Suit Seeks National Numeric Criteria for Nutrients in U.S. Waters

A pending lawsuit filed by nearly a dozen environmental groups[1] seeks to force EPA to establish numeric nutrient criteria for U.S. waters. High nutrient loadings can deplete oxygen in the water and cause fish injury, algae blooms and other environmental damage. To date, nutrient standards have been largely left to the states. The suit seeks to require EPA to set nutrient criteria or, in the alternative, to set criteria for nearly the entirety of the Midwest, along with total maximum daily loads (TMDLs) for the Mississippi River, its tributaries, and portions of the Gulf of Mexico. The complaint, in Gulf Restoration Network v. Jackson,[2] stems from EPA’s denial of a rulemaking petition seeking similar relief nearly four years ago. The plaintiffs allege that EPA’s denial fails to provide a reasoned basis for EPA’s decision not to use its authority under Section 303 of the Clean Water Act (CWA).

In Florida, EPA has exercised its authority to promulgate numeric nutrient criteria over the objections of the state, a decision that is currently the subject of legal and political battles. See EPA Proposal for Numeric Nutrient Standards for Florida Waters has National Implications; EPA Faces Lawsuits Challenging Potentially Far-Reaching Rule Setting Numeric Nutrient Criteria in Florida Waters.

The proposed replacement of state standards with federal standards for nutrients has drawn sharp criticism. Critics point to the highly localized and technically complicated factors that are implicated when establishing nutrient criteria. Setting federal standards, they argue, would undermine partnerships that have been forged between regulated parties and local, state, and federal officials to address nutrient levels in the Mississippi River Basin and the Gulf of Mexico. Iowa’s Agriculture Secretary, for example, has stated his opinion that the lawsuits are a “distraction from the voluntary work being done,” and that “[t]here is a nervousness among the states” that “EPA could come up with a consent decree with the environmental groups” that states and stakeholders are unable to take part in.

Technical and Legal Background to Nutrient Water Quality Standards

Nutrients, such as nitrogen and phosphorus, are necessary for the proper functioning of biological communities. Excessive nitrogen and phosphorus in water bodies, however, can cause algae blooms, encourage the growth of nuisance vegetation, and reduce dissolved oxygen concentrations, which can harm fish and wildlife and damage or reduce habitat. Properly regulating nutrients requires a complex technical understanding of the unique nutrient balance within highly varied ecosystems. Unlike most water quality criteria, which are based on a toxicity threshold determined using laboratory tests, the variability of ecosystem responses makes developing a cause/effect relationship between nutrient concentrations and ecological attributes much more difficult. Additionally, effective nutrient management requires methods to control discharges from a range of sources, such as those associated with urban land use and development, municipal and industrial wastewater discharge, agriculture, and atmospheric deposition that may be increased by production of nitrogen oxides in electric power generation and internal combustion engines.

The impacts and disparate causes of high nutrient loadings are particularly pronounced in the Mississippi River Basin. The Mississippi River, itself over 2,300 miles long, is joined by hundreds of tributaries, including the Ohio and Missouri Rivers, and drains water from 31 states and two Canadian provinces into the Gulf of Mexico. Nutrient loadings from these areas have impacts on upstream water quality and contribute to a “dead zone” or “hypoxic zone” in the Gulf of Mexico. For nearly fifteen years, a task force comprised of federal, tribal, and state members has worked to understand and address hypoxia in the Gulf of Mexico.

To date, EPA has not sought to use its authority under the CWA to require states within the Mississippi River Basin to set numeric nutrient criteria or otherwise control nutrient loadings necessary to address downstream impacts. Under CWA § 303(c), states must develop water quality standards and review and update those standards every three years.[3] Water quality standards must include designated uses of water bodies, water quality criteria that are necessary to protect those uses, expressed in either numeric or narrative form, and antidegradation components.[4] States must submit their water quality standards to EPA for review and approval.[5] If EPA finds that a state’s proposal for one or more criteria is inadequate, it must notify the state, which then has 90 days to revise its standards in response to EPA’s concerns.[6] If the state does not do so, EPA is required to propose a federal standard that will apply to that state. Similarly, if EPA, independent of any state proposal, determines that a state needs a new or revised standard, and the state fails to act, the CWA directs EPA to propose the new or revised standard for that state.[7] If the state proceeds to develop its own standard while EPA is engaged in the rulemaking process, and the state standard is acceptable to EPA, then the CWA allows EPA to approve the state standard and abandon its own effort.

