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Judge says algae lawsuit has too many loopholes – Toledo Blade

August 21, 2018

Toledo Blade, Tom Henry

Though clearly frustrated by the state of Ohio’s response to toxic algal blooms that have carpeted western Lake Erie’s surface the past 23 summers, Senior U.S. District Judge James G. Carr said in open court Tuesday he worries he is on “thin ice” with the case before him.

He said he welcomes a new version of it to be filed in hopes of eliminating any outstanding administrative issues the federal government might use to get his ultimate decision thrown out on appeal, while recognizing that a new filing would likely result in additional delays.

“I’m concerned my hands will be tied,” Judge Carr said, explaining that he believes the current case is going into uncharted territory and needs to have some bureaucratic loopholes eliminated. “I'm a little wary of skating on too thin ice.”

“Ohio is doing a good bit, but is it doing what needs to be done?” the judge asked. “I think the records show clearly the efforts Ohio has taken with voluntary compliance have had no discernible effect. ... It seems like common sense. We can’t be endlessly dumping that stuff into the lake.”

The judge also said he would like to see the Ohio EPA take an active role in the case, perhaps as an amicus — that is friend of the court — partner with the defendant.



Mayor Kapszukiewicz Pushes for a Total Maximum Daily Load for Lake Erie

August 11, 2018

City of Toledo, OH 

Toledo Mayor Wade Kapszukiewicz followed through today on his promise to push for a total maximum daily load for Lake Erie. 

The cities of Toledo and Oregon filed a joint Amicus Memorandum in U.S. District Court seeking the creation of a total maximum daily load (TMDL) for Lake Erie.

“I campaigned on cleaning up the lake and we are following through on that today by filing this motion,” Mayor Kapszukiewicz said. “We need to hold the non-point sources accountable and this is one way we can do it. We support the efforts of the Environmental Law & Policy Center, Advocates for a Clean Lake Erie, and Mike Ferner, who has pushed for years to get tougher regulations for polluters. Toledo and Oregon taxpayers, as well as the water ratepayers in the entire Toledo region, are paying hundreds of millions of dollars for equipment, technology, and chemicals to treat our lake water because of harmful algal blooms. We need the problem to be fixed at the source and I believe a total maximum daily load is necessary for that effort.”

Toledo will spend $527 million on the Toledo Waterways Initiative Program by 2020 and more than $500 million on infrastructure improvements to improve water quality, yet there are no regulatory requirements on the vast majority of polluters who are responsible for the harmful algal blooms that happen every summer on the lake, the mayor said.

Toledo and Oregon are both located on Lake Erie and are greatly affected by its water quality. Toledo operates a water treatment plant that provides water to about 500,000 customers throughout northwest Ohio and southeast Michigan. Oregon operates a water treatment plant that provides water to the citizens of Oregon, Genoa, Northwood, Lake Township, Millbury, Jerusalem Township, Harbor View, and some other Lucas County local area pipelines.

The cities submitted the motion today to support the plaintiffs’ request to require a TMDL for Lake Erie.

“It is important for our communities to continue to work together to protect the lake,” Oregon Mayor Michael J. Seferian said.

The motions states: “The U.S. Environmental Protection Agency is refusing to protect the environment by continuing to allow the state of Ohio to ignore the mandates of the Clean Water Act and create a TMDL for Lake Erie. The Clean Water Act’s requirement to create a TMDL for an impaired waterway is a solution to a pollution problem that involves many independent actors. Eighty-eight percent of the phosphorus causing Harmful Algae Blooms comes from various nonpoint sources such as agricultural runoff.”

It further states: “The failure of the nonpoint polluters to change their behavior or share in any cost of the clean-up of Lake Erie will continue to burden the cities and damage the environment.”

A hearing in the case is scheduled before Judge James G. Carr on Aug. 21 (2018).


Toledo, Oregon push for stronger Lake Erie protections – Toledo Blade

August 10, 2018

Toledo, Oregon push for stronger Lake Erie protections

ByTom Henry | BLADE STAFF WRITER Published on Aug. 10, 2018

Toledo and Oregon have become parties to a lawsuit filed by two groups that calls upon U.S. District Judge James G. Carr to order the most comprehensive cleanup strategy for western Lake Erie, known as a total maximum daily load.

