western basin
A new chapter is developing in the legal battle over resolving water quality problems in the Western Lake Erie Basin. Earlier this month, the Lucas County Board of Commissioners, City of Toledo, and Environmental Law & Policy Center filed a federal lawsuit against the U.S. Environmental Protection Agency (EPA). The lawsuit targets the EPA’s approval of Ohio’s Total Maximum Daily Load (TMDL) plan for the Maumee River Watershed. If it feels like déjà vu, that’s because it is. In the ten years since Toledo experienced a drinking water crisis caused by harmful algal blooms in the Western Basin, there have been four federal lawsuits demanding a plan for improving water quality in the lake and a legal battle to protect the lake with a “Lake Erie Bill of Rights.”
The current litigation arises from a 2023 settlement agreement that led the Ohio EPA to create the TMDL for the Maumee River Watershed. A TMDL establishes a framework for future decisions that affect water quality by identifying the links between sources of impairment and pollutant load reductions necessary to reduce impairment and attain water quality standards. The EPA reviewed and approved Ohio EPA’s Maumee River WatershedTMDL last year, against opposition from environmental groups and the parties in the current lawsuit. That approval of the TMDL is the source of the new lawsuit.
According to the plaintiffs, the EPA should not have approved the Maumee River Watershed TMDL because it “will not remediate Lake Erie.” The parties claim that the plan “fails to limit pollution caused by dissolved reactive phosphorus and does not meaningfully address the concentrated feeding operations, or CAFOs, that are responsible for polluting the watershed.” In support of their argument, the parties cite the following five “legal defects” in the plan, each an alleged violation of the Clean Water Act:
- Failure to set Dissolved Reactive Phosphorous (DRP) limits.
- Failure to set an adequate “margin of safety” that accounts for lack of knowledge about the relationship between effluent limitations and water quality.
- Failure to assign waste load allocations to discharging CAFOs.
- Failure to apportion load allocations to all nonpoint sources.
- Inadequate implementation plan and failure to provide reasonable assurances.
The lawsuit asks the federal court to vacate the current Maumee River Watershed TMDL and order the EPA to prepare a new TMDL that “will actually clean up Lake Erie.”
What does this mean for Ohio agriculture?
If the plaintiffs are successful, the lawsuit could result in the preparation of a new TMDL for the Western Basin. The current Maumee River Watershed TMDL plan prepared by the Ohio EPA encourages an “adaptive management” approach for agricultural activities, based on voluntary adoption of management practices coupled with monitoring and progress evaluation. A new TMDL could more directly affect agricultural activities, particularly if the EPA agrees with the plaintiffs’ arguments that the TMDL should assign waste load allocations to discharging CAFOs and apportion load allocations to all nonpoint sources. But remember that the EPA approved the current TMDL plan, suggesting that the agency will not be inclined to make significant alterations if the court orders it to prepare a new plan.
Other than the possibility of a new TMDL, the lawsuit does not directly affect agricultural operations right now. It does not name any specific farms or bring them into the litigation. The lawsuit does not affect current voluntary efforts to reduce water quality impacts, such as H2Ohio.
Nor is the litigation likely to generate additional lawsuits against agricultural operations that currently comply with all applicable laws, a question we've heard from some producers in the Maumee River watershed. Several Ohio laws provide defenses to such lawsuits and those laws will continue to be in effect throughout the federal litigation, unless the Ohio legislature makes any changes to the laws. Those legal defenses, explained in our law bulletin on “Laws that Provide Defenses for Agricultural Production Activities,” apply to operations that meet the specific requirements of the laws and include:
- The Fertilizer Applicator Certification Training (FACT) defense for claims involving the application of nitrogen, phosphorous, potassium and plant nutrients.
- The Right to Farm Law defense and exemption from Statutory Nuisance for allegations that agricultural activities are creating a nuisance that unreasonably interferes with health, comfort, or property rights.
- The Ohio Agricultural Pollution Abatement Law for nuisance claims involving “agricultural pollution,” defined as the failure to use practices to abate erosion, or degradation of waters of the State by residual farm products, manure, or soil sediment.
- The Confined Animal Feeding Facilities (CAFF) defense for nuisance claims against farms operating under a CAFF permit.
What happens next?
The EPA is likely to respond to the complaint with a request that the federal court dismiss the claim, and we probably won’t see a decision on that request before the end of the year. If the court declines to dismiss the case, the plaintiffs must then convince the court that the current TMDL plan does not comply with the Clean Water Act. Arguments will focus on the five legal defects presented by the plaintiffs. As has been true for the previous litigation, a decision would take a year or more. Yet again, we await the outcome of a Lake Erie lawsuit.