Additionally, under CWA § 303(d), states must identify waters within their boundaries for which existing effluent limitations “are not stringent enough to implement any water quality standard applicable to such waters,”[8] and establish TMDLs for those pollutants that are contributing to water quality impairments.[9] States must submit the “impaired water body” lists and the TMDLs to EPA for approval. If EPA disapproves, EPA must, within 30 days of its disapproval, identify waters in the state and establish loads for waters as EPA determines necessary to implement water quality standards applicable to the waters.[10] TMDLs normally address distinct sections of surface waters, and are managed by the state in which the waters exist. In 2010, EPA established a TMDL for the Chesapeake Bay to address nutrient loadings, which encompasses a 64,000 square mile watershed spanning six states and the District of Columbia and marked the largest TMDL to date. We addressed one aspect of the Chesapeake Bay TMDL in an earlier article in this newsletter, Chesapeake Bay Bill Proposes to Improve Water Quality Through a “Cap and Trade” Program.

Background to Gulf Restoration Network v. Jackson

The plaintiffs’ claims in Gulf Restoration Network stem from EPA’s denial of a July 30, 2008 petition (Petition) for EPA to establish numeric nutrient criteria and TMDLs for the Mississippi River and the Gulf of Mexico. The 73 page Petition, submitted by many of the plaintiffs in Gulf Restoration Network, recites evidence from scientific reports, issued by the National Research Council and EPA’s Scientific Advisory Board, detailing the deleterious impacts of nutrients on the northern Gulf of Mexico and Mississippi River Basin, the need for nutrient reductions, and the scientific recommendations for reducing the hypoxic zone in the Gulf of Mexico.

The Petition recounted what it described as EPA’s “slow and inefficacious” response to addressing the “extent and severity of nutrient-caused problems in the Gulf, in the United States in general, and in the nation’s freshwater resources.”[11] According to the Petition, this insufficient response has included EPA’s efforts to establish task forces, meetings, action plans, and nutrient strategies, instead of using its authority under CWA § 303 to establish numeric nutrient criteria when “necessary.” Such action is necessary, according to the Petition, because the states’ efforts to reduce nutrient loadings, largely through the use of general narrative standards, and the intergovernmental approaches have not effectively reduced the nutrient loads. Additionally, the Petition asserted that states have failed to assess and list impaired waters under CWA § 303(d), and that TMDLs have not been established when called for under the CWA.

Accordingly, and to meet EPA’s obligations under CWA § 303, the Petition called for a basin-wide approach to addressing nutrient loadings through EPA’s tools under CWA § 303. The Petition requested that EPA: (1) prepare and publish numeric standards for nutrients (nitrogen, phosphorus, chlorophyll a, and turbidity) for every “navigable water” where such criteria did not exist or, at a minimum, for the Gulf of Mexico and water bodies within the Mississippi River watershed; and (2) establish TMDLs for nitrogen and phosphorus for the Mississippi River, many of its tributaries, and portions of the Gulf of Mexico.

EPA denied the Petition three years later, on July 29, 2011 (Denial), explaining that EPA did not view the “use of federal rulemaking authority [a]s the most effective or practical means of addressing” the concerns in the Petition.[12] EPA acknowledged, in its Denial, that nutrient loadings presented “a significant water quality problem” that is “nationwide in scope but [of] particular relevance to the Mississippi Basin,”[13] for the reasons stated in the Petition, such as the resultant algal blooms, hypoxic zones, public health concerns, and economic impacts. EPA recounted its efforts to address nutrient loadings, including working with states in the Mississippi River Basin to develop numeric nutrient criteria, the provision of guidance and technical assistance regarding recommended criteria for nutrients, improvements on EPA’s tracking, accountability, and transparency tools related to measuring state progress toward development and implementation of nutrient criteria, and EPA’s role in task forces that are designed to address the causes and impacts of nutrient loadings within the Mississippi River and Gulf of Mexico.

