Kasich administration declares Lake Erie open waters as impaired

3/22/2018

A University of Toledo water quality monitoring buoy on Lake Erie, Tuesday, July 11, 2017.

The Blade/Andy Morrison
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The Kasich administration — after years of resistance on behalf of agriculture — announced Thursday it will declare the open waters of western Lake Erie as impaired, marking a reversal on what has arguably been northwest Ohio’s most contentious water-policy issue.

Although details of the impairment designation are still to be worked out, it will invariably mean tighter rules for agriculture and others that release nutrients into western Lake Erie tributaries.

“This decision that took massive public insistence and a federal court suit is way overdue, but let's get down to work now,” said Mike Ferner, founder of Advocates for a Clean Lake Erie, a Toledo-based citizens group that lobbied heavily for the impairment designation. “An impaired designation kicks off a process under the Clean Water Act that includes finding out exactly who the polluters are and the amounts from each. It must be completely transparent, with public involvement every step of the way. ACLE will be vigilant to see that this declaration actually means something.”

Adam Sharp, Ohio Farm Bureau executive vice president, said the designation will not be the “silver bullet” many people think it is.

Ohio had been the last holdout on the issue, which gained a lot of traction after the 2014 Toledo water crisis.

During that crisis, western Lake Erie’s most notorious algal toxin, microcystin, became so strong in August that it overwhelmed the city’s Collins Park Water Treatment Plant and poisoned tap water being distributed to the metro area’s 500,000 homes and businesses. The water was never actually shut off, but the Ohio National Guard and others converged on the area to provide clean water for nearly three days while health officials declared the city’s tap water unsafe for people to drink or make body contact with.

The administration steadfastly refused to budge from its position until 1 p.m. Thursday, when it announced its change of heart. It had said all along it wanted to stick to voluntary incentives for cooperation from the agricultural industry on reducing farm fertilizers and other nutrients that foul waterways and help algae grow.

The announcement was embedded in the fourth paragraph of a news release about a draft version of the state’s 2018 water quality report that is being put out for public comment. The release shows the Ohio EPA “is proposing to designate the open waters of Lake Erie’s Western Basin (from the Michigan/Ohio state line to the Marblehead Lighthouse) as impaired for recreation due to harmful algae and drinking water due to occurrences of microcystin. Previously, only the shoreline area of the Western Basin and drinking water intakes had been designated as impaired.”

The Ohio EPA said its decision came after consultation with experts from Ohio State University’s Sea Grant College Program, Bowling Green State University, the University of Toledo, the National Oceanic and Atmospheric Administration, and the U.S. EPA.

“We have taken unprecedented steps in recent years to put Lake Erie on a better trajectory — including investing more than $3 billion to improve its water quality,” Ohio EPA Director Craig Butler said.

He added the governor “takes his responsibility to protect the lake very seriously,” and said the state remains committed to its obligations under the Clean Water Act and to examining emerging sciences and practices that can improve water quality.

Ohio EPA will present information about the draft impaired waters list through a webinar at 2 p.m. April 25. The webinar may be viewed at Ohio EPA’s Central Office in conference room A, 50 W. Town St., Suite 700, Columbus, or it can be viewed online.

The summary of each water body assessment unit is available online at the Ohio EPA’s website. The agency said viewers of that website can review specifics concerning water bodies that are impaired or delisted.

The decision came as U.S. District Judge James Carr considers a lawsuit the Chicago-based Environmental Law & Policy Center brought on behalf of ACLE. Mr. Ferner’s group was formed in response to Toledo’s 2014 water crisis.

The ELPC’s lawsuit contended the U.S. Environmental Protection Agency erred by approving the Ohio EPA’s most recent list of impairment bodies of water without including the open waters of western Lake Erie. States are required to submit such a review to the federal government once every two years. The Ohio EPA had listed several nearshore areas in its last filing, but not the lake’s open waters.

In January, the federal EPA notified state officials it had reconsidered its action and now believes the state’s last filing on Oct. 20, 2016, was “incomplete and thus not fully consistent with the requirements” of the federal Clean Water Act and U.S. EPA regulations in general.

Howard Learner, ELPC executive director, said he is pleased by the administration’s change of heart.

“The necessary next step for Lake Erie is strong, enforceable standards to reduce the pollution that causes toxic blue-green algae, threatening safe drinking water, and crippling tourism,” Mr. Learner said.

U.S. Rep. Marcy Kaptur (D., Toledo), who co-chairs the House Great Lakes Task Force, called the move a “long overdue” decision.

Gail Hesse, director of water programs for the National Wildlife Federation’s Great Lakes Regional Center in Ann Arbor, agreed.

“We urge the state to use all available tools and options for pollution reduction that provides long-overdue relief to the communities, businesses, and industries that have borne the brunt of damage cause by harmful algal blooms,” Ms. Hesse said.

Peter Bucher, Ohio Environmental Council water resources director, said it's “clear that more concrete measures are needed to reduce [western Lake Erie’s algae-growing] phosphorus.”

“We are hopeful this news will lead to substantial nutrient reductions and ultimately, a cleaner Lake Erie,” Mr. Bucher said.

Toledo Mayor Wade Kapszukiewicz said the decision “is the right one and a great first step.”

The decision, though, poses a logistical challenge for the Ohio EPA, which reiterated a point it has made in the past by saying it is unsure how to create an impairment program for a body of water as large as western Lake Erie. That, the agency said, is one of the reasons it was promoting voluntary incentives and trying to get more cooperation from agriculture without heavy-handed litigation.

According to the state farm bureau, the regulatory and legal process could take five to seven years before actual nutrient-reduction steps are taken.

“The professional consensus is that the designation in and of itself means little,” Mr. Sharp said. “It does not create mandatory actions, nor does it provide federal money. It excludes Canada’s role in protecting the lake. It also will create a long and complicated bureaucratic process that may impede current progress on reducing harmful algal blooms.”

He said it’s “hard to reach the goal line when no one can explain the rules or even tell you where the goal line is.”

The state of Michigan, after some initial resistance, declared its much smaller portion of western Lake Erie impaired in 2016.

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