Center For Regulatory Reasonableness

The Center for Regulatory Reasonableness is a multi-sector coalition of municipal and industrial entities from across the United States.  The Center was created to address the full range of Clean Water Act compliance, permitting and regulatory issues facing these entities. The Center is dedicated to ensuring that regulatory requirements applicable to such entities are based on sound scientific information, allow for flexible implementation, only require attainable, cost-effective compliance options and that rule changes are only implemented after full consideration of public comments regarding the need for and efficacy of such requirements.

Articles by CRR Contributors 


REGULATORY IRRESPONSIBILITY: EPA'S ONGOING EFFORTS TO REDUCE NUTRIENTS

Philip D. Rosenman, Esq.  Hall & Associates
February 2015 Newsletter

 

Full disclosure, I’m not a scientist; I have never run a water quality model; and, I couldn’t perform a regression analysis to save my life.  I am an environmental attorney, whose scientific conclusions, generally speaking, should be regarded with the appropriate amount of circumspection. That being said, I have spent a greater part of my seven year legal career representing municipal communities and wastewater treatment authorities across the country in their efforts to obtain legally and scientifically sound water quality-based nutrient limitations in their permits.  In this capacity, I have observed several reoccurring flaws in EPA's ongoing crusade to impose massive nationwide nutrient reductions on point source operations.  These errors have nothing to do with the highly technical intricacies of effluent limitation derivation, such as selecting a proper growth rate coefficient, or whether it is appropriate to base the limits on 7Q10 flow, or new controversial approaches to demonstrate causation (e.g., conditional probability).  Rather, these errors are macro in scale and have a lot more to do with flawed policy and poor judgment.  Ironically, I believe my ignorance on the technical aspects (as well as the frequency with which I've had to simplify these issues for judges) has gone a long way in helping me to realize the illogical and unreasoned positions being taken by EPA.

As discussed within, although varied, these deficiencies all share one common trait: the reduction of nutrient point source loads will not produce any significant improvement in water quality or ecological health.  Assuming for a moment that statement to be true, why then, should municipal entities (and their tax-paying constituents) be forced to exhaust their limited resources on such fruitless expenditures?  Shouldn't this money be spend on expenditures that will result in actual environmental improvement?  Putting aside the legal impropriety of imposing such regulatory actions, it is time for EPA, interest groups, and the courts to take a pragmatic stance on these issues.  Recognizing that there is only a finite amount of money to be spent, regulatory decisions that force communities to commit all of this money to unproductive purposes are inefficient, and for lack of a better word, irresponsible.  To be clear, there are certainly times where nutrient reduction is needed.  However, imposing a one-size-fits-all approach in all cases in a misallocation of resources, and, ultimately, diminishes the chances of improving water quality.  Following a brief background on nutrients, this paper seeks to provide a layman's discussion of three  instances where EPA should take a more pragmatic approach to improving water quality.

Nutrients are non-toxic pollutants

Without getting into the particulars, a short overview on nutrients will be helpful.  Unlike many pollutants, nutrients do not have a toxic effect on ecological health.  This means that nutrients will not automatically cause instream impairment above some threshold concentration.  Rather, nutrients can, in some cases, result in cultural eutrophication (i.e.., excessive algal growth and the problems associated with such growth, including biological community imbalance and oxygen depletion).  However, many external factors control whether and where nutrient-associated use impairments may occur, or if they occur at all.  

 

As the schematic depicts, factors such as light availability, flow hydrology, retention time, the presence of algae-eating critters (e.g., zooplankton), turbidity, and available habitat also control whether there will be excessive plant growth and/or macroinvertebrate impairment.  Based on the fluidity of these relationships, it is difficult, if not impossible, to establish threshold nutrient concentrations above which impairments will occur.  In many cases, as discussed below, the reduction of nutrients will have a negligible impact on reducing plant growth or improving the benthic insect community.  Accordingly, many states do not currently have numerical criteria for nutrients, opting instead for the flexibility provided by narrative criteria. 

Non-anthropogenic sources of nutrients

            Nutrients occur naturally in the environment.  They are in soil, bedrock, and the byproducts and remains of all plants and animals.  Consequently, nutrients have been present in streams and lakes long before humans ever entered the picture.  This is important because it is also well-recognized that plant growth is not limited by nutrients when nutrient levels are at or above a certain ambient concentration (approximately 4 ug/L TP; 60 ug/L TN).  [cite].  This means that, while other factors, particularly the presence of adequate tree canopy, could prevent plant growth under such circumstances, the reduction of phosphorus will not impact the degree of plant growth until the concentration is at or below 4 ug/L TP.  In most cases, pristine streams have background TP concentrations well above this threshold level.  Therefore, in such situations, it wouldn’t matter if you entirely eliminate anthropogenic inputs of nutrients; you still will not be able to control the amount of plant growth in the stream.  

