Environmentalists win dead zone round against EPA

By Janet McConnaughey, Associated Press
23 September 2013

NEW ORLEANS (AP) — Environmental advocates in states along the Mississippi River have won a round toward a long-term goal of having federal standards created to regulate farmland runoff and other pollution blamed for the oxygen-depleted "dead zone" in the Gulf of Mexico and problems in other bodies of water.

A federal district judge in New Orleans did not order the Environmental Protection Agency to create standards for nitrogen and phosphorus pollution, which the EPA describes on its website as "one of America’s most widespread, costly and challenging environmental problems."

However, Judge Jay Zainey, in his ruling Friday, gave the agency six months to decide whether to set Clean Water Act standards for the nutrients in all U.S. waterways or explain why they’re not needed.

"If they step up to the plate and do the right thing, agreeing to promulgate federal standards where states have failed, the impact on waters throughout the nation could be hugely positive," said Ann Alexander, an attorney for the Natural Resources Defense Council, one of nine environmental groups including the Gulf Restoration Network, theSierra Club and the Prairie Rivers Network.

If they do, she said Monday, one of the first areas to look at could be the 31 states of the Mississippi River basin, because the annual dead zone is "one of the clearest manifestations of the severity of the problem." Every summer, nutrients feed algae blooms at the river’s mouth. Algae and the protozoa that eat them die and fall to the bottom, where their decomposition uses up oxygen. That creates an area on the sea bottom averaging nearly 5,800 square miles — larger than the state of Connecticut — where there is too little oxygen for aquatic life.

Similar issues are driving the damaging algae blooms in Lake Erie and threatening other portions of the Great Lakes, the NRDC said in a news release.

The groups are also members of the Mississippi River Collaborative, which asked EPA in a 2008 petition to set standards and cleanup plans for nitrogen and phosphorus pollution of the river.

A spokesman for Gov. Bobby Jindal of Louisiana — one of 12 states that asked to join EPA as plaintiffs — did not immediately respond to a request for comment. An attorney for 44 agricultural groups that did the same, from the U.S. Poultry & Egg Association, theNational Corn Growers Association and the National Pork Producers Council to farm bureaus in 15 states from Louisiana to Wyoming, said he would ask his clients if they wanted to comment.

"We’re reviewing the ruling. We have no further comment at this time," U.S. Department of Justice attorney Wyn Hornbuckle wrote in an email.

The department argued for EPA that setting such rules would be unnecessarily complex, would take too many people and too much time, and that the agency could more effectively fight water pollution by working with states to reduce such pollution from fertilizer, sewage and storm runoff.

The U.S. Supreme Court’s 2007 ruling in a lawsuit about greenhouse gases and car emissions also requires EPA to investigate whether federal water pollution standards are needed, Zainey ruled Friday.

He refused to rule that such standards should be based only on science, noting that the Clean Water Act was designed to give the states the first crack at setting water quality standards, letting EPA step in "only when the states demonstrate that they either cannot or will not comply."

"Plaintiffs contend that most states to date have done little or nothing to meaningfully control the levels of nitrogen and phosphorous that pollute their waters, and that they have even less political will to protect downstream waters," he wrote.

Alexander said the federal government has known at least since the 1990s that the nutrients are a major problem. She said EPA warned states in 1998 that it would have to act if states didn’t set their own standards within three years. "They extended that deadline and then ultimately blew through it," Alexander said.