Wednesday, November 11, 2009

Nutrient Standards Under The Clean Water Act

There is an interesting lawsuit wending its way through the Federal District Court for the Northern District of Florida. The case is Florida Wildlife Federation v. EPA, Case No. 08-00324. It involves an attempt by the Florida Wildlife Federation (along with a variety of other environmental groups) to mandate the EPA to issue numerical limits on nutrient levels in Florida’s navigable waterways under the Clean Water Act.

Nutrients, like nitrates and phosphates, are distinct from other pollutants in that they are not only naturally present in bodies of water, they are necessary to maintain healthy aquatic ecosystems. But run-off from agriculture, and discharges from certain industries, can cause imbalances in nutrient levels that disrupt local ecosystems. Most people who live in coastal areas are familiar with the phenomenon known as red-tide, a sometimes harmful type of algal bloom that some have linked to nitrate and phosphate run-off from agricultural activity. Similar problems can crop up in lakes and rivers.

While Florida currently has a water quality standard for nutrients, the standard is “narrative.” It simply states, “Nutrients: 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.” Rule 62-302.530(47)(b), Fla. Admin. Code. While this sort of regulation certainly serves as a nice mission statement, the devil – as always – is in the detail. The plaintiffs in Florida Wildlife argue that while this standard sounds nice, it is entirely subjective, and has resulted in ineffective efforts to regulate nutrient levels in Florida’s waters.

The plaintiffs’ initial legal hook was a 1998 EPA document called the Clean Water Action Plan, 63 Fed. Reg. 14,109, and a 1998 EPA report entitled National Strategy for the Development of Regional Nutrient Criteria, 63 Fed. Reg. 34,648, which argue that nutrient pollution is a significant problem, and that the lack of numerical nutrient criteria makes it difficult to effectively regulate nutrient contamination. The Clean Water Action Plan actually commits the EPA to the development of numerical nutrient criteria by 2003. Needless to say, this didn't happen.

The plaintiffs in Florida Wildlife allege that the Action Plan and National Strategy constitute “determinations” under 33 USC §1313(c)(4)(B) of the Clean Water Act which would require the EPA to “promptly prepare and publish regulations setting forth a revised or new water quality standard for the navigable waters involved….” In other words, the plaintiffs argue that because the EPA issued the documents, the Clean Water Act requires the EPA to issue numerical nutrient regulations.

So why do we care?

We care because the Action Plan and National Strategy are not limited to Florida. If the report constitutes a “determination” within the meaning of the Clean Water Act, it would require numerical nutrient standards nationwide, and currently only a handful of states have them.

Unsurprisingly, the EPA initially resisted the lawsuit on the basis that the Action Plan and National Strategy were not formal determinations. But on January 14, 2009, some six months after the lawsuit was filed, the EPA did a complete about-face and issued a formal determination that numerical nutrient criteria are necessary for Florida (and only Florida). And now the plaintiffs and EPA have agreed upon a Consent Decree (in essence an agreed upon judgment that would be issued by the Court), that will require the creation and implementation of numerical nutrient standards for Florida by October 15, 2011. In essence, the Consent Decree amounts to the EPA consenting to a judgment against it.

The EPA, however, is not the only defendant in the suit. A number of Florida state agencies have intervened and are now crying foul at the consent decree. They have objected on the bases that (1) the 2009 determination appears to have been created solely to settle the lawsuit without any scientific support; and (2) the timeline set by the decree is entirely unrealistic and will lead to the adoption of scientifically indefensible standards.

Though I have to admit to being skeptical that valid standards can be arrived at within the time period allotted, that is actually not what interests me here. The EPA’s rather fishy 2009 determination, and the Consent Decree, will be like blood in the water for environmental organizations across the country.

This case has all the hallmarks of an environmental “test case,” prior to a larger national effort. It is remarkable therefore that the EPA has essentially rolled over and conceded the case. If the Consent Decree is approved, I would not be surprised to see copy-cat litigation nationwide. And because the legal issues would be identical, the Consent Decree could be used to force the EPA to mandate numerical standards in every state. That would be a massive undertaking given the technical complexities involved.

This begs the question - what is going on at the EPA? Is this an indication of changing priorities regarding regulation and enforcement? If so, it wouldn't be the first indication.

There will be a fairness hearing on the Consent Decree on November 16th. It will be interesting to see whether the Court approves it.

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