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Court ruling forces EPA action on Mississippi River pollution

October 2, 2013

This is an algae bloom in the Rock River at the shoreline of the Prairie Street Brewery. (Photo by Frank Schier)

• Action would also fight harmful algal blooms in Illinois lakes, rivers

Staff Report

The U.S. District Court in Eastern Louisiana ordered the U.S. Environmental Protection Agency (EPA) Friday, Sept. 20, to decide within 180 days whether it will require new limits on the nutrient pollution that is causing the growth of dangerous algae in the waters of Illinois and the Mississippi River basin.

Attorneys at the Natural Resources Defense Council led the suit, filed on behalf of Prairie Rivers Network and other members of the Mississippi River Collaborative. Too much nitrogen and phosphorus is causing the Gulf of Mexico Dead Zone, toxic algae blooms and is polluting drinking water.

For too long, EPA has stood on the sidelines while our nation’s waters slowly choke on algae,” said NRDC Senior Attorney Ann Alexander. “They have acknowledged the problem for years, but could not muster the gumption to address it. The court is telling the agency that it is time to stop hiding from the issue and make a decision already.”

Nitrogen and phosphorus from farms, sewage plants and urban stormwater systems fuel the growth of algae in many waterways in Illinois and around the country. Algae can rob water of the oxygen that fish and other aquatic animals need to live. One of the most devastating consequences of this pollution has been the dead zone in the Gulf of Mexico — an area the size of Connecticut where the oxygen is so low, nothing can live there.

The lawsuit, filed a year-and-a-half ago, challenged EPA’s denial of the Mississippi River Collaborative’s 2008 petition asking EPA to establish numeric limits on how much of this pollution can be dumped in our waters. The suit charged the EPA with failing to lawfully answer the question before it, that is, whether numeric pollution limits are needed to clean up these waters and to comply with the federal Clean Water Act. The court found that EPA’s refusal to answer the “necessity” question was indeed unlawful.

While the decision does not tell the EPA what its answer must be, EPA must declare, within 180 days, whether numeric nitrogen and phosphorus pollution limits are needed, or not.

After years of urging, negotiating, petitioning and finally suing, this victory should at last get U.S. EPA to the table to begin the hard, but necessary, work of writing pollution limits for Illinois’ waters,” said Kim Knowles, staff attorney for Prairie Rivers Network.

Plaintiffs in the suit included Gulf Restoration Network, Prairie Rivers Network, Waterkeeper Alliance, Environmental Law and Policy Center, Iowa Environmental Council, Missouri Coalition for the Environment, Kentucky Waterways Alliance, Tennessee Clean Water Network, Minnesota Center for Environmental Advocacy, Sierra Club and NRDC.

Following are comments from groups involved in the suit:

Susan Heathcote, water program director of the Iowa Environmental Council in Des Moines, Iowa, said: “Lake recreation is a big business in Iowa — generating $1.2 billion in annual spending and supporting 14,000 jobs. Yet, Iowa’s lakes have among the highest nitrogen and phosphorus levels in the world, and consequences of this problem, including algae blooms and poor water clarity, have already landed 79 of the state’s top recreational lakes on Iowa’s impaired waters list. In addition, harmful algae blooms led to two dozen advisories against swimming at Iowa’s state park beaches this summer due to high toxin levels that threaten the health of people and pets.”

Kelly Foster, senior attorney for Waterkeeper Alliance, said: “It should be apparent that pollution limits are essential to controlling pollution. With this decision, we are hopeful that EPA will finally do what it has long known is necessary to address the Gulf Dead Zone and the staggering number of other fisheries, water supplies and recreational waters decimated by nitrogen and phosphorus pollution across the nation.”

Judy Petersen, executive director at Kentucky Waterways Alliance, said: “EPA must address the nutrient issue, and we appreciate the court’s ruling to that effect. The Army Corps of Engineers monitored Kentucky’s recreational lakes for Harmful Algae Blooms for the first time this past summer and recorded excessive numbers throughout much of the summer at several lakes. Nutrient pollution is clearly just as much of a problem in Kentucky as it is in other Mississippi River Basin states and down in the Gulf, and EPA must address it.”

Kris Sigford, water quality director at Minnesota Center for the Environment, noted: “We are gratified that EPA cannot duck this important decision, and hope that EPA takes quick and decisive action to control widespread nitrogen and phosphorus pollution in the Mississippi River. In Minnesota, over one-quarter of our streams and rivers are polluted by nitrogen in excess of safe drinking water standards, and the trend is increasing rapidly.”

Bradley Klein, attorney for the Environmental Law & Policy Center, added: “This isn’t just about the Dead Zone in the Gulf of Mexico. Algae blooms threaten the Great Lakes — and smaller waterways across the nation are being impacted by this huge problem. Hopefully, EPA will move in the right direction on this because until we deal with the sources, which are sometimes thousands of miles away, we cannot get to the problem.”

Additional information:

U.S. District Court decision: http://switchboard.nrdc.org/blogs/aalexander/SJ%20decision.pdf

NRDC’s Ann Alexander blogged on the ruling: http://switchboard.nrdc.org/blogs/aalexander/nrdc_wins_gulf_dead_zone_lawsu.html

Prairie Rivers Network has photos of noxious algae blooms in Illinois waters: http://prairierivers.org/algal-blooms-in-illinois-waters/

More about the Mississippi River Collaborative: http://www.msrivercollab.org/

From the Oct. 2-8, 2013, issue

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