Recreational boating trade associations, boatowners, environmentalists and others are applauding a landmark proposed consent decree that will serve as a roadmap for federal and state regulators to finally get serious about addressing western Lake Erie’s chronic algal blooms.
This case was brought against the U.S. Environmental Protection Agency by the Environmental Law Policy Center on the grounds that the EPA has failed to live up to the goals of the 1972 Clean Water Act by not exerting pressure on Ohio for repeated violations of the act. U.S. District Judge James Carr has been hearing arguments in the case, filed on Feb. 7, 2019.
“While we believe the timelines in the proposed settlement should be tighter as the provisions should have been realistically completed a long time ago,” says Michelle Burke, president of the Lake Erie Marine Trades Association, “we are in favor of Judge Carr’s actions and the prospect that this will finally lead to the necessary corrective actions to protect our lake.”
First reported by environmental writer Tom Henry in the Toledo Blade, the eight-page consent decree written by Judge Carr is now officially published in the Federal Register. The public is invited to offer comments on the document through Dec. 12.
Unfortunately, the order does not specify what kind of rules the Ohio EPA will be required to pass along to the agricultural industry and other polluters to reduce the levels of nutrients getting into the Maumee River and other western Lake Erie tributaries. It also doesn’t say if Gov. Mike DeWine’s current H2Ohio program for improving water quality statewide is sufficient.
The order unfortunately does establish a set of clear deadlines and penalties for the Ohio EPA if it fails to complete its management blueprint goals. These benchmarks lay out the maximum Total Maximum Daily Load of phosphorus, nitrogen and other nutrients allowed to be discharged into the Maumee River Watershed, which feeds Lake Erie. It’s also notable that what the Ohio EPA develops will become one of the largest TMDL programs in the country.
According to the proposed settlement, the timetable mandates the following:
■ A Dec. 31 deadline for the Ohio EPA to finish writing and release for public comment its draft version of a proposed TMDL.
■ A June 30, 2023, deadline for the Ohio EPA to finalize the document followed by 30 days for the U.S. EPA to approve or disapprove of the state’s submission.
■ A generous five additional months if the U.S. EPA determines what Ohio submits is inadequate. If that happens, the federal government must write and impose its own TMDL within that five-month period.
■ A joint status report from the U.S. EPA and Ohio EPA must be filed with U.S. District Court every six months until the proposed consent decree is terminated.
Though consent decrees are mutual agreements between disputing parties and not a verdict against one or another, Judge Carr states that the plaintiffs are to be considered “prevailing parties.” Further, his court will retain jurisdiction to enforce the terms and conditions of this Consent Decree.
As I have cited in this Dealer Outlook blog over recent years, for too long Ohio has balked at being aggressive in dealing with agricultural runoff of phosphorus and nitrogen from farm fertilizers and confined animal feed operations that have been identified as the primary cause of chronic summer algae blooms appearing in western Lake Erie for 27 years. That’s right, every summer since 1995.
Even Michigan, encouraged by the Michigan Boating Industries Association, declared its portion of western Lake Erie as “impaired” back in 2016, a first step in justifying a TMDL. But former Ohio Gov. John Kasich’s administration steadfastly refused to declare it so until the Environmental Law & Policy Center filed its first lawsuit. It took Ohio two more years to finally join Michigan.
“We are delighted by Judge Carr’s decision,” says Nicki Polan, MBIA’s executive director. “While our state’s portion of western Lake Erie is quite small, it’s a hub of great recreational boating and fishing activity for our members and customers, and an effective algae prevention plan is long overdue.”
The Ohio EPA continued to resist calls for a Lake Erie TMDL until after this current lawsuit was filed in 2019. It reportedly began assembling a draft plan in early 2020. It’s now late 2022, and we’re still waiting. In view of that, Judge Carr’s timeline seems overly generous, but he’s declared loud and clear that one way or another, the ball will be put in play this time.
For additional information, contact Thomas Glazer of the U.S. EPA’s Water Law Office at (202) 564-0908 or email him at email@example.com.