Nationwide Implications from EPA Nutrient Pollution Settlement

Last week, the Environmental Protection Agency agreed to set specific, statewide numeric standards for nutrient pollution in Florida, marking the first time the EPA has forced numeric limits for nutrient runoff for an entire state. This settlement, based on a 1998 EPA determination that under the Clean Water Act all states were required to develop numeric standards for nutrient pollution, has implications for the thousands of impaired rivers, lakes, and estuaries across the United States.

Under the Clean Water Act, states are required to establish water quality standards that consist of two components: a designated use and water quality criteria. The designated use identifies for what purposes the water body will be used, such as drinking water, recreational, or industrial use. Water quality criteria measures the chemical, biological, nutrient, and sediment composition of a water body and requires their levels to support the designated use. The CWA requires toxic pollutants to have specific numerical criteria. For other pollutants, the CWA permits narrative standards set on a qualitative, rather than quantitative, basis. Most states, including Florida, use narrative criteria for nutrient pollutants. Florida’s standard states, “In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna.” How is an “imbalance” measured? How can a present imbalance be compared against a past imbalance?

In the lawsuit, five Florida environmental organizations pointed to the obvious difficulties in enforcing this standard. This narrative standard, the groups stated in the lawsuit, contains “no measurable, objective water quality baseline against which to measure progress in decreasing nutrient pollution, nor is there any measurable, objective means of determining whether a water quality violation has occurred.”  In fact, EPA itself recognized the importance of numeric criteria in facilitating development and implementation of pollution controls and pollution discharge permits and in evaluating the effectiveness of nutrient runoff minimization control programs.

In 2008, the Integrated Water Quality Assessment Report for Florida, issued by the Florida Department of Environmental Protection, revealed that 16 percent of assessed river and steam miles, 36 percent of assessed lake acres not including Lake Okeechobee (itself impaired due to nutrient pollution), and 25 percent of estuary square miles are impaired by nutrients. In water bodies, this pollution causes harmful algal blooms, http://www.sjrwmd.com/algae/pop_algaephotos.html reduces the spawning grounds and nursery habitats for aquatic organisms, causes large fish kills and dead zones, and endangers public health by contaminating drinking water sources and exposing people to toxic cyanobateria and other microbes. The infamous dead zones in the Gulf of Mexico and Chesapeake Bay are the result of nutrient pollution, which jeopardizes the fisheries off both shores.

Since EPA's 1998 determination that states must develop numeric criteria for nutrient pollution by 2003, states’ progress has been dismal. The nutrient parameters are nitrogen, phosphorus, chlorophyll-a, and clarity. As this EPA table shows,  more than half the states do not have any numeric criteria for any of the parameters, nearly 6 years after the EPA deadline.

For the vast majority of states that still have narrative standards for nutrient pollution, this settlement signals a new EPA commitment to numeric standards with implications for both point-source and non-point source pollution. Nationwide, numeric nutrient criteria will be translated into permit limits for point-source pollution dischargers. For the intractable and growing problem of nutrient pollution from nonpoint sources, numeric criteria will lead to easier identification of waters impaired by nutrient runoff and will help states and the EPA develop Total Maximum Daily Loads (TMDLs) for these nutrients.

That EPA is using its authority to promulgate statewide, numeric nutrient criteria is, as noted by Earthjustice attorney Monica Reimer, legal counsel for the environmental organizations, “a refreshing change of policy…. It is a real milestone in the struggle to safeguard lakes, rivers, and estuaries throughout Florida.” This development, along with the executive order for the Chesapeake and the federal budget pledge for the Great Lakes, suggest the Obama Administration seems newly committed to protecting the country’s waterways from both point source and nonpoint source pollution. This settlement is one indication of a new EPA willingness to intervene in Clean Water Act cases so that present and future generations may benefit from the nation’s water resources.