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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 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.

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.

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. 

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.

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.

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.

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.

News from                                                             
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.