Internal Watchdog Says EPA Must Get Busy Protecting Waterways from Nutrient Pollution

I recently attended a conference about the health of the Mississippi River, and I was struck by a compelling analogy my colleague Matt Rota of the Gulf Restoration Network used to describe the giant Dead Zone in the Gulf of Mexico.  The Dead Zone is a massive area in the Gulf where nutrients (nitrogen and phosphorus, primarily) from the Mississippi fuel biological processes that suck much of the oxygen out of the bottom layer of water.  These nutrients come from agricultural runoff, lawn fertilizers, sewage treatment plants, industrial livestock operations, and other sources.

Matt's analogy went something like this: imagine if there were a gas cloud that covered an area of the U.S. as big as the state of New Jersey that would cause all of the critters that lived there to flee or die of asphyxiation.  People would see it as an obvious environmental crisis and demand action, and the government would surely step in, right?

Right, but apparently not so much when the problem is offshore. 

This week brought news that the Environmental Protection Agency has failed to treat the Dead Zone, which in some summers is in fact as big as the Garden State, and which forces fish and other aquatic animals to run or swim for their lives, is not being treated like the critical problem it is. 

This declaration came from the EPA's own internal (but independent) investigator, the Office of Inspector General.  The IG issued a report that sharply criticized the agency's failures to take the lead in establishing numeric limits for nutrient pollution into critical waterways. 

Under the Clean Water Act, States ordinarily take the lead in setting standards for their water bodies, a process that involves figuring out what kinds of uses each waterway should support (like fishing, water contact recreation, and drinking water supply), and then setting limits on the amount of pollution that can be in the water in order to ensure that those uses can be accommodated. 

In turn, those standards are the foundation for clean-up plans when the standards aren't met, and they help State water officials determine how much pollution a given industrial or municipal discharger must remove from its waste stream.  Given these functions, one can easily see the benefit of a numeric standard, as opposed to the alternative -- a narrative standard.  While water quality officials can take a numeric standard (X milligrams per liter, for instance) and establish regulatory requirements aimed at achieving that number, it's far harder to write a cleanup plan or a discharge limit to address narrative prohibitions.  For example, some States prohibit unnatural levels of algae, but figuring out how much is natural and how much is unnatural is very subjective, and that kind of ambiguity often leads State regulators to throw up their hands and do nothing.

With nutrient pollution, the State-led process of developing numeric standards has broken down.  The IG report finds that fully half of the States had no numeric standards for nutrients by the end of 2008, even after years of EPA imploring States to put them in place. 

In the Mississippi basin, the news is worse.  Of the ten States that contributed the most nitrogen to the Gulf of Mexico, only one -- Tennessee -- had any kind of numeric standard, and seven of the ten States responsible for the most phosphorus delivery to the Gulf had no numeric standards.  The IG report indicates that one reason for this failure is that cleaning up nutrient pollution might lead to tougher restrictions on certain businesses, which could be politically unpopular.  In the same vein, the report found that States essentially disregarded downstream impacts (like the Dead Zone) in the standard-setting process; one can imagine that it is hard to convince decisionmakers in Iowa, Indiana, or Illinois that they need to strictly control in-state sources of pollution that cause harm off the Louisiana coast.

The IG's solution is basic -- EPA must lead where the States have fallen behind.  The agency has the authority to establish necessary standards when States do not, and EPA can better withstand parochial political pressures.  The IG recommends that EPA identify "significant waters of national value" that need numeric standards, and establish the standards, taking into account the needs of downstream waters. 

This is welcome advice, and it is consistent with the recommendations of the National Research Council a couple years back (a user's guide to that report is available here), and a petition that several conservation groups, including NRDC, filed last summer, asking EPA to strengthen its efforts on nutrient pollution. 

Whether EPA will step up, however, remains to be seen; its reaction thus far to the National Research Council report and our groups' petition has been to consider the subject a whole lot, but not take real action.  Worse, its reaction to the IG report's push for EPA to set standards was a model of bureaucratic double-speak: "we believe a greater benefit will be derived by developing a strategic approach to leverage resources and existing authorities to get more numeric nutrient water quality standards in place."

That approach won't cut it.  EPA Administrator Jackson is fond of saying that, in the Obama administration, EPA is "back on the job," and in many ways that is obviously true.  However, with regard to dealing with the Dead Zone, and taking a leadership role where States have proven unwilling or unable to set nutrient standards, the agency simply needs to do the job.  The Administrator came to EPA from New Jersey -- she must know that a problem that is literally the size of that state has to be dealt with now, even if it's happening out in the Gulf of Mexico.

About the Authors

Jon Devine

Director, Federal Water Policy, Water Division, Nature Program

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