Attorney has 'real faith' tighter controls are in store for Lake Erie

8/22/2018

In this September, 2017, photo, a docked boat is reflected in the algae-covered water of Lake Erie's Maumee Bay in Oregon.

ASSOCIATED PRESS

The lead attorney in a landmark western Lake Erie case told about 50 people attending a private function Wednesday night she has “real faith and confidence” the ultimate decision rendered by Senior U.S. District Judge James G. Carr — even with it now likely to come months or even a year or two later than expected — will be a turning point for addressing the lake’s chronic algal blooms.

“Political will is what we need here. But sometimes political will needs a little help from a judge, like an order,” Madeline Fleisher, senior attorney for the Environmental Law & Policy Center, said at an event the group hosted inside the National Museum of the Great Lakes in East Toledo.

“I do have real faith and confidence it will be a good thing,” she said of the anticipated ruling. “We are moving the ball forward. It’s slow. But we are moving the ball forward.”

WATCH: Panelists discuss efforts to combat algae blooms in western Lake Erie

Ms. Fleisher’s comments came a day after Judge Carr told her in open court that the suit she had brought against the U.S. Environmental Protection Agency in 2017 on behalf of the ELPC and another group, Advocates for a Clean Lake Erie, should be reworked and refiled to avoid loopholes that could get his eventual decision thrown out on appeal.

The judge rejected the U.S. Department of Justice’s request to have the case before him dismissed, saying he will instead wait for a decision by the ELPC. That case was originally filed over the U.S. EPA’s decision to let Ohio off the hook for failing to designate western Lake Erie as impaired, a necessary step for tighter controls. The Kasich administration finally did that in March after years of resistance.

Now, the focus is on the cleanup strategy.

The ELPC notified the U.S. EPA in July it has 60 days to either commit or get Ohio to willingly go along with developing a total maximum daily load, or TMDL, program for western Lake Erie. Ohio has many of them for smaller bodies of water, but none for Lake Erie. The only one in the nation roughly equivalent in size to the one envisioned for this area is the Chesapeake Bay TMDL, which acting U.S. EPA Administrator Andrew Wheeler told The Blade last week is working.

The reception at the Great Lakes museum was planned weeks ago and is part of what ELPC spokesman Judith Nemes said is the group’s summer Great Lakes tour.

Outgoing Lucas County Commissioner Carol Contrada, activist Sandy Bihn, and charter boat captain Paul Pacholski were on the panel with Ms. Fleisher.

Ms. Contrada noted it’s been 50 years since Lake Erie was declared a dead body of water in 1968. Back then, it was because of phosphorus from sewage waste. Now, the lake’s imperiled because of phosphorus from animal manure and other forms of farm fertilizers feeding algae.

“We healed the lake once. We can do it again,” she said.

On Monday, the day before the latest court hearing, Lucas County filed a motion to join ELPC and ACLE as a third plaintiff. Judge Carr hasn’t ruled on that request, but Ms. Contrada said she’s glad the county board of commissioners took that action.

“We plan to be there hand-in-hand, arm-in-arm, fighting the legal battle,” she said.

Ms. Bihn said she’d like to see more accountability from the agricultural industry, given the amount of farm subsidies it receives.

“For every dollar spent, we should know how much phosphorus is reduced,” she said.

Mr. Pacholski, Lake Erie Charter Boat Association president, said his industry is losing jobs because of the algae. The association’s vice president, Dave Spangler, came up to the podium and said business is down about 25 percent.

“We get very frustrated dealing with the [Ohio] Department of Agriculture,” Mr. Spangler said.

Judge Carr said at Tuesday’s hearing he has reservations about Ohio’s plan to stick with voluntary incentives for curbing phosphorus runoff until at least 2025, when — under an annex to the Great Lakes Water Quality Agreement — Ohio, Michigan, and Ontario are hoping to have reduced such releases by 40 percent. Most experts agree that unenforceable target is unlikely to be met, based on current trends.

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