It was a long time coming, but the Ohio EPA has presented a final Total Maximum Daily Load (TMDL) report for the Western Basin of Lake Erie to the U.S. EPA. The agency submitted the “Maumee Watershed Nutrient TMDL ” report on June 30, 2023. This was the exact deadline agreed to in the Consent Decree that settled litigation against the U.S. EPA and Ohio EPA over the lack of a TMDL for Lake Erie’s Western Basin.
What is a TMDL?
A TMDL provides a framework for future decisions that affect water quality in waters designated as “impaired waters” that fail to meet water quality standards. The Ohio EPA declared Western Lake Erie waters as “impaired” in 2018, and the TMDL is the plan for addressing shoreline and open water impairments in the basin. According to the Ohio EPA, the TMDL report “identifies the links between the waterbody use impairment, sources of impairment, and the pollutant load reductions needed to meet water quality standards.”
How will it affect Ohio agriculture?
A major source of the impairment in the Lake Erie Western Basin is cyanobacterial harmful algal blooms caused by high phosphorus loads. The report identifies many sources of phosphorus that contribute to the impairment, with the largest component being “nonpoint” sources that include row crop commercial fertilizers and manures. “Point” sources of phosphorous sources include water treatment facilities; stormwater discharges; and home sewage treatment systems. The TMDL calls for phosphorus load reductions in the Maumee watershed to remedy the lake’s impairment. Agriculture would be affected by increased emphasis on management practices for agricultural fertilizers, manures, soils, and drainage.
How does the TMDL address phosphorus reductions?
The TMDL embraces an “adaptive management” approach that involves developing strategies, establishing milestones, implementing strategies, monitoring environmental responses, evaluating progress, and adjusting strategies. For row crops, the report focuses on management practices such as soil testing and developing a nutrient management plan. It proposes other agricultural phosphorous reductions from soil erosion management, increasing cropping diversity through rotations and cover crops, reductions of phosphorus applications, edge-of-field management, two-stage ditch designs, and controlled drainage. The report points out that many of the proposed actions have already been underway on farms in the watershed for over a decade, and monitoring, evaluations, and adjustment strategies will continue the progress made to-date. Figure 50 in the report, below, highlights phosphorous reduction strategies.
What happens next?
The U.S. EPA now must review the TMDL and decide whether to approve or disapprove the report. It has up to 90 days to do so, according to the Consent Decree. If the U.S. EPA does not approve the TMDL report, it must then prepare a TMDL for the Western Basin.
How to learn more
Read the Maumee Watershed Nutrient TMDL on the Ohio EPA website, which also includes a fact sheet, appendices, and a summary of responses to public comments on the draft TMDL.
Tags: Lake Erie, tmdl, western basin, harmful algal blooms, water quality, EPA
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What is the key to resolving disagreements over water quality issues in Lake Erie? Cooperation, according to the federal court judge overseeing a legal battle over Lake Erie. The judge, U.S. District Judge James G. Carr, recently approved a plan that is the result of cooperation between the U.S. EPA, State of Ohio, Lucas County Commissioners, and the Environmental Law & Policy Center. For almost six years, the parties have been in a legal battle over how to deal with water quality in Western Lake Erie. But at the encouragement of the court, the parties developed and agreed to a Consent Decree to settle the case. Judge Carr approved the Consent Decree on May 4, 2023. Time will soon tell if the cooperation approach will satisfy the parties holding interests in Lake Erie’s water quality.
What led to the Consent Decree?
In the midst of growing concerns about harmful algal blooms and water quality in Western Lake Erie, the Environmental Law & Policy Center and Lucas County Commissioners filed a lawsuit against the U.S. EPA, claiming that the federal agency had failed its obligations to oversee Ohio’s duties to meet water quality standards under the Clean Water Act (CWA). The CWA requires states to identify waters that do not meet water quality standards and designate them as “impaired waters.” Once it lists a water as impaired, the state must also rank which waters have the highest need for determining Total Maximum Daily Loads (TMDLs) that set maximum amounts of pollutants that may enter the water. TMDLs provide a framework for future decisions that affect water quality in the impaired water.
Following a separate lawsuit that challenged Ohio EPA’s designation of some but not all waters in Western Lake Erie as impaired, Ohio EPA assigned impaired water status to all Western Lake Erie waters by 2018. But Ohio identified the waters as a “low” TMDL priority and stated that it would address water quality the western basin through “alternative measures” rather than preparation of a TMDL. The U.S. EPA, charged with reviewing state actions for compliance with the CWA, approved Ohio’s designation. The Environmental Law & Policy Center and the Lucas County Board of Commissioners each filed lawsuits against the U.S. EPA for approving Ohio’s approach, and the two lawsuits were consolidated into the current case. The State of Ohio, not an original party to the litigation, received the court’s permission to intervene as a defendant in the lawsuit.
