April 14, 2024
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Judge puts Ohio EPA, federal EPA on the clock for Lake Erie

Three lawsuits in as many years have resulted in a Consent Decree supporting water quality in the western basin of Lake Erie.

Gillian Ward

Rob Michaels, attorney for Environmental Law and Policy Group battling for action on Lake Erie water quality, explained to WTOH how critical it is that the State and Federal Environmental Protection agencies get serious about uncontrolled contaminant discharges into Lake Erie. 

The first lawsuit was filed by the ELPG when Ohio EPA omitted Lake Erie from the bi-annual Impaired Water Body (303d) list following the Toledo water crisis of 2014. The federal EPA was also named in the suit for accepting the list without Lake Erie. Following the legal action, Ohio EPA amended the Impaired Water Body list, adding Lake Erie, but without the priority designation that would lead to action. The third go in court has resulted in the recent Consent Decree, requiring the Ohio EPA and federal EPA to set a Total Maximum Daily Limit (TMDL) for nutrients discharged in the Maumee watershed into Lake Erie.

Michaels explains that land draining into the western basin of Lake Erie is generally swampy. Tiling is a system of physical drainage hardware meant to remove excess surface water so that crops can be grown. What was not intended with tile drainage is the liquid swine and dairy manure spread on these fields being main-lined straight into the arteries of the watershed, the Maumee River and tributaries leading into Lake Erie, loading the lake with highly reactive nutrients, stimulating toxic algae growth and fouling beaches with E.coli contamination.

The issue, according to Michaels, is that the agriculture producers in Ohio are not required to have discharge permits, are not required to report or limit applications of liquid manure on the fields. 

All of this makes it very difficult to manage the contaminant load that leads to toxic algae blooms and beach advisories in Lake Erie.

“We are pleased that U.S. EPA and Ohio EPA have committed to an enforceable timetable for completing a TMDL (total maximum daily limit) to remediate the toxic algal blooms that continue to plague western Lake Erie every year. Without our lawsuit, the agencies would have continued kicking the can down the road and a TMDL might never have been completed. The question now becomes whether the TMDL will be strong enough to solve the problem. We urge everyone who wants to see Lake Erie restored to tell U.S. EPA that they support the consent decree timetable but expect the agency to do its job next year when Ohio submits its final TMDL. Lake Erie is Ohio’s greatest natural resource and U.S. EPA need to protect it.”

A public notice of the Consent Decree has been posted for a period of public comments here:

US EPA Notice of New Proposed Consent Decree

The U.S. Environmental Protection Agency (EPA) has recently published a notice in the Federal Register (87 FR 67899, November 10, 2022) regarding a proposed consent decree related to Environmental Law & Policy Center, et al., v. USEPA, No. 3:19-cv-295 (N.D. Ohio). On November 10, 2022, EPA opened docket number EPA-HQ-OGC-2022-0884,to receive public comments on this proposal. The Federal Register notice and the text of the proposed consent decree are available in the docket. The comment period is open until December 12, 2022.

In accordance with the Environmental Protection Agency (EPA) Administrator’s March 18, 2022, memorandum regarding “Consent Decrees and Settlement Agreements to resolve Environmental Claims Against the Agency,” notice is given of a proposed consent decree in Environmental Law & Policy Center, et al., v. United States Environmental Protection Agency, No. 3:19-cv-295 (N.D. Ohio). The proposed consent decree would resolve the remaining claims in a suit filed by the Environmental Law & Policy Center and the Lucas County Board of Commissioners. On February 7, 2019, the Environmental Law & Policy Center, which was later joined by the Lucas County Board of Commissioners filed a complaint against the EPA alleging that the Agency’s approval of Ohio’s 2018 section 303(d) list was arbitrary and capricious under the Administrative Procedure Act and that EPA had failed to perform duties mandated by the Clean Water Act with respect to Ohio’s obligation to develop a Total Maximum Daily Load to address nutrient pollution in western Lake Erie. EPA seeks public input on a proposed consent decree prior to its final decision-making to settle the litigation.

EPA encourages your participation in the public comment process on the proposed consent decree mentioned above. Please submit any comments to EPA docket number EPA-HQ-OGC-2022-0884 by December 12, 2022, pursuant to the process outlined in the Federal Register notice. We welcome all comments that you may have, including comments indicating concurrence. Any comments received by EPA via email or other means outside of the regulations.gov platform will be directed to the docket where they will be available for public viewing. You are under no obligation to submit comments, and this notice does not require you to take any action.

A copy of the proposed consent decree can be found here

To view all complaints, petitions for review, and notices of intent to sue filed with the EPA, as well as proposed consent decrees and proposed settlement agreements, please visit https://www.epa.gov/ogc.

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