Posted on September 7, 2011 by Ridgway Hall
On July 29, 2011, EPA denied a 2008 petition by thirteen environmental organizations to develop and promulgate numeric nutrient water quality criteria for any of the 50 states where such criteria do not exist, or at least promulgate such criteria for the Mississippi-Atchafalaya River Basin (MARB) and the Northern Gulf of Mexico (31 states) as well as total maximum daily loads (TMDLs) for nitrogen and phosphorus for the Mississippi River and its tributaries.
EPA agreed that nitrogen and phosphorus pollution “presents a significant water quality problem facing our nation” which is damaging ecosystems and public health and causing significant adverse economic consequences. However, EPA stated that its clear preference for addressing nutrient water quality problems is by working with states, other federal agencies (including USDA and USGS), and stakeholders at the regional and community levels, as it has been doing throughout the MARB for a number of years.
In denying the petition, EPA placed substantial reliance on its March 16, 2011 memorandum entitled Working In Partnership With States To Address Phosphorus and Nitrogen Pollution Through Use of a Framework For State Nutrient Reductions(Framework Memo).
The Framework Memo was issued by Nancy Stoner, EPA’s Acting Assistant Administrator for Water, to EPA’s Regional Administrator, the Directors of all state and tribal water programs, and others. In her transmittal Memorandum she said “The amount of nitrogen and phosphorus pollution entering our waters has escalated dramatically” over the past fifty years, due in particular to stormwater runoff, municipal wastewater discharges, agricultural livestock activities and row crop runoff. She added, “Nitrogen and phosphorus pollution has the potential to become one of the costliest and the most challenging environmental problems we face.” Stoner urged each region to use the Framework Memo to work closely with the states and “engage all sectors and parties” in a major effort to reduce this pollution, including development of numeric nutrient criteria based on scientific information at the local and watershed levels.
The Framework Memo calls upon states to identify and prioritize watersheds where nitrogen and phosphorus loadings are significant and to set loading reduction goals based on best available information. These include establishment of numeric criteria, TMDLs, reasonable timetables for achieving compliance with water quality standards and collaborative efforts to identify and implement best management practices (BMPs) to reduce the loadings. No doubt to the chagrin of those who make a living by demonizing EPA as a heavy handed bureaucracy, the Framework Memo is quite deferential to the states, recognizing their lead role under the CWA in setting water quality standards and TMDLs. The Memo emphasizes collaboration, prioritized targeting of technical and financial assistance and the setting of “reasonable” milestones based on a consultative process involving all relevant stakeholders.
If there is a flaw with the Framework Memo it is the absence of guidance to the regions on what to do when states fail to take reasonable measures to curb nutrient pollution. One is left to guess at this based on a single sentence in the Stoner transmittal memo which states that EPA “will retain all its authorities under the Clean Water Act.” By that she presumably means that if states consistently fail to set nutrient criteria, develop and implement TMDLs and require reasonable measures towards compliance, EPA may step in and do it for them, but only if all else has failed.
EPA’s denial of the MARB petition seems reasonable because substantial activities had been accomplished or were in progress at the state and local level. For example, EPA, USDA and USGS were already leading regional initiatives with state agencies to address nutrient problems in the Mississippi River Basin and the resulting oxygen-starved “dead zone” in the Gulf of Mexico. The 31 MARB states have listed over 10,000 nutrient-related water quality impairments and developed over 5,000 nutrient-related TMDLs designed to achieve compliance with water quality standards. Approximately 4,400 of these were developed by the states and 682 by EPA. EPA cited extensive efforts at the state, local and watershed levels, including CWA Section 319 watershed plans to address nutrient issues. While EPA noted that it had set federal numerical nutrient criteria for the State of Florida, its general policy has been to encourage states to do this in the first instance.
EPA’s July 29 decision letter and the Framework Memo, taken together, provide useful guidance for practitioners on how EPA plans to approach this complicated set of legal, technical, practical, and political issues in the future.
* Ridge Hall is Vice Chair of the Chesapeake Legal Alliance and can be reached at firstname.lastname@example.org.