Summary: The city of Toledo, Ohio issued a water ban on August 2-3, 2014 after a local treatment plant found unsafe levels of microcystin, a type of harmful algal bloom known to cause health defects and even death when ingested. Due to the amount of unregulated agriculture in Ohio, phosphorus and other nutrients that runoff into Lake Erie create these algal blooms. Until something is done to control the runoff, the water will continue to be contaminated.
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By Victoria M. Scozzaro
On August 2, 2014, the city of Toledo, Ohio issued a ban on water that left about 500,000 residents without
clean drinking water for two days. The ban was put in place after a water treatment plant found unsafe levels of microcystin, a type of harmful algal bloom (HAB), known to cause dangerous health effectseven deathif ingested.
According to local press, the toxin was found at concentrations of 1.5 to 2.5 parts per billion (ppb), while other detections indicated levels as high as 3 ppb. The EPA’s recommended health level is 1 ppb. So what led to the excessive amount of toxins in the water?
Algal blooms come from a disproportionate amount of nutrientsespecially phosphorusin the water. The algal blooms in Lake Erie come from several sources, but one is dominant: the massive amount of fertilizers and animal manure from unregulated agricultural practices.
This should not be surprising due to the considerable amount of agriculture in Ohio. According to the Ohio Farm Bureau , agriculture is Ohio’s top industry. There are 75,700 farms in the state with the average farm size being 188 acres. Ohio has a total of 14.3 million acres of land in farms, and agriculture contributes $105 billion to Ohio’s economy.
The International Joint Commission (IJC) claims that the Lake Erie basin receives 44% of the total phosphorus entering the Great Lakes from agricultural activities, which is more than any other Great Lake. The Maumee River , the largest of the Great Lakes watersheds, is surrounded by agricultural land. So although the Maumee watershed only supplies 3% of all the water that drains to Lake Erie, it contributes to nearly half (43%) of the phosphorous pollution.
Many attribute the Cuyahoga River catching fire in 1969 as a major catalyst for the passage of the Clean Water Act (CWA) in 1972 and many other major environmental clean-ups in Ohio. This made me wonder, what kind of movement will the Toledo water ban ignite? The Toledo water crisis caused many groups to call on regulators to try to restrict phosphorous releases from agriculture. The problem is, the EPA currently does not have the authority under the CWA to regulate the agricultural sector and other nonpoint sources of the pollution.
Apparently, Ohio is offering $150 million in zero-interest loans for improvements to public water systems and wastewater treatment systems. These loans will supposedly be coupled with another $1 million in grants through the Ohio Environmental Protection Agency for local water systems to obtain laboratory equipment needed to test for toxins found in algal blooms. Not to mention, the administration said it will put $1.25 million toward a program to help farmers implement best-management practices to reduce levels of nutrient runoff from their fields. Toledo city officials say they will spend about $4.7 million this year, $1.7 million more than their annual expense, on chemicals to treat water. That seems like a lot of money and a lot of chemicals to fix a problem that would most likely be reduced by simple regulations and limitations.
The water ban in Toledo caused widespread national attention , shining a spotlight on efforts by EPA and other agencies to address nutrients and the problems they create. The EPA attempted to force regulations on states to step up their regulation of nutrient discharges. However the effort created political opposition so officials are now focusing on voluntary approaches.
Despite these attempts, the reality is that until Congress gives EPA power to directly regulate nonpoint sources or the CWA defines agricultural runoff as a point source, the agency is going to continue to struggle.
There is a proposal for a total maximum daily load (TMDL) to be required in Ohio and states surrounding Lake Erie. This is argued because parts of the lake border Canada, which would require international cooperation. However, if you just look at the amount of agriculture in Ohio alone, one can see that even if only Ohio began to limit the amount of nutrients dumped into the water there would be a major improvement in water quality. Algal blooms will decrease if the amount of phosphorus that enters the waterway decreases. These discharges should be regulated because voluntary approaches have obviously not worked.
Agricultural runoff has not been considered a point source under the CWA, but now that we have toxins in our water, there is evidence that agricultural runoff is a point source and thus should be regulated by the EPA. This is because the CWA was established to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The CWA prohibits the unpermitted discharge of pollutants from point sources into rivers, lakes, and streams. A “point source” is defined under the Act to include “any discernable, confined and discrete conveyance, including but not limited to any . . . container [or] rolling stock . . . from which pollutants are or may be discharged.” The CWA also prohibits the discharge of pollutants from a point source into navigable waters of the United States absent a National Pollutant Discharge Elimination System permit (“NPDES”). If agricultural runoff could be a “point source” because the fertilizers, phosphorus (and other nutrients), and manure enter a navigable waterway (Lake Erie), then farmers would need to have a NPDES permit. Any farm’s discharges without a permit would constitute actionable violations of the CWA. This would ensure proper regulation and protection of fresh water.
While the water in Toledo was declared safe to drink by August 4th, the problem will persist as long as agricultural nutrients go unregulated. Microcystin levels come down when the winds shift and that’s why the treatment plant was able to say the drinking water was safe again. That also means that higher wind temperatures and another wind pattern have the potential to push the water back into higher concentrated levels of microcystin. The problem will only get worse as temperature and weather patterns shift dramatically due to climate change.
Lake Erie is Ohio’s most important resource. Without it, the state cannot provide its citizens with fresh water. It must be a priority for Ohio to clean up its water. There are a lot of “plans” and a lot of “money going towards” strategies that will improve the water quality. How long will Ohio let the problem persist? I’ve never gone without tap water for more than a few hours, but it’s potentials like this that have me here at Vermont Law School studying what can be done to encourage positive change in Ohio.
Victoria M. Scozzaro is a 1L student at Vermont Law School pursuing both a Juris Doctor and a Masters in Environmental Law and Policy. Prior to law school, she earned a B.A. in Sustainability and Business from Baldwin Wallace University. Victoria has always been passionate about the environment, and continues to be dedicated to making the world a better place for her family and future generations.
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