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Court approves consent decree to rid Lake Erie of toxic algae

Years of litigation and the dogged efforts of environmental groups resulted in tangible progress toward the cleanup of western Lake Erie Thursday, as a federal judge approved a consent decree that includes state and federal agencies.

TOLEDO, Ohio (CN) — The Ohio branch of the Environmental Protection Agency will be required to submit a "pollution diet" plan for the Western Basin of Lake Erie on the state's northern border by June 30, 2023, as part of ongoing efforts to address annual, toxic algae blooms in the great lake.

The plan, known as a total maximum daily load, or TMDL, will be passed on to the United States EPA for approval as part of a consent decree aimed at lowering pollution in the lake and the Maumee River that feeds it.

Senior U.S. District Judge James Carr, a Clinton appointee, announced the consent decree in an order that detailed the near six-year litigation set in motion when the Environmental Law and Policy Center, or ELPC, filed a lawsuit against the U.S. EPA in 2017.

The Center's case was eventually consolidated with another filed by the Board of Lucas County Commissioners, while the state of Ohio also intervened as a defendant.

"The consolidated complaints in these cases," Carr said, "are the final chapter of plaintiffs' persistent, unyielding quest to obtain joint commitment from the EPA and the state to undertake a crucial first step towards the restoration of Lake Erie's Western Basin."

The harm to Lake Erie at issue in the cases is caused primarily by phosphorous pollution from farm industry runoff, including fertilizers and manure, and remained unchecked over the past two decades.

The runoff causes explosive growth of toxic algae blooms that peaks in the summer months and covers the surface of the water with a blanket of green.

But the algae doesn't just look bad, it's also dangerous to marine life and threatens the safety of drinking water for those in Toledo and the surrounding areas.

In 2015, for example, Toledo residents were forced to drink bottled water for three days when a state of emergency was declared after the drinking water was found to be contaminated.

Ohio eventually admitted the lake was "impaired" in 2018, but it took more than five years for environmental activists and the EPA to solidify a plan to combat the issue.

The TMDL established by the consent decree will "dictate the maximum amount of pollution the water body can tolerate while still staying clean," and once it is submitted to the U.S. EPA, the agency will have 90 days to approve or disapprove it.

The ELPC and the Lucas County Board will be named "prevailing parties" as part of the decree, which was agreed to by all parties last November.

"Though the work that today's agreement brings is but a first step," Carr said in his order, "it is a step that has to be taken. How many more steps lie ahead, and how long they will take, is beyond even guessing.

"But there's reason to hope that, in time, the Maumee River will no longer display, as it has for countless summers, a loathsome foul and slimy green surface as it flows through Toledo on its constant and irresistible course on to Lake Erie's Western Basin."

He went on to thank U.S. District Judge Aaron Polster, another Clinton appointee, for his work on settlement proceedings with the parties despite overseeing the bellwether trial of a multidistrict prescription opioid litigation at the same time.

"The parties — and even more so — those millions of Ohio residents, who depend on and deserve a cleaner and healthier Lake Erie — should be grateful beyond words for Judge Polster's time-consuming and strenuous effort and work. I certainly am," he said.

ELPC Executive Director and senior attorney Howard Learner expressed satisfaction at the outcome, but remained wary as to whether the decree can alleviate Lake Erie's problems.

"We are pleased the Court entered the consent decree as a key next step to cleaning up Lake Erie," he said. "For too long, the Ohio EPA had resisted calls by local governments, environmental groups and scientists to prepare a mandatory action plan to reduce the agricultural runoff pollution of manure and fertilizers which causes the recurring Lake Erie toxic algal blooms. The U.S. EPA also had failed to force Ohio to prepare the TMDL to reduce agricultural runoff pollution sufficient to clean up Lake Erie.

"These obligations are enforceable and established in the consent decree, which would not have occurred without the ELPC-Lucas County Board litigation. The question now shifts to whether the Ohio EPA’s TMDL is sufficient to alleviate toxic algae blooms and clean up Lake Erie.”

Fellow senior attorney for the ELPC, Rob Michaels, was more dire in his reaction to the agreement.

"Ohio EPA still has time to get it right before submitting its plan to U.S. EPA in June," he said. "But as of now, the draft TMDL does not pass muster. It is nothing but a continuation of recommendations to spend massive sums of public money to encourage voluntary pollution reduction from agriculture, none of which have put a dent in the problem.

"The TMDL doesn’t even set a target for the pollutant driving the algae blooms — dissolved reactive phosphorus," Michaels continued. "Equally disconcerting is that the TMDL fails to include a meaningful implementation plan. Ohio EPA should take our submitted comments to heart and make necessary improvements to its plan before sending the final version to U.S. EPA."

Lucas County Commissioner Peter Gerken called it a "momentous day" for all Ohioans and stressed the need for regulation of animal feeding operations to reduce the amount of pollution.

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Categories / Environment, Government, Health, Law

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