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Lake Erie Advocates Urge: Enforce Existing Environmental Laws

July 11, 2018

 
News from:
 
 
FOR IMMEDIATE RELEASE JULY 11, 2018
CONTACT: Mike Ferner 419-729-7273
 
ACLE RESPONSE TO GOV. KASICH’S LAKE ERIE EXECUTIVE ORDER
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.”
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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.
 
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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. 

 

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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]
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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.

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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.

 

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Kent County dairy CAFO pipeline spills manure into river, MLive

May 1, 2018

FREEPORT, MI -- Between 5,000 and 10,000 gallons of liquid cow manure spilled into a tributary of the Coldwater River when a dairy farm pipeline malfunctioned, according to state regulators.

The Michigan Department of Environmental Quality is investigating the agriculture spill, which was discovered Monday, April 30, between 10-11 a.m., according to the dairy farm owner where the spill occurred.

Anglers notified the DEQ of a blackish discoloration of the Coldwater River downstream of the Twin River Dairy farm at 13225 108th Street on Monday at 2:30 p.m., said DEQ spokesperson Scott Dean.

Members of the Coldwater River Watershed Council said the river went from being "gin clear to black and mucky" following the spill. The group posted signage at the nearby Dolan Nature Sanctuary to warn fishermen about the manure.

The Coldwater River is a popular trout stream. Trout season opened this weekend following fingerling stocking.

 

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LAKE ADVOCATES — OHIO EPA IS “WHOLLY-OWNED SUBSIDARY OF THE FARM BUREAU”

April 20, 2018

News from                                                             Advocates for a Clean Lake Erie Logo
April 19, 2018          
Contact: Mike Ferner 419-729-7273

LAKE ADVOCATES: OHIO EPA IS A “WHOLLY-OWNED SUBSIDARY OF THE FARM BUREAU”

“Farm Bureau failed in federal court to protect the polluters of Chesapeake Bay, but the Bureau’s loyal agents in Ohio are trying again, this time in the legislature.”

TOLEDO –Advocates for a Clean Lake Erie today sent a strongly-worded letter to Ohio EPA Director, Craig Butler, blasting him for being a “loyal agent” of the Ohio Farm Bureau and his agency a “wholly-owned subsidiary.”

What sparked the environmental group’s angry letter was a series of comments made over the last week by Butler and Deputy Director Karl Gebhardt, immediately distancing the agency from its long-delayed decision to list the open waters of western Lake Erie as “impaired,” made just days before a federal court judge ordered the USEPA to take action under the Clean Water Act (CWA).  ACLE filed that suit with the Environmental Law & Policy Center.

ACLE coordinator, Mike Ferner, said, “After working diligently for over two years to get an impaired designation for Lake Erie and finally suing, we were outraged to see the head of Ohio EPA has no intention of following the provisions of the Clean Water Act, opting instead for legislation that will undoubtedly continue to shelter the lake’s polluters.”

The letter also rebuked OEPA Deputy Director Gebhardt for saying yesterday at a meeting of the Lake Erie Commission that a key CWA cleanup provision, establishing a “pollution diet” or Total Maximum Daily Load, “…is not necessary for the lake. It would take a considerable amount of time and would generate many lawsuits similar to what happened in the Chesapeake Bay.”

ACLE’s letter called Gebhardt’s statement, “the most conniving and cynical excuse” for why he and Butler are pushing for state legislation, since Gebhardt “knows full well it was THE AMERICAN FARM BUREAU THAT SUED THE USEPATO STOP THE CHESAPEAKE BAY CLEANUP, joined by the Pennsylvania Farmer’s Bureau, the Fertilizer Institute, National Pork Producer’s Council, National Chicken Council and other Big Ag allies!”

“Mr. Gebhardt must take us for complete fools or perhaps illiterate, unable to read for ourselves what happened in Chesapeake Bay,” the letter charged.

The letter concluded by saying the group will continue to advocate for the lake “by educating, organizing and court actions if necessary. At some point we would like to see the Ohio Environmental Protection Agency as a partner in actually protecting the environment, but until then we will do whatever it takes to see that the job is done.”

