Lake Erie Impairment Designation is Good, but Lawmaker Action Still Needed to Fix the Problem
By Adam Rissien
As Principal of Land Ethic Consulting, LLC., Adam assists those dedicated to improving our natural world. He offers a range of services, and brings a demonstrated history of protecting public lands, improving fish and wildlife habitat, safeguarding streams and clean drinking water, advancing agricultural policy reforms, and working to secure a clean energy future. To learn more, please visit www.LandEthicLLC.com.
The Ohio Environmental Protection Agency (EPA) recently declared all of western Lake Erie “impaired” under the Clean Water Act, marking a stark reversal by the Kasich administration after years of resisting the designation. However, the impairment listing is just the beginning of a long and slow process, with success hardly guaranteed without action from state lawmakers.
For a bit of context, every two years each state must determine which lakes and rivers have such poor water quality that they can no longer provide for their designated uses, like drinking water or recreation. Once a river or lake is on the impairment list, the state must develop a Total Daily Maximum Load (TMDL) tot limit the pollution that is causing the problem. Along with establishing the TMDL, the state develops a plan to restore water quality and each designated use.
The Ohio EPA certainly did not want to trigger this process, and did so only after surprising direction from the federal U.S. EPA calling on Ohio to reconsider its previous position. Of course, driving this move was a lawsuit by environmentalists challenging the U.S. EPA for its double standard of accepting both Michigan’s impairment listing and Ohio’s refusal to do the same. After all, both states share the western part of Lake Erie and it makes no sense to have conflicting impairment designations.
With both states placing all of western Lake Erie on the impairment list, many environmentalists are hailing the action as a huge victory, which of course it is. Now the full weight and authority of the Clean Water Act will require development of a western Lake Erie TMDL. Unfortunately, it is not uncommon for this process to take years, even a decade or more. States with rivers emptying into the lake, namely Ohio, Michigan and Indiana, will have to ensure pollutants do not exceed the daily limits. Any plan to meet the TMDL may require the Ohio EPA to issue or revise National Pollution Discharge Elimination System (NPDES) permits for industrial businesses and municipalities. This permit system is an effective way to control the amount of pollution flowing into our waterways from specific sources, such as out of pipes, drains or ditches.
The other part of the plan to meet a new western Lake Erie TMDL must focus on controlling pollution from storm water runoff. In practice this is going to be a huge challenge because the main driver of toxic algae comes from excess phosphorus–the largest sources of which is commercial fertilizer and manure related to industrial livestock and farm operations. Unfortunately, the Clean Water Act is notoriously weak in regards to addressing agricultural pollution. In fact, storm water running off a crop field or out a subsurface drain is exempt from the Clean Water Act’s NPDES requirements, as are most of Ohio’s animal feeding operations because of lax regulation.
Significantly reducing agricultural pollution is absolutely necessary to meet any TMDL the U.S. or Ohio EPA may establish in the (possibly distant) future. At this point it’s unclear which agency will be in responsible for developing the TMDL. However, once in place, agency officials need only to demonstrate some “reasonable assurance” that its plan will meet the pollution limits. In other words, the agency could make a plan to meet the TMDL that continues to rely on voluntary measures and weak regulations to reduce agricultural pollution, regardless of the fact that these efforts have been unsuccessful. Then we are back where we started, except with some legal recourse available under the Clean Water Act to challenge the “reasonable assurances” in the plan.
Lake Erie cannot wait for this lengthy, administrative process that may ultimately result in more lawsuits. In order for Ohio to restore water quality in Lake Erie and ensure it is suitable for all uses–including drinking water and recreation–the state needs a new law that caps the amount of phosphorus agricultural producers apply to the soil. A reasonable limit would be just what crops need for optimal growth in one season, and no more.
That is why state lawmakers need to hear from you. Call your senator and representative today. Tell them to establish limits on all phosphorus applications. If Lake Erie is ever to recover, we need clear protections against spreading excess livestock waste and the over-application of fertilizers.