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.

Once Again, Something Completely Different

I try to keep this blog limited to water related postings. I did call it "The Water Law" after all. But every once in a while something comes along that is important enough to go "off message." This is one of those things.

I have just finished reading an article in Wired Magazine that explores the "controversy" over child vaccination. As a new parent myself, it is an article that I think every parent should read.

This article also embodies something I have written about here before - the importance of making good science comprehensible to the public. Because, as Ms. Wade, the author of the article points out, it is when science becomes incomprehensible that pseudo-science and fearmongers creep in to fill the void.

And The Hammer Comes Down

No...it's not a gavel reference, but rather a reference to a New York Times article that I just came across (thanks to WaterSISWEB). The head of the EPA, Lisa P. Jackson, was recently before Congress's Committee on Transportation and Infrastructure. What she had to say was very interesting.

Ms. Jackson essentially admitted what everyone has long known - that the EPA has done very little to enforce clean water regulations over the last decade. Moreover, she has promised that the EPA's laxity is now at an end. This signals the enforcement sea change that many have expected ever since the Obama administration came into office.

Of course the proof is in the pudding as they say. We will have to wait and see whether the EPA will really carry through on the rhetoric. But for an administration eager to take a strong line on environmental issues - an ambition that is being thwarted in Congress - the EPA provides a convenient executive tool for unilateral action.

Clean Air = Dirty Water?

There is an interesting article over at the New York Times regarding an unintended side-effect of stricter air pollution regulations on coal fired power plants.

The gist of the article is that tougher clean air laws have forced power plants to scrub their air emissions. Unfortunately, the plants apparently dump much of the scrubbed material into local rivers and water supplies. And while the material they are dumping is supposedly "treated," the treatment doesn't remove everything - including a number of heavy metals that have been shown to be carcinogenic.

The EPA is currently considering tougher regulations on power plant discharges, and has attempted to enact them in the past. But the lobbyists are out in force opposing any heavier regulation.

I take away from this article the importance of regarding environmental regulation in a holistic sense. This problem was created with the best of intentions - the desire to clean up air pollution. But an inability or unwillingness to look at the situation as a whole - i.e. "where are the plants' by-products going to go if not into the air?" - has simply shifted the environmental impact rather than ameliorated or eliminated it.

I also believe that regardless of the lobbying efforts to the contrary, greater regulation of power plant emissions will happen. I believe that is simply the political reality of the 21st century. And it would behoove the industry to get ahead of the problem.

Peter Gleick and “The New McCarthyism”

There is a wonderful post by Dr. Peter Gleick in his blog City Lights which I highly recommend. The subject, generally, is the use of fear mongering to destroy civil and rational discourse.

But.

Dr. Gleick suggests that we need to filter out the fear mongers. I believe that the challenge posed by individuals like Glenn Beck, Rush Limbaugh and the other pundits who spew vitriol into our public discourse is not in how we shut them down, but rather how we make them irrelevant.

We live in a country that treasures free speech. But when we have a right to a thing, it means someone else has the obligation to provide it to us. Your right to free speech is my obligation to let you speak, no matter how much I disagree with what you have to say. And that is a good thing. Both history and the modern world are replete with examples of countries and societies that don’t have a right to free speech. I don’t know about you, but I don’t want to live in such a country.

So, given that we can’t – and shouldn’t – shut them up, how do we combat fear mongers? The answer is, of course, education. It is a truism that fear is bred from ignorance. The current healthcare debate provides the easiest example – death panels. Former Governor Palin stated publically that the healthcare reform plan being considered by Congress contained a provision wherein people would be denied healthcare by a panel of bureaucrats based on their “level of productivity in society.” Palin famously labeled these panels “death panels” causing an enormous public uproar. Because, let’s face it, few congressman much less their constituents had actually read the various reform proposals floating around Congress. Anyone who has knows that there was no actual basis in fact for her statement. (For an analysis of the issue see here.)

Ignorance creates the opening for the less scrupulous, and those who are less concerned with accuracy, to stir the pot. Science is particularly vulnerable to fear mongering because many scientific disciplines are complex and beyond the experience of the average person. This makes people vulnerable to fear mongers. And it is a vulnerability that is exploited ruthlessly by politicians and pundits of every stripe.

Thus it is critically important that the scientific community not only expand the boundaries of human knowledge and understanding, but also that they bring the rest of us along on the journey. Scientists, particularly in America, must become better at making their knowledge and discoveries accessible to the public.

Let the fear and hate mongers rant. And an educated public will meet their fear and hate with the only response it deserves – laughter (I happen to think Glenn Beck is hilarious).

A “Complete Solution” to California’s Water Problem?

A group of Republican state Senators from California held a new conference wherein they stressed the importance of water to California’s economy and the need for “a complete solution to this complex problem.” (Thanks to Aquafornia for catching this.)

I applaud the sentiment. But I question whether their conviction is actually strong enough to take the kinds of steps necessary to create a “complete” long term solution.

There is less water today, and will likely be less water tomorrow, than the people of California have enjoyed in the past. But the problem is not really the “people” in the sense that we have a growing population. Rather the problem is agriculture. Both the types of livestock and crops we raise, and where we raise them. The Economist has an excellent article that discusses this issue which you can find here.

So…what does a “complete” long term solution look like for California? I see two roads we can go down.

In the first instance, we can look to government regulations to increase efficiencies in how we use water. But we’re not talking about low flow toilets or waterless urinals here. Long term water stability would require some serious regulations, particularly of the agricultural sector. This basically amounts to an end to agriculture as we know it. One can already imagine the howls from Republicans and other small government advocates – and they would have a point.

On the other hand we can commoditize water. Some economists, and the Economist, have suggested exactly that. Price water at its actual value and you will encourage farmers to grow crops appropriate to the local climate and water supply. But many people oppose commoditizing water for fear that the price increases will fall on personal water use and create enormous hardship for the poor. They have a point as well, though I think the greater danger of commoditizing water is the risk of speculation. Look here for an example of how commodity markets can be manipulated. And this too means an end to agriculture as we know it.

Neither solution is going to be popular with farmers.

In the end it comes down to a simple reality – less water. We can drain natural reserves like the Sacramento Delta. We can pump our underground aquifers dry. But while these activities may let us carry on, business as usual, for a few more years or even decades, they are ultimately self-defeating. We need those natural reserves and aquifers to keep the water cycle moving. Destroying them now for relatively short term gain only makes the ultimate accounting that much worse. An ultimate accounting that also means an end to agriculture as we know it.

So, do California’s politicians have the fortitude to really put together a “complete solution to this complex problem”? I sure hope so.

But I’m not holding my breath.

Pharmaceuticals In Our Water

There is an interesting article over at Greenbiz.com about the Green Pharma Summit, a meeting of pharmaceutical industry personnel involved with sustainability issues. One of the issues discussed at the meeting was the problem of pharmaceutical residues found in the water supply. This is an issue I have written about before. I agree with Mr. McGrath, the author of the article, that it is only a matter of time before this issue gains traction with legislators and regulators.

Check it out.