EPA told to decide on nutrient standards

Court orders EPA to justify whether federal numeric nutrient standards are needed in Mississippi River Basin.

FOR the most part, the Environmental Protection Agency has worked alongside states to develop nutrient reduction strategies in the Mississippi River Basin, especially after a 2008 action plan developed by a Hypoxia Task Force.

Now, a judge is calling on the agency to determine whether further federal action is necessary to comply with the Clean Water Act (CWA).

Attorneys at the Natural Resources Defense Council led the suit, filed on behalf of several conservation groups a year-and-a-half ago, and challenged EPA's denial of the environmental groups' 2008 petition asking EPA to establish quantifiable standards and cleanup plans for nitrogen and phosphorus pollution. The suit charged that EPA had unlawfully refused to respond whether such federal action was necessary to comply with CWA.

Since EPA punted the petition at the time, the U.S. district court in eastern Louisiana said that refusal was unlawful.

In turn, on Sept. 20, the district court ordered EPA to determine within six months whether to set new limits on the nitrogen and phosphorus deposits into the waters through the Mississippi River Basin and the Gulf of Mexico.

The court decision is the latest in a string of major environmental news in recent weeks, but the implications of setting nutrient standards in the massive Mississippi River Basin would be expansive.

It takes the power away from states that are currently working on establishing standards tailored best to their region and instead tries to implement an across-the-board approach from the federal level.

"If EPA determines that numeric nutrients are necessary, it will be Florida times 31" for each of the states that touch the Mississippi River Basin, explained Don Parrish, senior director of regulatory relations at the American Farm Bureau Federation; it will be the Chesapeake Bay and Florida situations "on steroids" if EPA determines that numeric nutrient standards are a necessity.

If nutrient level standards are required to meet pristine levels, virtually all waters would be classified as impaired, which would then require total maximum daily load restrictions similar to the fight going on in the Chesapeake Bay, Parrish said.

The judge did note in his brief that the decision should not be based only on environmental targets but also should take into account social and economic factors.

A court settlement deal in Florida required the state to develop, and have EPA approve, its own water quality criteria. In the end, the agency allowed the state to implement measures that are based on science and economics, not just environmental impact.

Under CWA, states develop their own water quality standards in order to protect water quality. Most states utilize narrative standards, such as "fishable or swimmable," as opposed to numeric, which is a specific number per segment of water.

Currently, states are operating under a 2011 memo from EPA that reaffirmed the agency's commitment to partnering with states and collaborating with stakeholders.

"While EPA has a number of regulatory tools at its disposal, our resources can best be employed by catalyzing and supporting action by states that want to protect their waters from nitrogen and phosphorus pollution," EPA said in the memo.

States were to develop, by 2013, "comprehensive nitrogen and phosphorus reduction strategies encompassing watersheds with significant contributions of nitrogen and phosphorus" that lead into the Gulf of Mexico.

So far, nine states have completed strategies, and three more will be coming soon, EPA said on its Mississippi River Gulf of Mexico Watershed Nutrient Task Force website.

The environmental groups' petition said without numeric water quality standards for phosphorus in rivers or streams or for nitrogen in any waters and failure to limit nitrogen and phosphorus discharges in national pollutant discharge elimination system permits, states have done "little or nothing" to meaningfully control pollution levels.

In a response to the groups in 2011, EPA said the most effective method to deal with the issue was to build on its earlier efforts and continue to work cooperatively with states and tribes to strengthen nutrient management programs.

The ball is in EPA's court now, Parrish said, as the agency must make a justification to the court of why or why not to proceed with the original petition from the environmental groups.

Parrish fears, though, that if EPA takes a page out of its own playbook, it will advance the ball with a sue-and-settle approach out of courts with the environmental groups, as it has time and time again. The result has been consolidation of more federal authority among environmental law, Parrish noted.

EPA and the U.S. Department of Justice did not respond to questioning on future steps stemming from this ruling.

Volume:85 Issue:40

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