NEW ORLEANS (CN) – Environmental groups in states from the headwaters of the Mississippi River to the Gulf of Mexico say the Environmental Protection Agency violated the Clean Water Act by refusing to set state pollution standards to tackle the “dead zone” in the Gulf, the second-largest dead zone in the world.
The dead zone stretches from the mouth of the Mississippi River into Texas and is created by low oxygen levels in water, or hypoxia.
The low oxygen is linked to high concentrations of nutrients found in agricultural fertilizers, such as nitrogen and phosphorous, and other nutrients carried into the Gulf by the Mississippi River.
Though the dead zone is in the Gulf of Mexico, the nutrients and contamination that cause hypoxia are largely the result of accumulated nutrients in sediment coming from throughout the Midwest, from the Mississippi and its tributaries.
Once the nutrients land in the Gulf of Mexico, they feed blooms of springtime and summertime algae at the surface. As the algae sink to the bottom, die and decompose, they use up the oxygen in the water.
Oxygen levels below 2 parts per million can kill organisms on the Gulf floor that are food sources for larger oceanic species, such as fish and shrimp.
In 2008, environmental advocacy groups, headed by New Orleans-based Gulf Restoration Network, filed a petition asking the U.S. Environmental Protection Agency to institute nutrient standards for states along the Mississippi River.
Three years later the EPA denied the petition, saying that though it agrees that “nutrient loadings to the Mississippi River and its tributaries are both harming upstream water quality and contributing significantly to hypoxia … in the Gulf of Mexico” it “does not believe that the comprehensive use of federal rulemaking authority is the most effective or practical means of addressing these concerns at this time,” according to the new complaint in Federal Court.
The Gulf Restoration Network and 10 other plaintiff groups, from Iowa, Tennessee, Minnesota, Kentucky, and national groups, including the Natural Resources Defense Council and the Sierra Club, say the EPA “fails to provide reasons for the denial that conform to the relevant statutory factors in Section 303(c)(4)(B) of the CWA [Clean Water Act].”
Nor did the EPA “provide a reasoned explanation as to why revised or new water quality standards to address excessive nutrient pollution in Mississippi River Basin and northern Gulf of Mexico waters are not ‘necessary to meet the requirements of the [Clean Water Act]’ within the meaning of Section 303(c)(4)(B),” the complaint states.
“Section 303(d) of the CWA requires each state to ‘identify those waters within its boundaries’ for which existing pollutant discharge limitations ‘are not stringent enough to implement any water quality standard applicable to those waters.’ 33 U.S.C. § 1313(d)(1)(A). For any such waters identified, each state is required to establish, in order of priority, a ‘total maximum daily load’ (TMDL) for those pollutants that are contributing to water quality impairments. Id. § 1313(d)(1)(C). Each State must submit its list of such waters, along with any TMDLs established, to EPA for approval. Id. § 1313(d)(2). If EPA disapproves, the EPA Administrator ‘shall not later than thirty days after the date of such disapproval identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters and upon such identification and establishment the State shall incorporate them,'” according to the complaint.
The environmental groups say their petition “submitted voluminous evidence to EPA that excessive nitrogen and phosphorous pollution from states throughout the Mississippi River Basin and northern Gulf of Mexico has devastating impacts on water quality and the ability of waters to support their designated uses, both in the states themselves and in downstream waters.”
Their petition “documents how excessive nitrogen and phosphorous pollution in the Mississippi River Basin and northern Gulf of Mexico has caused a large zone of hypoxia (i.e., a low oxygen ‘dead zone’) to develop in the northern Gulf of Mexico. The Gulf’s dead zone is the largest in North America and the second largest in the world.”
The petition concludes: “It is clear that action by EPA is needed now – not simply more studies, reports, task forces and conferences. EPA has long known concrete steps that should be taken to begin to control nitrogen and phosphorus pollution. …
“[N]umeric water quality standards for nitrogen and a TMDL are needed to protect the area of the Gulf of Mexico within the jurisdiction of the Clean Water Act outside of the jurisdiction of any state.
