EPA Sued Over Growing Lake Erie Algae Problems

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

TOLEDO, Ohio (CN) – Two environmental advocacy groups in the Great Lakes region sued the Environmental Protection Agency, hoping to compel the agency to list the open waters of Lake Erie as impaired by harmful algae blooms.

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

“The impairment designation is a key first step in the Clean Water Act’s process for addressing serious water quality issues,” ELPC staff attorney Madeline Fleisher said in a statement.  “Without the impairment designation, Ohio is likely to continue relying on unenforceable, voluntary measures to reduce phosphorus pollution that won’t do enough to fix the problem.”

ELPC’s co-plaintiffs in the case are Advocates for a Clean Lake Erie, or ACLE, a grassroots environmental organization founded after a toxic algae bloom poisoned Toledo’s drinking water in August 2014, as well as ELPC members and ACLE coordinators Michael Ferner and Susan Matz.

Algal blooms like the ones in the warm, shallow waters of Lake Erie’s western basin decrease water quality and occasionally cause toxic contamination.

EPLC, Ferner and Matz previously sued the EPA, Pruitt and Kaplan in May, claiming the federal agency was neglecting its duty under the Clean Water Act by failing to either approve or disapprove of the Ohio EPA’s impaired-waters list in a timely manner.

Less than a week after ELPC filed that lawsuit, the U.S. EPA approved the Ohio EPA’s list without adding Lake Erie’s open waters, deferring to the state’s judgment.

In Tuesday’s complaint, ELPC and its co-plaintiffs claim the U.S. EPA simply rubber-stamped the Ohio EPA’s list, which they say was prepared without proper evaluation of all readily available data about the adverse conditions that algal blooms cause to Lake Erie’s open waters.

“When Ohio EPA was evaluating the condition of its waters in preparing its 2016 list of impaired waters under CWA section 303(d), it categorized all water within 100 meters of the shoreline of Lake Erie, as well as all water surrounding Lake Erie public drinking water intakes, as impaired by the effects of harmful algal blooms,” the complaint states.  “At the same time, Ohio EPA chose not to designate the same waters, suffering the same harmful algal blooms, as impaired beyond these limited and artificial boundaries.”

Strengthening the environmental groups’ argument is the fact that Michigan designated its entire portion of Lake Erie as impaired by algal blooms when it submitted its list of impaired waters in 2016, which was approved by the U.S. EPA.

ELPC and its co-plaintiffs assert that, under such circumstances, the federal agency was obligated by the Clean Water Act and its own regulations to disapprove of Ohio’s list of impaired waters and either remand the list for further consideration or declare the open waters of Lake Erie as impaired.

“The lake isn’t ‘sort of’ impaired in a couple places – it’s impaired throughout the western basin,” Ferner said in a statement. “Public officials need to acknowledge it will take mandatory steps to get Lake Erie back to health.”

The environmental groups seek a declaration that the U.S. EPA violated the Clean Water Act when it approved the Ohio EPA’s allegedly deficient list of impaired waters, and an order compelling the federal agency to disapprove of Ohio’s list and identify Lake Erie’s open waters as impaired.

They also seek attorneys’ fees and any other relief the court deems proper.

ELPC, ACLE, Ferner and Matz are represented by ELPC’s staff attorneys Fleisher and Lindsay Dubin, as well as Michael Barsa from the Northwestern Pritzker School of Law.

A spokesperson for the U.S. EPA’s Region 5 declined to comment on the pending litigation.

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