The two plaintiffs, the Midwestern-based Environmental Law & Policy Center and the Toledo-based Advocates for a Clean Lake Erie, contend the federal Clean Water Act requires the highly aggressive TMDL cleanup strategy to be followed by the Ohio Environmental Protection Agency once the Kasich administration finally relented in March — after years of resistance — and declared western Lake Erie’s open waters to be impaired.

They want the judge to impose a TMDL order on the U.S. EPA, with the understanding the federal agency would then require the Ohio EPA to carry out the program.

Toledo’s decision to get involved dates back to May 1, 2017, a day before Mayor Wade Kapszukiewicz announced his candidacy for that office.

During an all-day tour of southeast Michigan factory farms, Mr. Kapszukiewicz, a Democrat, told The Blade there were two things he would do if elected: First, call for the impairment status and, second, have Toledo assist the two plaintiffs in their lawsuit.

He never had to call for the impairment status once elected because former Mayor Paula Hicks-Hudson — a Democrat who had long sided with the Kasich administration on that issue — had a sudden change of heart last September, weeks before the election, after a thick blanket of algae appeared in downtown Toledo just as ProMedica was preparing for a major regatta near Promenade Park.

“I campaigned on cleaning up the lake and we are following through on that today by filing this motion,” Mr. Kapszukiewicz said in his prepared remarks Friday, referring to a court filing known as an amicus brief.

“We need to hold the nonpoint sources accountable and this is one way we can do it. We support the efforts of the Environmental Law & Policy Center, Advocates for a Clean Lake Erie, and Mike Ferner, who has pushed for years to get tougher regulations for polluters,” the statement said.

The city of Oregon co-signed the eight-page memorandum. That city’s mayor, Michael J. Seferian, said in his prepared remarks that it is “important for our communities to continue to work together to protect the lake.”

In the motion, the two cities argue they should be given standing as plaintiff parties because they believe the U.S. EPA “is refusing to protect the environment by continuing to allow the state of Ohio to ignore the mandates of the Clean Water Act.”

“The Clean Water Act’s requirement to create a TMDL for an impaired waterway is a solution to [a] pollution problem that involves many actors,” lawyers for the two cities wrote.

Their brief cited The Blade’s coverage of an Ohio EPA report from April that contends 88 percent of algae-forming phosphorus flowing down the Maumee River and into Lake Erie comes from nonpoint sources like agricultural runoff.  

“Voluntary measures of reducing nonpoint sources of nutrients are not working,” the memo states. “Without the guidance and accountability that a TMDL analysis would provide, it is highly doubtful that the political support will exist to hold nonpoint polluters accountable in a regulatory manner. Hence, the phosphorus loading will continue unabated and Lake Erie will continue to turn green every year.”

Howard Learner, ELPC’s executive director, welcomed support from the two cities, telling The Blade it is “an important action for advancing necessary solutions to reduce agricultural runoff pollution that is contaminating Lake Erie.”

Local residents are “entitled to safe, clean drinking water supplies and a healthy Lake Erie fishery and ecosystem,” he said.

Said Mr. Ferner: “It's an encouraging difference from past city administrations, which didn't even recognize Lake Erie was impaired. It should add momentum to the lawsuit and hopefully encourage Judge Carr to make the EPA do its job.”

The U.S. EPA declined to comment, citing its longstanding policy against talking about cases in progress.

The Ohio EPA and the Kasich administration did not respond to requests for comment.

The Justice Department, in open court and in briefs, has asked Judge Carr to dismiss the case on the grounds plaintiffs got what they wanted from an impairment designation. The plaintiffs have argued the judge should retain jurisdiction to ensure the designation is more than symbolic.

Justice Department lawyers also have stated, including in a document filed Monday, the Ohio EPA has never “clearly and unambiguously abandoned its obligation to produce a TMDL.” Plaintiffs point to at least one statement by an agency official claiming the Ohio EPA is not interested in going that route.

The Kasich administration, as an alternative, proposed designating several watersheds flowing into western Lake Erie as “distressed” to make them eligible for stronger Ohio Department of Agriculture oversight of manure application. That initiative, though, has been indefinitely put on hold by the Ohio Soil and Water Conservation Commission.



NOAA issues Lake Erie Bulletin warning about Microcystis toxins & beaches

July 16, 2018

NOAA has issued a new bulletin providing updated forecasts of harmful algal blooms (HABs) for the cyanobacteria Microcystis in Lake Erie on July 2, 2018. 

Keeps pets and yourself out of water in areas where scum is forming.

