CleanCooperative Federalism, Nutrients, and the

Clean Water Act, Three Cases Revisited By: Oliver A. Houck

Presented by: Hannah Scholes

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• Federalism and the CWA• Nutrients and Numbers• Gulf of Mexico• Florida• Chesapeake Bay• Discussion

Outline

Federalism and the CWA

What is Cooperative Federalism? • When national, state, and local governments work

collectively to solve common problems

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History

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“…the policy of Congress to recognize, preserve, and protect the primary

responsibilities and rights of the States in controlling

water pollution”

1948

Federal enforcement restricted, favored state management. Federal

role only to fund, advise, and to call an “abatement conference” when all else

failed

Amendments of 1956, 1961, and

1965

1972

Now established a national program directed by the EPA where the states play “important but subsidiary role.” “A national goal to “restore and maintain”

the national waters”2 goals:

1. discharge of pollutants be eliminated in 12 years

2. water quality protective to fish/wildlife/human recreation be

achieved in 10 years

The Statutory Scheme• Point Sources regulated exclusively by EPA (technological standards not water quality)

• Discharge permits to reflect water quality can only increase treatment, not decrease, and can be

run by state programs BUT EPA regulates, permits, and enforces

• Criteria initially set by EPA and states can establish the uses to which the criteria apply, but

cannot “adopt certain uses” that interfere with the attainment of downstream water quality,

decrease the existing water quality, or anything below anything achievable by additional controls

• States must review their standards every 3 years and submit biennial reports to the EPA

• NPDES Permits and TMDLs

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TMDLs• Gives states the right to “go first”

and for degraded waters in a direction that improves them, with federal approval all along the way

• EPA has allowed weak criteria

• Federal government didn’t trust states to have full responsibility, but wanted them to have an active role= federal control

• TMDL=WLA+LA+MOS

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Nutrients• Main Culprits: Nitrogen and Phosphorous • “One pound of phosphorous can produce from 350 to 700

pounds of green algae”• In nutrient stressed waters, low-oxygen species dominate

and some lakes require a 90% reduction of nutrients (phosphates) in order to recover

• Blooms of cyanobacteria

Relatively EASY and INEXPENSIVE solutions:• Limit fertilizer application• Buffer strips and retention ponds

• States faced with rising water treatment costs, decreasing property values, loss of recreation and tourism, but still resistant to clean up. Why? = The power of the polluters

Numbers• Set a numerical standard like speed limit, BAC, etc.• Enforceable • Lower level state water agencies embrace numerical TMDLs, but higher up the food chain numerical limits

lose support• “…constrain agency authority and the exercise of political power”• They change the way people were used to doing things• Dischargers resist • States resist because they lose authority

So What happened? • EPA finally adressed the problem of nutrients in 1980 by developing numerical criteria for N and P• States urged to adopt own criteria and adopted narrative standards

Narrative Standard? • “no toxic chemicals in toxic amounts.” • Surface waters be free from “oil, scum, and floating debris in amounts that are unsightly”• etc.

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The Gulf of Mexico• State and Federal inaction• In 2008 Gulf Restoration Act called

on the EPA to make a TMDL for whole watershed, stating that it was “necessary”

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• One of the most productive marine ecosystems

• ¼ America’s fisheries, 1/3 migratory waterfowl, ½ remaining coastal wetlands

• Now the largest “dead zone” in N. America (2nd in the world)= 20,000 sq. km

• 31 states discharge into the Mississippi but 6 are the main polluters, and account for over ½ the nitrate and 2/3 the phosphorous (89%-nonpoint discharges--agriculture)

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States had narrative standards.

Prior to 19880 1

Federal government stepped in and EPA established a Gulf of Mexico Program

19880 2

Environmental groups petitioned the government to develop a focused strategy for hypoxic zone.

EPA formed Hypoxia Task Force with intent to have plan by 1999

19940 3

Clean Water Action Plan required EPA to develop numeric criteria within 2 years for all water bodies

19980 4

EPA extended deadline for criteria from 2003 to 2004

EPA-State Nutrient Task force set goal to decrease dead zone to 5,000 sq km by 2015…

20010 5

Environmental groups petitioned against EPA because no work had been done (nutrient loadings increased)

20030 6

Not a single state in US adopted water quality criteria

20040 7

EPA’s Science Advisory Board concluded the Gulf needed to be addressed ASAP

National Research Council declared EPA needed to take a “more aggressive role” (states and federal governments need to water quality standards”. A Mississippi Watershed TMDL was recommended

Environmental groups filed a petition because of lack of progress

20080 8

The Response

Litigation• After 3 years, EPA denied the petition, and the Gulf Restoration Network filed suit

EPA acknowledged health risks and economic risks, but it’s a “daunting management challenge” , so instead wanted to keep collaborating with states

• District Court of Louisiana sided with the EPA

• BUT had to show that their decision to not make a “necessity determination” was valid

• The EPA must meet the requirements of the act- to include water quality standards for pollutants, which they themselves said should be numerical

• But also considered administrative convenience and the risk to future state collaboration

• CWA states that EPA steps in and develops criteria after states attempt it

• States cannot enforce watershed wide TMDL-(February 29, 2016- Supreme Court denied to hear challenge of ruling for Chesapeake Bay TMDL- meaning that EPA could enforce watershed wide TMDL)-EPA must step in order to fulfill CWA requirements left unanswered by the court

