The Nickel Report

In August 2014, residents of Toledo lost the use of tap water for two days because of a toxic algal bloom in the western basin of Lake Erie, which is their water source. In subsequent summers, the lake’s algal blooms have been smaller, but they remain a persistent phenomenon. In fact, the National Oceanic and Atmospheric Administration (NOAA) is predicting a significant cyanobacteria algal bloom in western Lake Erie this summer.

Numerous definitions of “harmful algal blooms” exist, but they generally can be understood as excessive growths of various species of phytoplankton, protists, cyanobacteria, or macro and benthic algae that negatively impact water quality, aquatic ecosystem stability, or animal and human health. The blooms may be toxic or nontoxic. Even nontoxic blooms can have repercussions for drinking water treatment, recreational use of the waterbody, and the overall economy.

In the midst of the Lake Erie blooms, the two most affected states—Michigan and Ohio—have parted ways. Under § 303(d) of the Clean Water Act, each state is required to develop a list of “impaired” waters—i.e., those not meeting water quality standards. Michigan listed as impaired all open waters in its portion of the western basin of Lake Erie. But Ohio listed as impaired only the portion of Lake Erie from which Toledo draws its drinking water, as well as miles of the lake’s shoreline and areas around its islands. When the EPA reviewed the lists, it found no barrier to approving both lists, despite the disparate treatment of the western basin’s open waters.

Michigan based its open waters listing decision on shoreline monitoring and on NOAA satellite data documenting algal blooms. While Michigan believes the best approach to solving the algal bloom issue is a collaborative process under the binational Great Lakes Water Quality Agreement, it nonetheless listed the western basin open waters as impaired, which renders the waters subject to development of a total maximum daily load for nutrients or other constituents that contribute to the algal blooms. The EPA approved Michigan’s list in February 2017.

In contrast, Ohio justified not listing the open waters in several ways. First, it stated that it had not assessed the open waters for its 2016 list. Second, it announced plans to evaluate and develop objective listing criteria for the open waters in time for its 2018 assessment. Third, it pointed to extensive, already existing programs to address nutrient pollution in Lake Erie, including: (1) nutrient “total maximum daily loads” for the Lake’s tributaries; (2) state initiatives to reduce overall nutrient loads; and (3) multi-state and binational lake management efforts (including the Great Lakes Water Quality Agreement). In May, the EPA approved Ohio’s list and deferred to Ohio’s judgment not to list the open waters.

On July 18, two eNGOs—the Environmental Law & Policy Center and Advocates for a Clean Lake Erie—filed suit in the Northern District of Ohio challenging the EPA’s approval of the Ohio list. The complaint alleges that the EPA “simply rubber-stamped” Ohio’s list, even though the EPA specifically agreed with Michigan’s assessment that the Michigan portion of Lake Erie is impaired for nutrients. This suit may be an early test of the limits of cooperative federalism. Can the EPA allow two states to reach different conclusions regarding a shared waterbody? A court will have to decide.