The U.S. Environmental Protection Agency has reversed itself on the western Lake Erie impairment issue, admitting it was wrong to approve a Kasich administration plan that relied on voluntary action to reduce algae-inducing runoff.
The federal agency said in a Jan. 12 letter to Ohio EPA Director Craig Butler it has reevaluated Ohio’s Oct. 20, 2016, submission, which did not recommend an impairment designation for Lake Erie’s open waters.
While stopping short of agreeing it should immediately designate the lake’s open water as impaired, the letter states officials determined the submission was “incomplete and thus not fully consistent with the requirements” of the Clean Water Act and EPA regulations.
It further stated the Kasich administration’s submission fails to show Ohio “has satisfied its statutory and regulatory obligations to assemble and evaluate all existing and readily available data and information regarding nutrients in the open water of Lake Erie within the state’s boundaries.”
Howard Learner, executive director of Chicago-based Environmental Law & Policy Center, said Tuesday morning the U.S. EPA’s reversal is a significant development that should lead to court-ordered action for the lake and the Toledo metro region’s 500,000 people who depend on it for drinking water.
“The effect of what’s going on here is the U.S. EPA has confessed error on the merits of the case,” Mr. Learner said. “The U.S. EPA is recognizing the factual reality that western Lake Erie water is impaired by [agricultural] pollution.”
The signed letter was shared on a federal holiday — Martin Luther King, Jr., Day — with ELPC, which was preparing to meet a Tuesday deadline set by Senior Judge James G. Carr of U.S. District Court for a motion for summary judgment. The motion is 188 pages long.
ELPC represents Advocates for a Clean Lake Erie, founded by activist Mike Ferner in response to the 2014 Toledo water crisis. The two groups sued the U.S. EPA several months ago over the lack of an impairment designation. The judge has indicated he wants that case resolved by April or May — before the 2018 algae season.
“Courts shape remedies all of the time. The judge is in a position now to tell the agencies it’s time to step up to the plate,” Mr. Learner said. “It’s not permissible for agencies to violate the Clean Water Act by pretending the western basin of Lake Erie is not impaired when clearly it is.”
“The U.S. EPA now admits it was wrong to accept Ohio’s decision, and environmental groups that filed a lawsuit in Federal District Court want Judge James Carr to order the U.S. EPA to formally rule the western basin impaired and begin a cleanup with mandatory goals and deadlines,” Advocates for a Clean Lake Erie said in a statement released Wednesday.
The U.S. EPA, which approved the Ohio plan to maintain the status quo May 19, wants all of the state’s remaining data on western Lake Erie nutrient pollution by April 9. ELPC said in its motion for summary judgment it is seeking a more “expeditious resolution.”
Mr. Butler said the U.S. EPA told him prior to issuing the letter that it was reversing itself, and that he and others at the Ohio EPA are "working on developing a response."
"We've never said there's not a problem in the lake," Mr. Butler said. "We think this designation as impaired or not doesn't impact our path forward. Our commitment is as strong as it's ever been. This is an ongoing, never-ending focus for us."
Mr. Butler also revealed that the state agency's reluctance to designate the lake as impaired goes beyond a desire to maintain the status quo. He said the U.S. EPA cannot define itself what exactly it takes for a body of water as large as western Lake Erie to be designated as impaired.
Mr. Butler characterized ELPC's push for an impairment designation as "an academic argument," and declined to predict how Judge Carr will rule.
Judge Carr has presided over several major environmental cases involving Lake Erie, including years of litigation on Ottawa River restoration efforts and the city of Toledo’s consent order with the U.S. EPA over sewage overflows.
Michigan declared its much smaller portion of western Lake Erie impaired in 2016.
A U.S. EPA spokesman declined a request for comment about the matter, citing the pending litigation.