“Further, it is clear from the foregoing that numeric water quality standards for nitrogen and phosphorus are necessary to meet the requirements of the Clean Water Act. …
“At a minimum, the evidence demonstrates that EPA must prepare and publish water quality standards [to control nitrogen and phosphorous pollution] for the Gulf of Mexico and those water bodies in the Mississippi River watershed. Jurisdictional considerations alone dictate that EPA must establish water quality standards to control nitrogen and phosphorus pollution in the mainstem of the Mississippi River and the northern Gulf of Mexico, but the evidence of what has happened over the last decade demonstrates the EPA must establish numeric criteria for all water bodies in the Basin.” (Ellipses in complaint, which here quotes plaintiffs’ petition.)
In 2010, the Mississippi River/Gulf of Mexico Watershed Nutrient Task Force, a coalition of federal, state, and tribal agencies that has monitored the dead zone since 1997, soughtto reduce the size of the dead zone to 1,900 square miles by 2015.
The plan involved getting urban sewage systems and septic tank owners to reduce effluent, and persuading agricultural sources to reduce farm fertilizer use and develop grassy areas on the edges of farmland to soak up excess nutrients before they seep into the river.
But several environmental organizations, scientists and the EPA inspector general said efforts on a voluntary basis would not move quickly enough to sustain the Gulf against the rapid increase in its annual dead zone.
Because regulation had so far been left up to individual states, in August 2009 the EPA Office of Inspector General recommended implementing firm standards for the amount of nutrients allowed in the Mississippi and other waterways.
“Critical national waters such as the Gulf of Mexico and the Mississippi River require standards that, once set, will affect multiple upstream states,” according to the agency’s 2009 report. “These states have not yet set nutrient standards for themselves; consequently it is EPA’s responsibility to act.”
But in July 2011, the EPA rejected the 2008 petition from the environmental groups that sought state standards.
The July 29, 2011 letter from Michael H. Shapiro, Deputy Assistant Administrator for Water, said the EPA “‘is in agreement with many of [petitioners’] environmental concerns’ regarding nitrogen (N) and phosphorus (P) pollution, and it concedes that ‘nutrient loadings to the Mississippi River and its tributaries are both harming upstream water quality and contributing significantly to hypoxia … in the Gulf of Mexico.'”
The letter agreed ‘”that N and P pollution is a significant water quality problem in the MARB [Mississippi-Atchafalaya River Basin] and northern Gulf of Mexico’ and states that ‘reducing N and P pollution is and should be a high priority for EPA’s water programs,'” according to the complaint.
“EPA’s denial letter concludes, however, that EPA “do[es] not believe that the comprehensive use of federal rulemaking authority is the most effective or practical means of addressing these concerns at this time.’ Rejecting plaintiff’s request for EPA to set federal numeric nutrient criteria (NNC) for nitrogen and phosphorus, EPA states ‘that the most effective and sustainable way to address widespread and pervasive nutrient pollution … is to build on’ existing technical support efforts ‘and work cooperatively with states and tribes to strengthen nutrient management programs.'” (Ellipsis in complaint, citations omitted.)
The 2007 congressional Energy Independence and Security Act calls for the production of 36 billion gallons of renewable fuels by 2022, including 15 billion U.S. gallons of corn-based ethanol.
The plan would triple not just ethanol production, but corn production, and nitrogen production through runoff.
A March 18, 2008 report from the National Academy of Sciences showed that increased corn production to meet the goal of 15 billion gallons would increase nitrogen loading in the dead zone by 10 to 18 percent.
As a result, nitrogen levels would be twice those recommended by the Mississippi Basin/Gulf of Mexico Water Nutrient Task Force. The task force said a 30 percent reduction of nitrogen runoff would be needed to shrink the dead zone.
The 11 plaintiff groups in the new lawsuit seek a declaration that the EPA’s denial of the petition is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” and violates the Administrative Procedure Act and Clean Water Act.
Named as defendants are the U.S. EPA and its Administrator Lisa Jackson, who have “the primary responsibility under the CWA to protect the waters of the United States from pollution.”
Plaintiffs are the Gulf Restoration Network, Missouri Coalition for the Environment, Iowa Environmental Council, Tennessee Clean Water Network, Minnesota Center for Environmental Advocacy, Sierra Club, Waterkeeper Alliance Inc., Prairie Rivers Network, Kentucky Waterways Alliance, Environmental Law & Policy Center and the Natural Resources Defense Council Inc.
They seek a judgment “ordering EPA to provide a response to plaintiffs’ petition within 90 days that is not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'”
The environmental groups are represented by Machelle Lee Hall with the Tulane Environmental Law Clinic in New Orleans.