Ohio has reversed course on its prior decision not to include the open waters of Lake Erie in its 2016 impaired waters listing following an April 11 ruling by Judge James G. Carr of the U.S. District Court for the Northern District of Ohio.  The decision criticized the maneuvering of US EPA and Ohio EPA to prevent review of the State’s original 2016 impaired waters listing (additional detail regarding Ohio’s impairment listing provided here).

Just prior to the Court’s deadline for summary judgment motions, US EPA had withdrawn its prior approval of Ohio’s 2016 impairment listing and requested additional data and information from Ohio EPA regarding nutrients in the open waters of Lake Erie.  By letter dated March 6, Ohio EPA demurred to US EPA’s request, noting Ohio’s plan to assess the open waters of Lake Erie for impairment as part of its 2018 impaired water listing.  Although Judge Carr’s ruling thereafter agreed with US EPA that its withdrawal of approval left the Court without jurisdiction to review the 2016 impairment listing, he criticized the Agencies’ failure to follow Clean Water Act requirements and retained jurisdiction over the matter pending US EPA’s approval or disapproval of Ohio’s 2016 impairment listing.  In response, Ohio EPA amended its 2016 impairment listing to include the open waters of Lake Erie, a move which was quickly approved by US EPA.

For its part, Ohio EPA had already proposed a methodology using available satellite data to assess impairment for the open waters of Lake Erie as part of its 2018 impairment listing.  Those favoring additional oversight for nutrient pollution hope that the amendment to the 2016 impairment listing will fast track the development of a Total Maximum Daily Load (TMDL) implementation plan for Lake Erie.  Such a plan would set requirements for reductions from point and non-point sources, including agricultural runoff, as necessary to meet water quality requirements.

However, Ohio EPA Director Craig Butler’s March 6, 2016 letter to US EPA made clear Ohio’s preference to address any Lake Erie impairment issues through its existing nutrient reduction efforts, rather than pursuing a TMDL:

If Ohio does declare the open waters of Lake Erie impaired in the upcoming Integrated Report, we are fully committed to address all the lake impairments associated with nutrients/algae through [Great Lakes Water Quality Agreement] Annex 4 efforts and Ohio’s Domestic Action Plan (submitted to U.S. EPA on February 7, 2018). … The substantial work we’ve already completed through the TMDL process has contributed to understanding the nature and extent of the problems in the Lake Erie watershed, as well as what policies and practices will be needed to address already known problems.  Suggesting that if the open waters of Lake Erie are declared impaired, Ohio must start from scratch and begin multi-year TMDL would be a colossal waste of time and resources that are far better spent implementing the plans we currently have in place.

As part of Ohio’s current nutrient reduction strategy, Ohio EPA has been shopping proposed legislation that would, among other things, require a statewide 1.0 mg/L phosphorus limit on all treatment works and expand oversight of fertilizer in watersheds designated as a “watershed in distress.”  However, the proposal has been roundly criticized, and the Agency has yet to find a sponsor to introduce the bill.

Meanwhile, a statutorily-required nutrient study by Ohio EPA recently concluded that the State’s nutrient reduction efforts to date have shown “no clear decrease in loading yet, especially in nonpoint source dominated watersheds like the Maumee where the loading in 2017 was the highest of the years reported.”  The ongoing issues with nonpoint nutrient pollution have prompted Ohio Governor Kasich to suggest that he may explore using an executive order to further restrict fertilizer applications that can contribute to Lake Erie’s algal blooms.

With no clear path forward and another algal bloom season approaching, Ohio’s nutrient reduction efforts will likely continue to be a focal point in the months to come.