EPA Accused of Dragging Feet on Ohio Water Pollution

Algal bloom in Lake Erie, Kelley’s Island. October 16, 2011. Photo: T. Joyce, NOAA GLERL.

TOLEDO, Ohio (CN) – An environmental advocacy group claims in a federal lawsuit that the Environmental Protection Agency neglected its duty by not accepting or rejecting a list of pollution-impaired waters submitted by Ohio, delaying efforts to fight algae problems in Lake Erie.

The Environmental Law and Policy Center, or ELPC, filed the lawsuit Wednesday in Toledo federal court against the U.S. EPA, Administrator Scott Pruitt and Robert Kaplan, acting regional administrator of EPA Region 5.

In addition to ELPC, the plaintiffs include two ELPC members who live in Toledo, Michael Ferner and Susan Matz. Ferner and Matz are also coordinators for Advocates for a Clean Lake Erie, a grassroots environmental organization founded after a toxic algae bloom poisoned Toledo’s drinking water in August 2014.

Like many residents of the Great Lakes region, Ferner and Matz are concerned about the growth of harmful algal blooms, which decrease water quality and occasionally cause toxic contamination.

The National Center for Water Quality Research at Heidelberg University has monitored pollution in the rivers and streams that feed Lake Erie for 40 years and reached the “inescapable conclusion” that phosphorus runoff, primarily from agricultural lands, is a major cause of the explosive algal bloom growth in the warm, shallow waters of Lake Erie’s western basin.

“For years Lake Erie has been, and continues to be, plagued by phosphorus pollution that decreases the lake’s water quality, leading to adverse conditions that make Lake Erie unsafe for drinking water and recreation, among other uses,” ELPC says in its lawsuit.  “One of these adverse conditions from which Lake Erie has suffered and can continue to suffer is the growth of algal blooms, including toxic algal blooms.”

The ELPC argues that the Ohio EPA cannot establish a “total maximum daily load,” or TMDL, to limit phosphorus pollution entering Lake Erie until after the U.S. EPA either approves or disapproves the list of polluted waters that the Ohio EPA submitted on Oct. 20, 2016.

The U.S. EPA is required by law to approve or reject the Ohio EPA’s impaired-water list within 30 days of its submission, but it has yet to do so, according to the complaint.

“By failing to comply with the [Clean Water Act] requirement that it approve or disapprove the 303(d) List by 30 days after its submission, the U.S. EPA extended and continues to extend the amount of time before a decision that might trigger the restoration of Lake Erie’s water quality through the establishment of a TMDL, which could abate the harms caused by excessive phosphorus pollution into Lake Erie’s waters,” the lawsuit states.

The impaired waters list currently awaiting the U.S. EPA’s approval does not designate the open waters of Lake Erie’s western basin as impaired by phosphorus pollution, but the U.S. EPA could cause that region to be added to the list if it disapproves the original list.

“We…believe Ohio EPA is passing the buck by choosing to call only portions of Lake Erie impaired instead of the full open waters of the western basin,” ELPC staff attorney Madeline Fleisher said in a statement. “The first step to reducing toxic algae blooms in Lake Erie is to call attention to it with an impairment designation, then devise enforceable standards to make the water clean and safe.”

In a phone interview, Courthouse News asked Fleisher why the lawsuit does not make any recommendation as to whether the U.S. EPA should approve or reject the Ohio EPA’s list of impaired waters, given the fact that the phosphorus pollution in Lake Erie’s western basin would not be addressed if the list were approved as is.

“ELPC believes that U.S. EPA should and must reject Ohio EPA’s decision to duck the impairment question for western Lake Erie, but until the federal government decides either way, it would be premature to get into that issue in a lawsuit,” Fleisher said. “If U.S. EPA does go in the wrong direction, we’ll certainly look at legal options for ensuring that the western Lake Erie basin is designated as impaired by phosphorus pollution and Ohio does what it has to do to address the lake’s toxic algae problem.”

The Ohio contact for the U.S. EPA’s Region 5 did not immediately respond Thursday to a request for comment.

ELPC seeks a declaratory judgment that the U.S. EPA violated its duty under the Clean Water Act, and an injunction compelling the federal agency to promptly approve or disapprove Ohio’s list of pollution-impaired waters.  It also seeks attorney fees and any other relief the court deems proper.

A similar lawsuit was filed last month in Washington, D.C., by the National Wildlife Federation and five other groups.

UPDATE:  In a statement issued May 22, a spokesperson for the U.S. EPA confirmed that the agency has approved the 2016 list of pollution impaired waters submitted by the Ohio EPA.

“Ohio has not assessed the open waters of Lake Erie.  EPA is deferring to the State’s judgment not to assess these waters for the 2016 list,” the statement reads.

The EPA acknowledged Ohio’s ongoing efforts to control nutrient pollution in Lake Erie, such as the 2015 Lake Erie Collaborative Agreement in which Ohio, Michigan and the Canadian province of Ontario agreed to work toward achieving a 40 percent reduction in the amount of phosphorus entering Lake Erie’s western basin by 2025.

The EPA also noted the Great Lakes Water Quality Agreement between the United States and Canada, a binational agreement that was first signed in 1972 and updated in 2012 to address specific issues like nutrient pollution that contributes to harmful algae blooms.

“EPA understands the Ohio EPA intends to evaluate options for developing objective criteria for use in making decisions regarding the Western Basin of Lake Erie for the 2018 list,” the agency said. “EPA is committed to working with the State in those efforts.”

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