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THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
OHIO

_________________________________________
ENVIRONMENTAL LAW AND POLICY
CENTER
35 East Wacker Drive, Suite 1600
Chicago, IL 60601

Case No. ______________________

ADVOCATES FOR A CLEAN LAKE ERIE

Judge _________________________

MICHAEL S. FERNER
SUSAN M. MATZ
Plaintiffs,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
William Jefferson Clinton Building
1200 Pennsylvania Avenue, N.W.
Mail Code: 1101A
Washington, D.C. 20460
SCOTT PRUITT, in his official capacity as
Administrator of the United States Environmental
Protection Agency
William Jefferson Clinton Building
1200 Pennsylvania Avenue, N.W.
Mail Code: 1101A
Washington, D.C. 20460

 Case: 3:17-cv-01514-JGC Doc #: 1 Filed: 07/18/17 2 of 38. PageID #: 2

ROBERT KAPLAN, in his official capacity as
Acting Regional Administrator of United States
Environmental Protection Agency, Region 5,
77 West Jackson Boulevard
Mail Code: R-19J
Chicago, Illinois 60604-3507
Defendants.

/

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THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
OHIO

PETITION FOR JUDICIAL REVIEW

Plaintiffs Environmental Law & Policy Center (“ELPC”), Advocates for a Clean Lake Erie
(“ACLE”), Michael Ferner, and Susan Matz, who bring this action on behalf of themselves and
ELPC’s and ACLE’s members, allege the following:

NATURE OF THE ACTION
1.

Plaintiffs are seeking judicial review of the Defendants United States

Environmental Protection Agency’s (“U.S. EPA”), U.S. EPA Administrator Scott Pruitt’s, and
U.S. EPA Acting Regional Administrator Robert Kaplan’s approval on May 19, 2017 of the list
of impaired waters submitted by Ohio Environmental Protection Agency (“Ohio EPA”), pursuant
to Section 303(d) of the Clean Water Act (“CWA”), 33 U.S.C. § 1313(d). The CWA requires a
state to assess and identify all waters within its boundaries that fail to meet the state’s water
quality standards, submitted as a biennial “impaired waters list” under U.S. EPA’s implementing
regulations. Yet Ohio failed to include the open waters of Lake Erie on its impaired waters list,
and even refused to evaluate whether the open waters are meeting Ohio water quality standards,
despite the fact that toxic algae blooms have occurred and are reasonably likely to continue
occurring on those waters. By contrast, on February 2, 2017, U.S. EPA issued its approval of the
Michigan Department of Environmental Quality’s impaired waters list, which did include the
open waters of Lake Erie within Michigan’s jurisdiction, where toxic algae blooms have
occurred and are reasonably likely to continue occurring. The Defendants’ approval of the

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impaired waters list submitted by Ohio EPA accordingly violated the Administrative Procedure
Act, 5 U.S.C. § 706(2)(A), because U.S. EPA’s decision was arbitrary, capricious, and not in
accordance with the law under CWA section 303(d) and 40 C.F.R. § 130.7.
2.

U.S. EPA’s approval of Ohio’s 2016 impaired waters list was a final agency

action subject to judicial review pursuant to the Administrative Procedure Act, 5 U.S.C. § 704,
and the Clean Water Act, 33 U.S.C. § 1313(d).
3.

Lake Erie is facing a water quality crisis. For years, it has been, and continues to

be, plagued by pollution, especially phosphorus pollution from “non-point” sources such as
fertilizer and manure runoff. This phosphorus pollution decreases the lake’s water quality and
leads to serious adverse conditions that make Lake Erie unsafe for recreation and as a source of
drinking water, among other uses.
4.

One of these adverse conditions is the growth of algal blooms. Algal blooms

produce toxins such as microcystin that can make people and pets seriously ill, and also sicken or
even kill aquatic life. Even when algal blooms do not produce harmful levels of toxins, they can
lower the levels of oxygen in the water and block sunlight, causing aquatic “dead zones” that
adversely affect fish and other aquatic life.
5.

Such algal blooms have been increasingly occurring on Lake Erie, including on

the open waters of the lake, making these waters unenjoyable—and indeed unsafe—for
recreational activities such as swimming, boating, jet-skiing, and fishing. The algal blooms also
threaten local businesses that rely on a lake that supports these recreational uses, and are harmful
to aquatic life in the open waters of Lake Erie. These same algal blooms, when they form near or
drift toward drinking water intakes, can contaminate the water and render it undrinkable without
treatment, imposing continuing risks and costs for public drinking water supplies.

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6.

In 2015, the algal blooms in the western basin of Lake Erie lasted over 40 days.

These algal blooms were deemed “the most severe this century,” with “dense scum cover[ing] up
to 300 square miles of the western basin.” National Oceanic and Atmospheric Administration,
EXPERIMENTAL LAKE ERIE HARMFUL ALGAL BLOOM BULLETIN 27 at 1 (Nov. 10, 2015),
available at www.glerl.noaa.gov/res/HABs_and_Hypoxia/lakeErieHABArchive/bulletin_2015027.pdf. Sizeable algal blooms were also recorded in 2011 and 2013. In 2014, an algal bloom
that extended far into Lake Erie’s open waters enveloped Toledo’s drinking water intake. As a
result, 500,000 people were deprived of potable drinking water for three days. Tom Henry,
Toledo Seeks Return to Normalcy After Do Not Drink Water Advisory Lifted, TOLEDO BLADE,
Aug. 5, 2014, available at http://www.toledoblade.com/local/2014/08/05/Toledo-seeks-return-tonormalcy-after-do-not-drink-water-advisory-lifted.html.
7.

Section 303(d) of the Clean Water Act, 33 U.S.C. § 1313(d), requires each state to

address water quality problems such as these by periodically assessing whether any pollutant is
preventing waters within its boundaries from meeting the state’s water quality standards even
with existing pollution controls.
8.

If any pollutant is preventing waters within a state’s boundaries from meeting the

state’s water quality standards, then the state must list the relevant waters as “impaired” by that
pollutant.
9.

Listing waters as impaired is an important first step in addressing pollution

because the listing triggers procedures to develop a “Total Maximum Daily Load” (“TMDL”), a
comprehensive plan to restore the waters of an impaired waterbody. 33 U.S.C. § 1313(d).
10.

Under U.S. EPA’s regulations implementing the impaired waters listing

requirement, a state must “assemble and evaluate all existing and readily available water quality-

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related data and information.” 40 C.F.R. § 130.7(b)(5).
11.

Ohio EPA is well aware that harmful algal blooms driven by phosphorus pollution

have impaired the quality of Lake Erie’s waters. When Ohio EPA was evaluating the condition
of its waters in preparing its 2016 list of impaired waters under CWA section 303(d), it
categorized all water within 100 meters of the shoreline of Lake Erie, as well as all water
surrounding Lake Erie public drinking water intakes, as impaired by the effects of harmful algal
blooms. OHIO ENVIRONMENTAL PROTECTION AGENCY, OHIO 2016 INTEGRATED WATER QUALITY
MONITORING AND ASSESSMENT REPORT D-2, J-16 (Oct. 2016) (“2016 Integrated Report”)
(attached hereto as Exhibit A).
12.

At the same time, Ohio EPA chose not to designate the same waters, suffering the

same harmful algal blooms, as impaired beyond these limited and artificial boundaries.
13.

