western basin
Disagreements over how to improve the health of Lake Erie have led to yet another federal lawsuit in Ohio. This time the plaintiff is the Board of Lucas County Commissioners, who filed a lawsuit in federal court last Thursday against the U.S. EPA. The lawsuit accuses the U.S. EPA of failing to enforce the federal Clean Water Act, which the county believes has led to an "alarming" decline in the water quality of western Lake Erie.
The Clean Water Act requires states to monitor and evaluate water quality and establish water quality criteria, and also to designate a water body as “impaired” if it does not meet the criteria. Once a water body is on the impaired waters list, the state must create Total Maximum Daily Loads (TMDLs) for the water body. TMDLs determine the maximum amounts of each pollutant that can enter a water body and still allow the water to meet the established water quality criteria. Plans for reducing a pollutant would be necessary if the pollutant exceeds the TMDLs. The state’s efforts to establish the water quality criteria, designate impaired waters and develop TMDLs are subject to review and approval by the U.S. EPA, who must ensure that the states are taking adequate action pursuant to the Clean Water Act.
Lucas County alleges that the U.S. EPA has failed in its Clean Water Act obligations by allowing Ohio to refuse to prepare TMDLs for the western basin of Lake Erie. Even after another court battle forced the designation of the western basin as “impaired,” the county explains, Ohio’s EPA declared the western basin to be a low priority for TMDL development and has not yet proposed either TMDLs or an alternative plan for addressing the basin’s impaired water status. Lucas County argues that since Ohio has not established TMDLs for the impaired waters of Lake Erie, the U.S. EPA must step in and do so.
The county also contends that the lack of state and federal action on the impaired waters status of the western basin has forced Lucas County to expend significant resources to maintain and monitor Lake Erie water quality for its residents. According to Lucas County, such actions and costs would be unnecessary or substantially reduced if the U.S. EPA had fulfilled its legal obligations to ensure the preparation of TMDLs for the western basin.
Agricultural pollution is an explicit concern in the county’s complaint. The development of TMDLs for the western basin would focus needed attention and remedial measures on pollution from agricultural operations, Lucas County states. The county asserts that TMDLs would establish a phosphorous cap for the western basin and methods of ensuring compliance with the cap, which would in turn address the harm and costs of continued harmful algal bloom problems in Lake Erie.
The remedy Lucas County requests is for the federal court to order the U.S. EPA to either prepare or order the Ohio EPA to prepare TMDLs for all harmful nutrients in the western basin, including phosphorous. The county also asks the court to retain its jurisdiction over the case for continued monitoring to ensure the establishment of an effective basin-wide TMDL.
This is not the first TMDL lawsuit over the western basin. In early February of this year, the Environmental Law and Policy Center (ELPC) and the Toledo-based Advocates for a Clean Lake Erie filed a lawsuit that similarly alleges that the U.S. EPA has failed to require Ohio to establish TMDLs for the western basin, which is still ongoing. See our summary of that case here. The case followed an earlier and successful push by the ELPC to order Ohio to declare the western basin as impaired, which the state had refused to do previously. We explain that history here.
The newest round of litigation again highlights differences in opinion on how to remedy Lake Erie’s phosphorous pollution problem. Like the TMDL lawsuits, a successful effort by the Toledoans for Safe Water to enact the Lake Erie Bill of Rights was also predicated on claims that Ohio and the federal government aren’t taking sufficient action to protect Lake Erie. Lucas County made it clear that it isn’t satisfied with the state of Ohio’s approach of providing funding to promote voluntary practices by farmers to reduce phosphorous pollution, despite stating that the county isn’t “declaring war on agriculture.” In its press conference announcing the current lawsuit, the county explained that the state’s voluntary approach won’t provide the “sweeping reforms we need.” On the other hand, the Ohio Farm Bureau has argued that the TMDL process for Lake Erie can take years longer and be less comprehensive than the voluntary practices farmers are pursuing. Still others believe that more research will help us fully understand the phosphorous problem and identify solutions.
