(COLUMBUS, Ohio) — Ohio Attorney General Mike DeWine, Ohio Environmental Protection Agency Director Craig W. Butler and Ohio Department of Natural Resources Director James Zehringer today announced that the state has filed a lawsuit against the U.S. Army Corps of Engineers for its plan to place dredge material from Cleveland Harbor, which includes six miles of the Cuyahoga River, in Lake Erie or not dredge the entire navigation channel unless a non-federal partner pays to place it in confined disposal facilities.
Dredging ensures that the water is deep enough for commercial cargo ships to safely navigate. Since the early 1970s, the Army Corps has dredged the Cuyahoga River navigational channel and deposited the dredge material in one of the on-land areas designated for toxic dredge material disposal.
This year, as they did a year ago, the Corps proposed openly dumping the heavily contaminated dredged material into Lake Erie, which is the cheapest option for the federal government. The state is concerned that the dumping will increase levels of carcinogenic toxins (PCBs). PCBs stay in fat tissue and build up in fish and people as the toxins move up the food chain. Increased toxic PCB levels in Lake Erie fish have already led to consumption advisories and any additional accumulation could lead to a significant crisis for Lake Erie anglers.
Currently the Corps says it will not dredge the last mile of a six-mile stretch of the Cleveland Harbor channel that contains heavily contaminated sediment unless a non-federal partner agrees to pay the more than $1 million cost of confined disposal, even though Congress has appropriated funds to the Corps to fully cover those costs.
“The Corps’ decision attempts to force the state to use its resources to pay for costs the federal government should cover, to accept the severe economic distress to Cleveland and all of Ohio if the Corps refuses to dredge this area, or allow the Corps to endanger Lake Erie further by dumping these toxins,” Attorney General DeWine said. “We filed this lawsuit because this decision by the Corps is wrong for the health of Lake Erie, wrong for the economy of Cleveland, and wrong for the taxpayers of Ohio.”
“Based on the data our scientists have reviewed, we expect the Army Corps to dredge the entire navigation channel to keep the first six miles of the Cuyahoga River open for shipping traffic as required by Congress,” said Ohio EPA Director Craig W. Butler. “Further, as long as sediments pose a risk to Lake Erie, we will fight to protect the lake and Ohioans that rely on the lake by demanding that all sediment be disposed of in the Cleveland confined disposal facilities at full federal expense as supported by the Army Corps Federal Standard.”
“A healthy Lake Erie is vital to our state’s travel and tourism industry, as it supports a world-class fishery and provides boundless economic opportunities for so many small businesses,” said ODNR Director James Zehringer. “We’re obligated to take the necessary steps to protect our state’s greatest natural resource and enhance recreational opportunities. Keeping the sediment out of our lake helps maintain this economically critical waterway and the health of Lake Erie’s fish population for our charter boat captains and all of Ohio’s anglers.”
The state’s lawsuit, filed in the U.S. District Court for the Northern District of Ohio, Eastern Division, seeks declaratory and injunctive relief. It alleges that the Corps has committed several violations regarding its 2015 dredging proposal, including:
- Violating the Clean Water Act;
- Failing to prepare an environmental impact statement pursuant to the National Environmental Policy Act;
- Violating the Coastal Zone Management Act;
- Violating the Corps’ own rule called The Federal Standard;
- Violating the Corps’ statutory requirement to maintain the navigability of Great Lakes harbors; and
- Unlawfully delegating its authority to maintain navigable waters to a non-federal partner.
In the lawsuit, the state asks the court to order the Corps to dredge the full Cleveland Harbor federal channel without disposing of any dredge material into the open waters of Lake Erie for its 2015 dredging project and to prohibit the Corps from requiring a non-federal sponsor to pay for disposal into a confined disposal facility.
It also asks the court to prevent the Corps from openly dumping dredge material in future such projects, until the Corps issues an environmental impact statement and receives proper authorization from the Ohio Environmental Protection Agency and Ohio Department of Natural Resources.
Ohio EPA issued a water quality certification on March 31, 2015, which allows the Army Corps to dredge up to 225,000 cubic yards of material from six miles of the Cuyahoga River and deposit it in the designated confined disposal facilities.
The water quality certification complies with Governor Kasich’s Executive Order, signed on Feb. 11, 2015, which requires Ohio EPA to prohibit the open lake disposal of dredge material in Lake Erie if the material could result in higher levels of a chemical in fish that bioaccumulates throughout the food chain, such as PCBs, or the disposal of dredge material would violate any international treaties or compacts. These requirements are part of the state’s Coastal Management Program, which is enforced through the federal Coastal Zone Management Act.
The U.S. Army Corps of Engineers is a federal agency that is responsible for protecting the nation’s rivers and harbors. Among its responsibilities is dredging all federal navigational waters, including the Cleveland Harbor and Lower Cuyahoga River.
The Ohio Attorney General’s Office represents state agencies, including the Ohio Environmental Protection Agency and Ohio Department of Natural Resources.
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Documents
Lawsuit (PDF)
Media Contacts
Dan Tierney, AGO: 614-466-3840
Kate Hanson, AGO: 614-466-3840
Heidi Griesmer, OEPA: 614-644-2160
Bethany McCorkle, ODNR: 614-265-6860