Several years and many motions and hearings later, Judge Carr admonished both sides of the lawsuit for dragging the matter out in court and leaving Lake Erie’s water quality problem “largely unattended.” In 2021, before considering separate summary judgment motions the parties had made, the Judge pointed out that no matter his decision, the other party would appeal it and continue the litigation and that “nothing is going to get done.” Resolving the problems in Lake Erie would only happen if the U.S. EPA, the plaintiffs, and the State of Ohio would “work cooperatively towards accomplishing a meaningful outcome and resolution,” Judge Carr stated. His resolution on the summary judgment motions would only “kick the can down the road for another two years, at least...” A better solution, said Judge Carr, would be for the parties to resolve the matter through settlement.
With the court’s oversight, the parties engaged in settlement negotiations for nearly two years. They reached an agreement in 2022. As required by law, the U.S. EPA filed the proposed agreement, or Consent Decree, in the Federal Register last November and sought public comments to the proposal. The parties then filed a joint motion to the court, asking Judge Carr to approve the proposed Consent Decree.
The Consent Decree
The Consent Decree outlines a timeline Ohio EPA must follow to create a TMDL designed to address nutrient and algae impairments for drinking water, aquatic life, and recreational uses by establishing pollutant limits for all Western Lake Erie waters. The agreement requires the plaintiffs to allow additional time for the U.S. EPA to step in and prepare a TMDL if Ohio fails in its efforts to do so. The Consent Decree also sets up a status report schedule and a dispute resolution process and awards attorney fees and costs to the Plaintiffs. The agreement does not address the legal sufficiency of the TMDL, and the plaintiffs still hold the right to challenge the legal sufficiency or adequacy of the TMDL. The Consent Decree will end upon performance of all obligations by all parties.
The following summarizes the steps of the agreed upon TMDL schedule.
Approval of the Consent Decree
Judge Carr’s role in reviewing the proposed agreement was to determine if it is “fair, adequate, and reasonable, as well as consistent with the public interest.” The parties’ submitted a joint motion in support of the Consent Decree that laid out their arguments as follows:
- The proposed agreement is fair because it was negotiated at length, in good faith, and in recognition of the strengths and weaknesses of each side.
- Because the proposed agreement addresses Defendant’s alleged violations by providing a schedule for developing a TMDL for Western Lake Erie, it is adequate and reasonable.
- The Consent Decree is in the public interest and furthers the goals of the Clean Water Act by providing for the timely development of a TMDL that will help “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” as intended by the Act. It also allows continued citizen rights to participate in the TMDL, does not alter existing regulations for TMDLs, and avoids significant time and expenses associated with ongoing litigation.
Judge Carr agreed with the parties’ arguments and approved the Consent Decree. In doing so, he praised the work of U.S. District Judge Polster, who oversaw the settlement negotiations, the lawyers for each party, and the State of Ohio. “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,” he stated. “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.”
What’s next?
Implementation of the Consent Decree schedule is already underway. The Ohio EPA issued a draft TMDL or “Nutrient Water Quality Improvement Plan for the Maumee River Watershed” on December 30, 2022, and is currently reviewing comments made during the public comment period that ended on March 8, 2023. The agency appears to be on schedule for meeting the June 30 deadline for submitting the TMDL to the U.S. EPA for its review. Information on the Draft TMDL is available at https://epa.ohio.gov/divisions-and-offices/surface-water/reports-data/maumee-river-watershed.
But is continued cooperation on the TMDL for Western Lake Erie possible? Both the plaintiffs in this case submitted comments on the draft TMDL, and both raised concerns about its “shortcomings.”
“The TMDL just proposes to keep doing the same things that have already failed, focused on voluntary measures and incentive payments to producers,” stated the Environmental Law & Policy Center in its comments, available at https://elpc.org/wp-content/uploads/2023/03/ELPC-Maumee-TMDL-comments-FINAL.pdf.
“It is critical that the draft TMDL not lack the necessary steps to reduce agriculture phosphorous runoff into Lake Erie and place limits on dissolved reactive phosphorous,” said Lucas County Commissioner Wozniak in comments summarized at https://co.lucas.oh.us/CivicAlerts.aspx?AID=1750. “We shouldn’t be fooled into settling for half measures and voluntary practices any longer. We are talking about the health of our most valuable resource, and we must have a meaningful TMDL to protect it.”
While the spirit of cooperation encouraged by Judge James G. Carr is at play in the development of a TMDL for Western Lake Erie, whether that spirit will thrive in the debate over the content and future implementation of the TMDL is a critical question. In the words of Judge Carr, how many more steps lie ahead, and how long they will take, is beyond even guessing. Let’s hope that more litigation isn’t one of those steps.
The Consent Decree is available through this link.
Judge Carr's Order on the Consent Decree is at this link.
Tags: Lake Erie, western basin, water quality, tmdl, EPA, nutrients
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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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