Gulf Restoration Network Decision Nutrients Nitrogen N Phosphorus P Sources include NPS fertilizermanure runoff septic tank overflow Point sources municipalindustrial wastewater ID: 692826
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Slide1
Numeric Nutrient Criteria
Gulf Restoration Network DecisionSlide2
Nutrients
Nitrogen (N)
Phosphorus (P)
Sources include:NPS: fertilizer/manure runoff, septic tank overflowPoint sources: municipal/industrial wastewaterSlide3
Nutrient pollutionSlide4
Algae bloomsSlide5
Gulf Hypoxia: “Dead Zone”Slide6
2004 USDA/IDNR Study
Measures to reduce NPS N and P
“existing
conservation practices can significantly reduce NPS N and P contamination of surface waters. Most notable among these practices arecover crops (50% for TN and TP),
diverse cropping systems (50% for TN and TP), in-field vegetative buffers (25% TN, 50% TP), livestock exclusion from stream and riparian areas (30% TN, 75% TP), and riparian buffers (40% TN, 45% TP). Other practices that offer appreciable reductions in NPS TN loss are N nutrient timing and rate conservation management (15-60%) and wetlands (30%). Additional practices that also can significantly reduce NPS TP loss are moderately reduced tillage practices (50% compared to intensive tillage) and no-tillage (70% compared to intensive tillage, 45% compared to moderately reduced tillage), terraces (50%), seasonal grazing (50%), and P nutrient knife or injection application (35
%).”Slide7
EPA’s current strategySlide8
EPA Partnership Memo 2011
“more effective”
“more efficient”Slide9
EPA Partnership Memo 2011
States should:Slide10
Iowa’s approach
The March 2013 Iowa Nutrient Reduction Strategy
Near-term: implementation of technology-based nutrient controls and practices long-term goal:
development of appropriate nutrient criteria Slide11
Stream Nutrient Criteria TAC
August 2013 Draft report:
This report summarizes work completed to-date seeking to determine levels of nutrients and nutrient response parameters that are protective of Iowa’s stream biological assemblages and designated aquatic life uses. Through a review of technical and scientific literature and the analysis of monitoring data from Iowa streams, this project attempted to identify benchmark values that can serve as a foundation for establishment of nutrient enrichment criteria.Slide12
TAC Draft criteria exampleSlide13
Gulf Restoration Network case
July 2008: coalition of 11 environmental groups (including Iowa
Envt’l
Council and Sierra Club) filed a petition for rulemaking with EPA.Petition requested that EPA set federal numeric standards for N and P. At least for Gulf of Mexico, Mississippi River, and tributaries
Preferably, for all state waters that do not have numeric standards now Slide14
Clean Water Act
Although
states
have primary authority to set water quality standards, Section 303(c)(4) provides:“[EPA] shall promptly prepare … a revised or new water quality standard… in any case where [EPA] determines that a revised or new standard is necessary to meet the requirements of this chapter.”
where [EPA] determines that a revised or new standard is necessarySlide15
EPA Denial of Petition
EPA denied the petition July 2011 (i.e., 3 years later):
Rulemaking not most practical or effective way to deal with N/P
Continue to work co-operatively with states/tribesRM: highly resource/time intensive and would then require sizable regulatory/oversight burden
Not foreclosing possibility that federal numeric nutrient criteria might be necessary in the future.Slide16
Gulf Restoration Network suit
Challenged denial as improper
Court decision: Friday, September 20, 2013
– EPA claimed decision not reviewable by court, because it was discretionary. Court rejected that claim, finding that discretion was limited.
Statute requires EPA to base its denial decision on the grounds provided by the statute: i.e., whether numeric nutrient standards are “necessary”instead EPA said they preferred to use a different approachSlide17
Precedent: Mass. v. EPA
Rulemaking petition for EPA to regulate greenhouse gas as air pollutant under Clean Air Act.
EPA declined, citing pragmatic reasons
U.S. Supreme Court held that EPA must based its decision on the standard provided in the statute, not on external factorsSlide18
Result
Gulf Restoration
court remanded to EPA ordering the agency to
respond to the rulemaking petition within 180 days.EPA must make a “necessity” determination = must determine whether numeric nutrient criteria are necessary to meet requirements of Clean Water Act.Slide19
On remand…
necessity determination
Court
refused to limit this determination to scientific data
because CWA puts primary responsibility for WQS on states, EPA could consider wider range of considerations in making necessity decision.including “the very factors that [EPA] cited in the Denial.”Slide20
Possible outcomes
EPA could appeal to court of appeals
EPA could make respond
to petition within six months:Denial: no federal standards necessary because state efforts are proceeding and will ultimately solve problemGrant: based on numerous statements in past that numeric standards are necessary and states are not moving fast enough to adopt them