As battles continue over the best approach to improving Lake Erie’s water quality, maybe all could at least agree that litigation is costly, in many ways. An alternative but perhaps more challenging path would be appreciation of the concerns on both sides of the issue and cultivation of collaborative solutions. Let’s hope we can find that path. In the meantime, we’ll keep you up to date on the continuing legal battles over water quality in Lake Erie.
Read the complaint in Board of Lucas County Commissioners vs. U.S. EPA here.
Tags: Lake Erie, western basin, TMDLs, Lucas County, phosphorous runoff, agricultural nutrients
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by Ellen Essman, Sr. Research Assoc., Agricultural & Resource Law Program
The saga of Ohio’s designation of impaired waters continues. Readers will recall previous posts on the Ag Law Blog detailing lawsuits against the U.S. EPA for failing to approve or disapprove Ohio’s 2016 list of impaired waters within the time limit required by law. Those posts are available here and here. Eventually, on May 19, 2017, the EPA accepted the Ohio EPA’s list of impaired waters, which did not include the open waters of Lake Erie’s western basin. Our blog post regarding that decision is here. That, however, was not the end of the story. In a letter to the Ohio EPA dated January 12, 2018, the U.S. EPA withdrew its May 2017 approval of Ohio's impaired waters list and asked Ohio to compile additional data for a new evaluation of Lake Erie.
What’s the issue?
Why has Ohio’s 2016 list of impaired waters been so hotly contested? Understanding this situation requires a little bit of background information. An EPA regulation created under the federal Clean Water Act (CWA) requires that states submit a list of impaired waters every two years. "Impaired waters" are those water bodies that do not or are not expected to meet the water quality standards for their intended uses. Designating a water body as impaired triggers a review of pollution sources, determinations of Total Maximum Daily Loads (TMDLs) of pollutants, and an action plan for meeting TMDLs.
After a state submits its impaired waters list, the EPA must approve or disapprove the designations within 30 days. In the case of Ohio’s 2016 list, Ohio did not include the open waters of the western basin of Lake Erie on its impaired waters list and the EPA delayed acting on the list until far beyond the 30 day mark. On the other hand, Michigan listed all of the waters of Lake Erie within its jurisdiction as impaired, which included the open waters in the western basin of Lake Erie. By approving both Ohio’s list and Michigan’s list, the EPA was agreeing to two different designations for what could essential be the same water in the same area of Lake Erie. As a result of this discrepancy, environmental groups brought a federal lawsuit against the EPA.
EPA withdraws approval
The EPA’s recent letter to Ohio could possibly have been prompted by the lawsuit mentioned above. In its letter, the EPA withdrew its May 2017 approval...”specifically with respect to the open waters of Lake Erie.” The agency states that Ohio’s 2016 submission failed to assemble and evaluate existing data and information related to nutrients in the open waters of Lake Erie, and directs Ohio to reevaluate available data and information by April 9, 2018.
Going forward
The controversy over Ohio’s 2016 designation of impaired waters has gone on so long that it's now time for a new list. Ohio must submit a 2018 designation of impaired waters to the EPA by April 1, 2018. It is very likely that the withdrawal of approval for the 2016 list will affect which waters Ohio designates as impaired on its 2018 list, particularly in regards to the western basin of Lake Erie.
The withdrawal of approval could also affect the outcome of the current lawsuit against the EPA. The environmental groups plan to persist with the lawsuit even in light of the EPA’s withdrawal. It will be interesting to see who the District Court sides with, given the fact that the EPA has now taken steps to resolve the discrepancy at the heart of the lawsuit.
The letter from the U.S. EPA to the Ohio EPA is available here.
Tags: Lake Erie, western basin, impaired waters, EPA, nutrients
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EPA reaches decision on Ohio’s list of impaired waters
Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
The United States Environmental Protection Agency (EPA) has finally rendered a decision on Ohio’s list of impaired waters following several months of delay and two lawsuits filed to compel the EPA to make a decision. (For a background on impaired waters and the two lawsuits, check out our previous blog posts here and here.) On May 19, 2017, the EPA decided to accept the Ohio EPA’s proposed list of impaired waters for the State of Ohio. Ohio’s list does not include the open waters in the Western Basin of Lake Erie. However, the State of Michigan’s list of impaired waters previously approved by the EPA does include the open waters in its portion of the Western Basin of Lake Erie.
