Lawyers are joining scientists to battle harmful algal blooms (HABs) in Lake Erie
By Ken Kilbert
Director, Legal Institute of the Great Lakes
University of Toledo College of Law
Researchers at the University of Toledo College of Law recently published a white paper addressing Lake Erie’s algae woes. Ohio Sea Grant Director Jeff Reutter served as -Co-Investigator for this National Sea Grant Law Center-sponsored project that produced the report describing laws applicable to stemming sources of phosphorus and making recommendations for using and changing laws to reduce HABs formation. The project also included two workshops earlier this year in Toledo and Columbus featuring experts from science, government and law addressing best practices and legal tools for reducing HABs in Lake Erie.
HABs, excessive growths of toxin-producing cyanobacteria, have reached crisis proportions in recent summers in Lake Erie, causing substantial economic and environmental damage and threatening public health. Experts, such as the Ohio Lake Erie Phosphorus Task Force convened by the Ohio Environmental Protection Agency (OEPA), point to increased levels of phosphorus entering the lake and its tributaries from a variety of sources as a principal driver for the more severe and widespread HABs in Lake Erie.
Phosphorus enters Lake Erie by “point”? sources, such as end-of-pipe discharges from treatment plants, as well as less regulated, diffuse “nonpoint”? sources. The federal Clean Water Act prohibits point sources from discharging pollutants such as phosphorus into waters without a permit. Although there is still room for improvement, the Clean Water Act since its enactment in 1972 has been relatively successful in reducing the volume of phosphorus discharged from point sources into Lake Erie and its tributaries.
By contrast, federal law governing nonpoint sources is weak, largely relying on incentives to induce voluntary pollution reduction. A complex system of Ohio state laws, administered by OEPA, Ohio Department of Natural Resources (ODNR), and Ohio Department of Agriculture (ODA), only partially fills the regulatory gap.
The white paper’s recommendations for what can be done in Ohio include: – OEPA should promulgate numeric water quality criteria for phosphorus. Current narrative criteria are vague and difficult to apply. – ODNR should designate the Lake Erie watershed “in distress.”? This would trigger new regulations governing application of manure and requiring nutrient management plans. – ODNR should establish minimum best management practices applicable to all farming operations and streamline enforcement of them. – General Assembly should amend the definition of “concentrated animal feeding facility”? to include medium-size animal feeding operations. Currently only large animal feeding operations must obtain permits from ODA. – OEPA should establish more stringent phosphorus effluent limits for publicly owned treatment works in the Lake Erie basin. – OEPA should require more National Pollutant Discharge Elimination System (NPDES) permit holders to monitor for phosphorus. Currently fewer than 1/3 of NPDES permits in the Lake Erie basin monitor for phosphorus. – OEPA and boards of health should more aggressively enforce against home sewage treatment systems that contribute significantly to phosphorus pollution. – OEPA should encourage water quality trading. Such programs, already in use in the Ohio River basin, can reduce phosphorus loading cost-effectively and encourage voluntary reductions of phosphorus pollution by nonpoint sources in the Lake Erie basin. – General Assembly should enact legislation significantly restricting the application of phosphorus-containing fertilizer on lawns. Other Great Lakes states recently have done so. – Agencies should prioritize grant funding for projects that reduce phosphorus loading.
Legal Tools for Reducing Harmful Algal Blooms in Lake Erie, as well as the workshop materials, are available at law.utoledo.edu/ligl/habs.