Thursday, June 2, 2016

US EPA announced recently that it had awarded twenty-eight Great Lakes Restoration Initiative (GLRI) grants totaling more than $12.5 million. Portions of this federal funding will provide financial assistance to owners of farmland who voluntarily act to reduce nutrient runoff from their land. The provision of federal funding to address issues in the Great Lakes basin represents a strikingly different approach than the one presented in US EPA’s 2010 TMDL plan for the Chesapeake Bay watershed, over which the Agency only recently finished litigating. The funds provided through GLRI grants may help to curb the recent water quality decline in the Great Lakes basin and may ultimately alleviate concerns that the region will be subject to federal intervention similar to the TMDL plan for the Chesapeake Bay.

The $12.5 million in grants awarded represents the most recent grant money distributed as part of the GLRI’s continuing efforts to fund regional projects addressing environmental issues in the Great Lakes basin. After $475 million was set aside under the Interior Department Appropriations Act of 2010, the GLRI was launched to protect and restore the Great Lakes in accordance with a campaign promise that President Obama had made in 2008. Subsequent appropriations acts—including the act for the 2016 fiscal year—have set aside additional funds for the GLRI, which has utilized some of the funds to award grants to projects in accordance with its 2014 Action Plan.

The most recent set of grants were awarded to projects aimed at invasive species prevention and control, urban watershed management, and agricultural watershed management. The six grants awarded for agricultural watershed management were for projects in the basins of Lake Erie and Lake Michigan, two of the three lakes that have seen the return of algal blooms in recent years. Under one grant, almost $500,000 was awarded to the Toledo Metropolitan Area Council of Governments (TMACOG) for a project helping to reduce nutrient loading to Lake Erie’s western basin, which has hosted the worst of the blooms including a 2014 bloom that disrupted the water supply to half a million people. The TMACOG project provides funding for local farmers to implement runoff control. A local official told the Toledo Blade that 150 owners representing 18,750 farm acres are expected to participate in the TMACOG program.

Federal funding for nutrient control from farmland runoff offers a sharp contrast to the federal approach taken when the US EPA finalized a comprehensive TMDL for the Chesapeake Bay on December 29, 2010. As part of that plan, US EPA set nutrient and sediment load limitations from regions across Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia, and allocated those loads between specific point source and non-point source sectors, such as the agricultural sector. Arguing that this plan would have a “significant adverse impact” by requiring costly operational changes, agricultural groups lead by the American Farm Bureau challenged the TMDL as an exceedance of US EPA’s authority. After the district court issued a ruling in favor of US EPA, the challenge was heard by the US Court of Appeals for the Third Circuit. We previously reported regarding the states that joined the Third Circuit litigation and the arguments presented. In the end, the Third Circuit agreed with the district court and upheld the TMDL as a valid exercise of US EPA’s Clean Water Act authority. The validity of US EPA’s TMDL plan for the Chesapeake Bay was finally settled when, on February 29, 2016, the US Supreme Court refused the challengers’ requests for review of the Third Circuit’s decision.

Following US EPA’s success in defending the Chesapeake Bay TMDL, the Mississippi River Basin or the Great Lakes could be the next target of a regional TMDL plan to control nutrient and sediment from non-point sources such as agricultural runoff. However, federal funding through the GLRI may incentivize land users to act voluntarily (and receive reimbursement), alleviating the need for federal TMDL intervention at the Great Lakes regional level. While federal funding to programs such as the one administered by TMACOG may not receive the national or regional attention that would be afforded to a federal TMDL for the Great Lakes region, these GLRI grants offer a chance to start reversing the decline in Great Lakes water quality without federal involvement in land use policy.