In the event that you do come into contact with water that is known to be contaminated with cyanotoxins, the Centers for Disease Control (CDC) recommends that you rinse off with clean, fresh water as soon as possible. Seek medical treatment right away if you think you or someone you know might have been poisoned by cyanobacterial toxins, especially when any of the symptoms mentioned below are recognized.

[caption id="attachment_2531" align="alignleft" width="330"]Cyanotoxins: Health Risks to Humans Cyanotoxins: Health Risks to Humans[/caption]

Pets, livestock, and people trying to cool off may be exposed to microcystins resulting in liver damage or failure. Signs of liver injury include vomiting, diarrhea, blood in stool or black, tarry stool, weakness, pale mucous membranes, jaundice, seizures, disorientation, coma, and shock. Death generally follows within days as a result of liver failure.  Aggressive, immediate treatment is necessary to help treat this quick-acting, potentially fatal poison.

Anatoxins result in neurotoxicity evidenced by excessive secretions (e.g., salivation, lacrimation, etc.), neurologic signs (including muscle tremors, muscle rigidity, paralysis, etc.), blue discoloration of the skin and mucous membranes, and difficulty breathing. Death follows within minutes to hours of exposure as a result of respiratory paralysis. Livestock that graze around affected ponds or lakes and are able to drink from them are often found dead near the water source. Treatment includes anti-seizure medication, oxygen, and aggressive care by your veterinarian.




Lake Erie Advocates Urge: Enforce Existing Environmental Laws

July 11, 2018

News from:
CONTACT: Mike Ferner 419-729-7273
Kasich also signed the misnamed “Clean Lake 2020” legislation
Toledo – The following statement is from Advocates for a Clean Lake Erie coordinator, Mike Ferner, in response to Governor Kasich signing an executive order earlier this afternoon to set up “distressed watersheds” in several sub watersheds of the Maumee River in NW Ohio that will rely on Nutrient Management Plans (NMPs), as well as signing the Gardner-Arndt “Clean Lake 2020” bill allocating another $36,000,000 for so-called “conservation practices.”
Governor Kasich and several of his department heads put on a bit of political theater this afternoon in the Ohio Statehouse in an effort to appear like they were exercising bold leadership to help Lake Erie.  Unfortunately, the governor’s actions were costly, unnecessary and highly unlikely to result in any improvement in what causes Lake Erie to go toxic every summer.  Sadly, participants at the Statehouse announcement included representatives of the Ohio Environmental Council and the Lake Erie Foundation, apparently standing in for the Ohio Farm Bureau.
I) “Distressed Watersheds” Do Not Work
Kasich signed the order because, as he admitted, he could not get the proposal through the legislature.  The point, however, is that neither his order nor that legislation are needed.  What is needed and what the governor refuses to do, is to direct the Ohio EPA to simply follow the impaired watershed provisions of the Clean Water Act, as is being done successfully for Chesapeake Bay.
The governor and his directors pointed to Grand Lake St. Mary’s as a success story after a distressed watershed was declared there in 2010.  ODNR Director, James Zehringer, stated there has been “significant reduction since 2011” in nutrient levels following establishment of Nutrient Management Plans (NMPs).
However, the report he referred to states that only 25% of the Grand Lake St. Mary’s watershed was monitored and that, “Overall, reductions following the distressed designation for all parameters ranged from 5 to 35% during medium and high flow periods (with exception of SRP Soluble Reactive Phosphorus).
Soluble Reactive Phosphorus is precisely the agent that responsible for growth of toxic algae blooms.
Additional proof that the distressed watershed approach has not worked for Grand Lake St. Mary’s is found in this Celina newspaper account of a $500,000 project headed by the Ohio DNR to try and make one acre of the 13,500-acre lake swimmable.
Finally, the governor’s order leaves out portions of NW Ohio that should be covered in any pollution inventory.
II) Nutrient Management Plans Do Not Work
Pam Taylor, Research Coordinator for Environmentally Concerned Citizens of South Central Michigan, responded to Kasich’s actions today by saying, “This is a sad day for Lake Erie.  Today’s actions are not going to help, they are simply more of the same that hasn’t worked.  NMPs have been available for years and have been used in Michigan for years.  The biggest problem with them is that farmers don’t follow them and there is no enforceability.  It’s far better to do comprehensive water testing to see what’s going into the streams.”
Comprehensive water sampling, or a pollution inventory, is exactly what the Clean Water Act requires, followed by Total Maximum Daily Loads (TMDLs) established to limit what can be released from all sources.
TMDLs are legally enforceable.  Timetables and deadlines established by the Clean Water Act are legally enforceable.  Distressed watershed schemes are voluntary and we know that doesn’t work.   
III) The Politics of Today’s event
Kasich’s statements today proved that he is doing all in his power to deflect attention away from the Confined Animal Feeding Operations (CAFOs) that annually dump hundreds of millions of gallons of untreated feces, urine and antibiotic-resistant bacteria on fields draining into Lake Erie.  The governor referred repeatedly to the “fertilizer industry” and avoided using the word “manure” until asked by a reporter.  At that point the live video feed went black and Kasich’s response was unintelligible.
His administration, the Farm Bureau and the two environmental groups standing in for the Farm Bureau today are intent on not challenging the powerful interests who continue to benefit from the status quo by externalizing their costs, in this case by using Lake Erie as their free toilet for animal waste.

