EPA may work with states on nutrient criteria

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Amid a new lawsuit, the EPA appears unwilling to repeat the Florida battle in the Mississippi River basin.

The battle over numeric nutrient criteria in Florida may have significantly shaped the EPA’s approach to setting limits in other states. Cost estimates in Florida from various stakeholders, along with the EPA’s own heavily criticized cost projections, have created a storm of controversy (see AWI May 2012, p16). Environmental groups fired the latest salvo in the battle over numeric nutrient criteria in May by filing a lawsuit that seeks to force the EPA to set standards for the entire Mississippi River Basin.

The EPA appears less willing to be strong-armed by environmentalists into setting overly stringent standards and more willing to take the practical path of collaborating with state agencies to develop watershed-specific standards. Either way, it appears that numeric nutrient criteria will become tighter for a huge swath of the country over the course of a few years.

“As we’ve seen in Florida, just mandating something at the federal level doesn’t mean you actually get controls in place faster,” Fred Andes, a Clean Water Act attorney from Barnes & Thornburg – who also serves as coordinator for the Federal Water Quality Coalition – told AWI. “If you think the dispute in Florida has been significant, just imagine if the EPA tried to push numbers in the whole Mississippi River Basin. I think the fight over that would dwarf what happened in Florida. You’d be fighting for years and not making any progress.”

The new lawsuit came several months after the EPA denied a petition from the groups seeking a standardized rule for the basin, citing the impracticality of taking a “one-size-fits-all” approach to nutrient control.

Although there are no estimates of the costs associated with implementing numeric nutrient criteria in the basin, other studies have shown federally imposed numeric limits in Florida could cost municipal wastewater treatment plants in that state as much as $4.6 billion. If the environmental lobby is successful at forcing the agency’s hand, it’s not outside of the realm of possibility that an entirely new market for nutrient removal worth more than $100 billion could be created with the stroke of a pen.

Meanwhile, the National Association of Clean Water Agencies has filed a motion to intervene in the case. NACWA General Counsel Nathan Gardner-Andrews told AWI that his organization has undertaken an effort to prod Congress into allocating funds in the Farm Bill to help non-point sources like agricultural operations reduce nutrient run-off.

Estimates by NACWA show that urban stormwater and wastewater treatment only account for about 10 pecent of nutrient loadings into the Gulf of Mexico. Publicly owned treatment works will, however, bear many of the costs associated with any new numeric standards. It does not appear that this particular market is in danger of contraction through the imposition of a cap-and-trade scheme akin to what is being considered in the Chesapeake Bay.

“It’s hard to envision a trading program for the Mississippi River Basin because it’s so humongous,” Andes said. “Surely you don’t want anybody saying, ‘We’re going to put in tight control requirements, but we’re going to be alright because we’ll have trading.’ You can’t assume that.”