This decision rested on two violations of CWA section 303(d) and 40 C.F.R.

§ 130.7: first, Ohio EPA failed to assemble and evaluate all existing and readily available water
quality-related data and information regarding the adverse conditions on the open waters of Lake
Erie that result from harmful algal blooms; and second, Ohio EPA refused to decide whether
even the data and information that it had collected showed that the water quality of the open
waters of Lake Erie is impaired.
14.

Meanwhile, the State of Michigan did conduct the required assembly and

evaluation of data regarding the contiguous portion of Lake Erie within its boundaries, and in
2016 designated its entire portion of Lake Erie as impaired under CWA section 303(d), based on
“persistent significant algal blooms mid-late summer in western Lake Erie” causing “nuisance
conditions related to nutrient expression.” MICHIGAN DEPARTMENT OF ENVIRONMENTAL
QUALITY, WATER RESOURCES DIVISION, WATER QUALITY AND POLLUTION CONTROL IN

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MICHIGAN: 2016 SECTIONS 303(d), 305(b), AND 314: INTEGRATED REPORT (Rev’d Jan. 2017)
(attached hereto as Exhibit B).
15.

U.S. EPA reviewed Michigan’s impaired waters list as required under the CWA

and approved it on February 2, 2017, specifically agreeing with the state’s “assessment showing
that the Michigan portion of Lake Erie is impaired by nutrients.” U.S. EPA, DECISION
DOCUMENT FOR THE APPROVAL OF MICHIGAN’S 2016 CLEAN WATER ACT SECTION 303(d) LIST
(CATEGORY 5) 22 (Feb. 2, 2017) (attached hereto as Exhibit C).
16.

Under such circumstances, U.S. EPA was obligated by CWA section 303(d) and

its own regulations to disapprove of Ohio’s list of impaired waterbodies and either remand the
list for further consideration or itself declare the open waters of Lake Erie as impaired.
17.

In this case, however, U.S. EPA did none of these things. Instead, U.S. EPA

simply rubber-stamped Ohio’s list in an approval issued on May 19, 2017, stating that “EPA is
deferring to the State’s judgment not to assess these waters for the 2016 list.” U.S. EPA,
APPROVAL OF OHIO’S SUBMISSION OF THE STATE’S INTEGRATED REPORT WITH RESPECT TO
SECTION 303(d) OF THE CLEAN WATER ACT (CATEGORY 5 WATERS) 9 (May 19, 2017) (“U.S.
EPA Approval”) (attached hereto as Exhibit D).
18.

Accordingly, U.S. EPA failed to ensure that Plaintiffs and the general public have

crucial information concerning Lake Erie’s water quality, and failed to ensure that the required
process for restoring the lake’s water quality could begin.
19.

Plaintiffs therefore initiate this action against Defendants U.S. EPA,

Administrator Scott Pruitt, and Acting Regional Administrator Robert Kaplan, regarding U.S.
EPA’s approval of the impaired waters list submitted by Ohio EPA on October 20, 2016
pursuant to CWA section 303(d), 33 U.S.C. § 1313(d), and 40 C.F.R. § 130.7.

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20.

U.S. EPA’s approval of this list violated the Administrative Procedure Act, 5

U.S.C. § 706(2)(A), because U.S. EPA’s decision was arbitrary, capricious, and not in
accordance with the law under CWA section 303(d) and 40 C.F.R. § 130.7.
21.

Plaintiffs seek declaratory and injunctive relief requiring U.S. EPA to partially

disapprove Ohio’s impaired waters list and to add the open waters of Lake Erie to this list.
JURISDICTION AND VENUE
22.

On May 19, 2017, U.S. EPA approved the impaired waters list that the State of

Ohio had submitted on October 20, 2016.
23.

U.S. EPA’s approval of Ohio’s 2016 impaired waters list was a final agency

action subject to judicial review pursuant to 5 U.S.C. § 704. This approval: (1) was the
consummation of U.S. EPA’s decisionmaking process for this Ohio list; and (2) determined
rights and obligations of the parties or caused legal consequences.
24.

Plaintiffs bring this petition for judicial review of U.S. EPA’s approval of Ohio’s

impaired waters list pursuant to 5 U.S.C. §§ 701 et seq. U.S. EPA’s action was unlawful and
should be set aside because it was “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law” under 5 U.S.C. § 706(2)(A).
25.

This court also has jurisdiction pursuant to 28 U.S.C. § 1331 because this is a civil

action arising under laws of the United States.
26.

U.S. EPA’s failure to require that pollution in the open waters of Lake Erie be

addressed through the development of a TMDL creates a continuing controversy that is actual
and substantial.
27.

A substantial part of the events or omissions giving rise to the claim occurred on

or near Lake Erie, which is located in the Northern District of Ohio, Eastern Division, making

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venue proper under 28 U.S.C. § 1391(e). Alternatively, venue is proper in this Northern District
of Ohio because Plaintiffs Michael Ferner and Susan Matz are residents of this district.
PARTIES
28.

Plaintiff ELPC is a Midwest-based not-for-profit public interest environmental

legal and economic development advocacy organization focused on improving environmental
quality, including clean water and healthy clean air, and protecting the Midwest’s natural
resources, including the Great Lakes. ELPC’s headquarters is in Chicago and ELPC has
additional staff and offices in Illinois, Indiana, Iowa, Michigan, North Dakota, Ohio, Wisconsin
and Washington D.C. ELPC members live, work, and play in and near Lake Erie and other Great
Lakes. They use clean water from Lake Erie as a source of drinking water, and they use and
enjoy Lake Erie for aesthetic and recreational values.
29.

Plaintiff ACLE is an environmental grassroots organization founded in Toledo,

Ohio to protect the Western Lake Erie Basin and the communities that depend on it after a toxic
algae bloom poisoned the drinking water for Toledo’s more than 400,000 residents in August
2014. Part of ACLE’s mission is to pressure government officials to get an impairment
designation for the Western Lake Erie basin, which would produce an enforceable action plan to
greatly reduce the harmful runoff that fuels toxic blooms of microcystin-producing
cyanobacteria. ACLE’s ultimate goal is to keep Lake Erie drinkable, fishable, and swimmable.
ACLE is run by its members, who live and recreate near Lake Erie and depend on clean water
from Lake Erie as a source of drinking water and aesthetic enjoyment, as well as a recreational
resource.
30.

Plaintiff Michael Ferner is a member of ELPC and a resident of Toledo, Ohio.

Mr. Ferner serves as a coordinator for ACLE.

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31.

Plaintiff Susan Matz is a member of ELPC and a resident of Toledo, Ohio. She

serves as a coordinator for ACLE.
32.

Defendant U.S. EPA is an agency within the United States government that is

responsible for implementing the CWA and approving or disapproving each state’s impaired
waters list.
33.

Defendant Scott Pruitt is the Administrator of U.S. EPA and is being sued in his

official capacity. The U.S. EPA Administrator is responsible for overseeing the agency, which in
part includes overseeing its implementation of the CWA. This level of oversight extends to U.S.
EPA’s decisions about whether to approve or disapprove states’ impaired waters lists, which
includes the October 20, 2016 list submitted by Ohio EPA.
34.