4.18.2018 Letter to OEPA Director Butler

Letter references Karl Gebhardt, who previously worked as an Ohio Farm Bureau Federation lobbyist for 19 years, and is currently Ohio EPA Deputy Director for Water Resources, and Ohio Lake Erie Commission Executive Director. 

[caption id="attachment_2476" align="aligncenter" width="544"]Karl Gebhardt, Deputy Director for Water Resources, Ohio EPA Karl Gebhardt, Deputy Director for Water Resources, Ohio EPA[/caption]...

What will Lake Erie’s impairment mean for northwest Ohio?

March 25, 2018

By Tom Henry, Toledo Blade

Though hailed as a rare victory for environmentalists, the Kasich administration’s reversal on the western Lake Erie impairment issue is only a “key first step” in litigation that may keep the state of Ohio tied up in court for years over cleanup strategies, according to the Chicago-based legal advocacy group that forced the administration’s hand on the issue.

Howard Learner, Environmental Law & Policy Center executive director, told The Blade less than five hours after the governor’s dramatic change of-heart was made public Thursday that his group’s U.S. District Court lawsuit against the U.S. Environmental Protection Agency is anything but over. The ELPC brought the case on behalf of Toledo-based Advocates for a Clean Lake Erie, which was founded in response to the city’s 2014 water crisis by activist and former city councilman Mike Ferner.

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Kasich declares Lake Erie’ Open Waters Impaired (Toledo Blade)

March 22, 2018

The Kasich administration — after years of resistance on behalf of agriculture — announced Thursday it has reversed itself on northwest Ohio’s arguably most contentious water-policy issue and will declare the open waters of western Lake Erie as impaired.

Although details of the impairment designation are still to be worked out, it will invariably mean tighter rules for agriculture and others that release nutrients into western Lake Erie tributaries.

Ohio has been the last holdout on the issue, which gained a lot of traction after the 2014 Toledo water crisis. During that crisis, western Lake Erie’s most notorious algal toxin, microcystin, became so strong in August that it overwhelmed the city’s Collins Park Water Treatment Plant and poisoned tap water being distributed to the metro area’s 500,000 homes and businesses. The water was never actually shut off, but the Ohio National Guard and others converged on the area to provide clean water for nearly three days while health officials declared the city’s tap water unsafe for people to drink or make body contact with.

The administration for years steadfastly refused to budge from its position until 1 p.m. Thursday, when it announced its change of heart. It had said all along it wanted to stick to voluntary incentives for cooperation from the agricultural industry on reducing farm fertilizers and other nutrients that foul waterways and help algae grow.

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LAKE ADVOCATES RETURN TO FEDERAL COURT FOR IMPAIRED STATUS

January 31, 2018

Advocates for a Clean Lake Erie LogoPress Advisory                                                                             
Advocates for a Clean Lake Erie
January 31, 2018                 
Contact: Mike Ferner 419-729-7273
                Judith Nemes ELPC 312-795-3706      
 
LAKE ADVOCATES RETURN TO FEDERAL COURT FOR IMPAIRED STATUS 
 
Following the USEPA’s admission that it illegally accepted Ohio’s 2016 decision not to list the open waters of western Lake Erie impaired, environmentalists today pressed again in Federal Court for a decision requiring the USEPA to do so within 30 days.
 
The Environmental Law & Policy Center, together with Advocates for a Clean Lake Erie filed suit in July, 2017 and returned today with a supplemental Motion for Summary Judgment in an effort to compel a mandatory cleanup of Lake Erie, stating the USEPA’s inaction “subverts the very purpose of the Clean Water Act: to promptly recognize and address the type of serious water quality problems currently plaguing Lake Erie.”
 
The motion, filed by ELPC Senior Attorney, Madeline Fleisher, added that, “The remedy for an admittedly illegal delay is not more delay.  The Clean Water Act and U.S. EPA’s own regulations make this clear.”
 
