Landmark Lake Erie lawsuit headed toward settlement by Oct. 29

·6 min read

Sep. 21—One of the most significant Lake Erie lawsuits ever to come before a federal judge appears to be headed for resolution on or before Oct. 29.

Lawyers for the Environmental Law & Policy Center, the Board of Lucas County Commissioners, and Advocates for a Clean Lake Erie have come to an agreement with the U.S. Environmental Protection Agency for a consent decree that will legally bind the state of Ohio to a more specific restoration plan aimed at reducing the frequency and intensity of western Lake Erie's summer algal blooms.

The agreement to settle via a consent decree came after a mediation hearing that lasted six hours and 15 minutes, according to the latest entry in the case's U.S. District Court docket. The hearing was before U.S. District Judge Dan Aaron Polster in Cleveland. Senior U.S. District Judge James Carr heard the case until the two sides agreed to go to mediation.

It is expected to go back to Judge Carr for final approval once both sides complete their work and put the document out for public review.

The likelihood of a court-approved consent decree means the two sides are moving toward what would become the largest Total Maximum Daily Load, or TMDL, program in America. TMDLs set more site-specific rules on what farms and other sources of nutrient pollution must control. The nation's largest currently is for the Chesapeake Bay and involves multiple states.

"The consent decree will then be subject to client and public official approval and must also be published for public comment," the docket entry states. "Although not expected, if the attorneys encounter an impasse in preparing the consent decree, they may contact Judge Polster's law clerk, Carrie Roush, to seek further assistance from Judge Polster."

On a parallel path, the Ohio Environmental Protection Agency — after years of resistance — is in the early stages of accepting public comment on a TMDL it said it will develop. It is not known how the two will differ.

The case centers on what's best for the world's 11th largest lake.

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.

To initiate the process, 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.

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 types of pollution that threaten its water quality, including the quality of tap water for nearly 500,000 people who live in the Toledo area.

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

Fritz Byers, Lucas County board's attorney, issued the following statement on behalf of the plaintiffs:

"Yesterday, with the help of Judge Polster, Plaintiffs ELPC/ACLE and the Board of Lucas County Commissioners reached tentative agreement with the U.S. EPA and the Ohio EPA on the terms of a consent decree and associated documents. The agreement, if consummated, would resolve the pending litigation and advance our goal of ensuring a timely plan of action by the government that will reduce phosphorus pollution into western Lake Erie. The parties are working on language for potential settlement documents with a goal of finalizing them by October 29th."

U.S. Department of Justice attorneys serving as the federal EPA's defense team have said they will not comment outside of open court proceedings.

Lucas County Commission President Tina Skeldon Wozniak said that getting the two sides to agree on the need for a consent decree "is momentous in that it gets us one step closer to achieving the success we desired when we filed the lawsuit and that is to reduce the nutrient runoff that causes the harmful algal bloom in Lake Erie."

The lawsuit was originally filed by the ELPC on behalf of Advocates for a Clean Lake Erie. Lucas County followed that filing up with a similar lawsuit, and the two were combined by Judge Carr.

County commissioners "have remained vigilant to hold the [U.S.] Environmental Protection Agency accountable to fulfill its legal obligation to ensure water quality," Commissioner Pete Gerken said. "When approved and entered by Judge Carr, the consent decree will put us in the right direction to allow that to happen."

Commissioner Gary Byers said the consent decree "will be a major victory for the tens of thousands of people who rely on the lake for clean, safe drinking water, their livelihood, recreation, and fishing."

Blooms have occurred almost annually since appearing in 1995 for the first time since the 1970s, after the federal Clean Water Act ushered in the modern era of sewage treatment.

The primary source for algae-forming nutrients now is farm runoff, according to Ohio EPA studies.

That state agency, though, has also been made aware of unregulated sewage releases over many years by cities such as Maumee and possibly others.

This summer's bloom was not expected to be as intense as some in recent years.

But according to the National Oceanic and Atmospheric Administration's latest bulletin, issued Monday, the bloom still extends from Stony Point, Mich., north of Monroe, to Sandusky.

Though mostly below the recreational limit, toxins in this summer's bloom are highly concentrated in scums that form on the lake surface. People are urged to keep themselves and their pets away from such floating mats, the agency said.

Cloud cover and winds have obstructed efforts to delineate it more precisely, NOAA said.

Blooms in this area usually dissipate by mid to late-October, as fall temperatures cool the lake.

The modern era's largest blooms have been in 2015 and 2011.

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