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Environmentalists Hopeful Judge Will Set New Limits On Lake Erie Pollutants

An aerial view of harmful algal blooms in the western portion of Lake Erie in September 2017. [Aerial Associates Photography / Zachary Haslick / NOAA Great Lakes Environmental Research Laboratory]
An aerial view of harmful algal blooms in the western portion of Lake Erie in September 2017.

Advocates of stricter fertilizer rules for Ohio’s farms are hopeful an upcoming court decision will better protect Lake Erie from future algae blooms.

After a lengthy and detailed denial from a federal judge in Toledo on a request to dismiss a case regarding pollution discharges into Lake Erie, the Environmental Law and Policy Center (ELPC) is cautiously optimistic it will get a ruling forcing the Ohio Environmental Protection Agency to institute a total maximum daily load (TMLD) for industrial farms.

TMDLs are the maximum amount of a pollutant that can end up in a body of water. In the underlying lawsuit, the ELPC and Advocates for a Clean Lake Erie are asking a judge to green light a plan for measurable progress and a timeline for reducing phosphorus pollution in western Lake Erie. Phosphorus, mostly from agricultural manure and fertilizer runoff is the primary cause of harmful algal blooms in the lake.

“Judge [James] Carr has made clear here that TMDLs, enforceable regulatory standards, are required under the Clean Water Act,” said ELPC Executive Director Howard Learner. “It's not an option, it's a legal obligation.

“He made clear that under the Clean Water Act, that's the required remedy,” Learner said. “He explained the law. He explained the facts and he set this up now for the court to move forward with a motion for summary judgment.”

The Ohio EPA’s plan, which has been approved by the federal EPA, did not contain a total maximum daily load and switched western Lake Erie from a high priority to a low priority for action, Learner said.

“Which, in light of the severe toxic algae blooms, is quite unfortunate and, we believe, not supported by the facts,” Learner said.

The Ohio EPA argued it is bound only by the Great Lakes Water Quality Agreement rather than the Clean Water Act, which contains TMDL guidelines.

Learner says his group has had professionally cordial communication with Gov. Mike DeWine and the Ohio EPA.

“It's time for Gov. DeWine and Ohio state agencies to step up and get moving with enforceable regulatory standards, namely TMDLs, that are required, important and necessary in order to achieve the pollution reductions that can lead to a cleaner western Lake Erie,” Learner said.

Learner says ELPC quickly file for a summary judgment and they're hopeful a final decision will come in early 2020 before the heavy runoff season.

A U.S. EPA spokesperson said the agency does not comment on pending litiigation.

Glenn Forbes is supervising producer of newscasts at Ideastream Public Media.