The EPA explained that the agency deferred to Ohio's judgment not to include the open waters of the Western Basin of Lake Erie on the impaired waters list. "EPA recognizes the State's ongoing efforts to control nutrient pollution in the Western Basin of Lake Erie," stated Chris Korleski, EPA's Region 5 Water Division Director and previously Ohio's EPA Director. "EPA understands that Ohio EPA intends to evaluate options for developing objective criteria (e.g., microcystin or other metrics) for use in making decisions regarding the Western Basin for the 2018 list. EPA expects the development of appropriate metrics, and is committed to working with you on them."
For now, the EPA appears satisfied with Ohio's plan for addressing nutrient reductions in Lake Erie's Western Basin. It is possible, however, that additional lawsuits could be filed against the EPA in order to reconcile Ohio and Michigan's different designations of water in the same general area.
Read the EPA's Approval of Ohio's Submission of the State's Integrated Report with Respect to Section 303(d) of the Clean Water Act here.
Tags: Lake Erie, impaired waters, western basin, EPA, agricultural nutrient management
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Groups sue EPA over lack of impaired waters decision
Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
The National Wildlife Federation (NWF) and five other environmental and outdoor groups (Plaintiffs) sued the United States Environmental Protection Agency (EPA) last week in the U.S. District Court for the District of Columbia. The Plaintiffs filed the lawsuit due to EPA’s failure to approve or disapprove the list of impaired waters submitted by the Ohio Environmental Protection Agency (OEPA) within the time limit required by law. The Plaintiffs are particularly concerned that the EPA’s lack of a decision on the impaired waters list may affect pollution in Lake Erie’s waters.
A background on impaired waters designation
In 1972, Congress made amendments to the Federal Water Pollution Control Act of 1948. The result was what we know today as the Clean Water Act (CWA). The very first section of the CWA states: “[t]he objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” In order to meet that objective, the CWA sets forth “effluent limitations,” or in other words, the amount of pollution allowed to be discharged. Polluters have different effluent limitations dependent on a number of variables. The states are to “identify” the waters where the “effluent limitations [from certain polluters] are not stringent enough” to meet water quality standards. The specific polluters to be examined are: 1) point sources, and 2) public treatment works either in existence on July 1, 1977 or approved under the CWA before June 30, 1974. For reference, point sources are defined as “any discernable, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” Point sources are not “agricultural stormwater discharges and return flows from irrigated agriculture.”
Those waters that states identify as not having stringent enough effluent limitations for point sources and public treatment works are called “impaired waters.” Along with the identification of impaired waters, states must also put forth total maximum daily loads (TMDLs), or the amounts of each kind of pollutant allowed. The CWA in its entirety is available here.
A regulation promulgated by the EPA under CWA mandates that states submit the list of waters they determine to be impaired every two years. The list must include a description of the “pollutants causing impairment” and their total maximum daily loads (TMDLs). The same regulation requires the EPA “to approve or disapprove such listing and loadings not later than 30 days after the date of submission.”
On October 20, 2016, OEPA submitted its list of impaired waters in the Ohio Integrated Water Quality Monitoring and Assessment Report, available here . The list of impaired waters included parts of Lake Erie, namely the Lake Erie Central Basin Shoreline and the Lake Erie Islands Shoreline. Significantly, OEPA did not include the open waters of the western basin of Lake Erie on its list. The EPA has not responded to Ohio’s list by approving or disproving its listings.
Michigan submitted its impaired waters list in November 2016 and the EPA approved the report on February 3, 2017. Michigan listed the entirety of the Lake Erie waters in the state’s jurisdiction as impaired. This would include Michigan’s share of open waters in the western basin of Lake Erie. Michigan’s report is here.
The current lawsuit
As discussed above, six environmental and outdoor groups based in Ohio, Michigan and Illinois sued the EPA and its national and Region 5 administrators for the lack of a decision on OEPA’s list of impaired waters. The EPA was required to make the decision within 30 days of October 20, 2016. The Plaintiffs gave the EPA prior warning of their intention to sue in a notice sent on December 19, 2016. Since then, the EPA still has not come to a decision about Ohio’s list of impaired waters.
