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Group that filed algae lawsuit seeks comprehensive cleanup strategy

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The group that forced the state of Ohio into finally acknowledging that chronically fouled western Lake Erie is indeed an impaired body of water has filed a motion in federal court seeking what is widely considered as the most comprehensive — and potentially costly — cleanup strategy.

The Environmental Law & Policy Center, which is based in Chicago and has satellite offices in other parts of the Midwest, said in its filing on Friday that nothing short of a Total Maximum Daily Load program — usually referred to as a TMDL — is legally acceptable for western Lake Erie now because of provisions spelled out in the federal Clean Water Act once a body of water has been designated as impaired.

Under a TMDL, the Ohio Environmental Protection Agency would be required to calculate the total pollution load — in this case, algae-forming phosphorus — that is acceptable for western Lake Erie and put sources of that nutrient — mostly farms — on a so-called “pollution diet.” That would mean a time-consuming fingerprint analysis, and a firm cap on how much phosphorus can come off each tract of land — with strict penalties for non-compliance.

The Kasich administration first resisted calls for the impairment designation on behalf of the state’s powerful agricultural lobby, claiming it would lead to unnecessary litigation that could hamper efforts for reducing algae more than sticking to voluntary incentives and getting widespread cooperation from farmers. It has long been working with the agricultural industry on getting more farmers to embrace best-management practices.

Now, it is balking at calls for a TMDL and, on May 10, the U.S. EPA formally agreed it would not require the state agency to develop one for western Lake Erie.

That decision — much like the federal agency’s original decision to let the state off the hook on the impairment designation — is being challenged by the ELPC, with support from Toledo-based Advocates for a Clean Lake Erie.

The motion is among the newest in a case before U.S. District Judge James Carr.

In her filing, Madeline Fleisher, a senior ELPC attorney, said the U.S. EPA’s decision to go along with Ohio’s plan is “arbitrary, capricious, an abuse of discretion, and not in accordance with the Clean Water Act.”

The Ohio EPA did not respond to requests for comment, while a U.S. EPA spokesman said the federal agency has a policy against commenting on pending litigation.

Two U.S. Department of Justice attorneys representing the federal EPA told Judge Carr at a recent court hearing in Toledo it is their position that he cannot order a TMDL. They also said they believe the case should have been dismissed after the impairment designation was made.

The judge has retained jurisdiction to make sure there would be follow-through after the designation was made.

“Now that we've got the designation, that's great. But that was not the point,” Ms. Fleisher told The Blade on Monday. “What we want is to fix Lake Erie's problems.”

Ohio EPA Director Craig Butler and Karl Gebhardt, the state agency’s deputy director of water resources and Ohio Lake Erie Commission executive director, have said at recent meetings in Toledo the administration will accomplish just as much through a different strategy, one in which Ohio Department of Agriculture Director David Daniels would declare the worst sub-watersheds as distressed and order a suite of improvements, including manure-management plans.

The two have said that strategy will help get Ohio back on track for a 40 percent reduction in phosphorus levels by 2025, which Ontario and Michigan have also pledged to do under an annex to the nonbinding Great Lakes Water Quality Agreement between the United States and Canada.

Ms. Fleisher said the Ohio EPA is “basically trying to opt out of the Clean Water Act” and is not legally allowed to do that.

In her filing, she states the Great Lakes Water Quality Agreement is “an unenforceable international agreement that in no way pre-empts the requirements of the Clean Water Act.”

Contact Tom Henry at thenry@theblade.com, 419-724-6079, or via Twitter @ecowriterohio.

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