Western Lake Erie “impairment” designation: What does it mean? How can it happen?

Adam Rissien

Agricultural & Water Policy Director arissien@theOEC.org(614) 487-7506

Western Lake Erie “Impairment” Designation: What it Means & How it

Would Work

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Ohio Environmental Council

Our Mission: To secure healthy air, land, and water for all who call Ohio home.

About the OEC

Founded in 1969 Statewide, non-profit, non-

government Membership organization –

3,000+ individuals, 100+ group members

Budget of $1.5 million – funded primarily by grants & donations

Volunteer Board of Directors; 18 staff members

Key Issues

Clean Water Program Reduce Nutrient Pollution

Prevent Spread of Asian Carp

Environmental Health Program Protecting People from Toxic

Chemicals

Clean Air Program Promoting Renewable Energy

Sources

Natural Resources Protecting State Parks & Nature

Preserves

Green Jobs / Green Economy Promoting Environmentally

Sustainable Careers

Oil & Gas Drilling Fight Fracking

Waterway “impairment”The Clean Water Act’s procedure for making waterways fishable, swimmable, and drinkable again.

Emily A. Collins

Executive Director & Managing Attorney

ecollins@fairshake-els.org

CWA Water Quality Standards: The Process

Step 1: Designate uses of segments of water

Step 2: Develop pollutant criteria to protect uses

Step 3: Does action need to be taken to meet WQS? If criterion are not met, the water segment is “impaired”

and a TMDL is required

Designating uses

Use designation is a policy/land use choice. Purpose: to protect public health and welfare, enhance

water quality Possible categories: public water supply, propagation

of fish & wildlife, recreation, agriculture, industry and navigation.

CWA §§ 101(a), 303(c)(2)(A)

Developing criteria (by pollutant) Based on scientific studies of the effect of pollutants Primarily numeric criteria for each pollutant

(phosphorous, nitrogen, aluminum, etc.) designed to protect each use

But, for nutrient-based pollution, rarely numeric.

Use impairments

If the criteria are not met, the use is impaired. If the use is impaired, the CWA requires development

of a budget or diet for the water segment: a Total Maximum Daily Load.

States must identify waters not meeting standards and establish a load of how much of a certain pollutant a water body can take (with a margin of safety).

Nutrient Water Quality Criteria in the Basin

Ohio: “waters shall be…free from nutrients entering the waters as a result of human activity in concentrations that create nuisance growths of aquatic weeds and algae.” 3745-1-04

MI: less than 1 mg/l phosphorous for point sources; and “nutrients shall be limited to the extent necessary to prevent stimulation of growths of aquatic rooted, attached, suspended, and floating plans, fungi or bacteria which are or may become injurious to the designated uses of the surface waters of the state.”

About the Chesapeake Bay

The nation’s largest estuary Worth $1 trillion Covers 64,000 square miles 6 states and D.C. contribute to the Bay: PA, VA, MD,

NY, DE, WV

Chesapeake Bay cleanup history 1983: the Chesapeake Bay Agreement – a multi-state

agreement to clean up the Bay 1999: American Canoe Ass’n v. EPA, 54 F.Supp. 621

(E.D.Va.1999) – litigation on EPA duty to create TMDL 2000: Clean Water Act amended to establish the

Chesapeake Bay Program to implement & coordinate scientific activities and assist Agreement signatories in carrying out their responsibilities; new agreement

1983-2005: the Bay’s quality declines

History (cont’d)

2008: Chesapeake Action Plan submitted to Congress 2009: President Obama’s Executive Order to renew

federal commitment to control pollution from all sources

2009: EPA announces intent to create basinwide TMDL with caps on nitrogen, phosphorous, sediment by year, jurisdiction & basin June 2010 – draft TMDL December 2010 – final TMDL

TMDL Litigation

Scott v. City of Hammond, 741 F.2d 992 (7th Cir.1984) States required to list impaired waterbodies in 3-year

submissions to US EPA. CWA requires EPA to develop TMDLs when it disapproves

state-submitted TMDLs. What if state doesn’t even submit a TMDL? Court held that

a state failure to submit a TMDL is a “constructive submission” that no TMDL was needed.

EPA then has to decide if the water quality data submitted every 3 years demonstrates that WQS not being met. If so, EPA acting arbitrarily & capriciously to approve of a state submittal that no TMDL is needed.

Early Chesapeake TMDL Litigation

American Canoe Ass’n v. EPA, 54 F.Supp.2d 621 (E.D.Va. 1999) Virginia’s failure to submit a TMDL at issue Case ended in a consent decree with VA & EPA to

establish a timeline to develop a TMDL for the Chesapeake Bay.

Chesapeake TMDL

Reductions 25% nitrogen: allowed loading of 185.9 million lbs 24% phosphorous: allowed loading of 12.5 million lbs 20% sediments: allowed loading of 6.45 million lbs

Timeline 60% pollution controls in place by 2017 100% pollution controls in place by 2025

Lag time between implementation and healthy Bay: 20-40 years!

Implementation by states

Watershed implementation plans (WIPs) are the state plans to meet the federal basin-wide TMDL Descriptions of authority & actions each state will take to

achieve point & nonpoint source target loads and TMDL allocations

States had to provide “reasonable assurances” that pollutant loads would be achieved & maintained

Nonpoint sources are included?

Yes. EPA used a model called “Scenario Builder” to estimate nonpoint source contributions of each state by source. Agriculture Atmospheric deposition Forest lands On-site wastewater treatment Nonregulated stormwater runoff Oceanic inputs Streambank & tidal shoreline erosion Wildlife Tidal resuspension

What about Canada?

Canada is not subject to the jurisdiction of the U.S. Federal Clean Water Act.

Point of a TMDL is to establish an allowed load of pollution. Chesapeake: allocations on state-by-state basis TMDL can account for Canada’s contributions

Fact of international jurisdiction contributing doesn’t exempt U.S. states from listing Lake as impaired & creating a plan for their jurisdiction.

What about the TMDLs for tributaries?

Chesapeake Bay region had TMDLs for local waters before the Bay TMDL was issued.

The diet for a flowing stream is very different from the necessary diet for the Lake. The measurement of how much a feeder stream can take

is very different from the measurement for how much the Lake can take to meet its designated uses.

The designated uses may also be different!

What happens if there’s no TMDL?

Without a TMDL, states and citizens do not have targets to appropriately control the nutrient levels entering the Lake to achieve its designated uses.

Citizen participation opportunities are reduced or removed.

Enforcement mechanisms for states and citizens are reduced or removed.

How to contact me:

Emily A Collins

Fair Shake Environmental Legal Services

(412) 742-4615

ecollins@fairshake-els.org