Midwestern States are starting to feel the fallout from U.S. EPA’s recent announcement that they are encouraged to develop numeric water quality criteria for the nutrients nitrogen and phosphorus in receiving waters.

The Issues:  U.S. EPA has long argued that excess nitrogen and phosphorus water pollution cause algal blooms, low oxygen levels, and nuisance conditions that negatively impact aquatic life, drinking water, and recreational uses.  And, U.S. EPA points to the Midwestern farm-belt States as the primary cause of eutrophic conditions causing the dead zone in the Gulf of Mexico.  States, on the other hand, respond that the science does not support a straightforward relationship between nutrient concentration and adverse effects, and existing Clean Water Act programs fail to obtain compliance from non-point sources that are often the predominant contributors of nutrients in a given watershed.

Because nitrogen and phosphorus come from many sources, including municipal wastewater treatment plants, runoff from urban storm water, row crop agriculture, livestock production, industrial wastewater, and combustion of fossil fuels, focusing enforcement solely on point sources imposes on them an unfair burden.  This is because, at the end of the day, nutrient regulation is a “zero sum game,” where relaxing any sector’s assigned nutrient loading allocations will by necessity leave less pollutant loading for the remaining sources.  This was one of the arguments raised by the National Association of Clean Water Agencies (NACWA) in its motion to intervene in American Farm Bureau Federation, et al. v. U.S. EPA, No. 11-0067 (M.D. Pa. 2011).  There, American Farm Bureau Federation challenged U.S. EPA’s Total Maximum Daily Load (TMDL) determinations for nitrogen, phosphorus, and sediment for Chesapeake Bay.  NACWA argued that if the plaintiffs succeed in reducing their sector’s assigned allocations, a greater burden of water quality protection would shift to point sources such as municipal wastewater treatment plants (WWTPs) and municipal separate storm sewer systems (MS4s), many of whom have recently completed, are in the process of completing, or are planning to complete major capital investment to upgrade their facilities to comply with their assigned allocations.

Illinois:  In January 2011, U.S. EPA advised Illinois EPA that as of June 30, 2011, it must evaluate all NPDES permit application data to determine whether the permittees’ discharge of nutrients may cause or contribute to an excursion beyond Illinois’ water quality criteria, which among other things prohibits discharges that would cause or contribute to algal growth of other than natural origin.

Environmental groups seized on U.S. EPA’s announcement.  In Natural Resources Defense Council, et al. v. Metropolitan Water Reclamation District of Greater Chicago, No. 11-2937 (N.D. Ill. filed May 3, 2011), environmental groups filed a Clean Water Act citizen suit against the District.  Among other things, the environmental groups alleged that by discharging phosphorus, which acts as a fertilizer to fuel the growth of algae, the District is causing or contributing to exceedances of the narrative water quality standards that the waters be “free from” unnatural algal growth.  The environmental groups further alleged that the District’s own Monitoring and Research Department Reports from 2006 through 2009 prove overall non-compliance as much 72% of the time, with non-compliance reaching 100% of the time at some locations and time periods.  See Complaint, ¶ 26.  As a result of these alleged violations, the environmental groups seek a permanent injunction preventing further Clean Water Act violations, an order that the District expeditiously complete all actions necessary to ensure compliance, civil penalties paid to the United States of up to $32,0000 for each violation occurring between May 2006 and January 12, 2009, and up to $37,500 for each violation on or after January 12, 2009, and attorneys’ fees and costs of prosecuting their citizen suit.  Approximately a week later, on May 11, 2011, U.S. EPA ordered the District to cleanup the Chicago Area Waterway System.

Other Midwestern States:  Outside of Wisconsin, other Midwestern States have approached the development of numeric nutrient criteria more cautiously because while low nutrient discharges may be technically achievable (0.1 to 0.05 milligrams per liter (mg/l)), the collective cost for such treatment could be billions of dollars for each state.

For example, the Wisconsin Department of Natural Resources (WDNR) – adopted numeric nutrient criteria in 2010, which are published at NR 102.06.  Recognizing that one size doesn’t fit all, Wisconsin adopted specific criteria for different water bodies:

  • Rivers – 100 micrograms per liter (ug/l) for 46 listed rivers;
  • Streams – 75 ug/l;
  • Reservoirs and lakes 15-40 ug/l; 
  • Lake Michigan 7 ug/l;
  • Lake Superior 5 ug/l;
  • Not apply to ephemeral streams, wetlands, or lakes/reservoirs < 5 acres

Wisconsin’s own fiscal analysis estimated that the cost for compliance could be upwards of $1.13 billion for municipal and sanitary districts and upwards of $460 million for the private sector, while the districts believe their cost for compliance could be upwards of $4 billion.

Ohio EPA, on the other hand, has proposed a draft rule which adopts numeric nutrient criteria based upon Best Available Demonstrated Control Technology for newly constructed biological wastewater treatment plants.  Specifically, pursuant to OAC 3745-1-05(C)(2), “Any new increase in discharge from new source shall, as a minimum, be controlled through BADCT [with] the design criteria for total nitrogen and phosphorus … shall apply to new construction of biological treatment processes at new and existing sanitary wastewater facilities with a total plant average daily flow of 0.5 million gallons per day or more, except for projects designed exclusively to address treatment of wet weather flows under an approved CSO long term control plan.”  Ohio’s numeric nutrient criteria are as follows:

Table 5-1

Click to view table

The Indiana Department of Environmental Management (IDEM) recently included nutrients in its proposed antidegradation rule under the definition of “Regulated Pollutant” at 327 IAC 2-1.3-2 (43)(A)(ii)(BB).  This means dischargers must determine whether their nutrient discharge will result in a significant lowering of water quality greater than a de minimis loading, subjecting them to an antidegradation demonstration and analysis.  The author questions whether IDEM’s inclusion of nutrients in its antidegradation rule is a permissible logical outgrowth of the comments.

Finally, the Kentucky Water Alliance environmental group issued a notice that it would be pressing U.S. EPA to persuade the Kentucky Energy and Environment Cabinet to adopt numeric nutrient criteria.

In conclusion, it appears the battle in the Midwest over the development of numeric nutrient criteria will take place on a state-by-state, waterbody-by-waterbody basis, with litigation pressed by environmental groups and possibly U.S. EPA.