Dead Zone Decision: Court Ruling Forces EPA Action on Mississippi River Pollution

The U.S. District Court in Eastern Louisiana ordered the U.S. Environmental Protection Agency on Friday to determine within six months whether to set new limits on the pollution that is fueling the dangerous algae growth choking the waters throughout the Mississippi River basin, the Gulf of Mexico and waters across the country.

The suit, filed a year and a half ago, challenged EPA’s denial of the Mississippi River Collaborative’s 2008 petition to EPA asking it to establish quantifiable standards and cleanup plans for nitrogen and phosphorus pollution. The suit charged that EPA had unlawfully refused to respond to the question posed to it, which is whether such federal action is necessary to comply with the Clean Water Act.  The court agreed with plaintiffs, holding that the Agency’s refusal to provide a direct answer was unlawful.

The result is a win for Iowans and others living up and down the Mississippi River who support clear, deliberate action to clean up polluted waters.  Here’s how Ann Alexander, lead attorney on the case at the National Resources Defense Council, described the result:

“In the simplest terms, the court ordered EPA to remove its head from the sand and make a decision whether to be part of the solution or part of the problem.  It’s a short and satisfying answer to a long and decidedly unsatisfying history of dithering inaction by EPA.”

At issue, Alexander explains, is EPA’s responsibility to ensure standards for cleaner water are put in place according to a reasonable timeline.  Alexander explains EPA has been clear about whether the standards are important:

“EPA has been acknowledging for more than a decade that this problem is severe, calling the nationwide damage from algae pollution a “sobering picture and a compelling reason for more urgent and effective action.”  More to the point, EPA has repeatedly gone on record saying that states have not done enough to solve the problem…”

But the federal agency has dithered on whether the standards are legally necessary–a finding that would trigger EPA’s responsibility to work quickly with states to set needed standards.

Perhaps shaken by the fierce industry opposition to its effort to set such limits in Florida, EPA simply refused to answer our question, saying only that setting federal limits if they were necessary would be a lot of time and trouble.

The Court’s decision, issued Friday does not tell the Agency how to address the problem, only to make a decision on the issue. However, EPA has repeatedly acknowledged the severity of the problem and stated that federal intervention is appropriate because states are not doing enough to solve it.

Plaintiffs in the suit included Gulf Restoration Network, Waterkeeper Alliance, Environmental Law and Policy Center, Iowa Environmental Council, Missouri Coalition for the Environment, Prairie Rivers Network, Kentucky Waterways Alliance, Tennessee Clean Water Network, Minnesota Center for Environmental Advocacy, Sierra Club, and NRDC.  Attorneys at the Tulane Environmental Law Clinic, NRDC, and the Environmental Law and Policy Center brought the case.

Gulf Dead Zone signifies lack of action by EPA, states

This week, scientists from the Louisiana Universities Marine Consortium completed their annual measurement of the Gulf of Mexico’s Dead Zone, which measured 5,800 square miles, larger than the state of Connecticut.

The Dead Zone is an area of water at the mouth of the Mississippi River which is oxygen-deprived due to excess nitrogen and phosphorus pollution coming primarily from agricultural sources throughout the Basin as far north as the River’s source in Minnesota, and including the state of Iowa.

In addition to causing the Dead Zone in the Gulf, nitrogen and phosphorus pollution harms waters throughout the Mississippi River Basin and its tributaries, threatening wildlife and recreation as well as the safety of drinking water.

“Record-high nitrate pollution levels in May through July have forced the Des Moines Water Works to use a nitrate removal system and blend water from other sources just to deliver safe drinking water to over 500,000 Iowans,” said Susan Heathcote, water program director for the Iowa Environmental Council, a member of the Mississippi River Collaborative.

The annual Dead Zone measurement makes the size of the nitrogen and phosphorous pollution problem in the Mississippi River Basin clear, and Iowa’s contribution of nitrogen and phosphorous that feeds this problem is among the largest of any state.

In Minnesota, a different nitrogen and phosphorous strategy takes shape.

Iowa is not the only state working to implement a strategy for controlling nitrogen and phosphorous pollution.  Minnesota is considering piloting a state agricultural water quality certification program  where farmers, in exchange for implementing measures to reduce pollution in streams and lakes, would receive a certification that the state considers their conservation efforts sufficient to help address the pollution problem.  The measure is intended to help farmers be confident that their efforts to reduce pollution levels will be adequate under the law.

Recently, the Mississippi River Collaborative, group of nonprofit organizations that focus on a healthy Mississippi River, joined together to issue a set of principles (listed below after the jump) for an effective water quality certification program.  The Iowa Environmental Council is a member of the collaborative.

In a letter to the Minnesota Department of Agriculture, executive directors of several Collaborative partners said Minnesota’s model could be useful in other states up and down the Mississippi.  They also made it clear that any policy Minnesota develops needs to build upon the success of the federal Clean Water Act, passed 40 years ago:

Since 1972, Americans have benefited greatly from our insistence that point sources meet pollution limits. It is 40 years later, agriculture is one of the nation’s leading causes of water impairment, and farmers must now do their share. The next frontier of non-point source water pollution policy needs to establish a strong but adaptable structure that clearly outlines the water quality goals that must be met, the available options for meetings those goals,
the tools for determining compliance, and the costs of non-compliance.