Numeric Nutrient CriteriaGulf Restoration Network Decision

NutrientsNitrogen (N)Phosphorus (P) Sources include:NPS: fertilizer/manure runoff, septic tank overflowPoint sources: municipal/industrial wastewater

Nutrient pollution

Algae blooms

Gulf Hypoxia: “Dead Zone”

2004 USDA/IDNR StudyMeasures 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%).”

EPA’s current strategy

EPA Partnership Memo 2011

“more effective”

“more efficient”

EPA Partnership Memo 2011States should:

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

Stream Nutrient Criteria TACAugust 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.

TAC Draft criteria example

Gulf Restoration Network caseJuly 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 tributariesPreferably, for all state waters that do not have

numeric standards now

Clean Water ActAlthough 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

necessary

EPA Denial of PetitionEPA denied the petition July 2011 (i.e., 3

years later):Rulemaking not most practical or effective way

to deal with N/PContinue 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.

Gulf Restoration Network suitChallenged denial as improperCourt decision: Friday, September 20, 2013 – 1. EPA claimed decision not reviewable by court,

because it was discretionary. Court rejected that claim, finding that discretion was limited.

2. 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 approach

Precedent: Mass. v. EPARulemaking petition for EPA to regulate

greenhouse gas as air pollutant under Clean Air Act. EPA declined, citing pragmatic reasonsU.S. Supreme Court held that EPA must based

its decision on the standard provided in the statute, not on external factors

ResultGulf 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.

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.”

Possible outcomesEPA could appeal to court of appealsEPA could make respond to petition within six

months:Denial: no federal standards necessary

because state efforts are proceeding and will ultimately solve problem

Grant: based on numerous statements in past that numeric standards are necessary and states are not moving fast enough to adopt them