Hypoxia Case Could Result In Tighter Fertilizer Regs

Corn Belt-based farm groups have made many volunteer efforts to curb nutrient runoff in the Mississippi River basin. Now a lawsuit aims to drop the voluntary approach in favor of harsh regulations.

A complaint filed on April 3, 2012, in a U. S. District Court in Louisiana against the U.S. Environmental Protection Agency (EPA) claims that excessive nitrogen and phosphorus runoff apparently from agriculture and other sources are causing a large zone of hypoxia or "dead zone" for sea life in the northern Gulf of Mexico.

EPA has a habit of entering into consent agreements and agreeing with this type of lawsuit.

Environmental groups such as The Gulf Restoration Network, Missouri Coalition for the Environment, Sierra Club and Waterkeeper Alliance claim that the excessive nitrogen and phosphorus nutrient runoff is having significant adverse impacts on the ecology of the Gulf and its commercial and recreational fishing industry. The groups filed a Petition at EPA for rule making the same request, but it was denied by the Agency. Thus, the lawsuit.

The lawsuit against EPA requesting new regulations is directly aimed at farmers using crop nutrients in the Mississippi River Basin. The environmental groups claim that "…ten Mississippi River mainstream states have not made significant progress toward adopting numeric nutrient standards…" to control runoff of nutrients into basin waters. (Many agricultural groups will be intervening in this case.)

Because the states have failed to control nitrogen and phosphorus runoff, the lawsuit claims and calls for EPA to prepare and publish water quality standards to control the nutrient runoff and for EPA to establish a numeric limit for nutrients for all water bodies in the basin. The new Louisiana lawsuit is similar to the case I have written about previously – Florida Wildlife Federation vs. Jackson.

Another view

The Minority staff of the U.S. Senate Committee on Environment and Public Works issued a report on June 30, 2011, addressing nutrient runoff control which should be read by all farmers and farm organizations to see the threats and costs from lawsuits of this nature (www.epw.senate.gov/inhofe).

Mitt Romney, the presumptive Republican Presidential nominee, may not only want to examine EPA's dust regulations, but he may want to look at this nutrient control job killing program.

The Senate Minority Report calculates the EPA numeric nutrient controls being required in Florida will cost Florida agriculture between $855 million to $3.069 billion. The Report also estimates over 7,700 jobs will be lost in Florida agriculture directly as a result of nutrient controls.

Imagine what costs will be for Midwestern states. Unless Mr. Romney gets EPA under some control, his desire to create jobs will be thwarted by this set of new regulations, if implemented.

EPA has been victorious in Florida and is now ordering all EPA regions and states to develop numeric nutrient criteria for water bodies to control nitrogen and phosphorus runoff.  In fact, EPA has sent a letter to the state of Illinois ordering it to "…expeditiously adopt new or revised water quality standards for waterways in the Chicago area." EPA stated that if Illinois does not make changes to its water quality standards, EPA promptly will. EPA has also awarded "…a $7.2 million contract to an environmental modeling firm…to study and model the Mississippi River and the Gulf of Mexico for nutrient criteria development."

The Report asserts that EPA's rule makings are not the result of legislation or new scientific findings. The minority staff claims the new rule makings are "…the result of lawsuits by environmentalists and represent changes in long held EPA positions…"

The report further alleges "…in a rush to regulate, EPA is moving ahead without solid science and with no input from the communities who will shoulder the costs." 

USDA should be an important ally in attempting to combat and oppose EPA as the agency attempts to gain greater control over agricultural practices in the Midwest. EPA is looking to agriculture and waste water treatment plants to make the majority of reductions of nitrogen and phosphorus going into the Mississippi and its tributaries.

USDA has demonstrated to EPA that it does not understand the reductions of nutrients to water already being made by farmers. EPA tends to ignore USDA.

EPA and USDA have disputes over the number of acres that might be contributing significant amounts of nutrients to the water. USDA says that only "7% of cropped acres are under conventional tillage." EPA, on the other hand, claims "50% of cropped acres are under conventional tillage." This means a lot less nitrogen and phosphorus is running off our land than EPA claims!

What happened to the use of good science?

USDA further claims that 88% of cropped acres are under conservation tillage while EPA claims only 50% of cropped acres are under conservation tillage. EPA appears to be deliberately underestimating USDA nutrient reductions to water already being undertaken by the Midwestern farming community.

The scientific uncertainties and unknowns are substantial regarding the amount of nutrients contributed by agriculture. What is known is that environmental groups and the courts have already placed costly mandates on agriculture in the Southeast and farmers in the Midwest are the next target.