Defendant Robert Kaplan is the Acting Regional Administrator of U.S. EPA

Region 5 and is being sued in his official capacity. He is responsible for overseeing Region 5 of
the agency, which in part includes overseeing the Region’s implementation of the CWA. The
State of Ohio falls within the jurisdiction of Region 5. Mr. Kaplan’s level of oversight extends to
decisions about whether to approve or disapprove states’ impaired waters lists within the
jurisdiction of Region 5, which includes the October 20, 2016 impaired waters list submitted by
Ohio EPA.
STANDING
35.

Plaintiffs file this action on behalf of Susan Matz, Michael Ferner, and ELPC and

ACLE and their members.
36.

ELPC’s and ACLE’s members regularly use the open waters of Lake Erie under

Ohio’s jurisdiction for recreation, aesthetic enjoyment, observation, and water supplies, and will
continue to do so in the future. These uses are directly impaired by algae blooms and other

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phosphorus-related pollution. Such pollution harms water quality, reduces and damages fish
populations, impedes the ability of boats to use the water, degrades aesthetic beauty, and
threatens the safety of drinking water supplies.
37.

ELPC and ACLE members own real and/or personal property in and around the

open waters of Lake Erie under Ohio’s jurisdiction that is adversely affected by algae blooms
and other phosphorus-related pollution. Such adverse effects include lowering the value of such
property and interfering with the use and enjoyment of the property.
38.

The injuries in this case are directly traceable to U.S. EPA’s unlawful approval of

Ohio’s deficient impaired waters list. The open waters of Lake Erie under Ohio’s jurisdiction do
not meet state water quality standards, yet Ohio EPA refused to identify such waters as impaired.
U.S. EPA was therefore required to disapprove Ohio’s list and identify such waters as impaired
itself. 33 U.S.C. § 1313(d).
39.

This identification is key to the process of actually restoring the water quality of

the lake. Pursuant to CWA section 303(d)(1)(C), 33 U.S.C. § 1313(d)(1)(C), after a water is
added to a state’s impaired waters list, the state must then begin the process of establishing a cap
on the amount of pollution contributing to the waters’ impairment by creating a TMDL, and
allocating that total cap to limit pollution loads from particular sources.
40.

Thus, once the open waters of Lake Erie are on Ohio’s impaired waters list, Ohio

must create a TMDL that would cap the amount of phosphorus pollution from Ohio that enters
the open waters of Lake Erie within Ohio’s jurisdiction and allocate that cap to limit phosphorus
loads from sources in the Lake Erie watershed. That cap might be more stringent than one aimed
solely at addressing impairment along the shoreline of Lake Erie, or the source allocation might
be different.

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41.

Some of the phosphorus pollution in Lake Erie comes from “point sources” that

are directly subject to permit requirements and other regulations under the CWA. However, the
primary contributor to phosphorus pollution in Lake Erie is “non-point sources” such as fertilizer
and manure runoff. While such non-point sources are not directly regulated under the CWA,
Ohio would have to provide U.S. EPA with “reasonable assurances” that it would be able to
sufficiently reduce phosphorus pollution from such sources as part of its TMDL documentation.
A TMDL is therefore the first step toward reducing pollution from point sources and non-point
sources alike.
42.

It is within U.S. EPA’s control—and is indeed U.S. EPA’s legal responsibility—

to trigger the process that leads to the development of a phosphorus TMDL for all impaired Lake
Erie waters within U.S. jurisdiction, which would cap the amount of pollution loaded into those
waters.
43.

A phosphorus loading cap will begin the process of restoring water quality and

decreasing the threat posed by algae blooms, especially toxic algae blooms, on the open waters
of Lake Erie.
44.

However, in this case, as a result of U.S. EPA’s unlawful approval of Ohio’s

impaired waters list, no comprehensive TMDL will be set for algae blooms and other
phosphorus-related pollution that includes the open waters of Lake Erie, and no “reasonable
assurances” will be made regarding contributions of phosphorus to the open waters of Lake Erie
by non-point sources of pollution. Thus, phosphorus and other pollution will continue to harm
Plaintiffs and their members.
45.

U.S. EPA’s unlawful approval of Ohio EPA’s deficient impaired waters list

inhibits the protection of water quality and thwarts important pollution regulation that would

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have reduced and abated the injuries to Plaintiffs and their members.
46.

Plaintiffs and their members are also suffering procedural and informational

injuries resulting from U.S. EPA’s unlawful approval of Ohio’s deficient impaired waters list.
The list is an important informational tool for the general public, providing the public with
crucial information concerning the safety and health of certain water bodies. By allowing Ohio
EPA to illegally omit the open waters of Lake Erie from its impaired waters list, U.S. EPA has
obscured the potential harm of algal blooms and other phosphorus-related pollution from ELPC,
its members, and the public.
47.

In essence, U.S. EPA has allowed Ohio to falsely indicate through its omission

that such waters are free from violations of its water quality standards related to algae blooms
and other phosphorus-related pollution. Plaintiffs and their members, and the general public, may
therefore take fewer precautions regarding entering such waters and may be exposed to harm that
they might otherwise have avoided with the proper information. ELPC and ACLE may also have
to expend more organizational resources on educating potential members and the general public
about the problem of algal blooms on Lake Erie.
48.

The injuries to Plaintiffs and their members can be redressed by the declaratory

and injunctive relief sought herein.
49.

An order compelling U.S. EPA to disapprove of Ohio EPA’s impaired waters list

and to add the open waters of Lake Erie to that list will immediately provide Plaintiffs, their
members, and the general public with crucial information regarding the health and safety of such
waters—information that will help them avoid harm.
50.

In addition, such an order will trigger a duty for Ohio EPA or U.S. EPA to

develop a comprehensive TMDL for the open waters of Lake Erie within Ohio’s boundaries.

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Such a TMDL must be set at the levels necessary to attain the applicable water quality standards
specifically in the open waters as well as other impaired portions of Lake Erie and will be
incorporated into water management plans. Thus, a TMDL in this case will help prevent,
extinguish, manage, and/or reduce the injuries alleged herein by beginning the process of
ensuring that the water meets all applicable water quality standards.
51.

The listing of the open waters of Lake Erie will also likely result in greater

monitoring and management of these waters and better education regarding the causes and
dangers of algae blooms and other phosphorus-related pollution.
52.

Thus, the declaratory and injunctive relief sought herein will help prevent injuries

both now and in the future.
STATEMENT OF THE CASE
Factual Background
53.

The chemical phosphorus is a plant nutrient that can drive the excessive growth of

algae in waterbodies. This includes excessive growth of cyanobacteria, commonly known as
blue-green algae, which can produce toxins such as microcystin that harm human and animal
health by affecting the skin, liver, or nervous system. 2016 Integrated Report at C-28. Excessive
algae growth in a waterbody can also lead to depleted dissolved oxygen levels, fish kills,
unpleasant odors, and other adverse effects. Id. These excessive growths are generally known as
“harmful algal blooms” (“HABs”).
54.

Wind or water currents can result in movement of such algal blooms across a

waterbody such as Lake Erie.
55.

U.S. EPA recognizes that highly potent toxins from HABs are a significant hazard

for human health and ecosystem viability.

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56.

