By Tom Henry
Sep 24, 2019
Despite millions of tax dollars spent during the last 24 years on voluntary incentives, a federal judge on Tuesday said he’s at a loss over what Ohio is doing to resolve western Lake Erie’s growing algae problem once and for all.
Senior U.S. District Judge James G. Carr, who is hearing a case brought by the Environmental Law & Policy Center and Lucas County commissioners over the cleanup strategy, said he knows Ohio agreed several years ago, in principle, with Michigan and Ontario to reduce algae-forming phosphorus 20 percent by 2020 and 40 percent by 2025.
Those goals were set under an annex to the Great Lakes Water Quality Agreement that the United States and Canada first signed in 1972. They are based on 2008 phosphorus releases, which scientists established as baseline because overall nutrient releases from farms and other sources that year were somewhat typical.
But those targets — now seen as unrealistic by most of the region’s phosphorus-tracking experts with 2020 just months away — are not mandates.
There’s no hard evidence to prove that what the state is doing now — courting voluntary cooperation from farmers with a suite of incentives aimed at reducing nutrient runoff — will ever work, and whether the need for more investigation and rules placed upon the agricultural industry, especially large livestock facilities known as concentrated animal feeding operations, or CAFOs, will ever go away, the judge said during what turned out to be a four-hour hearing on Tuesday.
“Part of the problem is the ambiguity we see from the state of Ohio. I don’t really understand what Ohio is saying,” Judge Carr said, explaining that he’s frustrated because he hasn’t been made aware of the signatories to that agreement and knows of no prescriptive plan to carry it out.
“We don’t know what Ohio is going to do come 2025 [if those targets aren’t met],” the judge said. “My point is I don’t know. The record doesn’t show me.”
Judge Carr is considering the federal government’s request to dismiss the lawsuit, a decision which likely won’t come for several more weeks. As the hearing concluded, he said he was giving attorneys about two more weeks to finish their arguments in writing.
The lawsuit is considered a potential turning point for western Lake Erie’s future.
Its outcome may decide if Ohio sticks with the voluntary farm incentives it has been offering for years or is forced to impose a mandatory set of restrictions through what’s known as a “total maximum daily load,” or TMDL program. It sets site-specific rules for nutrient releases, based on what farms and other businesses are releasing most of them.
Dozens of TMDLs have been written for impaired bodies of water across the United States, but mostly for smaller ones that are easier to manage. The largest is for the Chesapeake Bay, which has led local officials to say they believe that writing a TMDL for the open water of western Lake Erie could likewise be done.
The ELPC, a group of environmental lawyers based in Chicago with satellite offices throughout the Midwest, forced the administration of former Gov. John Kasich to legally declare western Lake Erie an impaired body of water in early 2018. It did so by suing the U.S. Environmental Protection Agency months earlier, claiming the federal agency erred by allowing Ohio to postpone action while approving a report from Michigan which had declared its much smaller portion of western Lake Erie as impaired.
Judge Carr told the group in court last year he wanted to handle the impairment and TMDL controversies as two separate cases. The ELPC refiled its demand for a TMDL this past February, stating in both cases it believes the U.S. EPA is violating the federal Clean Water Act through its reluctance to make the Ohio EPA develop such a program. In both lawsuits, the ELPC was joined by Toledo-based Advocates for a Clean Lake Erie.
In the latest case, Lucas County commissioners have become co-plaintiffs as well, and the cities of Toledo and Oregon have been recognized by the court as interested parties.
Rob Michaels, ELPC senior attorney, told Judge Carr there’s too much at stake to wait until 2025 to see if the latest round of voluntary incentives will work or if Ohio Gov. Mike DeWine’s newly enacted H2Ohio program will yield enough results.
The Ohio General Assembly has committed $172 million to the first two years of the governor’s program, which is mostly for encouraging better farming practices but also has money committed to other programs that could help reduce runoff, including $46 million for wetlands.
“The problem is getting worse,” Mr. Michaels told the judge. “The world isn’t sitting still. They’re permitting new CAFOs as we speak. Why should we accept and believe that these alternatives are going to do anything?”
National Oceanic and Atmospheric Administration records show at least six of the worst blooms on record have occurred since 2011. This year’s bloom, which is still out in the lake and won’t be characterized for weeks, is expected to go down as the fourth or fifth largest.
Dan Dertke, U.S. Department of Justice trial attorney, told Judge Carr the U.S. EPA and the Ohio EPA never ruled out the possibility of a TMDL, although he conceded both have been reluctant to embrace that program for western Lake Erie.
“Ohio has not refused,” he said. “The state might just not be ready to do a TMDL.”
Mr. Michaels referenced a recent Ohio EPA document which states a TMDL for Lake Erie is a low priority for the agency, even though fixing the algae problem is one of its highest priorities. He said he believes the state agency is “doubling down on its refusal to do a TMDL.”
Fritz Byers, an attorney who represented Lucas County commissioners in the courtroom, told the judge that state and federal regulators should not be allowed to circumvent requirements of the Clean Water Act by playing “word games.”
“The law requires to take into consideration the severity of the waters,” he said.
Algal outbreaks have occurred in western Lake Erie for decades. But the modern era began in 1995 when the first bloom since the early 1970s was found. Scientists thought back then the blooms might be gone for good because the Clean Water Act, passed in 1972, ushered in a new era of sewage treatment and eventually led to a ban on phosphates in laundry detergent.
The dominant algal species of western Lake Erie most summers are microcystis, which produces a potentially deadly toxin called microcystin that is on the rise all over the world and is known to attack the human liver.
Some 75 people died of it in 1995 at a kidney dialysis center in Brazil, and many pets, especially dogs, have succumbed to it in the United States, including this summer.