The crux of this lawsuit is the difference between Ohio and Michigan’s listings of waters in the same general area—the Western Basin of Lake Erie. Michigan listed the basin as impaired and Ohio did not. The Plaintiffs argue that the “inaction” on the part of the EPA “allows pollution… to continue unabated” throughout Lake Erie. Implicit in the Plaintiffs’ argument is that it seems unlikely that the EPA would allow one state to designate their Lake Erie water as impaired while the other state does not since water does not necessarily stay within state boundaries. The Plaintiffs appear to anticipate that EPA, when forced to make a decision, will disapprove of Ohio’s listing. Consequently, TMDLs could be established for greater areas of the Lake and water quality would likely be improved for the use and enjoyment of the Plaintiffs and their members.
What would a disapproval of OEPA’s list mean for Ohio?
If the court compels EPA to make a decision and EPA decides that OEPA was wrong to exclude the open waters of the Western Basin of Lake Erie as impaired, EPA regulations give the EPA the authority to take action within thirty days. EPA actions would include identifying the waters as impaired and instituting the allowable TMDLs necessary to implement applicable water quality standards. After a public comment period and potential revisions to EPA’s actions, it would be up to the state of Ohio to meet the EPA’s TMDLs for the impaired waters.
What would a listing as impaired mean for Ohio residents—individuals, farms, and companies? It would probably mean increased regulations, likely in the form of reduced allowable loads of pollutants from the point sources and public treatment works discussed above. Time, effort, and money might be necessary to comply with such changes. Regulations and TMDLs might affect more Ohioans than before, since OEPA designated parts of Lake Erie as impaired but not others.
On the flip side, increased regulation could mean better water quality in Lake Erie for drinking, sport, and other uses. For now, Ohioans and others who use Lake Erie’s waters or are located in areas that drain to the Lake will have to wait for the federal court to act on the lawsuit.
The full complaint in National Wildlife Federation v EPA is available here.
Tags: Lake Erie, water quality, western basin, impaired waters, EPA
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Ohio’s Senate and House of Representatives have agreed upon a final bill intended to control algae production in Lake Erie and its western basin. Senate Bill 1, as amended by the House, passed both chambers on March 25 and now awaits Governor Kasich’s signature. (Post note: Governor signed the bill on April 2, 2015; its effective date is July 3, 2015).
The law will regulate manure and fertilizer applications in the western basin of Lake Erie, require monitoring of phosphorous for certain publicly owned treatment works, regulate the placement of dredged materials in Lake Erie and its tributaries, change how the Healthy Lake Erie Fund may be used and establish agency coordination and research on harmful algae management and response.
In regards to fertilizer and manure applications, the legislation includes two new amendments that were not part of the original bills passed earlier by the Senate and House:
- Certification requirements for persons using manure from CAFFs. To utilize manure from a concentrated animal feeding facility that is regulated under ODA’s Division of Livestock Environmental Permitting, a person must hold either a Certified Livestock Manager license or certification under Ohio’s new fertilizer applicator certification program. The provision pertains only if applying the manure for agricultural production on more than 50 acres. This language closes the proclaimed “loophole” that allowed persons to receive and apply manure from a livestock facility without being subject to the same regulations as the facility. ORC 903.40.
- Exemptions for small and medium operations. Small and medium agricultural operations may apply for a temporary exemption from the law’s restrictions on manure applications. The chief of the division of soil and water resources may grant an exemption of up to one year for a medium agricultural operation and up to two years for a small operation, if the operation is working toward compliance. An exempted operation may request technical assistance to reach compliance, and will not be subject to civil penalties for violations. The law defines small and medium agricultural operations in the same way as the Livestock Environmental Permitting program, based on the number of livestock according to species. ORC 1511(D).
