio EPA released a preliminary version of its draft TMDL over the summer. ELPC, the Toledo Metropolitan Council of Governments, and many others raised serious concerns in their comments that Ohio EPA was not following the science or designing the TMDL to succeed in restoring Lake Erie.
ELPC Senior Attorney Rob Michaels said: “In order to be effective, Ohio EPA’s plan must allocate reductions among the biggest phosphorus dischargers in the watershed, including the growing number of industrial-scale animal operations, and include a real implementation plan that goes beyond the voluntary measures that have been failing for years. Ohio EPA still has time to get it right but really needs to change course quickly to solve this dire problem.”
Lucas County Commissioner Tina Skeldon Wozniak said: “The health and well-being of the lake is contingent on adhering to the Clean Water Act, and to be effective, the Total Maximum Daily Load being developed by the Ohio EPA must include action steps, schedules, and monitoring to effectively limit the dissolved reactive phosphorous entering the Maumee River watershed. This will improve the health of Lake Erie for decades to come. We encourage people to read the consent decree and make their concerns known.”
Lucas County Commissioner Pete Gerken said: “One issue should become clear from the public comments, and that is any settlement proposed by the U.S. EPA and the Ohio EPA must include mandatory actions, not just voluntary compliance. The comment period is a time when the public can hold the Ohio EPA to the standards they have avoided for years. The only way to have an effective cleanup of Lake Erie is to have those who add pollution to our water system adhere to mandatory standards. Those standards are applied to city and county municipal discharges, and the same standards must be applied to other polluters.”