EPA Official, Industry Lawyer Cite Challenges To Solving Nutrient Impairment of Waterways

MILWAUKEE—Controlling nutrient pollution in U.S. waters continues to challenge the Environmental Protection Agency under its current framework, the agency's acting assistant administrator for water told a conference of water pollution officials July 16.

One approach the agency is considering involves tougher regulatory standards for nutrient discharges, but speakers at the National Association of Clean Water Agencies meeting cited multiple obstacles that approach would encounter.

“Nutrients continue to challenge our best efforts in the clean water framework,” EPA's Michael Shapiro said. “Almost like climate change, it's a pervasive problem and a problem for our economy.”

One consequence of regulatory action is the likelihood of legal challenges, Shapiro said, although inaction also could prompt litigation.

The nutrients phosphorus and nitrogen are the leading cause of impairment for most of the nation's waters, including the Gulf of Mexico, Mississippi River, and the Chesapeake Bay, he said.

Current Approach Nonregulatory

At this point, he said, agency actions have been nonregulatory and have included development of best management practices and guidance to states. A major push in the Chesapeake Bay includes an executive order from President Obama seeking a draft plan laying out the tools to address pollution in the Chesapeake Bay watershed, he said (90 DEN A-13, 5/13/09)).

The order establishes an interagency committee to map out a detailed strategy for restoring water quality in the bay, including how to make full use of EPA's authority to develop and enforce effluent standards under Section 301 of the Clean Water Act to advance restoration.

Although a daunting challenge, Shapiro said, the Chesapeake Bay watershed area has an advantage in the amount of data available on pollution sources. Some problems may need to be addressed through federal action, some through state actions, and some through other actions, he said.

Approaches taken in the Chesapeake Bay may be seen as harbingers for other areas of the country, Shapiro said.

Standards for Florida

Another development that may affect EPA decisionmaking on nutrient regulation is the agency's decision in January to develop effluent standards for nutrients for Florida, Shapiro said (11 DEN A-11, 1/21/09).

EPA is expected to develop the standards over the next one to two years, although Florida could forestall that action by issuing standards of its own. The action was taken in the last days of the Bush administration in response to a lawsuit (Florida Wildlife Federation v. Johnson, N.D. Fla., No. 4:08-cv-324, 7/17/08).

The EPA regulatory activity, however, has been viewed as a signal that the agency may extend such requirements to other states (126 DEN B-1, 7/6/09).

Challenge From NRDC

In 2007, the Natural Resources Defense Council filed a petition seeking EPA action to modify regulations on sewage treatment plants to include effluent limitations for nitrogen and phosphorus.

“EPA has not made a formal response to [the NRDC petition]. This is one of the tough calls the new administration will have to make,” Shapiro said.

Addressing the pending NRDC nutrients petition, Karen Hansen, a Washington attorney with Beveridge & Diamond, said granting NRDC's petition would not solve widespread nutrient problems.

In addition, she said, NRDC's claims have legal shortcomings. For example, the NRDC petition asserts that under Section 304(b)(1) of the Clean Water Act, publicly owned treatment works are required to meet effluent limitations based upon secondary treatment as defined by the administrator pursuant to Section 304(d)(1).

EPA defines secondary treatment of wastewater as removal of biological material.

Rejecting Secondary Treatment Option

Hansen said nutrient removal is not attainable through secondary treatment, and that EPA has determined that nutrient removal based on secondary treatment would be “negligible.”

In addition, she said Section 301(b)(1)(B) does not apply because any phosphorus effluent limitations that EPA might establish using the nutrient removal technologies would not be based on secondary treatment but rather based upon advanced wastewater treatment technologies. Technologies identified by NRDC to reduce nutrients are considered advanced treatment technologies, according to Hansen.

She said secondary treatment and advanced wastewater treatment are separate requirements for publicly owned treatment plants under the Clean Water Act.

In addition, Hansen said, EPA has rejected similar prior petitions, rejecting a one-size-fits-all approach in favor of a site-specific water quality approach.

At this point, Hansen said, EPA can deny the petition, but NRDC has threatened to sue; or EPA can grant the petition, which may also result in litigation. As EPA considers its options, NRDC may sue over delay in responding to the petition. Meanwhile, she said, NACWA has been discussing the issue with EPA, and has released a “white paper” to members on the strategies for addressing NRDC's petition.

David Clark, vice president of HDR Engineering, in Idaho, said, “Our understanding of what secondary treatment is [that it] is not nutrient removal.”

As the limits of treatment technology are approached, the costs can become very high, Clark said. In addition, he said, nonpoint sources dominate many watersheds and some nutrient control might be able to be done more economically through reducing sediment and enhancing habitat.

Role of Stormwater

Shapiro said peak flows and wet weather flows also need to be addressed, and the agency is currently developing technical guidance.

EPA will be paying significant attention to the framework used to deal with stormwater runoff, he said, and is looking at the next phase of municipal storm system permitting. Issues include whether to take national regulatory approaches or rely on a place-based approach, Shapiro said, noting that green infrastructure can lead to more effective performance-based actions.

Shapiro said EPA also is working more broadly with other federal partners such as the Department of Housing and Urban Development and the Department of Transportation to encourage more energy-efficient designs that take into account potential water quality problems.

The issue of emerging contaminants is another focus for EPA's water programs that could affect water quality programs throughout the country, he said.