Lake Erie: Oral arguments heard in EPA case

Larry Limpf

U.S. District Court Judge James Carr has given attorneys for the U.S. Environmental Protection Agency and the Environmental Law and Policy Center 10 days to file written comments to bolster their oral arguments heard Tuesday in a case that questions whether the EPA is adequately enforcing the Clean Water Act.
The Chicago-based ELPC is representing Advocates for a Clean Lake Erie, asking the court to compel the EPA to implement a process set in the Clean Water Act called a Total Maximum Daily Load, which requires an inventory of sites to identify sources of water pollution and a timeline to reach allowable limits.
Under the Clean Water Act, states develop TMDLs for waters identified as impaired, according to their priority ranking. The Ohio EPA designated Lake Erie as impaired in 2018 after a different lawsuit was filed.
Mike Ferner, coordinator for the ACLE, said the lawsuit was refiled because an Ohio EPA official commented after the designation that a TMDL was not necessary for the lake.
“A TMDL for western Lake Erie would establish a ‘cap’ on phosphorus discharges to western Lake Erie that would then be implemented through more targeted pollution loading allocations and specific CWA permit provisions,” the current lawsuit says.
Citing a ruling from the previous lawsuit, the ELPC also argues, “This court has described a TMDL as ‘a bedrock obligation under the CWA.’ ‘’
Tuesday’s hearing was held to consider the U.S. EPA motion to dismiss the case.
Attorneys for the EPA argued the state hasn’t refused to proceed with the TMDL process for western Lake Erie.
Judge Carr questioned whether there have been measurable results from the millions of dollars the state has spent so far to reduce phosphorus discharges and other run-off into the lake.
Ferner and other environmental activists have argued voluntary measures and the funds spent on the lake haven’t been effective in reducing conditions suitable for harmful algal blooms.
In particular, the activists have been focusing on Concentrated Animal Feeding Operations and the large amounts of manure they generate as a source of phosphorus making its way to the lake.
Citing a study by the Environmental Working Group, Sandy Bihn, director of Lake Erie Waterkeepers, recently noted the number of CAFOs in the Maumee River watershed increased from 545 in 2005 to 775 last year.


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