Though hailed as a rare victory for environmentalists, the Kasich administration’s reversal on the western Lake Erie impairment issue is only a “key first step” in litigation that may keep the state of Ohio tied up in court for years over cleanup strategies, according to the Chicago-based legal advocacy group that forced the administration’s hand on the issue.
Howard Learner, Environmental Law & Policy Center executive director, told The Blade less than five hours after the governor’s dramatic change of-heart was made public Thursday that his group’s U.S. District Court lawsuit against the U.S. Environmental Protection Agency is anything but over. The ELPC brought the case on behalf of Toledo-based Advocates for a Clean Lake Erie, which was founded in response to the city’s 2014 water crisis by activist and former city councilman Mike Ferner.
Mr. Learner said he wants the court to retain jurisdiction over the case, and that his group will seek remedies and enforceable timelines for western Lake Erie from Judge James Carr, who is hearing arguments.
Judge Carr, he said, is still expected to issue a ruling over the U.S. EPA’s role in the impairment controversy this April or May. He said the judge will be asked to address the ELPC’s claim that the federal EPA’s original actions as a regulator were “arbitrary and capricious” when it allowed Ohio to go without an impairment designation while, at the same time, approving Michigan’s plan. Unlike Ohio’s, Michigan’s plan had an impairment designation for the same body of water.
“This [impairment designation by the state of Ohio] is a key first step by the Ohio EPA in recognizing the reality that western Lake Erie is impaired by pollution. Next, clear steps must be taken by the U.S. EPA and the Ohio EPA to address it,” Mr. Learner said.
Western Lake Erie — the warmest, shallowest, and most biologically diverse and dynamic part of the Great Lakes region — has been plagued by various species of algae for decades. Blade archives show some forms of it existed at least as far back as the 1930s.
Much of the problem before the federal Clean Water Act was enacted in 1972 came from point sources, especially sewage treatment plants. That problem has largely been addressed by the modern era of sewage treatment, which came after the CWA took effect.
In recent years, the main culprit has been nonpoint sources, mostly agricultural runoff that is much more diffuse and harder to track than what comes out of a sewage pipe.
Experts once thought the improvements made in the 1970s would keep algae suppressed for good. But since 1995, the lake’s open water has been chronically plagued by a type of algae known as microcystis, which — at 3.5 billion years old — is one of Earth’s oldest-living organisms but was often a runner-up to other types of algae until 23 years ago.
An impairment designation for a lake that has been plagued by algae outbreaks on and off throughout modern times may sound like over-the-top government minutia.
But it’s important in legal circles because it now means the full powers of the federal Clean Water Act must be used to restore western Lake Erie to health. That includes a requirement for Ohio and Michigan to set up what’s known as a “total maximum daily load,” or TMDL. In short, that will put a cap on how much fertilizer can enter the western basin’s rivers and streams, and will be used to better pinpoint sources of pollution on an individual basis.
The U.S. EPA and the Ohio EPA have thus far engaged in a “shell game” by passing responsibility for the lake back and forth, Mr. Learner said.
“The state of Ohio needs to do a TMDL for the Maumee River basin area and enforce protection standards,” he said. “That’s the next critical step.”
Though the Ohio EPA is not the target of the ELPC’s lawsuit, it has felt heat from it because of how it works in tandem with the U.S. EPA, the prime defendant. Other defendants include U.S. EPA Administrator Scott Pruitt, and acting U.S. EPA Region 5 chief Robert Kaplan, who has since been replaced by Cathy Stepp, Region 5’s new administrator. In her role, Ms. Stepp manages the U.S. EPA’s Great Lakes National Program. Region 5 oversees the Great Lakes states of Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin, as well as 35 federally recognized tribal governments.
A turning point in the case came in January, when the U.S. EPA reversed course and said it had erred by approving a list of impaired bodies of water the Ohio EPA submitted on Oct. 20, 2016, an exercise done once every two years. The federal EPA said that, upon further examination, Ohio’s list was “incomplete and thus not fully consistent with the requirements” of the federal Clean Water Act and U.S. EPA regulations in general.
The Kasich administration steadfastly held tight to its policy of favoring agricultural programs with voluntary incentives over stronger regulations. But several people interviewed said at that point it was clear Ohio wasn’t picking up on the federal government’s signals.
“Clearly, the ELPC lawsuit has spurred the U.S. EPA and the Ohio EPA has responded,” Mr. Learner said.
He said the ELPC wants the court to retain jurisdiction so that Ohio’s program for addressing western Lake Erie becomes more meaningful and enforceable.
“We are entitled to the certainty going forward. We don’t want to be in the middle of a procedural shell game,” Mr. Learner said. “We’re not dealing with a theoretical issue here. We’re dealing with a practical problem.”
He said his group will seek a court order that addresses phosphorus and nitrogen. Both are common fertilizers. But most of the programs to date — including the non-binding goal of a 40 percent nutrient reduction by 2025 embraced by Ohio, Michigan, and Ontario — were written for phosphorus.
Phosphorus is most closely linked to algae growth, but nitrogen is more closely linked to its toxicity. Nitrogen also is the driver behind the dominant species of algae in Lake Erie’s Sandusky Bay, planktothrix. Both it and microcystis produce the same toxin, microcystin.
“It’s not that pollution has to be reduced to zero,” Mr. Learner said. “The purpose is to reduce it to the point in which the water isn’t impaired.”
He said it’s “pretty clear the litigation forced the hand of the U.S. EPA and the Kasich administration.”
“Do I think they would have done what they’re doing without a lawsuit being filed?” Mr. Learner asked. “No.”
Lucas County Commission President Pete Gerken agreed.
“I think they were about to lose in federal court,” Mr. Gerken said. “They wanted to make the designation before they were told to do that.”
He and the other two county commissioners — Tina Skeldon Wozniak and Carol Contrada — were among the first government officials calling for an impairment designation.
Former Mayor Paula Hicks-Hudson resisted until last September, about six weeks before the election last November in which she lost to Mayor Wade Kapszukiewicz. She declined despite heckling and protesting by Mr. Ferner and his group members, including a high-profile incident outside One Government Center in which Mr. Ferner put algae-infested water and dead fish into the government building’s public fountain.
Mr. Kapszukiewicz supported an impairment designation throughout his campaign, and said the day before he announced his candidacy that he would consider joining the ELPC in its lawsuit if elected.
Ms. Hicks-Hudson said her change of heart came after seeing an unusual bloom in the Maumee River anchored off Promenade Park, just as a major regatta sponsored by ProMedica was about to begin. She said she was disheartened by the sight of the scum, especially in a part of downtown that is to symbolize the city’s rebirth.
For Ms. Skeldon Wozniak, the impairment designation will mean more accountability.
She said Ohio can take its lead from the Chesapeake Bay, the largest ecosystem operating under a TMDL program. It involves multiple states.
“This plan has accountability and teeth,” Ms. Skeldon Wozniak said.
Ms. Contrada, a lawyer, said the Clean Water Act “acts for the people,” and that the writing was on the wall for the Kasich administration once the U.S. EPA changed course in January.
“It gave a road map to the Ohio EPA to follow,” she said. “It really takes a multitude of voices to move a bureaucracy.”