By: Peggy Kirk Hall, Thursday, May 18th, 2017

Written by Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program

On May 17, 2017, the Environmental Law & Policy Center (ELPC) and two of its members filed suit against the U.S. Environmental Protection Agency (EPA) in the U.S. District Court for the Northern District of Ohio. ELPC filed the lawsuit to compel the EPA to either accept or reject Ohio’s list of impaired waters. In April, the National Wildlife Federation and other groups sued the EPA in the U.S. District Court for the District of Columbia for the same reason. For more information on the first lawsuit and a more thorough background on the topic, read our previous blog post.

Federal regulation under the Clean Water Act requires states to submit lists every two years of waters they determine to be impaired. The regulation also requires the EPA to either accept or reject the state listings within thirty days. The Ohio Environmental Protection Agency submitted its list of impaired waters on October 20, 2016. The list did not include the open waters of the western basin of Lake Erie. The EPA has not made a decision on Ohio’s list.

To make the situation more complex, Michigan did include its share of the open waters of the western basin of Lake Erie on its list. What is more, the EPA approved of Michigan’s impaired waters list. The plaintiffs in both of these lawsuits seem to hope that forcing the EPA to make a decision on Ohio’s impaired list will resolve the differences in the two states’ listing of waters in the same general area of Lake Erie.

ELPC filed the lawsuit in the Toledo office of the U.S. District Court for the Northern District of Ohio, citing its proximity to Lake Erie, and in particular, to the pollution problem in the western basin of the lake. ELPC’s press release on its lawsuit is available here.