Lake Erie, including the portion within Ohio’s boundaries, has experienced

significant harmful algal blooms over the last several years. For example, a significant toxic
algae bloom in the western basin of Lake Erie on August 3, 2014 enveloped Toledo’s drinking
water intake with the result that public officials warned approximately 500,000 people in the
Toledo area not to consume the affected tap water for three days due to toxic contamination.
Toledo Seeks Return to Normalcy After Do Not Drink Water Advisory Lifted, TOLEDO BLADE,
Aug. 5, 2014.
57.

Sizeable harmful algal blooms developed on Lake Erie, including the open waters

of the lake, in 2011, 2013, 2014, and 2015, as depicted in National Aeronautics and Space
Administration (“NASA”) Moderate Resolution Imaging Spectroradiometer (“MODIS”) satellite
imagery 1:
2011 Harmful Algal Bloom

1

These and other MODIS satellite images of HABs on Lake Erie are provided by the National Oceanic and
Atmospheric Administration’s Great Lakes Environmental Research Laboratory at the following website:
https://www.flickr.com/photos/noaa_glerl/sets/72157639592150973.

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2013 Harmful Algal Bloom

2014 Harmful Algal Bloom

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2015 Harmful Algal Bloom

58.

Scientists from the National Oceanic and Atmospheric Administration and other

organizations have projected that significant algal blooms will occur on Lake Erie in 2017.
NOAA, PARTNERS PREDICT SIGNIFICANT SUMMER HARMFUL ALGAL BLOOM FOR WESTERN LAKE
ERIE (July 13, 2017), available at http://www.noaa.gov/media-release/noaa-partners-predictsignificant-summer-harmful-algal-bloom-for-western-lake-erie.
59.

There are numerous “point” sources of phosphorus pollution in Lake Erie. Such

sources include, but are not limited to, wastewater treatment plants.
60.

However, the primary contributors to phosphorus pollution in Lake Erie are “non-

point” sources. OHIO EPA, OHIO LAKE ERIE PHOSPHORUS TASK FORCE FINAL REPORT 17 (Apr.
2010), available at
http://epa.ohio.gov/portals/35/lakeerie/ptaskforce/Task_Force_Final_Report_April_2010.pdf.
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These non-point sources are mostly agricultural facilities in the Lake Erie watershed that use
manure and/or fertilizer, both of which contain significant amounts of phosphorus. This manure
and fertilizer can be washed off fields during precipitation events, eventually ending up in the
waters of Lake Erie.
Legal Background
Procedural Framework
61.

The Clean Water Act serves “to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” CWA § 101(a), 33 U.S.C. § 1251(a).
62.

Under the CWA, states must develop water quality standards that “shall consist of

the designated uses of the navigable waters involved and the water quality criteria for such
waters based upon such uses.” CWA § 303(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A).
63.

The CWA requires states to determine whether any body of water within states’

respective boundaries does not meet its designated uses. CWA § 303(d)(1)(A), 33 U.S.C. §
1313(d)(1)(A). States must do so by evaluating whether existing pollution controls “are not
stringent enough to implement any water quality standard applicable to such waters.” Id. States
must develop a comprehensive list of all waterbodies identified during this evaluation, referred to
herein as an “impaired waters list.”
64.

The CWA mandates that states submit their proposed impaired waters lists to U.S.

EPA for its approval. 33 U.S.C. § 1313(d)(2). U.S. EPA must approve or disapprove states’
proposed impaired waters lists before they may go into effect. Id.
65.

If U.S. EPA was to disapprove of the omission of a waterbody from an impaired

waters list, that waterbody would be added to the impaired waters list. 33 U.S.C. § 1313(d)(2).
66.

After an impaired waters list has been approved, states must establish TMDLs for

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waters included on the list. 33 U.S.C § 1313(d)(1)(c). As a part of the TMDL process, states
must establish pollutant limits to ensure that waters on an impaired waters list can meet all
applicable water quality standards. Id.
Code of Federal Regulations
67.

U.S. EPA has codified its rules for implementation of the impaired waters listing

process under CWA section 303(d) at 40 C.F.R. § 130.7.
68.

For purposes of listing impaired waters under § 130.7(b), applicable water quality

standards are the same as those established pursuant to section 303(d) of the CWA, which in part
includes waters’ designated uses and both the numeric and non-numeric “narrative” criteria for
such waters based upon those uses. 40 C.F.R. § 130.7(b)(3).
69.

Echoing CWA section 303(d), 40 C.F.R. § 130.7(b)(1) provides that a state “shall

identify those water quality-limited segments still requiring TMDLs” because existing pollution
controls “are not stringent enough to implement any water quality standards (WQS) applicable to
such waters.” According to 40 C.F.R. § 131.3(h), “Water quality limited segment means any
segment where it is known that water quality does not meet applicable water quality standards,
and/or is not expected to meet applicable water quality standards.”
70.

In order to identify water quality-limited segments, otherwise known as impaired

waters, states at a minimum must “assemble and evaluate all existing and readily available water
quality-related data and information” for certain categories of waters that include, but are not
limited to, “those for which water quality problems have been reported by local, state, or federal
agencies; members of the public; or academic institutions. These organizations and groups
should be actively solicited for research they may be conducting or reporting. For example,
university researchers, the United States Department of Agriculture, the National Oceanic and

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Atmospheric Administration, the United States Geological Survey, and the United States Fish
and Wildlife Service are good sources of field data . . . .” 40 C.F.R § 130.7(b)(5), (b)(5)(iii).
71.

After creating its impaired waters list, a state “shall provide documentation to

the Regional Administrator to support the [its] determination to list or not to list its waters as
required by §§ 130.7(b)(1) . . . .” 40 C.F.R § 130.7(b)(6). Information prepared pursuant to 40
C.F.R. § 130.7(b)(6) may be incorporated into a state’s “Integrated Report,” a biennial water
quality report accounting for a state’s submission requirements to U.S. EPA under CWA sections
303(d), 305(b), and 314.
72.

“The Regional Administrator shall approve a list developed under § 130.7(b) . . .

only if it meets the requirements of § 130.7(b).” 40 C.F.R § 130.7(d)(2).
73.

After a waterway is added to an impaired waters list, states must prepare TMDLs

for these waters. TMDLs can incorporate pollutant limits both for point sources, which are
“discernable, confined and discrete conveyance[s],” CWA § 502(14), and for non-point sources.
40 C.F.R. § 130.2(g)-(i).
74.

A state must submit an updated impaired waters list to U.S. EPA every two years.

40 C.F.R. § 130.7(d)(1).
U.S. EPA Guidance on Impaired Waters Lists
75.

According to U.S. EPA, “303(d) lists are highly visible ways of communicating

about the health of the nation’s waters.” U.S. EPA, 2002 Integrated Water Quality Monitoring
and Assessment Report Guidance 5 (Nov. 19, 2001), available at
www.epa.gov/sites/production/files/2015-10/documents/2002_02_13_tmdl_2002wqma.pdf.
76.

U.S. EPA guidance states that an assessment unit, otherwise known as an “AU,”

is a waterbody whose attainment status is reported in a state’s Integrated Report. Id. at 4. U.S.

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EPA recommends states place AUs into “five unique assessment categories.” Id. at 5. The
categories are: (1) Attaining the water quality standard and no use is threatened; (2) Attaining
some of the designated uses; no use is threatened; and insufficient or no data and information is
available to determine if the remaining uses are attained or threatened; (3) Insufficient or no data
and information to determine if any designated use is attained; (4) Impaired or threatened for one
or more designated uses but does not require the development of a TMDL; and (5) The water
quality standard is not attained. Id. at 5-7. The AU is impaired or threatened for one or more
designated uses by a pollutant(s), and requires a TMDL. Id. at 5-6. U.S. EPA does not include a
category for waters that the state has refused to assess for attainment.
77.