NOAA predicts harmful Lake Erie algae bloom – Detroit News

July 3, 2018

Sarah Rahal, The Detroit News - July 12, 2018

Researchers are predicting possibly toxic algae will form in western Lake Erie this summer, but are expecting the bloom to be less severe than previous ones that contaminated drinking water, officials say.

National Oceanographic and Atmospheric Administration scientists expect this summer's bloom to measure a 6 on the severity index but could range between 5 and 7.5. This is smaller than last year's, which ranked as an 8, but larger than the mild bloom in 2016, which had a 5.5 ranking. 



Lake Erie Harmful Algal Bloom Bulletin 5-19-18

May 23, 2018

True color image on 16 May 2018 taken by the MODIS on the NASA Aqua satellite. A plume of sediment from the Maumee River appears in the southwest corner of the lake. Sediment from previous high flow events and strong winds can be seen. No cyanobacteria are present.

[caption id="attachment_2507" align="alignleft" width="830"]True color image on 16 May 2018 taken by the MODIS on the NASA Aqua satellite. True color image on 16 May 2018 taken by the MODIS on the NASA Aqua satellite.[/caption]

Toledo Mayor goes after Farm Bureau and Legislature at Algae Conference

May 2, 2018

Tom Henry, Toledo Blade

ANN ARBOR  — The second and final day of an algae conference here attended by many Great Lakes scientists and policy experts began with some strong accusations by Toledo Mayor Wade Kapszukiewicz about the agricultural lobby’s influence on state legislators.

“We live in a state where our legislature is a wholly owned subsidiary of the farm bureau,” Mayor Kapszukiewicz said. “I'm sorry, but it's true.”

He went on to say he believes that enforcement against algae-inducing runoff from northwest Ohio farms inside the western Lake Erie watershed has thus far amounted to strongly worded letters and bureaucratic hand-slapping. That “is just not going to be good enough,” he said.

The mayor said he’s bothered progress at reducing farm runoff has been minimal despite billions of state and federal dollars spent on farm incentives. Toledoans, by contrast, have spent about $1 billion over the last 30 years in upgrading their Collins Park Water Treatment Plant and shouldered most of that burden.

Nearly half of that spending has been since the 2014 Toledo water crisis and, according to the mayor’s calculations, Toledo has received only $8 million under the Great Lakes Restoration Initiative for improvements to its water and sewage treatment plants.

He noted how the region’s concentrated animal feeding operations, or CAFOs, produce the manure equivalent of human waste generated by the cities of Chicago and Los Angeles combined.


Are farmers’ profits more important than our water? Michigan Radio

May 1, 2018

Jack Lessenberry, Michigan Radio

Last week, the Ohio Environmental Protection Agency announced that efforts to decrease those potentially toxic algae blooms in Lake Erie aren’t working. When I read that, let’s say I wasn’t exactly surprised. I moderated a large forum on this subject in Tontogany, Ohio last year.

I came away realizing that the problem was far worse than I imagined, and very skeptical that farmers would be willing or maybe even able to make the kind of sacrifices required.

When I saw the report, I reached out to a woman who for me is an authentic hero: Pam Taylor, who grew up partly on a farm in Lenawee County, and whose family has been farming there since 1837, the year Michigan became a state. For years, she’s been concerned about manure runoffs into Lake Erie from giant factory farms, and has tried to get our attention.