Consent decree Judge approves deadlines for lake action plan

U.S. District Court Judge James Carr has approved a consent decree, establishing deadlines for completion of an action plan to address the toxic algae blooms that plague western Lake Erie.
The consent decree requires the Ohio Environmental Protection Agency to submit a final plan, known as a total maximum daily load, or “TMDL”, to the U.S. EPA by June 30.
It also sets deadlines for the U.S. EPA to review the TMDL and, if it disapproves, complete a federal TMDL. The TMDL is a “pollution diet,” dictating the maximum amount of pollution a water body can tolerate while still meeting requirements in the Clean Water Act.
Plaintiffs in the case are the Environmental Law & Policy Center and the Lucas County commissioners, who filed a lawsuit against the U.S. EPA
The consent decree is the result of a negotiated settlement stemming from lawsuits filed by the plaintiffs under the Clean Water Act against U.S. EPA in 2019 over the federal agency’s failure to ensure that a TMDL be completed as required by the act.
“Though the work that today’s agreement brings is but a first step, it is a step that has to be taken. How many more steps lie ahead, and how long they will take, is beyond even guessing. But there’s reason to hope that, in time, the Maumee River will no longer display, as it has for countless summers, a loathsome foul and slimy green surface as it flows through Toledo on its constant and irresistible course on to Lake Erie’s Western Basin,” Judge Carr’s opinion says.
The consent decree provides:
• Ohio EPA must submit its final TMDL to U.S. EPA by June 30, 2023.
• U.S. EPA must either approve or disapprove Ohio EPA’s TMDL within 90 days.
• If U.S. EPA disapproves the plan, the federal agency must prepare its own TMDL for Lake Erie within five months.
•ELPC and the board of commissioners retain the right to challenge EPA’s approval or subsequent proposed plan.
• The consent decree states that the ELPC and the commissioners are “prevailing parties” in the lawsuit.
“We are pleased the court entered the consent decree as a key next step to cleaning up Lake Erie. The consent decree states that plaintiffs ELPC and Lucas County prevailed in our lawsuit against U.S. EPA. For too long, the Ohio EPA had resisted calls by local governments, environmental groups and scientists to prepare a mandatory action plan to reduce the agricultural runoff pollution of manure and fertilizers which causes the recurring Lake Erie toxic algal blooms. The U.S. EPA also had failed to force Ohio to prepare the TMDL to reduce agricultural runoff pollution sufficient to clean up Lake Erie,” said Howard Learner, ELPC executive director and senior attorney.
Ohio EPA released a draft TMDL on Dec. 30, 2022. ELPC and others raised concerns that Ohio EPA was not following the science or designing the TMDL to succeed in restoring Lake Erie.
“To have an effective and meaningful cleanup of Lake Erie, we must expect the entities that add pollution to the Maumee Watershed to adhere to mandatory standards, and the standards must be applied equally, no matter if the discharge comes from a city or county water treatment plant or from a Concentrated Animal Feeding Operation or other agricultural operations,” Tina Skeldon Wozniak, a county commissioner, said. “We must stop relying on voluntary measures and incentives and instead the state needs to mandate nutrient-reduction goals and ensure accountability to ensure these goals are reached. It is shameful that not enough is being done to protect the health of Lake Erie, which hundreds of thousands of people rely on for safe drinking water, recreation, tourism, and many other uses.”