These efforts, according to EPA, are “preferable to undertaking an unprecedented and complex set of rulemakings to promulgate federal” numeric nutrient criteria “for a large region (or even the entire country),” which would be “highly resource and time intensive.”[14] The use of EPA’s rulemaking authority, EPA asserted, “especially in light of the sweeping scope of the Petition, is not a practical or efficient way to address nutrients at a national or regional scale.”[15] EPA reminded the petitioners that it retained its discretion to use its authority under CWA § 303 when appropriate, referenced the Agency’s work to establish numeric nutrient criteria in Florida, but restated its long-standing policy that states should retain the primary authority to develop water quality standards, with EPA providing nothing more than a backstop upon disapproval. For similar reasons, EPA declined to step into the TMDL process as the Petition requested, stating that EPA’s best use of its resources was to work in partnership with the states and stakeholders to reduce nutrient loadings.

EPA did not, in its Denial, affirmatively state that numeric nutrient criteria “are not necessary to meet CWA requirements with respect to” the waters identified in the Petition. Indeed, EPA stated that it continued to assess states’ progress in addressing nutrient loadings and that it was “not foreclosing the possibility where, despite the best efforts of all, Agency action may be appropriate and the EPA could exericse its” authority under CWA § 303.[16] On the contrary, EPA explained that it elected to exercise “its discretion to allocate its resources in a manner that supports targeted regional and state activities to accomplish our mutual goals of reducing” nutrient loadings and “accelerating the development and adoption of state approaches to controlling” nutrient loadings.[17]

The Plaintiffs’ Claims in Gulf Restoration Network v. Jackson

The plaintiffs’ complaint in Gulf Restoration Network is premised on the inadequacy and impropriety of EPA’s Denial of the Petition under the administrative procedure act (APA). The complaint tracks the Petition by asserting that: (1) excessive nutrient levels in the Mississippi River Basin and northern Gulf of Mexico cause or contribute to a massive low-oxygen “dead zone” in the Gulf of Mexico and water quality degradation and impairments; and (2) that CWA § 303(c)(4)(B) requires EPA to publish proposed regulations setting forth water quality standards where EPA determines that revised or new standards are necessary to meet CWA requirements.

The complaint asserts two alleged APA violations. First, the plaintiffs allege that EPA’s Denial failed to conform to the statutory factors in CWA § 303(c)(4)(B), because it was predicated on the administrative burden of granting the requested relief in the Petition and EPA’s purported policy of working collaboratively with states. These reasons, according to the plaintiffs, fall short of the requisite reasoned explanation for why revised or new standards to address nutrient loadings are not “necessary” within the meaning of CWA § 303(c)(4)(B). Second, the plaintiffs assert that EPA’s Denial of the Petition is contrary to the evidence set forth in the Petition that numeric nutrient water quality standards are indeed “necessary” under CWA § 303(c)(4)(B) to implement CWA requirements for Mississippi River Basin and northern Gulf of Mexico waters. For these reasons, the complaint seeks a declaration that EPA’s Denial of the Petition is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance of law, and an order requiring EPA to provide an adequate response within 90 days.

Conclusion

A related case, filed by many of the same plaintiffs on the same day as Gulf Restoration Network, is currently pending before a federal district court in New York. That case, Natural Resources Defense Council v. Jackson,[18] stems from EPA’s refusal to respond to a 2007 petition for rulemaking requesting that EPA: (1) publish updated information concerning secondary treatment technology for publicly owned treatment works (POTWs) under CWA § 304; and (2) update standards for secondary treatment applicable to POTWs under CWA § 301. The lawsuit seeks a declaration that EPA’s failure to respond to the 2007 petition violates the APA.

For more information regarding this article, please contact Meline MacCurdy or any other member of Marten Law’s Water Quality practice group.