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We're Going to Court to Cut Dead Zone Pollution

Jon Devine

Posted March 14, 2012

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One of the things I like best about working at NRDC is that I can call things as I see them, even when that means confronting people and institutions that we often trust and support.  For instance, in a pair of legal actions we've just filed with several partner groups, most of which are based in the Mississippi River basin, we’re not pulling any punches with the Environmental Protection Agency – we’re telling them straight that the agency has fallen down on its job of protecting Americans’ water from a major pollution problem. 

Pond on Custis Trail.JPGNitrogen and phosphorus pollution is pernicious.  As EPA itself says, “[n]utrient pollution is one of America's most widespread, costly and challenging environmental problems. . . .”  For starters, algae feed on these nutrients and grow like crazy, often covering water bodies in slime, as pictured here (a small pond in Arlington, Virginia).  Algae then die and decompose, robbing the water of dissolved oxygen in the process.  In addition, algae can produce nasty toxins that are harmful to humans and animals.  And, a form of nitrogen in drinking water can lead to extreme health problems in infants

One of the biggest – literally – problems caused by nitrogen and phosphorus pollution is the “Dead Zone” that forms in the Gulf of Mexico.  Pollution flows down the Mississippi River, nourishing algae blooms in the Gulf, and when those algae die off, the resulting processes cause an area of the Gulf's bottom layer of water to become so oxygen-deprived (or "hypoxic") that fish and many other aquatic organisms either flee or die.  In recent decades, the average size of the "Dead Zone" has reached state-sized proportions.  Last summer, it covered 6,765 square miles (a down year, actually, probably owing to a tropical storm that occurred during the measurement effort), which makes it about six and a half times the size of Rhode Island.

There have been numerous reports about the seriousness of nitrogen and phosphorus (which EPA typically calls “nutrient pollution,” but which I prefer to call Dead Zone pollution) and the need to address it – including one called “An Urgent Call to Action,” written by state and federal water pollution control experts.  Notwithstanding extensive study and notwithstanding years of EPA essentially begging states to step up their own controls, EPA has failed to use its significant authority under the Clean Water Act to adequately control sources of Dead Zone pollution, like industrial livestock operations, wastewater treatment plants, agribusiness, and urban and suburban runoff. 

And that’s why we had to go to court.  As I wrote several years ago, a bunch of citizen groups petitioned EPA to establish numeric limits on the amount of nitrogen and phosphorus allowable in the nation’s waterways where states had failed to do so.  After a long delay, EPA denied this petition earlier this last year, taking a curious approach – the agency acknowledged that this pollution “presents a significant water quality problem facing our nation,” but said that taking federal action was “not a practical or efficient way to address nutrients at a national or regional scale.”  We’re challenging this denial in court because EPA’s response dodges the fundamental question it needs to answer, and is nonsensical in light of the history of inaction on the issue.

We’re also suing the agency because it has simply refused to respond to a separate petition many of our groups filed back in 2007, asking EPA to update the national pollution control standards applicable to publicly-owned treatment works and include limits for nitrogen and phosphorus.  These facilities are important contributors of nitrogen and phosphorus, yet they are not adequately controlled.  By going to court, we’re demanding only that the agency actually evaluate our claims and rule on them.  Given the seriousness of this issue nationally, that hardly seems like a lot to ask.

Together, these actions will force EPA to acknowledge and – we hope – exercise its responsibilities under the Clean Water Act to reduce a critical and pressing pollution problem.

Correction: An earlier version of this post incorrectly stated when EPA denied the petition concerning the amount of Dead Zone pollution allowed in U.S. water bodies.

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Bruce CookMar 14 2012 10:45 AM

This is happening in our own back yard. I remember reading about this seven years ago before I left Virginia. Our water ways are horrible. I don't understand why people don't care... Most American's are lazy and selfish. This is why I will never have kids. They will have nothing in their future but trying to fix our problems of the past. Keep chasing the all mighty dollar America. I like the article and thanks for posting.

Naveen AdusumilliMar 14 2012 05:31 PM

Ag nutrient pollution is a big problem, however, it is a classic non-point source pollution. This means it becomes challenging to identify or pinpoint the source of pollution. And Adding insult to injury, policies such as tax on nutrient use/ per unit waste runoff have impacts on small scale producers, be it treatment plants, livestock producers, agribusiness. As much as I believe that this issue requires extreme attention, I'm also worried about the potential challenges associated with its implementation.

Jessica FreedMar 15 2012 12:17 AM

clean up the dead zone!

John DAvidsonMar 15 2012 11:45 AM

The probklem can only be solved at its source -- the streams, wetlands and headwaters of the upper plains states, such as Iowa, Illinois, Nebraska and South Dakota. What good is a lawsuit at the bottom of the River if all the upstream polluters are left to drain without restriction. Recent decisions in the 9th and 8th Circuits suggest that organized drainage systems should be treated as point sources under the CWA. Isn't that the place to start? Of course, such law suits will be less glamorous, but they would be a start in addressing the problem where it starts.

David MooreMar 15 2012 02:17 PM

Much of the midwest should be removed from clean till agriculture and returned to mixed forestry and grazing land to conserve topsoil and reduce water pollution such as this lawsuit attacks. Without reducing erosion and excess fertilizer inputs the problem will not be solved.

Peter MaierMar 16 2012 01:18 PM

It is a pity that environmental groups do not use their influence and money to force their representatives in Washington, to hold EPA accountable for not having implemented the Clean Water Act in the first place. The goal of the Act was to eliminate all water pollution by 1985, but when the EPA established sewage treatment requirements, it used an essential water pollution test incorrectly and as one of its many negative consequences ignored 60% of the pollution in sewage. Among this ignored waste, was and still is all the nitrogenous (urine and protein) waste, while this waste, besides exerting an oxygen demand (just like fecal waste) also is a fertilizer for algae, thus contributes to red tides and dead zones.(www,
Admitting to having made such a basic mistake, seems to difficult and it therefore would be much easier start new programs to cover up this mistake and blame this ignored pollution (now called nutrients) on the runoffs from farms and cities. Sadly without correcting this essential test first (so we will know how sewage is treated, one of those other consequences of incorrect testing) we will waste more time and money on programs that are doomed to fail.

Patrick CoffeyMar 18 2012 05:27 PM

Maybe the EPA is right not to lay down the law yet. In the Chesapeake Bay initiative the EPA is meeting some strong resistance from farmers & others. The Chesapeake Bay initiative is obviously a test case for how a Mississippi River initiative would progress.

But action is urgently needed.

Meanwhile, what do we do with all the human waste we generate? I admit, I don't even know what we are doing with it now. And animal waste - from cattle, pigs, chickens, etc. If we can't spread it on farmers' fields as fertilizer, what can we do with it? Is there a way to apply it to farmers' fields without the risk to streams and rivers? These are some of my questions.

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