Lake Erie is Officially Impaired: Now What?

Guest Blog by Gail Hesse, Water Program Manager, National Wildlife Federation Great Lakes Regional Center

A fishing charter takes journalists to see the algae in Lake Erie during a 2017 National Wildlife Federation event. NWF Photo

Harmful algal blooms in the western basin of Lake Erie have been impacting drinking water, outdoor recreation and tourism for years, and in March 2018 the Ohio EPA finally designated its portion of Lake Erie as “impaired” under the Clean Water Act, following Michigan and the repeated calls of community and environmental organizations. So what does “impairment” mean for Lake Erie, and what steps must be taken to ensure that this isn’t just a designation, but a real plan of action?

What Does “Impairment” Mean?

The Clean Water Act requires state environmental agencies to report to the U.S. Environmental Protection Agency (USEPA) every two years on the conditions of its streams and lakes and whether they meet state water quality standards (referred to as the Integrated Report). Those waters not attaining those standards must be listed as impaired and prioritized for future action. The portion of the open waters of Lake Erie in Ohio’s jurisdiction have been in contention because until recently, Ohio EPA has not declared the open waters as impaired despite record-sized harmful algal blooms impacting drinking water, recreation and the region’s economy.

In its 2016 report, Ohio opted to designate the nearshore areas and the areas immediately surrounding the intakes of public water supplies as impaired, claiming there was insufficient methodology to make an impairment designation for the open waters. USEPA approved Ohio’s 2016 report with this limited designation and then in a surprising reversal, withdrew that approval in January 2018, determining the state’s assessment of the open waters of Lake Erie was incomplete.

Two months later, Ohio issued its draft 2018 Integrated Report listing the open waters as impaired utilizing a recently developed methodology. However, while Ohio listed the nearshore and open waters as impaired in the 2018 report, it assigns low priority points for Lake Erie waters on its list for future action. The rationale it provided is that actions are underway to address the contributing factors to impairment. These factors include individual total maximum daily loads (TMDLs) for sub-watersheds to the western basin and the Domestic Action Plan required under the Great Lakes Water Quality Agreement.

Meanwhile, the Environmental Law and Policy Center filed a lawsuit in federal court to challenge the USEPA’s approval of the 2016 report from Ohio EPA. The case focuses on USEPA’s approval and then reversal of that approval as to whether Ohio utilized all available water quality-related data and information concerning Lake Erie’s open waters. In a recent filing, the judge asserts that USEPA’s reversal does not constitute a final action by the USEPA since in its withdrawal of approval of the 2016 report, USEPA provides Ohio EPA one more opportunity to consider all available data and information and reconsider its statement of condition of Lake Erie. The judge has given USEPA until May 15 2018 to render its final decision on approval or disapproval of Ohio’s report before he will issue a summary judgement.

Establishing “Pollution Budgets”

Lake Erie charter fishing captains with a sample of Lake Erie water near Toledo in September, 2017. NWF photo.

With all of these moving pieces, what does this mean for Lake Erie? As mentioned above, Ohio EPA has now included a methodology and an impairment designation for the open waters in the recently released 2018 Integrated Report, but fails to assign these waters a high priority for further TMDL activity. Many see the value of a TMDL approach in that it would bring more accountability and other Clean Water Act tools to the forefront. And while the Clean Water Act does not regulate nonpoint sources of pollution, the TMDL approach does bring analysis of nonpoint loadings and requires that “reasonable assurances” be included to assure that water quality standards will be met. This resulted in an “Accountability Framework” in Chesapeake Bay and is often heralded as the best example of how a TMDL can be used to prompt action.

But there is a sticking point in how the TMDL can be brought to bear for Lake Erie. TMDLs are intended to be the “pollution budget” a water body can sustain and still meet water quality standards. The sticking point is that there are no nutrient water quality standards for the open water. We do, however, have the phosphorus targets adopted binationally under the Great Lakes Water Quality Agreement. We need to link the two.

Ohio does have a project underway with a contractor evaluating how the 22 (of 32 watersheds) completed TMDLs in the Lake Erie basin align with GLWQA targets for the open water. In addition, the contractor for the project is also developing a method for setting load reduction goals for the smaller tributaries to Lake Erie. This effort can and should lead to definitive links between the GLWAQ targets and Clean Water Act authorities.

Potential Legislation

Interestingly enough, the Kasich administration is now calling for legislative initiatives to address nutrient pollution. At this time, no legislation has been drafted and two state legislators are accepting input from a variety of stakeholders. NWF is engaging with these legislators and are asking for the following actions:

·Accelerate the evaluation of the tributary TMDLs along with adoption of nutrient loading limits in watershed TMDLs that align with GLWQA targets. Completing TMDLs for all 32 watersheds with nutrient loading limits that aggregate up to the GLWQA loading target should be an urgent priority. Such an effort would equate to a “whole lake” TMDL.
· Limit funding to initiatives that support soil-test informed application rates, subsurface placement of fertilizer and manure and manage/minimize the amount of water leaving a field.
· Increase access to subsurface placement equipment for agricultural producers to ensure long term implementation of subsurface placement of fertilizer.

We are long overdue for the Ohio General Assembly and the Kasich administration to come together and be accountable for forging substantive and sustainable action for Lake Erie.

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