U.S. EPA “strongly encourages States to evaluate the status of their waters with

respect to nutrient pollution” by incorporating waterbodies that fail to meet water quality
standards or support designated uses, including waters that either numeric or non-numeric
narrative criteria into their §303(d) lists. U.S. EPA, Information Concerning 2014 Clean Water
Act Sections 303(d), 305(b), and 314 Integrated Reporting and Listing Decisions 12 (Sept. 3,
2013), available at www.epa.gov/sites/production/files/201510/documents/final_2014_memo_document.pdf.
78.

Under U.S. EPA guidelines, states are permitted to “determine whether a

waterbody is attaining its applicable narrative nutrient . . . criteria . . . by using results of visual
assessments.” Id. at 8. Visual assessments include “field observations of excessive algal growth,
macrophyte proliferation, adverse impacts on native vegetation . . . presence or duration of
harmful algal blooms, unsightly green slimes or water column cover, and/or objectionable
odors.” Id. “Documentation of fish kills . . . and beach closures, or outbreaks of waterborne
illnesses among swimmers” may also be used as non-numeric evidence of violations of narrative

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criteria. Id.
79.

U.S. EPA guidance provides that states sharing waters “should make every effort

to coordinate with each other” when preparing individual Integrated Reports, and “collect,
assemble, solicit, and assess all readily available data and information relevant to the shared
waters.” U.S. EPA, Guidance for 2006 Assessment, listing and Reporting Requirements Pursuant
to Sections 303(d), 305(b) and 314 of the Clean Water Act 42 (July 29, 2005), available at
www.epa.gov/sites/production/files/2015-10/documents/2006irg-report.pdf.
80.

U.S. EPA guidance further states that “Assessments for waters that are shared by

neighboring states should be as consistent as possible. This is particularly important for segments
listed in Category 5.” Id.
81.

When a state establishes pollutant limits for non-point sources as part of a TMDL,

“there must be reasonable assurances that non-point source reduction will in fact be achieved.”
U.S. EPA, Guidance for Water Quality-Based Decisions: The TMDL Process 7 (Apr. 1991),
available at https://www.regulations.gov/document?D=EPA-HQ-OW-2007-0784-0001.
Ohio Water Quality Standards
82.

As contemplated in the CWA, Ohio “[w]ater quality standards contain two

distinct elements: designated uses; and numerical or narrative criteria designed to protect and
measure attainment of the uses.” OHIO ADMIN. CODE 3745-1-07(A). These designated
“beneficial” uses include various levels of support for recreation, aquatic life, and public
drinking water supply. OHIO ADMIN. CODE 3745-1-07(B).
83.

Pursuant to the Ohio Administrative Code, “Statewide water quality criteria

designed to protect beneficial uses are in rule[] O.A.C. 3745-1-04,” among others. OHIO ADMIN.

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CODE 3745-1-07, Comment. The state must achieve these statewide narrative water quality
criteria in order to meet its water quality standards.
84.

One such criterion is that “all surface waters of Ohio . . . [t]o every extent

practical and possible . . . [be] [f]ree from nutrients entering the waters as a result of human
activity in concentrations that create nuisance growths of aquatic weeds and algae.” OHIO
ADMIN. CODE 3745-1-04(E).
85.

The standard delineated in Ohio Admin. Code 3745-1-04(E) is further

implemented by Ohio Admin. Code 3745-1-37, which states that “[t]otal phosphorus as P shall
be limited to the extent necessary to prevent nuisance growths of algae, weeds, and slimes that
result in a violation of the water quality criteria set forth in paragraph (E) of rule 3745-1-04 of
the Administrative Code or, for public water supplies, that result in taste or odor problems.”
86.

Additionally, in order for any surface water of the state to meet its water quality

standards, it must also be “[f]ree from substances entering the waters as a result of human
activity in concentrations that are toxic or harmful to human, animal or aquatic life” and “[f]ree
from materials entering the waters as a result of human activity producing color, odor or other
conditions in such a degree as to create a nuisance” to every extent practical and possible. OHIO
ADMIN. CODE 3745-1-04(D).
87.

The State of Ohio has assigned several beneficial use designations to Lake Erie

that the lake must support in order to meet its water quality standards. Specifically, Lake Erie
must be able to provide “exceptional warmwater habitat, superior high quality water, public
water supply, agricultural water supply, industrial water supply and bathing waters…” OHIO
ADMIN. CODE 3745-1-31(A).

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88.

Water designated as exceptional warmwater habitat must be “capable of

supporting and maintaining an exceptional or unusual community of warmwater aquatic
organisms having a species composition, diversity, and functional organization comparable to
the seventy-fifth percentile of the identified reference sites on a statewide basis.” OHIO ADMIN.
CODE 3745-1-7(B)(1)(c).
89.

“Bathing waters” are “waters that, during recreation season, are heavily used for

swimming.” OHIO ADMIN. CODE 3745-1-7(B)(3)(a). Under the Ohio Administrative Code, the
recreation season lasts from May first through October thirty-first. OHIO ADMIN. CODE 3745-17(B)(3).
90.

Ohio also requires that all waters in the Lake Erie basin comply with human

health criteria and values that “provide protection of humans from unacceptable exposure to
toxicants through consumption of contaminated fish and drinking water and from ingesting water
as a result of participation in water-oriented recreational activities.” OHIO ADMIN. CODE 3745-142.
91.

Ohio has promulgated certain numerical standards for algae-related toxins in

conjunction with the narrative standards and beneficial use designations described above.
92.

Since 2014, Ohio EPA has applied a numeric limit of 1 microgram per liter for

microcystin as a criterion for impairment of the public drinking water supply use by algae, based
on a “do not drink” threshold adopted in Ohio EPA’s 2012 “Public Water System Harmful Algal
Bloom Response Strategy.” OHIO EPA, PUBLIC WATER SYSTEM HARMFUL ALGAL BLOOM
RESPONSE STRATEGY 9 (May 2012), available at
http://www.epa.ohio.gov/Portals/28/documents/PWS_HAB_Response_Strategy_5-30-12.pdf.

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That document also includes a “do not use” limit of 20 micrograms/liter based on Ohio’s
recreation “No Contact Advisory” thresholds. Id.
93.

Additionally, Ohio Admin. Code 3745-1-35 sets a dissolved oxygen minimum of

at least 5.0 milligrams per liter and a minimum daily average of 6.0 milligrams per liter for
“exceptional warmwater habitat” such as Lake Erie under Ohio Admin. Code 3745-1-35.
94.

According to Ohio EPA, the dissolved oxygen criterion for state waters “is one of

the most important parameters in the protection and management of aquatic ecosystems since all
of the higher life forms (i.e., vertebrates, macroinvertebrates [including Unionidae]) are
dependent on minimum levels of oxygen not only for survival, but critical life cycle functions
such as growth, maintenance, and reproduction.” Ohio EPA, Justification and Rationale for
Revisions to the Dissolved Oxygen Criteria in the Ohio Water Quality Standards, OEPA
Technical Bulletin MAS/1995-12-5 (Jan. 31, 1996), available at
http://www.epa.ohio.gov/portals/35/documents/ewhdojus.pdf.
History of Impairment Determinations Regarding Lake Erie
Ohio’s 2014 Impairment Assessment
95.

