Toledo, OH. – Federal Judge James Carr (Northern District of Ohio) approved a consent decree today, establishing deadlines for completion of an action plan to address the toxic algae blooms that continue to plague western Lake Erie every summer. The consent decree requires the Ohio EPA to submit a final plan, known as a total maximum daily load, or “TMDL”, to the U.S. EPA by June 30, 2023, and sets deadlines for the U.S. EPA to review the TMDL and, if it disapproves, complete a federal TMDL. The TMDL is a “pollution diet” dictating the maximum amount of pollution the water body can tolerate while still staying clean.
The consent decree is the result of a negotiated settlement stemming from lawsuits filed by the Environmental Law & Policy Center and the Lucas County Board of Commissioners under the Clean Water Act against the U.S. EPA in 2019 over the federal agency's failure to ensure that a TMDL be completed, as required by the Clean Water Act.
The Order/Opinion by U.S. District Court Judge James Carr summarizes the history of the case, what’s been achieved so far in the court, and compliments: “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.” Judge Carr concludes:
“Though the work that today’s agreement brings is but a first step, 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.”
Commissioner Pete Gerken said:
“This is a momentous day for the Lucas County Commissioners, the ELPC, and all of Ohio. This consent decree solidifies our stance that the state has the authority and has the legal responsibility to clean up Lake Erie using a TMDL plan. To effectively tackle the source of the pollution, we must reduce all phosphorous and nitrates entering the watershed. The most serious threat to Lake Erie comes from concentrated animal feeding operations, which are not currently regulated as polluters and continue to discharge millions of tons of animal waste directly into the watershed and ultimately into Lake Erie. The TMDL plan must serve to regulate these operations. Mandatory measurements of pollution discharges from these operations must be part of the plan. Compliance can’t be voluntary.”
Commissioner Tina Skeldon Wozniak said:
“To have an effective and meaningful cleanup of Lake Erie, we must expect the entities that add pollution to the Maumee Watershed to adhere to mandatory standards, and the standards must be applied equally, no matter if the discharge comes from a city or county water treatment plant or from a CAFO or other agricultural operations. We must stop relying on voluntary measures and incentives and instead the state needs to mandate nutrient-reduction goals and ensure accountability to ensure these goals are reached. It is shameful that not enough is being done to protect the health of Lake Erie, which hundreds of thousands of people rely on or safe drinking water, recreation, tourism, and many other uses.”
Commissioner Lisa A. Sobecki said:
“This consent decree will be critical as we move forward in our nearly decade-long battle to control the pollutants that threaten the health of Lake Erie. We are eagerly awaiting the Ohio EPA’s release of the first-ever TMDL for the Western basin of Lake Erie. To be effective, the TMDL must include regulations for CAFO’s to ensure the appropriate standards for treating and disposing of manure at these facilities. The health of the lake must be addressed because it is our most valuable resource, and we must have an effective, comprehensive TMDL to protect it. If left unchecked, harmful toxic algal blooms will continue to cause economic and environmental damage and threaten the drinking water for nearly a half million people.”
Board of Lucas County Commissioner Attorney Fritz Byers said:
“The Consent Decree is a meaningful step in the ongoing effort to remedy the degradation of Lake Erie. It sets firm deadlines for Ohio EPA’s remedial plan, and for U.S. EPA’s review of the adequacy of that plan. To date Ohio EPA has not demonstrated that it recognizes the pressing need for clear, mandatory limits on all pollution dischargers that contribute to the loss of water quality. We hope this changes. And if it does not, we will insist that U.S. EPA discharge its legal obligation under the Clean Water Act and under the Consent Decree to reject an inadequate remedial plan from the State and to implement an effective plan of its own design. The environmental health of our region depends on this.”
Plaintiffs ELPC and Lucas County Board of Commissioners and Defendant U.S. EPA agreed to the consent decree terms last November and U.S. EPA published it in the Federal Register. The consent decree is the result of a negotiated settlement stemming from lawsuits filed by Plaintiffs ELPC and Lucas County Board under the Clean Water Act against U.S. EPA in 2019 over the federal agency’s failure to ensure that a TMDL be completed as required by the Clean Water Act.
ELPC Executive Director and Senior Attorney Howard Learner said: “We’re proud of what Plaintiffs Environmental Law & Policy Center (ELPC) and Lucas County Board have achieved together so far in the federal court litigation. There is clearly much more work to be done in order to achieve our shared goal of a clean Lake Erie for all.”
“We are pleased the Court entered the consent decree as a key next step to cleaning up Lake Erie. The consent decree states that plaintiffs ELPC and Lucas County prevailed in our lawsuit against U.S. EPA. 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.”
The consent decree provides:
• Ohio EPA must prepare a draft Total Maximum Daily Load (TMDL), or pollution diet, for phosphorus into the Maumee River Watershed, by December 31, 2022, as well as an implementation plan.
• Ohio EPA must submit its final TMDL to U.S. EPA by June 30, 2023.
• U.S. EPA must either approve or disapprove Ohio EPA’s TMDL within 90 days.
• If U.S. EPA disapproves the plan, the federal agency must prepare its own TMDL for Lake Erie within five months.
• Plaintiffs ELPC and the Lucas County Board of Commissioners retain the right to challenge EPA’s approval or subsequent proposed plan.
• The consent decree states that Plaintiffs ELPC and Lucas County Board are “prevailing parties” in this lawsuit.
Ohio EPA released a draft TMDL on December 30, 2022. ELPC and many others raised serious concerns in comments that Ohio EPA was not following the science or designing the TMDL to succeed in restoring Lake Erie.
ELPC Senior Attorney Rob Michaels said:
“Ohio EPA still has time to get it right before submitting its plan to U.S. EPA in June. 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 (DRP). 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.”