Landmark Lake Erie case could be settled in federal court this September

·3 min read

Jul. 22—Lawyers arguing one of the most significant Lake Erie lawsuits ever to come before a federal judge now believe they can mutually agree on what's best for the world's 11th largest lake.

A Sept. 20 mediation hearing has been scheduled in U.S. District Court in Cleveland to see if the two sides can hammer out their differences. The negotiations will take place in Courtroom 18B.

The announcement was posted in the court record on Wednesday following a teleconference with Senior U.S. District Judge Dan Aaron Polster of Cleveland, who has been assigned to oversee mediation hearings. Senior U.S. Judge James Carr of Toledo had been hearing the case until now.

At stake is Ohio's western Lake Erie cleanup strategy during the rest of the DeWine administration and that of future governors.

The ultimate decision will likely affect hundreds of farmers and others in northwest Ohio's agriculture industry, including the large livestock facilities known as concentrated animal feeding operations.

The Chicago-based Environmental Law and Policy Center, on behalf of the Toledo-based activist group, Advocates for a Clean Lake Erie, has been seeking an aggressive cleanup strategy known as a Total Maximum Daily Load, or TMDL, from the state of Ohio.

To do that, the ELPC and Lucas County commissioners filed suit in federal court a couple of years ago, seeking a court order that would compel the Ohio EPA's counterpart, the U.S. Environmental Protection Agency, to become more aggressive in enforcing the 1972 federal Clean Water Act.

Until now, the Clean Water Act has been mostly used to enforce sewage overflows and industry discharges from pipes. The act is harder to apply to nonpoint sources of pollution, such as farm runoff, because it is much more diffuse.

The state of Ohio reluctantly agreed to create a TMDL for Lake Erie's open waters after the lawsuit was filed.

But the plaintiffs were not convinced it would be tough enough unless the court intervened. Earlier, the state resisted efforts to have western Lake Erie declared an impaired body of water, then relented as a prior lawsuit filed by the ELPC heated up.

TMDLs are regulatory tools often used for smaller bodies of water, including several in Ohio. The nation's largest TMDL is for the Chesapeake Bay.

One has never been written for western Lake Erie, which the plaintiffs argue is in dire need for one because of its long history of summertime algal blooms and other type of pollution that threaten its water quality, including the quality of tap water for nearly 500,000 people who live in the Toledo area.

The court entry said the Sept. 20 mediation hearing will include legal representatives of the ELPC, the ACLE, the Board of Lucas County Commissioners, and the U.S. EPA, which is represented by the U.S. Department of Justice.

Although not technically a defendant in the case, the Ohio EPA is required to attend. The city of Toledo, which has been recognized by the court as an interested party, is not required but will be allowed to attend.

The court also has set aside the morning of Sept. 22 to continue negotiations if an agreement is not reached Sept. 20.

The plaintiffs — the ELPC, the ACLE, and the Board of Lucas County Commissioners — have been instructed to submit "a good faith, detailed settlement proposal/demand" to the U.S. EPA by Aug. 3.

Justice Department attorneys representing that agency have until Aug. 17 to respond, after which a joint status report is to be provided to the court on or before 4 p.m. Sept. 14.

Attorneys involved in the case declined to comment Wednesday.

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