On March 25, 2014, Ohio issued its 2014 Integrated Water Quality Monitoring

and Assessment Report (“2014 Integrated Report”), including its biennial impaired waters list
pursuant to CWA section 303(d). Ohio EPA, Ohio 2014 Integrated Water Quality Monitoring
and Assessment Report (Mar. 25, 2014), available at
http://www.epa.ohio.gov/dsw/tmdl/OhioIntegratedReport.aspx#123143421-2014. The 2014
Integrated Report addressed the emerging HAB problem in Lake Erie, naming HABs as
“arguably the most serious issue in Lake Erie at this time.” Id. at I-31.
96.

The 2014 Integrated Report designated portions of the shoreline of Lake Erie as

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impaired, but did not address the impairment status of areas beyond the shoreline, including
areas that serve as public drinking water supplies.
97.

In the 2014 Integrated Report, Ohio EPA proposed that in future impairment

assessments it would change its methodology for Lake Erie to divide existing assessment units
into smaller parts and “to expand coverage to all of the Lake Erie waters in Ohio, including
shoreline, nearshore and offshore waters.” Id. at I-32.
98.

Ohio EPA identified a number of sources of data that could be used in future

integrated reports to determine the impairment status of those assessment units, such as an
intensive survey of Lake Erie planned by U.S. EPA in 2014 using its research vessel Lake
Guardian. Id. at I-34.
99.

The 2014 Integrated Report also stated that “[e]xpanding Lake Erie assessment

from the coastal shallow waters to all of Ohio’s nearshore and offshore waters compels Ohio
EPA to collect representative samples to characterize each Lake Erie assessment unit (LEAU)
and to work with others to ensure that high-level credible data are available.” Id. at D-35.
100.

The 2014 Integrated Report also offered an example of how Ohio EPA would

apply such data to determine the impairment status of the assessment units, using numeric targets
for phosphorus and chlorophyll a (a measure of the amount of plant life that can be correlated
with low oxygen levels as the decomposition of dead plant cells consumes oxygen) contained in
a 2011 document developed by U.S. EPA in cooperation with Canada pursuant to the Great
Lakes Water Quality Agreement. Id. at I-31.
101.

U.S. EPA approved the 2014 Integrated Report in a decision document dated

August 7, 2015, but deferred any approval decision on Ohio EPA’s omission of the assessment
of waters beyond the shoreline “due to proposed additions to Ohio’s Lake Erie AUs that would

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expand coverage to all drinking water intakes in the WLEB [western Lake Erie basin] for the
next listing cycle. EPA is only deferring action on assessment determinations related to
microcystin impacts to the PDWS [public drinking water sources] use for the open waters of the
WLEB.” U.S. EPA, DECISION DOCUMENT FOR THE PARTIAL APPROVAL OF OHIO’S SUBMISSION
OF THE STATE’S INTEGRATED REPORT WITH RESPECT TO SECTION 303(d) OF THE CLEAN WATER

ACT (CATEGORY 5 WATERS) 3 (Aug. 7, 2015) (attached hereto as Exhibit E).
102.

U.S. EPA also stated that “EPA will coordinate with Ohio EPA and expects Ohio

EPA to fully assess the ten AUs [assessment units] for Lake Erie and to assemble and evaluate
all existing and readily available data, including EPA data, for the 2016 integrated report and
listing cycle.” Id. at 15.
103.

U.S. EPA also observed that Ohio had not assessed Lake Erie with respect to the

narrative criteria prohibiting nuisance growths of algae under Ohio Admin. Code 3745-01-04(E),
but noted that Ohio EPA had indicated in a May 28, 2014 letter to U.S. EPA that the state would
consider methods for doing so. Id. at 16.
104.

Finally U.S. EPA specifically requested that “in its future assessment of the new

Lake Erie AUs, . . . Ohio consider the impacts of HABs and nuisance algal growth on aquatic life
use, in addition to the impacts on recreational use.” Id.
Ohio’s 2016 Impairment Assessment
105.

On July 29 2016, Ohio issued a draft of its 2016 Integrated Water Quality

Monitoring and Assessment Report, including its impaired waters list. OHIO ENVIRONMENTAL
PROTECTION AGENCY, OHIO 2016 INTEGRATED WATER QUALITY MONITORING AND ASSESSMENT
REPORT (DRAFT REPORT) (July 2016) (“Draft 2016 Integrated Report”) (attached hereto as
Exhibit F).

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106.

Despite its own earlier recognition of the importance of HABs, Ohio’s Draft 2016

Integrated Report failed to assemble and evaluate the relevant data on HABs and related toxins
for the open waters of Lake Erie.
107.

The Draft 2016 Integrated Report proposed a different assessment methodology

for Lake Erie than that outlined in the 2014 Integrated Report. Draft 2016 Integrated Report at
D-6.
108.

In its Draft 2016 Integrated Report, Ohio EPA proposed designating assessment

units for three shoreline areas of the lake: the western shoreline, central shoreline, and the
shoreline of the Lake Erie islands. Id. at D-2. These assessment units include the waters
extending 100 meters from the shore, as well as any nearby public drinking water intakes along
with a 500-yard radius around those intakes. Id.
109.

Ohio EPA proposed designating each of the shoreline assessment units (including

the public drinking water intakes) as impaired by phosphorus pollution for aquatic life use and
public drinking water supply use. The proposed impairment assessment for the aquatic life use
was based on the narrative description of the aquatic community associated with the “exceptional
warmwater habitat” use tier, and found “significant impairment of sites due primarily to tributary
loadings of nutrients and sediment, exacerbated by continued trophic disruptions caused by,”
among other things, algal blooms. Id. at G-11.
110.

The proposed impairment determination for the public drinking water supply

applied the microcystin limits adopted in the methodology for the 2014 Integrated Report as a
“core indicator” of algae impairment based on “the aesthetic narrative criteria for algae described
in OAC rule 3745-1-07.” Id. at H-4.
111.

By contrast, Ohio EPA refused to address the impairment status of the open

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waters of Lake Erie with respect to either the aquatic life or public drinking water supply uses,
nor did Ohio EPA address whether the open waters were impaired for the “bathing waters”
recreational use. Id. at D-5 to D-6.
112.

Ohio EPA also failed to evaluate the impairment status of the open waters with

respect to the statewide standard calling for all waters to be “[f]ree from nutrients entering the
waters as a result of human activity in concentrations that create nuisance growths of aquatic
weeds and algae.” Ohio Admin. Code 3745-1-04(E).
113.

Ohio EPA offered no justification for this decision not to assess the impairment

status of the open waters of Lake Erie based on any lack of data.
114.

Instead, Ohio EPA stated that it “does not intend to pursue development of the

open water assessment units and methods” because a process under Annex 4 of the Great Lakes
Water Quality Agreement (“GLWQA”) (described more fully below) had failed to provide final,
numeric nutrient targets for Lake Erie. Draft 2016 Integrated Report at D-6. Ohio EPA also
asserted that “assessment and listing of the open waters under the CWA should be led by U.S.
EPA in consultation with the states.” Id.
115.

