MRC Testimony to Gulf Hypoxia Task Force

    Date:    December 14, 2021

    To:         Mississippi River/Gulf of Mexico Hypoxia Task Force

    From:    Mississippi River Collaborative

    RE:        Written Testimony for December 2021 Hypoxia Task Force Meeting

    Members of the Mississippi River Collaborative (MRC) look forward to continuing to work with the Task Force.  The Mississippi River Collaborative consists of ten state organizations – as well as regional and national partners – working to protect water quality in the Mississippi River Basin and the Gulf of Mexico. MRC has worked to address Gulf hypoxia issues since its funding over a decade ago, and many organizations and individuals within MRC have worked on nutrient pollution and hypoxia issues for over 30 years.

    The public presentation given yesterday was extremely useful, although it is very difficult to reconcile much of the data that was presented. MRC presented oral testimony yesterday but wish here to present some background information and elaborate on our comments.

    General Background

    The public has a strong interest in seeing nitrogen and phosphorus reductions in the Mississippi River Basin, and EPA’s stated mission is to protect human health and the environment. To that end, MRC petitioned EPA in 2008 to take significant steps in the development of numeric nutrient criteria and to develop a TMDL for the Mississippi River. We recognized then that these were not easy steps to take, but they would help set the necessary framework to achieve the Mississippi River/Gulf of Mexico Hypoxia Task Force’s (HTF) goals. Our petition was denied, and our subsequent action under the Administrative Procedure Act to require further consideration of the petition ultimately failed. However, the District Court in Gulf Restoration Network v. Jackson (E.D. La 2016) made clear that EPA did not have unlimited discretion to do little or nothing itself while encouraging states to act. The District Court wrote:

    EPA’s assessment that the best approach at this time is to continue in its comprehensive strategy of bringing the States along without the use of federal rule making is subject to the highly deferential and limited review that that the Fifth Circuit described in its opinion. Presumably, there is a point in time at which the agency will have abused its great discretion by refusing to concede that the current approach — albeit the one of first choice under the CWA — is simply not going to work. But for now, Plaintiffs have not demonstrated that EPA’s assessment was arbitrary, capricious, or contrary to law. 224 F. Supp. 3d 470, 477. (emphasis added)

    Much of the basis for EPA’s denial of MRC’s petition and the court’s decision to uphold EPA’s denial was set forth in a memo by Acting Assistant Administrator Nancy Stoner in 2011, entitled “Working in Partnership with States to Address Phosphorus and Nitrogen Pollution through Use of a Framework for State Nutrient Reductions.” This memo outlines eight elements for a “state framework for managing nitrogen and phosphorus pollution:”

    1. Prioritize watersheds on a statewide basis for nitrogen and phosphorus loading reduction,
    2. Set watershed load reduction goals based upon best available information,
    3. Ensure effectiveness of point source permits in targeted/priority sub-watersheds,
    4. In partnership with federal and state agricultural partners, NGOs, private sector partners, landowners, and other stakeholders, develop watershed-scale plans that target the most effective practices where they are needed most,
    5. Identify how the State will use state, county and local government tools to assure N and P reductions from developed communities not covered by the Municipal Separate Storm Sewer Systems (MS4) program, including an evaluation of minimum criteria for septic systems, use of low impact development/ green infrastructure approaches, and/or limits on phosphorus in detergents and lawn fertilizers,
    6. Include accountability verification measures,
    7. Provide annual public reporting of implementation activities and biannual reporting of load reductions and environmental impacts associated with each management activity in targeted watersheds, and
    8. Develop a work plan and schedule for numeric criteria development.

    While some of the above elements were incorporated into some state Nutrient Reduction Strategies, other elements are glaringly absent from most, such as nutrient criteria development (EPA said that numeric N and P criteria for at least one class of waters by 2014-16 would be a reasonable start) and specific load reduction goals.

    Our petition was based on facts known as of 2008. Since 2008, the issuance of Stoner’s Memo, and the 2016 District Court decision in Gulf Restoration Network, the problem has only become more dire, as shown by numerous examples including the following.

