Federal Judge Tosses Bid to Clean Up Algae Blooms

TOLEDO, Ohio (CN) – Despite an ongoing algae-pollution problem in the western Ohio portion of Lake Erie, a federal judge ruled Wednesday that environmental groups have not established a Clean Water Act violation on the part of the U.S. Environmental Protection Agency.

Algae bloom in Lake Erie, Kelley’s Island. (Photo: T. Joyce, NOAA GLERL.)

Harmful algae blooms, which appear in the summer, “have afflicted the lake’s western basin,” according to the 24-page opinion written by U.S. District Judge James Carr in Toledo. These blooms are caused by phosphorus-containing runoff from farmland.

The Clean Water Act requires the U.S. EPA to list bodies of water that fail to meet quality standards. When an algae bloom poisoned Toledo’s water supply in 2014, the Ohio EPA designated part of the shoreline as impaired.

However, the Ohio EPA did not make the same designation for Lake Erie’s open waters, the ruling states, despite “alarming test results” that showed excessive amounts of the toxin microsystin.

The U.S. EPA approved the list submitted by its Ohio counterpart, with the provision that “all drinking water intakes in the Western Lake Erie basin” should be examined in 2016.

However, according to the ruling, Ohio refused to perform this examination. The state agency called the instruction “absurd” and asserted that the U.S. EPA should “develop a coordinated response” for Lake Erie.

The U.S. EPA ultimately approved Ohio’s 2016 list of impaired waterways even though the state didn’t examine the drinking water intakes. This prompted a lawsuit by the Environmental Law and Policy Center, Advocates for a Clean Lake Erie and two individual plaintiffs.

In July 2017, they sued the U.S. EPA, then-Administrator Scott Pruitt, and Acting Regional Administrator Robert Kaplan, saying they were required by law to disapprove the Ohio EPA’s list of impaired waters.

The U.S. EPA responded by withdrawing its approval of the list for further consideration.

Judge Carr weighed in April 11 by denying the environmentalists’ motion for summary judgment due to the lack of a final agency action.

In the time since Carr issued his April order, the Ohio EPA has amended its list and declared the open waters of western Lake Erie to be impaired. The U.S. EPA approved the amended list.

The environmentalists asked Carr to supplement their complaint to challenge the Ohio EPA’s alleged refusal to develop a total maximum daily load, or TMDL, for the phosphorus pollution that causes the algae blooms.

Carr called the establishment of TMDLs “a bedrock obligation under the CWA” that is “not optional.”

The Ohio EPA instead stated its goals to reduce phosphorus by 20 percent by 2020 and by 40 percent by 2025 without yet establishing a TMDL.

Carr sympathized with the environmentalists while ruling against them.

“Although I appreciate plaintiffs’ frustration with Ohio’s possible continuation of its inaction, I agree with defendants on the law,” he wrote.

Carr stated that the U.S. EPA has still not issued a final agency decision on Ohio’s plan to reduce phosphorus instead of developing a TMDL.

The environmentalists also argued that the Ohio EPA’s failure to submit a TMDL resulted in the “constructive submission” of a lack of pollution limits. Carr disagreed.

“Years of inaction following an impaired listing may reasonably prompt a court to consider whether a state has ‘clearly and unambiguously’ abandoned its TMDL obligations,” he wrote. “Months of inaction will not.”

Granting the government agencies summary judgment, the judge added, “Having designated Lake Erie’s open waters as impaired for the first time, as tardy as that may be, on May 4, 2018, Ohio still has ‘a long period of time’ to sit on its hands before plaintiffs can plausibly allege that it has constructively submitted no TMDLs.”

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