MWRD and Environmental Groups Bury the Litigation Hatchet
It took nearly six years and two lawsuits, but the Metropolitan Water Reclamation District has finally agreed to do the right thing and take the steps necessary to get rid of the algae pollution being fueled by its sewage treatment plants. This morning, the District’s Board gave a thumbs up to a settlement agreement that charts a course tackling the green slime problem in cooperation with the environmental community.
The agreement settles both the environmental groups’ Clean Water Act citizen enforcement action, pending in federal district court since 2011, and their challenge to the District’s pollution discharge permits, in which the Illinois Appellate court handed the environmental groups a victory and kicked the permit back to the Pollution Control Board for further review. In both cases, the lawsuits were grounded in the fact that the District’s discharge of phosphorus—a component of treated sewage—acts as a fertilizer that makes algae and noxious plants grow out of control and choke up the waterways. If you’ve followed the fight over time to get the phosphorus out of detergents, it’s the same general idea. The District’s phosphorus has been mucking up both the Chicago River and downstream waters all the way to the Gulf of Mexico—but the settlement provides a way to start to turn that around.
Here are some of the highlights of the agreement:
- Joint “Nutrient Oversight Committee” to develop a solution. The settlement creates a plan for the previously-warring parties to work together going forward. At the heart of the agreement is a new agreed permit requirement that the District, the environmental organizations, and the Illinois EPA each choose one member of a “Nutrient Oversight Committee” charged with hiring consultants to develop solutions for the District to implement. The expectation is that Illinois EPA will come up with a statewide instream limit on phosphorus sometime before the end of next year, in which case the Committee’s job will be to figure out an “implementation plan” to ensure that limit is met in the Chicago River system. But if Illinois EPA doesn’t do that for whatever reason, the Committee will jump in and identify algae “hot spots” in the Chicago River system and develop an implementation plan based around fixing them.
- Hard “backstop” limit by 2030. Rome wasn’t built in a day, and fixing the algae problem will necessarily take time. However, as a backstop to ensure it’s not too much time, the parties have agreed to a permit condition with a progress milestone, requiring that the District reduce its phosphorus discharge to 0.5 milligrams per liter annually by 2030. That’s not enough of a reduction in the long run—most scientific analysis suggests that reductions down to 0.1 are required to actually make a dent in the problem. But the 0.5 requirement ensures that the District will be making steady progress as it continues to work toward long-term solutions.
- Phosphorus reduction technology study. A third agreed permit condition requires that over the next two years, the District perform a comprehensive study of the feasibility of reducing its phosphorus discharge to 0.1 milligrams per liter—a level that’s already a requirement in some other sewage plant permits elsewhere in the country. It will present the results of that study to the Oversight Committee.
- Monitoring the Lower Des Plaines for algae problems. The Lower Des Plaines River, immediately downstream of the Chicago River system, is where the algae is most visibly running amok—check out the picture below, in which the water next to the I-55 bridge looks somewhat like that ugly green carpeting that people sometimes put around their swimming pools. But to solve the problem, you first have to measure it, which no one has really done yet. Until now—the District has agreed to an additional permit term requiring it to install a sophisticated monitoring system in the Lower Des Plaines near Joliet that will measure all the major parameters associated with excess algal growth.
- Monitoring the Illinois River for algae problems. In a separate side document, Illinois EPA has agreed to monitor the Illinois River for markers of algae as well. Illinois EPA will enter into a joint funding agreement with the US Geologic Survey to monitor dissolved oxygen (which can be decimated by runaway algae) and chlorophyll in three slower-moving “pools” of the Illinois River where algae tends to flourish—the Peoria Pool, the Starved Rock Pool, and the Marseilles Pool.
- District participation in an Illinois River watershed group. Since the District is contributing as much as 40 percent of the phosphorus in the Illinois River, it agreed in the settlement to participate in an Illinois River watershed study committee, roughly similar in concept to the Oversight Committee, assuming (as expected) that Illinois EPA’s monitoring turns up problems. Everyone anticipates that such a committee will form following completion of Illinois EPA’s monitoring, as such committees are the means by which Illinois EPA has elsewhere in the state been getting dischargers to divvy up responsibility amongst themselves for fixing phosphorous overload problems.
All in all, it’s a long-term roadmap for some real progress on a thorny and complex problem. It would, of course, be nice if we could simply have agreed that the District would wave a wand and meet a hard numeric limit by next week. But the structure of the Clean Water Act—coupled with years of neglect by federal and state agencies in its implementation—make that not possible. The way things should have gone down, under the Act, was for the Illinois EPA to set a numeric limit a long time ago on phosphorus, which would be written into the District’s permits by now. But it didn’t, and US EPA didn’t force the issue (even after we brought a lawsuit). So here we are. The next best path forward is the one we have agreed to, where everyone works together to study the problem and come up with a phosphorus reduction plan that will protect the waterways.
It’s important to point out that the fat lady has not actually sung just yet on this settlement. Since the agreement involves agreed new permit terms, Illinois EPA—the permitting authority—has to actually write those terms into the District’s permits; and the settlement doesn’t formally take effect until they do. We have every reason to believe that will happen, as the Agency was an active participant in our settlement talks. That process should take a couple of months, as the Illinois EPA has to publish any new permit terms in draft for public comment.
But when this all wraps up, the Chicago region can celebrate being part of the solution to the nation’s persistent and growing algae pollution crisis, rather than a poster child for the problem.
A big shout out to NRDC’s partners in the litigation—the Sierra Club and Prairie Rivers Network (represented by attorney Albert Ettinger) in the federal court citizen suit, plus Environmental Law & Policy Center, Friends of the Chicago River, and Gulf Restoration Network in the permit appeal. And special thanks to NRDC’s pro bono counsel at the law firm Baker McKenzie, who poured thousands of hours into this litigation—and delivered results that make us proud.