The Akron Legal News

Appeals court allows dumping of dredged material into Lake Erie

JESSICA SHAMBAUGH
Special to the Legal News
Published: September 24, 2013

The 10th District Court of Appeals recently affirmed the Ohio Environmental Protection Agency’s decision permitting the disposal of dredged material into the western basin of Lake Erie.

Several environmental groups, including Lake Erie Waterkeeper Inc., Lake Erie Charter Boat Association and Ohio Environmental Council, appealed the decision and argued that the Ohio EPA director failed to make findings that the lake’s water quality would be maintained.

The facts of the case stated that the United States Army Corps of Engineers applied for a 401 Certification in September 2009, which would allow them to dredge the Toledo Harbor and dispose of the sediments in the western basin of Lake Erie.

The application stated that large amounts of sediment had been deposited in the harbor and must be dredged to maintain water depths necessary for commercial navigation.

In April 2010, Christopher Korleski, acting as the director of the Ohio EPA, authorized the Corps to dump 800,000 cubic yards of dredged material into Lake Erie.

The environmental groups appealed that decision to the Environmental Review Appeals Commission and the ERAC found the director acted reasonably and lawfully.

However, the ERAC did not issue its decision until Feb. 29, 2012, after the Corps had already finished dumping the sediment into Lake Erie. Still, the groups appealed the decision to the 10th District.

The three-judge appellate panel held that it had proper jurisdiction to address the arguments and ruled they were not moot because it was likely that the matter would arise again.

In fact, the judges noted that the Corps has already applied for further 401 Certification to continue dumping dredged material into the lake.

In the appeal, the groups argued that the director did not examine all of the required factors before issuing certification and failed to provide a written explanation for his decision.

“Appellants’ argument is that since the director’s decision did not specify that he determined that sediment dumping will not interfere with the attainment or maintenance of applicable water quality standards, and ERAC found that the director made the determination merely because he issued the 401 Certification, ERAC did not properly review the director’s decision,” 10th District Judge Gary Tyack wrote for the court.

The judges, however, ruled that under the governing section of the Ohio Administrative Code, Korleski was not required to make his determinations in writing.

They also found that the Ohio EPA reviewed information provided by the Corps concerning the status of nutrients in the disposal area and extensive environmental studies of the area.

“The Ohio EPA examined the effect on public water supplies and the water quality standards related to human health, the aquatic life, and the designated uses,” Judge Tyack stated. “Thus, the Ohio EPA determined that the dredging and open lake disposal would not prevent or interfere with the attainment or maintenance of the water quality standards.”

The judges found that a 401 coordinator for the Division of Surface Water in the Ohio EPA testified at length and said the dump would create a plume of sediments for one to three hours and would only have a short-term negligible lowering of ambient water quality.

He further explained that all of the dredged material was toxicologically similar to the sediments already found in the lake.

Other Ohio EPA members testified that there were no studies definitively linking the disposal of dredged material with an increase in harmful algae blooms.

The Ohio EPA requested that experts in the field reach a consensus on the impact of the materials on the algae, but they were unable to do so.

“It is clear that the director did consider the unique characteristics of Lake Erie as the focus of these numerous studies and investigations regarding Lake Erie specifically, not about lakes, sediment dumping, or algal blooms generally,” Judge Tyack wrote.

The judges ruled that Korleski’s research proved that he was in accordance with Ohio law when he properly considered all of the required anti-degredation factors.

“Accordingly, ERAC’s order finding that there was valid information for the director’s actions is supported by reliable, probative, and substantial evidence.”

Judges John Connor and Susan Brown joined Judge Tyack to affirm ERAC’s decision.

The case is cited Natl. Wildlife Fedn. v. Korleski, 2013-Ohio-3923.

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