On May 4, 2023, Judge James Carr of the U.S. District Court, Northern District of Ohio, issued an Order approving a consent decree in settlement of litigation pending for nearly six years. The litigation, brought by Plaintiffs Environmental Law & Policy Center and the Board of Lucas County Commissioners, centered around the Plaintiffs’ claims alleging that US EPA and Ohio EPA failed to discharge their legal duties under the Clean Water Act by failing to develop a Total Maximum Daily Load (TMDL) for the Maumee Watershed, resulting in an alarming decline in the water quality of Lake Erie. A TMDL is a determination of the maximum amount of pollutant that a receiving water body can accept while still remaining clean. The primary pollutant for Lake Erie is phosphorus, which contributes to the harmful algae blooms that have plagued the Toledo area in recent years.
The Order demonstrates that the settlement is in no small part due to the insistence of Judge Carr that US EPA, the State of Ohio, and the plaintiffs work cooperatively to accomplish a settlement with a meaningful outcome and resolution to avoid ending in a decision on the merits surely to be further hung up on appeal for years to come. The Order states, “this is simply not something that is amenable to judicial resolution to the extent that the problem needs to get seriously and carefully and thoroughly addressed, and time is of the essence.” Judge Carr ends on a positive note, concluding, “there’s reason to hope that, in time, the Maumee River will no longer display, as it has for countless summers, a loathsome foul and slimy green surface as it flows through Toledo on its constant and irresistible course on to Lake Erie’s Western Basin.”
The consent decree requires Ohio EPA to submit a Maumee Watershed Nutrient TMDL to U.S. EPA by June 30, 2023, setting further timeframes and parameters around US EPA’s review and approval of Ohio’s TMDL. US EPA is required to approve or disapprove of the TMDL within 30 days of Ohio’s submission. If US EPA disapproves of Ohio’s TMDL, the consent decree obligates US EPA to establish a federal TMDL within five months.
Ohio EPA public noticed its draft TMDL report in December 2022. The public comment period concluded on March 8, 2022, and Ohio EPA is currently considering comments received and revising its draft document in preparation for the submittal of its final TMDL report to the US EPA. The draft TMDL and supporting materials are available here.