Plaintiff ELPC submitted comments on this draft report jointly with other

environmental organizations. See Comment letter from Jessica Dexter, Staff Attorney, ELPC et
al., to Ohio EPA (Aug. 29, 2016) (attached hereto as Exhibit G).
116.

These comments pointed out that “[e]xisting data supports an impairment

designation of the open waters of Lake Erie,” particularly based on violations of the narrative
water quality standard for nuisance algae. Id. at 3. The comments offered examples of such data,
including National Aeronautics and Space Administration satellite images of toxic algae blooms
in October 2011 and August 2014, data available from U.S. EPA’s Great Lakes National

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Program Office demonstrating the prevalence of nuisance HABs in the open waters of Lake Erie,
and images and testimony from recreationalists and state park employees. Id.
117.

Accordingly, these comments urged Ohio EPA to fulfill its statutory duty to

determine whether “Lake Erie’s open waters provide designated uses and meet narrative water
quality criteria.” Id. at 4.
118.

The comments highlighted the importance of this impairment designation, and a

resulting TMDL, as a regulatory backstop to address phosphorus pollution should action plans to
be implemented under the Great Lakes Water Quality Agreement fail to make sufficient progress
toward meeting goals for reduction in phosphorus loads to Lake Erie. Id. at 4-7.
119.

In October 2016, Ohio EPA finalized its 2016 Integrated Report, along with its

impaired waters list.
120.

Despite the comments of Plaintiffs and other stakeholders in support of an

impairment assessment for the open waters of Lake Erie, the 2016 Integrated Report stated that
“Ohio does not intend to pursue development of the open water assessment units and methods at
this time.” 2016 Integrated Report at D-6. Ohio EPA reiterated its explanation that in 2014 it had
anticipated that the GLWQA Annex 4 process “would produce nutrient concentration targets or
criteria for the open waters” but that instead the “Annex 4 efforts so far have resulted in load
reduction targets rather than in-lake nutrient concentration targets or criteria.” Id.
121.

Ohio EPA further reiterated that it “believes that assessment and listing of the

open waters under the CWA should be led by U.S. EPA in consultation with the states.” Id.
122.

Therefore, Ohio EPA did not apply the requisite narrative and numeric standards

to assess the impairment status of the open waters of Lake Erie, as it had for the shoreline
assessment units.

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123.

There was substantial information available to Ohio EPA at the time it prepared

the 2016 Integrated Report that would support an impairment assessment and determination for
the open waters of Lake Erie.
124.

This information includes, but is not limited to:

1) Water sampling data showing microcystin in Lake Erie at toxic levels;
2) Water sampling data showing dissolved oxygen at levels below Ohio’s minimum
numeric thresholds;
3) Water sampling data showing chlorophyll a and total phosphorus levels indicative of the
presence of harmful algal blooms;
4) Satellite and other images showing the presence of harmful algal blooms; and
5) Scientific literature analyzing water quality data for Lake Erie and describing the
presence of harmful algal blooms, as well as impacts to recreation, aquatic life, and
drinking water uses caused by those algal blooms.
125.

Ohio EPA submitted the 2016 Integrated Report to U.S. EPA on October 20,

2016. On May 19, 2017, U.S. EPA issued an approval of the 2016 Integrated Report. The
decision document supporting the approval recognized that Ohio EPA did not assess the open
waters of Lake Erie for impairment, but stated that “EPA is deferring to the State’s judgment not
to assess these waters for the 2016 list.” U.S. EPA Approval at 9.
U.S. EPA’s Inconsistent Application of the CWA
126.

At the same time that U.S. EPA approved Ohio’s deficient impaired waters list, it

approved the impaired waters list of Michigan, which does recognize the problem of HABs in
the open waters of Lake Erie.
127.

The State of Michigan has a portion of Lake Erie within its boundaries that is

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contiguous with Ohio’s portion of Lake Erie.
128.

On November 10, 2016, Michigan submitted its 2016 integrated report to U.S.

EPA, along with its 2016 impaired waters list.
129.

Unlike Ohio, Michigan assembled and evaluated relevant data regarding the open

waters of Lake Erie.
130.

Not surprisingly, it came to a very different conclusion regarding the impairment

of the lake. Michigan designated the entire portion of Lake Erie within its boundaries as
impaired, based on “persistent significant algal blooms mid-late summer in western Lake Erie”
causing “nuisance conditions related to nutrient expression.” U.S. EPA, DECISION DOCUMENT
FOR THE APPROVAL OF MICHIGAN’S 2016 CLEAN WATER ACT SECTION 303(D) LIST (CATEGORY

5) 22 (Feb. 2, 2017).
131.

A large portion of the data and information that influenced Michigan’s decision to

list the part of Lake Erie within its own jurisdiction was publicly available and applicable to the
open waters of Lake Erie within Ohio’s boundaries.
132.

For example, Michigan based its decision in part on bulletins developed by the

National Oceanic and Atmospheric Administration that depict harmful algal blooms covering
Lake Erie’s Western Basin. Id. at 65. Michigan also highlighted the Annex 4 workgroup as an
influential factor in its determination that all of Lake Erie within its jurisdiction was impaired. Id.
Furthermore, Michigan used a publicly-available report on phosphorus pollution by the
International Joint Commission when deliberating on Lake Erie’s impairment status. Id. at 64.
133.

Ohio EPA’s refusal to consider the open waters of Lake Erie as one of its

assessment units means that it never addressed whether any such information included in
Michigan’s Integrated Report warranted an impairment determination for Ohio’s portion of the

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open waters of Lake Erie.
134.

U.S. EPA approved Michigan’s 303(d) list in a decision document dated February

2, 2017, specifically agreeing with the state’s “assessment showing that the Michigan portion of
Lake Erie is impaired by nutrients.” U.S. EPA, DECISION DOCUMENT FOR THE APPROVAL OF
MICHIGAN’S 2016 CLEAN WATER ACT SECTION 303(D) LIST (CATEGORY 5) 22 (Feb. 2, 2017).
The Great Lakes Water Quality Agreement
135.

The GLWQA further highlights the critical importance of HABs in Lake Erie.

136.

As noted above, the GLWQA influenced Michigan to determine that the portion

of Lake Erie within its jurisdiction was impaired under the CWA.
137.

While it highlights the problem of HABs, the GLWQA does not supplant

domestic law, nor does it affect the responsibilities of U.S. EPA and Ohio EPA under the CWA.
The GLWQA is an Executive Agreement, which is not self-executing and does not have the
force of domestic law.
138.

The GLWQA is an agreement between the United States and Canada that

provides a “framework for binational consultation and cooperative action to restore, protect and
enhance the water quality of the Great Lakes to promote the ecological health of the Great Lakes
basin.” UNITED STATES AND CANADA, GREAT LAKES WATER QUALITY AGREEMENT 1 (Sept. 7,
2012), available at https://binational.net//wp-content/uploads/2014/05/1094_Canada-USAGLWQA-_e.pdf. In 2012, the parties added Annex 4 to the GLWQA with the purpose of
addressing phosphorus pollution in the Great Lakes.
139.