Take for instance, the example of Indian Creek, a small stream in southeastern Pennsylvania, which is roughly characterized above.  Admittedly, this waterbody has a high concentration of nutrients.  Moreover, it has been documented that in certain stretches of Indian Creek (primarily those adjacent to the canopy-free golf course), there are unacceptable swings of dissolved oxygen occurring on a daily basis attributable to the excessive amount of plant growth in the stream.  EPA has issued a TMDL that seeks to impose massive point source reductions of nutrients on the small wastewater facilities that discharge to Indian Creek.  To comply with the limits imposed by this TMDL, if even possible, the communities on Indian Creek will each have to spend 20-40 million dollars to retrofit their operations with nutrient removal technologies.  However, the background concentrations of nutrients in Indian Creek are such that, regardless of this reduction, nutrient levels will still exceed the concentration that supports unlimited plant growth.  Thus, the nutrient reductions will be neither necessary nor protective because they will not materially reduce the amount of plant growth in Indian Creek.  Recognizing the futility of such expenditures, the communities, instead, sought to fund a canopy restoration project that (a) would be a far more effective means of reducing plant growth in the stream, and (b) will cost a mere fraction of the cost for nutrient controls.  Unmoved by this plan, EPA has refused to enter into any agreement that does not include the nutrient reductions called for in the TMDL.  This TMDL is currently being challenged in the District Court for the Eastern District of Pennsylvania.

Nutrients just one of numerous contributing factors

            Similar to the scenario described above, there are often settings where a waterbody is impaired for a slew of reasons.  These reasons could include both instream concentrations of pollutants and physical conditions like turbidity and habitat availability.  Often, these causes vary in the degree to which they are contributing to a problem.  For instance, in the chart below, it is clear that reducing nutrients will have little impact in restoring the waterbody to unimpaired conditions (i.e., an ICI macroinvertebrate score at or above 8.0).  

 

If real improvement is to be realized, restoration of tree canopy and/or sediment controls will be necessary.  However, in its march to impose dramatic nutrient reductions throughout the country, EPA has decided that, even if nutrients are a small part of the problem, municipalities must be held accountable as if they were the predominant cause.  [cite].  In a sense, EPA is holding nutrients (and the point sources that produce nutrients) jointly liable for the damage caused by other pollutants.  Only in this case, nutrient reduction simply cannot rectify the damage.

Beyond the disparity in relative benefit, it just so happens that controlling sediment and restoring tree canopy are exponentially less expensive than installing state-of-the-art nutrient removal technology.  Thus, EPA’s “reduce nutrients now, ask questions later” mentality represents a severe misallocation of resources, as money that could have been spent actually fixing the problem is wasted on improvements that cannot possibly restore the impairment status of the stream.

A Small Fraction of the Cause

            Finally, as discussed above, there are scenarios where nutrients are, in fact, responsible for causing impairment to waterbodies (e.g., Chesapeake Bay and Gulf of Mexico).  However, even in these situations, EPA has approached the issue in an inefficient and costly manner.  Specifically, EPA has pushed for industrial and municipal sources, to the exclusion of other sources, to dramatically reduce their contribution of nutrients when, in reality, these sources supply just a small fraction of the overall nutrient load to the watershed. 

 

 

For instance, the hypoxic zone in the Gulf of Mexico is attributed to, among other causes, the nutrients entering the Gulf from the massive Mississippi-Atchafalaya River Basin.  However, a task force commissioned by EPA found that point sources account for only 14% of the nitrogen contribution (7% for sewage treatment plants [STP[BK1] ’s]) and only 27% of the phosphorus contribution (16% for STP’s).  Non-point sources, such as agricultural and urban run-off, are responsible for the lion’s share of the nutrient load.  Clearly, focusing regulatory efforts on these non-point sources will accomplish more good.  Further, as discussed earlier, these larger contributors to the problem are actually much easier, from a cost perspective, to control.  Notwithstanding these realities, this same task force suggested a 69% reduction in N flux from STPs (7% of total spring load) and an 80% reduction in P flux from STP’s (16% of total spring load).  (Section 4.5.8).  Unfortunately, this is not entirely EPA’s fault as it has repeatedly been held that EPA possesses no authority under the Clean Water Act to regulate pollutants from non-point sources:

[U]nlike the permitting and enforcement provisions for point sources, [under the CWA] EPA lacks direct implementation or regulatory authority in the face of nonexistent or inadequate state implementation. At most, under the nonpoint source control provisions, EPA is authorized to withhold grant funding for delinquent states. This policy judgment appears consistent with Congress's reluctance, as expressed in sections 101(b) and (g) of the Act, to allow extensive federal intrusion into areas of regulation that might implicate land and water uses in individual states.

