Numeric Nutrient Criteria

1. Numeric Nutrient Criteria Gulf Restoration Network Decision

2. Nutrients • Nitrogen (N) • Phosphorus (P) Sources include: NPS: fertilizer/manure runoff, septic tank overflow Point sources: municipal/industrial wastewater

3. Nutrient pollution

4. Algae blooms

5. Gulf Hypoxia: “Dead Zone”

6. 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 are • cover 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%).”

7. EPA’s current strategy

8. EPA Partnership Memo 2011 “more effective” “more efficient”

9. EPA Partnership Memo 2011States should:

10. 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

11. Stream Nutrient Criteria TAC August 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.

12. TAC Draft criteria example

13. Gulf Restoration Network case • July 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 tributaries • Preferably, for all state waters that do not have numeric standards now

14. Clean Water Act Although 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

15. EPA Denial of Petition • EPA denied the petition July 2011 (i.e., 3 years later): • Rulemaking not most practical or effective way to deal with N/P • Continue to work co-operatively with states/tribes • RM: 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.

16. Gulf Restoration Network suit • Challenged denial as improper Court decision: Friday, September 20, 2013 – • EPA claimed decision not reviewable by court, because it was discretionary. Court rejected that claim, finding that discretion was limited. • 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

17. Precedent: Mass. v. EPA • Rulemaking petition for EPA to regulate greenhouse gas as air pollutant under Clean Air Act. • EPA declined, citing pragmatic reasons • U.S. Supreme Court held that EPA must based its decision on the standard provided in the statute, not on external factors

18. Result • Gulf 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.

19. 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.”

20. Possible outcomes • EPA could appeal to court of appeals • EPA 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