Environmentalists win dead zone round against EPA

US judge gives EPA 6 months to decide whether regulations needed for farmland runoff pollution

Associated Press

NEW ORLEANS (AP) -- Environmental advocates in states along the Mississippi River have won a round toward a long-term goal of having federal standards created to regulate farmland runoff and other pollution blamed for the oxygen-depleted "dead zone" in the Gulf of Mexico and problems in other bodies of water.

In a ruling Friday, U.S. District Judge Jay Zainey in New Orleans gave the Environmental Protection Agency six months to decide whether to set Clean Water Act standards for nitrogen and phosphorous in all U.S. waterways or explain why they're not needed. The EPA describes the nutrients on its website as "one of America's most widespread, costly and challenging environmental problems," affecting every state.

"If they step up to the plate and do the right thing, agreeing to promulgate federal standards where states have failed, the impact on waters throughout the nation could be hugely positive," said Ann Alexander, an attorney for the Natural Resources Defense Council, one of nine environmental groups including the Gulf Restoration Network, the Sierra Club and the Prairie Rivers Network.

If they do, she said Monday, one of the first areas to look at could be the 31 states of the Mississippi River basin, because the annual dead zone is "one of the clearest manifestations of the severity of the problem." Every summer, nutrients feed algae blooms at the river's mouth. Algae and the protozoa that eat them die and fall to the bottom, where their decomposition uses up oxygen. That creates an area on the sea bottom averaging nearly 5,800 square miles — larger than the state of Connecticut — where there is too little oxygen for aquatic life.

"More than 100,000 miles of rivers and streams, close to 2.5 million acres of lakes, reservoirs and ponds, and more than 800 square miles of bays and estuaries in the United States have poor water quality because of nitrogen and phosphorus pollution," according to EPA. "Additionally, nutrients can soak into ground water, which provides drinking water to millions of Americans."

Earlier this month, a federal judge in Virginia upheld federal and state pollution limits worked out by the EPA, six states and Washington, D.C., to improve the health of the Chesapeake Bay by more tightly regulating wastewater treatment, construction along waterways and agricultural runoff. The American Farm Bureau, one of 44 agricultural groups that asked to join EPA as plaintiffs in the Louisiana lawsuit, had challenged the regulations.

Similar issues are driving the damaging algae blooms in Lake Erie and threatening other parts of the Great Lakes, the NRDC said in a news release.

The environmental groups are also members of the Mississippi River Collaborative, which asked EPA in a 2008 petition to set standards and cleanup plans for nitrogen and phosphorus pollution of the river.

An attorney for the agricultural groups, from the U.S. Poultry & Egg Association, the National Corn Growers Association and the National Pork Producers Council to farm bureaus in 15 states from Louisiana to Wyoming, said he would ask his clients if they wanted to comment.

"We're reviewing the ruling. We have no further comment at this time," U.S. Department of Justice attorney Wyn Hornbuckle wrote in an email.

The department argued for EPA that setting such rules would be unnecessarily complex, would take too many people and too much time, and that the agency could more effectively fight water pollution by working with states to reduce such pollution from fertilizer, sewage and storm runoff.

States are indeed working with the EPA and each other on the problem, said Garret Graves, coastal protection chief for Louisiana, one of 12 states that joined the EPA as defendants. "The Hypoxia Task Force is meeting this week in Minneapolis to advance nutrient management strategies on the entire Mississippi River basin," he said.

He said Iowa released its plan about a year ago. "We're working in that larger venue to make sure that all the state efforts are complementary," Graves said.

The U.S. Supreme Court's 2007 ruling in a lawsuit about greenhouse gases and car emissions also requires EPA to investigate whether federal water pollution standards are needed, Zainey ruled Friday.

He refused to rule that such standards should be based only on science, noting that the Clean Water Act was designed to give the states the first crack at setting water quality standards, letting EPA step in "only when the states demonstrate that they either cannot or will not comply."

"Plaintiffs contend that most states to date have done little or nothing to meaningfully control the levels of nitrogen and phosphorous that pollute their waters, and that they have even less political will to protect downstream waters," he wrote.

Alexander said the federal government has known at least since the 1990s that the nutrients are a major problem. She said EPA warned states in 1998 that it would have to act if states didn't set their own standards within three years. "They extended that deadline and then ultimately blew through it," Alexander said.

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EPA on nitrogen and phosphorus pollution: http://www2.epa.gov/nutrientpollution

Mississippi River Collaborative: http://www.msrivercollab.org/home

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