 

Robert W. Adler, The Two Lost Books in the Water Quality Trilogy: The Elusive Objectives of Physical and Biological Integrity, 33 ENVTL. L. 29, 56 (2003); Defenders of Wildlife v. United States EPA, 415 F.3d 1121, 1124 (10th Cir. 2005) (“Unlike point source pollutants, the EPA lacks the authority to control non- point source discharges through a permitting process; . . .”).
EPA is currently defending its authority to implement a nutrient trading program for the Chesapeake Bay.  Food Water Watch v. EPA, D.D.C., No. 1:12-cv-1639 (Oct. 3, 2012).  However, even if this authority does not exist, EPA could certainly do a better job facilitating and promoting such “lower control cost” state solutions. 

EPA’s Regulatory Constraints

            Beyond the latent unreasonableness in having dischargers spend money to construct pointless nutrient removal operations at their plants, EPA’s attempts to impose such reductions also run afoul to the requirements of the Clean Water Act, as implemented by EPA regulations.  For instance, EPA defines the terms ‘water quality standard’ and ‘criteria’ as follows:

A water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria necessary to protect the uses.  States adopt water quality standards to protect public health or welfare, enhance the quality of water and serve the purposes of the Clean Water Act (the Act). …

40 C.F.R. § 131.2 (emphasis added).  Existing jurisprudence mirrors this dual-sided standard.  American Iron & Steel Inst. v. EPA, 115 F.3d at 990 (emphasis supplied) (“But what is necessary to protect water quality?  The answer lies in ‘water quality standards’ which contain, among other things, ‘criteria’ setting forth the legally permissible amounts of pollutants in a particular water segment. …”).

These definitions make it evident that EPA envisioned both a ceiling and a floor to its standards and criteria.  Put differently, EPA water quality criteria – which drive permit limits, and TMDLs, and impairment determinations – may neither be over protective nor under protective.  Guidelines for Deriving Numerical National Water Quality Criteria for the Protection of Aquatic Organisms and Their Uses, USEPA 1985, at 5 (noting that water quality criteria must ensure use protection “with a small probability of considerable overprotection or under-protection.”); Leather Indus. of Am. v. EPA, 40 F.3d 392, 401 (D.C. Cir. 1994) (“EPA’s mandate to establish standards ‘adequate to protect public health and the environment from any reasonably anticipated adverse effects of each pollutant,’ does not give the EPA blanket one-way ratchet authority to tighten standards.”); Contract Courier v. Research & Special Programs Admin., 924 F.2d 112, 115 (7th Cir. 1991) (“Statutes do more than point in a direction, such as ‘more safety.’  They achieve a particular amount of that objective, at a particular cost in other interests.  An agency cannot treat a statute as authorizing an indefinite march in a single direction.”).  Although states are free under section 510 of the Clean Water Act, 33 U.S.C. § 1370, to generate criteria that are more restrictive than that which is required by the CWA (assuming there is such state authority), EPA’s suggestion that such standards are in some way mandated under the Act is without merit.   

Conclusion

            To put it bluntly, EPA has been mongering a “sky is falling” mentality with nutrients.  While nutrients are certainly responsible for problems in this country, the fact that they are causing problems in a particular region or waterbody does not mean that they are causing problems in your local watershed.  Moreover, even where nutrients are partially responsible for a problem, it does not mean that point source nutrient reduction is a viable solution or, from the cost-benefit prospective, the cost-effective solution.

            By adapting a holistic, pragmatic approach to aquatic health, real improvement can be realized in a manner that will not only make the biggest environmental impact but will allow financially-limited communities to conserve fiscal resources for other public and environmental health needs.  If EPA, state agencies, and local environmental groups truly wish to foster environmental progress, they should remove their blinders and view the issues from the big picture.

 

 


If real improvement is to be realized, restoration of tree canopy and/or sediment controls will be necessary.  However, in its march to impose dramatic nutrient reductions throughout the country, EPA has decided that, even if nutrients are a small part of the problem, municipalities must be held accountable as if they were the predominant cause.  [cite].  In a sense, EPA is holding nutrients (and the point sources that produce nutrients) jointly liable for the damage caused by other pollutants.  Only in this case, nutrient reduction simply cannot rectify the damage.

Beyond the disparity in relative benefit, it just so happens that controlling sediment and restoring tree canopy are exponentially less expensive than installing state-of-the-art nutrient removal technology.  Thus, EPA’s “reduce nutrients now, ask questions later” mentality represents a severe misallocation of resources, as money that could have been spent actually fixing the problem is wasted on improvements that cannot possibly restore the impairment status of the stream.

A Small Fraction of the Cause

            Finally, as discussed above, there are scenarios where nutrients are, in fact, responsible for causing impairment to waterbodies (e.g., Chesapeake Bay and Gulf of Mexico).  However, even in these situations, EPA has approached the issue in an inefficient and costly manner.  Specifically, EPA has pushed for industrial and municipal sources, to the exclusion of other sources, to dramatically reduce their contribution of nutrients when, in reality, these sources supply just a small fraction of the overall nutrient load to the watershed.  


Center for Regulatory Reasonableness © 2015
phone:  202-600-7071     email:  regulatory.reasonableness@gmail.com