U.S. EPA accused of procedural 'sleight-of-hand' over western Lake Erie algae cleanup strategy

7/24/2018

In the latest volley of a high-stakes lawsuit that could affect the future of western Lake Erie, the U.S. Environmental Protection Agency is being accused of playing games and “once again engaging in [a] procedural sleight-of-hand” while also letting the state of Ohio give “lip service” to the idea that it’ll someday enact the most aggressive cleanup strategy.

The accusations were leveled in a U.S. District Court brief filed Tuesday by the Environmental Law & Policy Center and its co-plaintiff, Advocates for a Clean Lake Erie.

The two groups, through its lawsuit against the U.S. EPA, forced the Ohio EPA earlier this year to designate western Lake Erie as impaired under the federal Clean Water Act, ending the Kasich administration’s years of resistance on behalf of agriculture. They have implored Senior U.S. District Judge James G. Carr of Toledo to stick with the case so the designation does not just become symbolic.

Madeline Fleisher, an ELPC attorney based in Columbus, stated in the opening line of her brief that the U.S. EPA “is once again engaging in [a] procedural sleight-of-hand in an attempt to obscure the substance of this case,” almost echoing an admonishment the judge made in a 25-page order back in April when he accused the two regulatory agencies of botching the Lake Erie impairment controversy and, at one point, accused the U.S. EPA of demonstrating a “whiff of bad faith.”

Earlier this month, the U.S. Department of Justice — on behalf of the federal EPA — reiterated its position that the case is now moot because of the impairment designation and said it believes Judge Carr has no authority to require what’s known as a TMDL, an abbreviation for “total maximum daily load” program. Considered by far the most aggressive cleanup strategy, TMDLs identify polluters by name and hold them to a higher degree of responsibility.

Ms. Fleisher, in her filing, continues to argue the Clean Water Act requires Ohio to follow up the impairment designation with a TMDL program. The Justice Department contends there’s no such requirement and claims state and federal environmental regulators have never officially ruled out the possibility of enacting a TMDL for western Lake Erie someday, anyway.

So in a July 18 letter, filed in court Tuesday, the ELPC and ACLE responded by notifying acting U.S. EPA Administrator Andrew Wheeler that the agency will be sued to force a decision on a TMDL if it doesn’t make one within the next 60 days. The ELPC contends western Lake Erie residents can’t be held in limbo.

“Although Ohio gives lip service to the idea that it may establish a TMDL at some undetermined future time, the State has directly stated to U.S. EPA that it will not even consider doing so for years to come,” according to Ms. Fleisher’s brief.

The brief goes on to say that decision — without court action — would likely be posted well beyond 2025, the target year Ohio has set for having farmers achieve a 40 percent reduction in algae-forming phosphorus releases. It states that Ohio wrongfully believes it can take that long to see if the latest set of voluntary incentives work.

“Neither U.S. EPA nor Ohio EPA can lawfully choose to ignore these statutory requirements; they must follow the law,” she wrote. “Every year that U.S. EPA and Ohio EPA continue to delay cleaning up Lake Erie, the harmful algal blooms will only continue or even worsen, directly affecting the rights of citizens to use and enjoy its waters.”

Federal officials have declined to comment on the case, citing long-standing policy toward pending litigation. The Kasich administration has on numerous occasions cited a massive investment it has made in the western Lake Erie watershed, now exceeding $3 billion since July, 2011. Much of that includes federal grant money.

The governor’s attempt this month to declare eight western Lake Erie watersheds in distress for pollution backfired, though, when Republican lawmakers and the Ohio Farm Bureau Federation persuaded the Ohio Soil and Water Conservation Commission to grant an indefinite delay — one that almost certainly will remain in effect until after a new governor is elected this fall.

That executive order was going to be one of the Kasich administration’s keystone efforts for the lake. It is designed to crack down on manure-spreading that fuels algae.

The case is scheduled to be back before Judge Carr in open court on Aug. 21.

Contact Tom Henry at thenry@theblade.com, 419-724-6079, or via Twitter @ecowriterohio.