Regulators Ramp Up Plans For Nutrient Limits In Mississippi River States

March 17th; Inside EPA

EPA and state officials are ramping up their efforts to craft strict numeric nutrient limits for waters that flow into the Mississippi River, clearing the way for broader adoption of the risk-based water quality criteria along the lines of a controversial agency measure in Florida that is already drawing broad concerns that it will result in costly controls.

But despite the concerns over EPA’s proposed limit for Florida, environmentalists are stepping up their pressure on EPA and states to address the issue in the Mississippi watershed and the Gulf of Mexico.

During a March 16 meeting, officials told environmentalists who have petitioned EPA to set water quality criteria for the Mississippi River basin and the Gulf that they are working with officials in Ohio, Illinois and Iowa to craft first-time numeric water quality criteria for nutrients.

“They’re systematically establishing

[numeric standards] and working with states, or forcing them in some cases to establish them,” according to one environmentalist who attended the meeting. The source said that EPA did not offer a time frame for when they would begin focusing on numeric limits for those states, but said they would be issuing the criteria “sooner rather than later.”

At the same, officials in several other states — including Wisconsin, Minnesota and Michigan — are taking their own steps to develop criteria for phosphorous, though so far none are seeking to address nitrogen.

The environmentalist who was present at the meeting said EPA water chief Peter Silva and Ephraim King, head of the Office of Science and Technology in the water office, said their strategy for addressing nutrient pollution in the Mississippi and Gulf of Mexico was to continue establishing numeric criteria on a state-by-state basis. “In Florida this is a hot topic, and it looks like Ohio is on the list, along with Illinois and Iowa, and so they’re systematically working up and down [the Mississippi River].” 

The source was cautiously optimistic about EPA’s response but withheld judgment on whether it would satisfy activists’ demands. “At least symbolically, they’ve demonstrated a real interest and commitment,” the source says. “But the [proof] is in the pudding.” 

An EPA spokeswoman would neither confirm nor deny EPA’s plans. “There was no discussion [during the meeting] of . . . EPA’s recommended approach for resolving [the environmentalists’] petition,” the spokeswoman said. “There was a general status update discussion of numeric criteria development nationally.” 

Risk-Based Limits

Under the Clean Water Act (CWA), states draft and EPA approves water quality criteria — risk-based limits that regulators use, along with waterbodies’ designated uses and antidegradation policy — to set enforceable water quality standards and permit limits. But most states have long opted for a “narrative standard,” which allows discharges to continue so long as there is no discernible effect on the waterbody, rather than a stricter numeric standard.

Environmentalists and others say the issue is critical in the Mississippi and other large watersheds, where high levels of nitrogen and phosphorous contribute to elevated levels of algal bloom, which eventually eutrophy, lowering dissolved oxygen levels and contributing to large “Dead Zones” in the Gulf of Mexico and elsewhere.

They sued EPA to set numeric criteria for nitrogen and phosphorous in Florida and separately petitioned EPA to set similar critieria, as well as an aggregate pollution limit, known as a total maximum daily load (TMDL), for the Mississippi River and the Gulf of Mexico

But EPA’s proposed criteria for Florida, issued earlier this year, is drawing broad concerns from industry and other dischargers who fear it will result in costly new control requirements at wastewater treatment plants that will be passed on to consumers, limit the use of fertilizer and other steps.

Wisconsin officials are already flagging similar cost concerns, where a proposed numeric criteria for phosphorous is expected to cost between $80 million and $440 million, with 35 facilities expected to see more stringent effluent limitations, according to briefing papers crafted by state regulators. “The affordability of meeting projected effluent limits is a concern for many municipal and industrial wastewater dischargers,” the briefing paper says.

The state’s Natural Resources Board March 16 approved an upcoming series of public hearings on the proposed phosphorous criteria, along with standards to dictate how the criteria will be implemented in CWA permits. The state’s director of the bureau of watershed management proposed a rule change to create phosphorus water quality criteria for streams, inland lakes, and Great lakes, “as required by [EPA],”according to the briefing papers.

Notice Of Intent To Sue

Wisconsin’s move comes after environmentalists last year filed a notice of intent to sue EPA over the agency’s failure to promulgate criteria in Wisconsin, charging that EPA has failed to protect state and downstream waters. An environmentalist says the state’s current effort will likely stave off any suit.

According to the information packet, Wisconsin’s proposal is “very similar” to criteria Minnesota has promulgated for lakes, adding that Minnesota is now in the process of developing proposed criteria for rivers and streams.

Illinois is in the process of developing phosphorus criteria for streams and rivers, which would stand alongside its current phosphorus criteria for lakes and Lake Michigan. Michigan and Iowa are developing criteria, but to date have not issued a public proposal. But none of the states has proposed criteria for nitrogen, though some have for ammonia, the paper says.

Despite concerns about the new critieria’s costs, environmentalists are stepping up their efforts to pressure EPA to act. At the March 16 meeting with the water office, they delivered more than 42,000 signatures to EPA in support of their petition to establish numeric nutrient criteria for states in the Mississippi River watershed — a petition to which EPA has not yet responded.

In addition, the Clean Water Network, a broad coalition of 1,200 non-governmental organizations concerned with water quality issues, announced at a March 15 Capitol Hill briefing that it planned to pursue a number of legislative, administrative and litigation strategies to raise the watershed’s profile and improve water quality in the basin.

Among other things, the group is calling for legislative and regulatory means of curbing nonpoint sources of nutrient pollution, pressuring Congress or the administration to establish a central coordinating entity to manage the watershed, challenging point source permits throughout the basin, and continuing to seek a numeric limit on nutrients throughout the basin.

Reneé Hoyos, executive director of the Tennessee Clean Water Network, said the goal of raising the profile of the Mississippi to the level of attention that the Chesapeake Bay or Great Lakes have is a central prerequisite to an effective and long-term solution to the nutrient pollution in the river and Gulf.

For example, the Administration has issued a major executive order issued on the Chesapeake Bay that sought a multi-state TMDL for nutrients and commands states to address nonpoint sources of pollution to meet those goals. In the Great Lakes, by contrast, EPA has a Great Lakes program and Congress has passed the Great Lakes Legacy Act, which has been supported by a bipartisan group of powerful lawmakers, including Sen. Carl Levin (D-MI) and George Voinovich (R-OH).

“One of the things we think would be really important is that the Mississippi River receive some kind of protection and funding similar to what the Chesapeake Bay and Great Lakes receive,” Hoyos said. “We think it’s really important that they have some kind of method of protection, some kind of overriding coordinating body that the agencies are all talking together at some point to coordinate their efforts.” — John Heltman & Erica Martinson