By: Peggy Kirk Hall, Monday, January 22nd, 2018

Written by Ellen Essman, Sr. Research Assoc., Agricultural & Resource Law Program

The saga of Ohio’s designation of impaired waters continues. Readers will recall previous posts on the Ag Law Blog detailing lawsuits against the U.S. EPA for failing to approve or disapprove Ohio’s 2016 list of impaired waters within the time limit required by law. Those posts are available here and here.  Eventually, on May 19, 2017, the EPA accepted the Ohio EPA’s list of impaired waters, which did not include the open waters of Lake Erie’s western basin. Our blog post regarding that decision is here. That, however, was not the end of the story. In a letter to the Ohio EPA dated January 12, 2018, the U.S. EPA withdrew its May 2017 approval of Ohio’s impaired waters list and asked Ohio to compile additional data for a new evaluation of Lake Erie.

What’s the issue?

Why has Ohio’s 2016 list of impaired waters been so hotly contested? Understanding this situation requires a little bit of background information. An EPA regulation created under the federal Clean Water Act (CWA) requires that states submit a list of impaired waters every two years. “Impaired waters” are those water bodies that do not or are not expected to meet the water quality standards for their intended uses. Designating a water body as impaired triggers a review of pollution sources, determinations of Total Maximum Daily Loads (TMDLs) of pollutants, and an action plan for meeting TMDLs.

After a state submits its impaired waters list, the EPA must approve or disapprove the designations within 30 days. In the case of Ohio’s 2016 list, Ohio did not include the open waters of the western basin of Lake Erie on its impaired waters list and the EPA delayed acting on the list until far beyond the 30 day mark.  On the other hand, Michigan listed all of the waters of Lake Erie within its jurisdiction as impaired, which included the open waters in the western basin of Lake Erie. By approving both Ohio’s list and Michigan’s list, the EPA was agreeing to two different designations for what could essential be the same water in the same area of Lake Erie. As a result of this discrepancy, environmental groups brought a federal lawsuit against the EPA.

EPA withdraws approval

The EPA’s recent letter to Ohio could possibly have been prompted by the lawsuit mentioned above. In  its letter, the EPA withdrew its May 2017 approval…”specifically with respect to the open waters of Lake Erie.” The agency states that Ohio’s 2016 submission failed to assemble and evaluate existing data and information related to nutrients in the open waters of Lake Erie, and directs Ohio to reevaluate available data and information by April 9, 2018.

Going forward

The controversy over Ohio’s 2016 designation of impaired waters has gone on so long that it’s now time for a new list.  Ohio must submit a 2018 designation of  impaired waters to the EPA by April 1, 2018.  It is very likely that the withdrawal of approval for the 2016 list will affect which waters Ohio designates as impaired on its 2018 list, particularly in regards to the western basin of Lake Erie.

The withdrawal of approval could also affect the outcome of the current lawsuit against the EPA. The environmental groups plan to persist with the lawsuit even in light of the EPA’s withdrawal. It will be interesting to see who the District Court sides with, given the fact that the EPA has now taken steps to resolve the discrepancy at the heart of the lawsuit.

The letter from the U.S. EPA to the Ohio EPA is available here.