Water Quality Cases Add Up

Judge Rules EPA Must Explain Role in Mississippi Watershed

Published online: Sep 24, 2013
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OMAHA - The EPA must provide a more detailed defense for letting states take the lead on water-quality controls in the Mississippi River watershed.

Depending on the outcome, farmers across the Midwest and Great Plains could be facing the same kind of water-quality pressures that farmers face in the Chesapeake Bay.

A federal judge in Louisiana has ruled EPA must respond to a five-year-old request from environmental groups to consider tougher pollution controls on chemicals such as nitrogen and phosphorus in the Mississippi River basin.

In the federal court for the Eastern District of Louisiana, Judge Jay Zainey ruled EPA has to explain to groups such as the Gulf Restoration Network why EPA has refused to exert its authority under the Clean Water Act to require tougher actions by states.

EPA had argued the court didn't have jurisdiction to review the agency's decision not to exercise its rulemaking authority under the Clean Water Act. The groups who sued countered that EPA was seeking a sweeping exemption from oversight by the federal courts.

The ruling stated EPA's arguments on its jurisdiction were "unpersuasive." Under the Clean Water Act, individual states adopt water quality standards and EPA exercises oversight. EPA steps in to regulate if state officials demonstrate they cannot or will not comply. Thus, EPA has to make a determination of how well the states are meeting their standards.

Zainey ruled the environmental groups were challenging EPA's refusal to respond to petitions calling for higher water-quality standards in the Mississippi basin. The groups wanted EPA to explain why it has not chosen to regulate with a numeric standard and to justify that decision.

It's the second time in as many weeks a federal judge has handed down a ruling on EPA regulation in a major watershed. On Sept. 13, a federal judge in Pennsylvania ruled EPA has authority to supervise how six states and the District of Columbia carry out their management plans to meet the water-quality standards.

Much like the Chesapeake Bay court case out of Pennsylvania, the Mississippi River case in Louisiana pits farm organizations against environmental groups. In the Mississippi River case, however, farmers backed EPA's claim that the agency should leave water-quality regulation to the states.

The American Farm Bureau Federation, National Corn Growers Association, the Fertilizer Institute, National Pork Producers Council and other farm groups intervened in the Mississippi River case last year. In a news release, the National Corn Growers Association stated at the time, "With the amount of corn produced throughout the massive watershed, the outcome of this court case could have a profound impact on many of NCGA's members."

EPA will have to answer whether it is necessary to change the agency's position statement from a few years ago that water-quality regulation in the Mississippi River basin is best done at the state level.

"We don't think it is (necessary)," said Don Parrish, director of regulatory affairs for the American Farm Bureau. "We think everything was proven from a scientific and technical standpoint when they (EPA) turned the initial petition down still exists today. The judge is just asking for a more formal determination. We think this could lead to a positive outcome. EPA still has to make that determination."

If EPA ends up regulating, it could establish numeric standards for phosphorus and nitrogen runoff in each state, known as a Total Maximum Daily Load standard. With 31 states included in the Mississippi River basin, the watershed is not only significantly larger than the Chesapeake, but also far more complex to potentially regulate. Farm groups made that case when they joined the litigation last year.

Parrish warned it could create even further legal battles. EPA was forced to sue the State of Florida over a TMDL and attempted to take over Florida's water-quality oversight before reaching a settlement. "This could turn into 31 Floridas," Parrish said of prospective legal fights.

The Natural Resources Defense Council, in its blog, directly tied the ruling to taking action on nitrogen and phosphorus "which are two great fertilizers, but when you dump the fertilizer into the water it fuels the growth of algae ..."

NRDC noted EPA has pushed states for more action, but the agency has been unwilling to push for direct oversight.

"The court gave EPA 180 days to respond to the question we asked in our petition -- which is whether EPA needs to step in and put limits on pollution that creates algae," NRDC stated.

In Iowa alone, state officials have implemented a new nutrient reduction strategy that has been criticized by environmental groups in the state because the strategy relies on voluntary measures. Last year, 89 lakes in Iowa were considered impaired enough to require new nutrient standards.