Annex 4 sets forth a number of objectives, including “minimize the extent of

hypoxic [oxygen-deprived] zones in the Waters of the Great Lakes associated with excessive
phosphorus loading, with particular emphasis on Lake Erie”; “maintain the levels of algal

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biomass below the level constituting a nuisance condition”; and “maintain cyanobacteria
biomass at levels that do not produce concentrations of toxins that pose a threat to human or
ecosystem health in the Waters of the Great Lakes.” Id. at 31.
140.

To achieve these objectives, Annex 4 commits the parties to developing

phosphorus concentration targets for the open waters and nearshore areas of each Great Lake,
and sets interim phosphorus concentration targets including a 15 micrograms/liter spring mean
for the western basin of Lake Erie and a 10 micrograms/liter spring mean for the central basin of
Lake Erie. Id. at 32. Annex 4 also sets interim targets for total phosphorus loading into the Great
Lakes, and provides that the parties will establish permanent numeric phosphorus concentration
and loading targets within three years. Id. at 33.
141.

In 2015, a subcommittee formed under Annex 4 to recommend permanent

phosphorus targets for Lake Erie issued a report recommending numeric targets (in metric tons)
for the reduction of phosphorus loading into Lake Erie.
142.

However, the subcommittee decided not to recommend phosphorus concentration

objectives on the rationale that such concentrations vary considerably over space and time,
making them difficult to meaningfully monitor. Great Lakes Water Quality Agreement Nutrients
Annex Subcommittee, Recommended Binational Phosphorus Targets to Combat Lake Erie Algal
Blooms (June 2015), available at http://www.epaarchive.cc/sites/production/files/201506/documents/recommended-binational-phosphorus-targets-20150625-8pp.pdf.
143.

The subcommittee did indicate that it expected that achieving the recommended

phosphorus load reduction targets would result in spring mean phosphorus concentrations of 12
micrograms/liter in the western basin of Lake Erie and 6 micrograms/liter for the central basin of
Lake Erie. Id.

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144.

In 2016, the United States and Canada adopted phosphorus load reduction targets

for Lake Erie based on the report of the Annex 4 subcommittee. United States and Canada 2012
Progress Report of the Parties 34-35 (2016), available at https://binational.net/wpcontent/uploads/2016/09/PRP-160927-EN.pdf. They did not adopt phosphorus concentration
targets. Id.
145.

Work is ongoing to develop allocations of the overall phosphorus load reduction

targets between the United States and Canada and among various watersheds that discharge to
Lake Erie.
146.

Pursuant to Annex 4, Ohio and other states that contribute pollution to Lake Erie

are supposed to develop “Domestic Action Plans” by April 2018 to meet these final targets.
Nutrients (Annex 4) (last visited July 17, 2017), https://binational.net/annexes/a4.
147.

The GLWQA does not contain any timeframe for achievement of the Annex 4

targets or penalties for failing to achieve those targets.
148.

By its terms, the GLWQA does not affect the responsibilities of either U.S. EPA

or Ohio under the CWA.
GROUNDS FOR RELIEF SOUGHT
149.

Plaintiffs re-allege and incorporate by reference all the allegations set forth above.

150.

Under its own CWA regulations, U.S. EPA “shall approve [a 303(d) list] … only

if it meets the requirements of 130.7(b).” 40 C.F.R. § 130.7(d)(2) (emphases added). One of
those requirements is that states “assemble and evaluate all existing and readily available water
quality-related data and information….” 40 C.F.R. § 130.7(b)(5) (emphasis added).
151.

In this case, Ohio abdicated its role under the CWA when it refused to assess the

open waters of Lake Erie. Ohio EPA both refused to assemble all readily available data regarding

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the open waters of Lake Erie, and refused to evaluate the data it did have on hand. Even as the
Michigan, Canadian, and U.S. governments have all at least acknowledged the information
showing that harmful algal blooms are compromising the recreational, aquatic life, and other
uses of the open waters of Lake Erie, Ohio has chosen to ignore it.
152.

Under such circumstances, U.S. EPA was required by law to disapprove Ohio

EPA’s impaired waters list. The fact that U.S. EPA approved the list was therefore arbitrary,
capricious, and not in accordance with the law under CWA section 303(d) and 40 C.F.R. § 130.7.
153.

Even if Ohio had assembled and evaluated the data (which it didn’t), U.S. EPA’s

approval would still have been arbitrary, capricious, and not in accordance with law. The key
substantive requirement under CWA Section 303(d) is that a state “shall identify those water
quality-limited segments still requiring TMDLs” because existing pollution controls “are not
stringent enough to implement any water quality standards (WQS) applicable to such waters.” 40
C.F.R. § 130.7(b)(1). Again, U.S. EPA may approve a 303(d) list only if it meets this
requirement.
154.

In this case, the data and information show that the open waters of Lake Erie are

woefully impaired by algal blooms and related pollution.
155.

Dangerous algal blooms have been recorded numerous times in recent years, and

they threaten hundreds of thousands of people who use and rely on the lake, not to mention the
aquatic species that live there.
156.

This is why Michigan determined that harmful algal blooms were causing

nuisance conditions on the open waters of Lake Erie within its boundaries, and why U.S. EPA
approved that decision.
157.

The same conditions afflict the open waters of Lake Erie within Ohio’s

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 Case: 3:17-cv-01514-JGC Doc #: 1 Filed: 07/18/17 37 of 38. PageID #: 37

boundaries, and prevent the attainment of Ohio’s similar water quality standards.
158.

Thus, when Ohio EPA excluded the contiguous waters of Lake Erie beyond

certain artificial boundaries from its impaired waters list, U.S. EPA was required by law to
disapprove that list. The fact that U.S. EPA approved the list was therefore arbitrary, capricious,
and not in accordance with the law under CWA section 303(d) and 40 C.F.R. § 130.7.
159.

Plaintiffs therefore seek relief from U.S. EPA’s arbitrary, capricious, and illegal

action under 5 U.S.C. § 706(2)(A).
RELIEF REQUESTED
WHEREFORE, Plaintiffs respectfully request that the Court grant the following relief:
A.

A declaration that U.S. EPA violated the CWA and acted in a manner that is

arbitrary, capricious, or otherwise not in accordance with law when it unlawfully approved
Ohio’s deficient list of impaired waters under Section 303(d) of the Clean Water Act;
B.

An order compelling U.S. EPA to disapprove of Ohio’s list of impaired waters

and identify the open waters of Lake Erie as impaired within 30 days of the disapproval, as
required by Section 303(d) of the Clean Water Act or, in the alternative, an order vacating and
remanding the approval to U.S. EPA for a new determination that complies with the
requirements of the Clean Water Act by a date certain;
D.

An award to Plaintiffs of attorneys’ fees and costs for bringing this action

pursuant to 28 U.S.C § 2412; and
E.

Such other relief as this Court deems just and proper.
Respectfully submitted,

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 Case: 3:17-cv-01514-JGC Doc #: 1 Filed: 07/18/17 38 of 38. PageID #: 38

Madeline Fleisher
Lindsay Paige Dubin
21 W. Broad St., 8th Floor
Columbus, OH 43215
Phone: 614-569-3827
Fax: 312-795-3730
mfleisher@elpc.org
ldubin@elpc.org
Michael Barsa
Northwestern Pritzker School of Law
357 East Chicago Avenue
Chicago, IL 60611
Phone: 312-503-7983
Fax: 312-503-5950
m-barsa@northwestern.edu
Attorneys for Plaintiffs

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