By Todd J. Janzen, Partner, Plews Shadley Racher & Braun LLP
While most farmers go quietly about their spring planting this year, a storm is brewing over the Mississippi River Basin of which few are probably aware. I am referring to the legal struggle over establishing "numeric nutrient criteria" for the Mississippi watershed, that would set numeric thresholds for nitrogen and phosphorus levels in rivers and lakes that ultimately drain into the Mississippi River. The outcome of this struggle will impact most states in the breadbasket of America.
Many people are at least superficially familiar with the Clean Water Act--a federal act passed in 1972 to regulate the discharge of "pollutants" into waters of the United States. 33 U.S.C. §1251 et seq. But the complexities of how its requirements are implemented are somewhat challenging for even most lawyers to understand. The Environmental Protection Agency (EPA) can delegate the regulatory authority to the states to implement the Clean Water Act or undertake such regulation directly, if the state is not doing its (perceived) job.
This is what happened recently in the State of Florida. For years, Florida, like other states, regulated water pollution using a narrative approach: "In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna." But, beginning in 1998, the then EPA Administrator issued an order stating that the narrative approach was not working in Florida and calling for development of numeric criteria to be established. Florida spent years researching how best to determine what the appropriate "numeric nutrient criteria" should be.*
The EPA Administrator finally lost her patience in 2009 and issued an order requiring Florida's lakes, rivers and streams to meet certain "numeric nutrient criteria." Of particular importance to agriculture, these criteria establish maximum allowable concentrations for chlorophyll-a, total nitrogen, and total phosphorus in lakes, rivers, and streams. (Chlorophyll-a measures algal growth and serves as an indicator of a lake's biological health.) Litigation followed, as environmental groups asserted that the EPA's numeric nutrient criteria were not strict enough, while farm and other industry groups claimed the criteria lacked scientific basis.
With a couple exceptions, the Northern District of Florida court agreed with the EPA's action here. See Florida Wildlife Federation v. Lisa P. Jackson (Sign in with your Lexis.com ID to access the enhanced version of Fla. Wildlife Fed'n, Inc. v. Jackson, 2012 U.S. Dist. LEXIS 21778 (N.D. Fla. Feb. 18, 2012) with core terms, case law links, and Shepard's). The court held that Florida's waters were impaired; that narrative restrictions were failing:
An analysis of United States Geological Survey (USGS) monitoring data for nutrients in certain locations in Florida shows that levels of nutrient pollution have not significantly improved since 1980 despite strong efforts to control nutrient pollution. Concentrations of Total Phosphorus (TP) and Total Nitrogen (TN) have remained relatively constant at an average of 0.15mg/L and 1.4mg/L, respectively. Additionally, Florida's recurrent harmful algal blooms continue to pose threats to public drinking water supplies and recreational sites. Harmful algal blooms that occur inland and near shore are typically caused by excess nutrients.
The court concluded that overall, the EPA's "numeric nutrient criteria" were not arbitrary and capricious and should be implemented. Florida begins this process this summer. Farmers in other states can be thankful that Florida is the nation's test kitchen on this issue.
This brings me back to the Mississippi River Basin. The debate over establishing numeric nutrient criteria in Florida over the last 15 years is now shifting to the Mississippi River. Recently, the Gulf Restoration Network filed suit against the EPA Administrator in the District Court of Louisiana to establish numeric nutrient criteria for the entire Mississippi River Basin. American Farm Bureau and many state farm bureaus in this watershed have moved to intervene, claiming that the EPA lacks a scientific basis to establish criteria for the entire gulf watershed.
Stay tuned.By Todd Janzen
*The difference between a "narrative" approach and a "numeric" approach can be explained using speed limits. A "narrative" speed limit is used on Germany's Autobahns, which allow unrestricted speed provided the driver is not reckless or dangerous. The U.S. uses "numeric" speed limits that establish specific miles per hour, e.g. 70 mph.
Todd J. Janzen, a partner at Plews Shadley Racher & Braun LLP, represents buyers and sellers of commercial and industrial properties and other business assets in transactional, regulatory compliance and business litigation matters. Todd also assists landowners with cost recovery and environmental clean up efforts. He has a vibrant agricultural law practice and is a founding member and past chair of the Indiana State Bar Association's Agricultural Law Section. Todd serves as the General Counsel to the Indiana Professional Dairy Producers, an organization representing more than 200 dairy farmers in Indiana, and is a frequent author and speaker on agricultural law and commercial real estate topics.
Read more at Janzen Ag Law Blog by Todd Janzen.
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Excellent brief history of the issue and what is at stake. I learned a lot.