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Ohio must put Lake Erie on ‘pollution diet’ under settlement terms by Garrett Ellison

TOLEDO, OH — The state of Ohio must develop a mandatory cap on algae-fueling nutrient pollution entering Lake Erie under the terms of a proposed court settlement.

Public comment is being taken until Dec. 12 on a federal consent decree that would force Ohio to create a new plan for curbing nutrient runoff from farms and livestock operations by developing a Total Maximum Daily Load (TMDL) for the Maumee River watershed.

TMDLs are known as “pollution diets” and are created for impaired waterbodies to identify how much pollution they can handle before water quality suffers too much.

Under the negotiated deal terms, the Ohio Environmental Protection Agency (Ohio EPA) has until June 30 to finalize a new TMDL plan. The U.S. Environmental Protection Agency (EPA) must then either approve it or create its own.

The settlement stems from a 2019 lawsuit filed against the EPA by the Environmental Law and Policy Center (ELPC) in Chicago and Lucas County, which surrounds Toledo.

Lucas County and the law and policy center claimed the EPA was not upholding the Clean Water Act by failing to force Ohio to take stronger measures to reduce agricultural pollution entering the lake.

County leaders urged people to comment on the settlement.

“The comment period is a time when the public can hold the Ohio EPA to the standards they have avoided for years,” said Pete Gerken, a Lucas County commissioner.

“The only way to have an effective cleanup of Lake Erie is to have those who add pollution to our water system adhere to mandatory standards,” Gerken said. “Those standards are applied to city and county municipal discharges and the same standards must be applied to other polluters.”

Under litigation pressure, Ohio began developing a draft TMDL plan in 2020. For years, the state resisted both declaring the lake impaired and developing a cap on nutrient pollution despite repeated annual algae blooms, which turn the lake green each summer and autumn with toxic bacteria that can sicken people and animals exposed to it.

This year’s bloom was the sixth worst on record. It lasted from mid-July into early November — a month longer than usual and the first time in 20 years algae have persisted past October.

“It’s not the year-to-year that matters, it’s the long-term,” said Don Scavia, a University of Michigan aquatic ecologist who works on bloom forecasting.

“We’re not yet moving in the right direction.”

If Ohio finalizes a TMDL plan by the deadline next year, it will come just shy of nine years after 500,000 people in and around Toledo lost access to safe drinking water for several days in August 2014, when algal toxins from the lake entered the city’s water treatment system.

Michigan, Ohio and Ontario subsequently agreed to reduce nutrient levels entering the lake by 40 percent by 2025. That’s a steep order in Ohio because the algae are primarily fed each spring and summer by phosphorus and nitrogen entering the Maumee River, a heavily farmed watershed that’s mostly within Ohio and accounts for almost 90 percent of the nutrients entering the lake’s western basin.

Commercial fertilizers are the primary source of nutrients in the Maumee watershed, but Rob Michaels, an attorney at Environmental Law and Policy Center, said giant livestock farms known as concentrated animal feeding operations (CAFOs) are another major polluter.

Michaels said liquid manure from livestock farms is being overused as fertilizer in the watershed and the waste generators need regulatory limits imposed on them.

“They’re applying way more (manure) than what crops really need and they’re applying it in a manner that some portion of it, even if it’s done at agronomic rates, is going to get into the water,” Michaels said. “Those facilities need, in our view, to have Clean Water Act permits; the terms of which can be ratcheted down to achieve TMDL goals.”

That sort of approach has been staunchly opposed by agricultural interests, which have lobbied against mandatory measures in favor of voluntary approaches such as the H2Ohio program, which provides significant money and technical support to incentivize farmers to reduce phosphorus runoff using conservation techniques like planting cover crops.

The proposed consent decree doesn’t specify what type of regulatory measures Ohio must use to reduce agricultural nutrient runoff entering the lake, but Michaels said the TMDL plan must include “reasonable assurances” that targeted reduction goals “will, in fact, be achieved.”

In order to provide those assurances, Michaels said the Environmental Law and Policy Center and Lucas County believe the TMDL plan “would have to point to programs with enforceable standards and durable funding that we can count on to achieve the reduction.”

“The mechanisms by which the reductions will be achieved ought to be clear and independently enforceable on their own,” he said. “And that will be where the rubber hits the road.”