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How about now?• Iowa- has no plan to develop nutrient criteria (“not

necessary”) Drinking water polluted with nitrates, and

has had to spend millions of dollars Nutrient reduction based on “voluntary

conservation”

• Illinois now has partial P criteria only for lakes/reservoirs

• Indiana- has abandoned all efforts

• Missouri- has partial N/P criteria for lakes

• Kentucky- failed to submit criteria and stated criteria “may not be the most effective approach”

• These states make up 54% of the nutrient loading into the Gulf

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Florida

Juniper Creek

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After

The Everglades

Before

Everglades Agricultural Area• Home to a sugar industry

• Soil is poor in nutrients, requiring massive nutrient inputs

• Runoff flowing into Okeechobee- in order to divert was funneled into the Park

• 1973 Florida Legislature stated Okeechobee pollution caused by agriculture and tasked the

South Florida Water Management District with the cleanup

• 1987 SWIM- plan to END nutrient pollution in lake in 5 years

• U.S Attorney for Southern District of Florida filed lawsuit against Water Management District

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Lawsuit Results • District stated politicians swayed by sugar industry

• Some politicians not- Lawton Chiles (incoming governor in 1992) tried to establish target of 80% reduction of P,

process for determining WQ standard, and limit discharges from agriculture (Grower’s lawsuit overturned this)

• 1992 Everglades Forever Act (EFA) passed. Stated would meet standards by 2006.

• By 2003 narrative to numeric standards, and if not 10 ppb would apply

• Florida Department of Environmental Protection (FDEP) interpret as don’t do anything until 2006

• 2003 knew they wouldn’t hit 2006 goal, EPA extended deadline until 2016, and polluters can exceed 10ppb under

certain situations

• Everglade’s Miccosukee Tribe of Indians filed suit and won in 2011

• Since then different standards/BMPs being implemented

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1970sWQ issues start to be noticed/documented

1998

FDEP started working with

EPA on numeric criteria

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Need for numeric WQ criteria evident, but dissent statewide EXCEPT from FDEP

2001

2003FDEP projected finish for 2004!

2004FDEP changed

deadline to 2007…

2007FDEP changed

deadline to 2010, EPA approved

2008

EPA proposed criteria

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FDEP proposed changing deadline to 2014, as long

as no one who disapproved of the criteria

Florida Wildlife Federation filed a suit against EPA to

make “necessary determination”. EPA did

2009

2010State given one year to develop their own or adopt EPA’s. EPA’s numerical criteria adopted

Multiple suits from dischargers about “necessity” determination

Trial split• FDEP given ample

time and acknowledged narrative criteria wasn’t working

• EPA had allowed them to just translate harm based narrative into criteria, and EPA’s criteria didn’t fully match that

• FDEP produced standards with heavy input from industry and EPA forced to accept

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Epilogue

• Florida has accepted criteria

• Intermittent and man-altered canals/channels used for water management/irrigation/water

supply, and waters that have “poor habitat” exempt

• TMDL process has obstacles too

• Exemptions exclude most flowing waters in South Florida (3,043 mi), tidal creeks (6,333 mi),

water management canals (11,497 mi) intermittent streams (8,701 mi) and other waters

Epilogue Cont.

Recent Studies show serious impairment, but some studies show level of pollution to different degrees.

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Lakes impaired

90%

80%

Rivers and streams impaired

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The Chesapeake Bay

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• Migratory birds, fisheries, oysters

• Nutrient overloads (primarily agricultural based) caused collapse of resources

• 1970s federal funding identified nutrients as the problem

• 1983 Chesapeake Bay Agreement (MD, PA, VA, DC)

• 1987 Agreement set new target to 40% N/P reductions by 2000 (Chesapeake Bay Program)

• BUT agreement had no requirements or allocations as targets

• 2000- new agreement- postponed cleanup and encouraged local watershed plans. Also required EPA to make sure that the program implemented and achieved/maintained targets

• 2006 GAO found the program not working

• By 2009 DE, NY, WV also involved. EPA announced 2 implementation measures: Bay-wide TMDL and WIPs

• December 2010 Bay-wide TMDL issued (lowered target down from 40% to in 20s). Allocations divided among states

• Executive Order made all federal agencies in this area an action plan and deadlines

• Date for achieving WIPs changed to 2025, but those in involved many different approaches

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Suit filed against the EPA…

2013- U.S District Court for the Middle District of

Pennsylvania upheld the Bay-wide TMDL

more info

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Text Information Demo

Epilogue

• Chesapeake Bay Foundation’s biannual state of the Bay determined 13 indicators that the bay is improving, 7 did not change, and 1 declined

• Round of WIPs due this year, and all measures implemented by 2025

The Takeaway• CWA’s version of cooperative federalism is federal with state functions

• EPA is always involved- either initiating, responding, or obliged to act

• State’s responses vary with political leadership

• Citizen groups are very important

• When these reach the courthouse, state primacy is NOT a valid argument

• Overall, cooperative federalism has succeeded in some areas at restoring and maintaining the nation’s waters

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Discussion

Do you think a Mississippi River Basin TMDL would work?

What are your opinions on states verses the federal government regulating water quality?/ Is there a better way to organize the process?

Do you think that the general public is aware of the water quality issues and the repercussions?