US EPA recently approved Ohio’s 2016 list of impaired waters not meeting water quality goals which did not list the open waters of the Western Basin of Lake Erie as impaired.
A coalition of environmental and conservation groups had recently filed lawsuits to force US EPA action on Ohio’s proposed listing in both the D.C. District Court and Northern District of Ohio District Court. As previously reported here, the coalition sought to compel US EPA to perform its non-discretionary duty to take action on Ohio’s proposed list of impaired waters, which was submitted back in October of 2016. The lawsuits argued that a decision by US EPA to disapprove the proposed listing would have required development of a Total Maximum Daily Load (TMDL) implementation plan to address nutrient issues driving Lake Erie’s harmful algal blooms (HABs):
If the U.S. EPA were to disapprove the omission of Lake Erie from OEPA’s 303(d) list, U.S. EPA would have a nondiscretionary duty, not later than thirty days after the date of such disapproval, to identify Lake Erie as impaired and establish a TMDL for the lake as U.S. EPA determines necessary to implement the water quality standards applicable to Lake Erie, and upon such identification and establishment, the State of Ohio must incorporate them into its continuing planning process. This might lead to the restoration of the quality of the water in Lake Erie…
National Wildlife Federation, et al. v. U.S. EPA, Case 17-cv-00759, Cmplt. at ¶25 (D.C. Dist.).
However, as further outlined in a detailed decision document that accompanied the Agency’s approval decision, US EPA “deferred to the State’s judgment” and made note of Ohio EPA’s ongoing efforts to control nutrient pollution in the Western Basin of Lake Erie, including its work with US EPA on TMDLs for certain impaired waterbodies within the Lake Erie basin.
US EPA’s approval decision dims the immediate prospects for a federally-led, multi-state TMDL for Lake Erie. But legal challenges such as these are likely to persist, especially with another algal bloom season approaching.