Other changes to the final bill include a removal of a five-year sunset provision and attempts to address lead contamination. The final bill contains the following provisions:
Fertilizer application restrictions in the western basin
For applications of fertilizer in the western basin, a person may not apply fertilizer, defined as nitrogen or phosphorous, under these conditions:
(1) On snow-covered or frozen soil, or
(2) When the top two inches of soil are saturated from precipitation, or
(3) In a granular form when the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one inch in a twelve-hour period,
unless the fertilizer is injected into the ground, incorporated within 24 hours of surface application or applied onto a growing crop.
Small and medium operations may apply for a temporary exemption from the restrictions, as explained above. The ODA will have authority to investigate complaints of potential violations and to assess penalties for violations, which may not exceed $10,000 for each violation.
Manure application restrictions in the western basin
A person may not surface apply manure in the western basin under any of the following circumstances:
(1) On snow-covered or frozen soil;
(2) When the top two inches of soil are saturated from precipitation;
(3) When the local weather forecast for the application area contains greater than a 50% chance of precipitation exceeding one-half inch in a 24 hour period.
unless the manure is injected into the ground, incorporated within 24 hours of surface application, applied onto a growing crop, or if in the event of an emergency, the chief of the division of soil and water resources or the chief's designee provides written consent and the manure application is made in accordance with procedures established in the United States department of agriculture natural resources conservation service practice standard code 590 prepared for this state.
Small and medium operations may apply for a temporary exemption from the restrictions, as explained above. The ODA will have authority to investigate complaints of potential violations and to assess penalties for violations, which may not exceed $10,000 for each violation.
Applications of sewage sludge
In issuing sewage sludge management permits, the director of Ohio EPA may not allow the placement of sludge on frozen ground.
Agency responsibilities for harmful algal management and response
- The law appoints the director of the Ohio EPA or his/her designee to serve as the coordinator of harmful algae management and response.
- Requires the Director of Environmental Protection to consult with specified state and local officials and representatives to develop actions that protect against cyanobacteria in the western basin and public water supplies and that manage wastewater to limit nutrient loading into the western basin.
- Requires the Director to develop and implement protocols and actions regarding monitoring and management of cyanobacteria and other agents that may result in harmful algal production.
Healthy Lake Erie Fund
The fund shall now be used in support of conservation measures in the western basin as determined by the director of ODNR; for funding assistance for soil testing, winter cover crops, edge of field testing, tributary monitoring and animal waste abatement; and for any additional efforts to reduce nutrient runoff as the director may decide. The director must give priority to recommendations that encourage farmers to adopt agricultural production guidelines commonly known as 4R nutrient stewardship
Phosphorous monitoring for publicly owned treatment works
- Requires certain publicly owned treatment work to begin monthly monitoring of total and dissolved phosphorous by December 1, 2016.
- Requires a publicly owned treatment works that is not subject to a specified phosphorous effluent limit on the bill's effective date to complete and submit an optimization study that evaluates its ability to reduce phosphorous to that limit.
Dredged material in Lake Erie and tributaries
- Beginning on July 1, 2020, prohibits deposits of dredged material from harbor or navigation maintenance activities in Ohio’s portion of Lake Erie and direct tributaries of the lake unless authorized by the Director of Ohio EPA.
- Allows the Ohio EPA Director to authorize a deposit of dredged material for confined disposal facilities; beneficial use; beach nourishment; placement in the littoral drift; habitat restoration and projects involving amounts of dredged material of less than 10,000 cubic yards.
- Requires the Ohio EPA Director to endeavor to work with the U.S. Army Corps of Engineers on long-term planning for the disposition of dredged materials.
Implementation review
The final version of the legislation requires a review three years after the law’s effective date by the appropriate House and Senate committees, who must assess the results of implementing the new measures and issue a report of their findings and recommendations for revisions of repeal to the Governor.
Transfer of Agricultural Pollution Abatement Program
The law declares that the legislature intends to enact legislation to transfer the Ohio Agricultural Pollution Abatement Program from ODNR to ODA by July 1, 2015.
The bill is now awaiting action by Governor Kasich. The final version of the legislation and accompanying documents are available here.
Tags: algae, algae legislation, fertilizer application, manure application, Lake Erie, western basin
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