On January 15, USEPA provided a “Withdrawal Letter” in which it admitted its 2016 approval of OEPA’s refusal to place the open waters of western Lake Erie on the “impaired” list was not consistent with the Clean Water Act.  The Plaintiff’s motion filed today stated in part (emphasis added):
When a state submits an “impaired waters list” to U.S. EPA, Congress demands that the federal agency “shall either approve or disapprove such listing and loadings not later than 30 days after the date of submission.”  The statute is mandatory and by its terms gives the agency only two options: approve or disapprove.
The law also provides only a single, mandatory remedy in case of disapproval:  the Regional Administrator “shall not later than thirty days after the date of such disapproval identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards.” 
Congress provided for no other options under the law.  Yet U.S. EPA’s newly invented procedure (Withdrawal Letter) would render the action-forcing nature of the statute wholly ineffective by allowing U.S. EPA to hold a state’s list in legal limbo, thereby circumventing the timelines established by Congress… If the Court does not prevent such illegal delay in this case, there would be nothing to stop U.S. EPA from doing in future cases what it did here:  knowingly approving a deficient state list, then “withdrawing approval” only if and when that action is challenged in court.
 
It has taken U.S. EPA over a year, and apparently the prospect of this Court’s intervention, to get to the point of acknowledging that Ohio EPA’s approach is not consistent with the Clean Water Act. 
 
U.S. EPA’s chosen course of action in the Withdrawal Letter only continues this delay.  U.S. EPA meekly “requests” that the state conduct an impairment assessment for those waters “if appropriate” and submit it to U.S. EPA by April 9, 2018 – presumably for yet another round of
 
Lake Advocates Return to Federal Court pg. 2
 
review with no timetable and an indeterminate outcome.  U.S. EPA is simply compounding its illegal delay with more of the same, since the CWA requires U.S. EPA to disapprove a Section 303(d) list that does not meet statutory requirements and to then conduct the impairment assessment itself within 30 days…After waiting more than fourteen months to effectually disapprove of Ohio EPA’s deficient 2016 303(d) impaired waters list, U.S. EPA seeks to evade its responsibilities under the Clean Water Act by once again passing the buck back to the state. 
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Timeline:

2011

Environment Canada and USEPA report that “measurements of microcystin in Lake Erie were 50 times higher than the World Health Organization (WHO) recommendation for safe recreation, and 1,200 times higher than the WHO safe drinking water limit.”
 

2014

March:  Ohio EPA, in its federally-required, biannual “Integrated Report” to the USEPA, refuses to list western Lake Erie impaired, pending collection of additional data.
August: Elevated microcystin levels in Toledo’s water supply prompt a “Do Not Drink” emergency for 400,000 people over three days.
 

2015

August: USEPA approves Ohio’s March, 2014 impaired waters list, but “…expects Ohio EPA to fully assess…and to assemble and evaluate all existing and readily available data, including EPA data, for the 2016 Integrated Report and listing cycle.”
 

2016

July: OEPA’s draft Integrated Report says it will not assess the open waters of western Lake Erie, asserting that the USEPA should be responsible for doing so. 
August: USEPA responds to OEPA’s draft report, rejecting this proposed approach as inconsistent with the Clean Water Act.
September: OEPA repeats its position that it would not “unilaterally develop assessment methods” for its portion of Lake Erie, stating, “we will not discuss or propose further listings until there are [such] scientific tools” to assess impairment available
 
2017
March: USEPA sends OEPA a letter recognizing that “Ohio has yet to assess the open waters of Lake Erie for algal impairment.” 
May: Regardless of its March letter, USEPA formally approves Ohio’s 2016 impairment list, stating it “has deferred to the State’s judgment not to assess the open waters of the Western Basin of Lake Erie for the 2016 list,” thereby delaying the assessment of the open waters for two more years.  
July: Environmental Law & Policy Center, Advocates for a Clean Lake Erie, Michael Ferner, and Susan Matz file a complaint challenging USEPA’s approval of OEPA’s 2016 impairment list.
 

2018

January 15: One day before Plaintiffs’ original Motion for Summary Judgment was due to be filed and on a federal holiday – USEPA provided Plaintiffs with its “Withdrawal Letter” in which it admits that its May 2017 approval of OEPA’s refusal to list the open waters of western Lake Erie as impaired was not consistent with the Clean Water Act. 
 
 
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