Senior U.S. District Judge James G. Carr has granted legal standing to all four entities seeking to be part of a landmark case brought against the U.S. Environmental Protection Agency by the Environmental Law & Policy Center and Advocates for a Clean Lake Erie.
The judge’s action comes in preparation for a hearing next week that could affect Lake Erie’s future.
The judge granted a motion filed by the cities of Toledo and Oregon, another motion filed by the Lake Erie Foundation, and a third filed by Guardians of Grand Lake St. Marys. Each of the decisions was filed by the court in its online docket Friday.
The groups sought Judge Carr’s permission to assist the plaintiffs in their case.
The two groups that filed the lawsuit claim a cleanup strategy known as a “total maximum daily load,” or TMDL, has been required under the federal Clean Water Act since the Kasich administration reversed course and agreed in March to designate the open water of western Lake Erie as impaired.
By far the most site-specific, complex, and costly of all strategies, a TMDL is used to set limits for how much pollution a river, lake, stream, or other type of ecosystem can reasonably withstand. It differs based on location, size, soil, and other factors — but the strategy often comes back to the concentration of runoff from area farms.
The U.S. Department of Justice, on behalf of the U.S. EPA, argues the judge does not have the power to make such a ruling because the case, filed in 2017, was limited to the impairment issue when it was filed. The Justice Department also argues the Ohio EPA has never explicitly refused to do a TMDL.
Acting U.S. EPA Administrator Andrew Wheeler told The Blade in an interview Friday that the nation’s largest TMDL, one which went into effect for the Chesapeake Bay a few years ago, is working but declined to comment on the Lake Erie case or say if he believes western Lake Erie will ultimately be put under a TMDL program.
TMDLs are not uncommon for smaller streams and lakes, even in Ohio. But the size of one envisioned for western Lake Erie draws a lot of controversy because of its complexity.
The case is back in federal court Tuesday in Toledo.
Contact Tom Henry at thenry@theblade.com, 419-724-6079, or via Twitter @ecowriterohio.
First Published August 17, 2018, 5:55 p.m.