    • The Gulf of Mexico Dead Zone was the largest measured in 2017 and apparently was unexpectedly large this last year.
    • Hundreds of miles of the Ohio River were affected by a cyano-bacteria outbreak in 2015.
    • Toxic algae outbreaks were identified in lakes in Ohio, Iowa and Louisiana in 2018.
    • Toxic algae outbreaks have been found on numerous occasions in the Illinois River in areas popular for water skiing and above drinking water intakes other recreational areas.

    Wisconsin DNR scientists have found highly toxic levels of microcystin in numerous Mississippi River backwaters, and there is no reason to doubt that such toxic levels of microcystin would be found in other Upper Mississippi River backwaters if they were studied. In light of these facts, MRC joined with Sierra Club and other organizations to file on December 16, 2020 a petition for rulemaking regarding nutrient pollution in the Ohio River.

    The Hypoxia Task Force Meeting and Presentations

    Much was presented and learned at the virtual HTF meeting yesterday. It is impossible to fault the meeting format given the fact that COVID-19 has greatly reduced the possibility for normal interactions. However, we hope that future meetings will allow the public to ask questions effectively of presenters, and that the opportunity for public input will be greatly expanded from the 45 minutes that was allowed yesterday.

    We recognize, of course, that no public official likes to be put on the spot, but without allowing chaos, there has to be a way for the public to ask hard questions that are unlikely to be asked by Task Force members of each other in a public forum. Had we had more time and opportunity, many members of the public might have probed and sought to reconcile data and reports. Taken as a whole, these reports indicate that much good local work in controlling nutrient pollution has been done but that little progress has been made in reducing the size of the Dead Zone, and that in many places the problem appears to have gotten worse.

    As mentioned yesterday, in Illinois it appears that nitrogen and phosphorus loadings have substantially increased over the 1990s baseline despite documented large reductions in phosphorus loads from publicly owned treatment works (POTWs). Undoubtedly, increased rainfall from the baseline period is partly responsible as is the fact that field and stream banks have large amounts of stored phosphorus. However, much of the data indicate increases that cannot be easily explained or can be explained only in part.

    Moving Forward

    MRC has the following suggestions so that goals and deadlines do not have to be set back yet again.

    1. Sources of nitrogen and phosphorus loadings must be re-studied.

    It was believed by many in the 1990s that the major sources of nitrogen to the basin were fertilizer applications to row crops and that the major sources of phosphorus were fertilizer applications to row crops and discharges from sewage treatment plants. Those beliefs were certainly in large part correct, and reductions in loadings originating in fertilizer application to row crops and POTW discharges must certainly be reduced further. However, it appears that concentrated animal feedings operations (CAFOs) may be a source of nutrient pollution that have not been adequately analyzed. Studies conducted of Wisconsin waters and in the Maumee River in Ohio indicated clearly that CAFOs are a major cause of the problem.

    • The 2011 “Working in Partnership with States to Address Phosphorus and Nitrogen Pollution through Use of a Framework for State Nutrient Reductions” should be fully implemented.

    It was encouraging to hear numerous presenters endorse the recommendations of the 2011 Stoner letter but also somewhat surprising given how poorly much of it has been implemented. Some of the provisions of the memo have been almost entirely ignored by the states, most notably the goal of adopting numeric water quality standards, which was also part of the 1998 Clean Water Action Plan. None of it has been fully implemented.

    • All Major POTWs should be required to meet at least the 1 mg/L total phosphorus limit that was adopted for the Great Lakes in the 1970s.

    There is no excuse for not requiring POTWs to meet at least the limit of 1 mg/L total phosphorus that was found to be practicable for sewage treatment plants almost a half century ago. Of course, in most cases, limits well below 1 mg/L TP are needed to protect water quality.

    • The Ohio River Petition should be granted.

    To protect the Ohio River, the Lower Mississippi and the Gulf, the Ohio River Petition should be granted immediately.

    MRC members welcome any opportunity to work more closely with HTF members to achieve these objectives. Please contact me if we can be of assistance.


    Albert Ettinger, Counsel to the Mississippi River Collaborative


    Matt Rota, Senior Policy Director, Healthy Gulf

    Leave a Reply

    Your email address will not be published. Required fields are marked *

    This site uses Akismet to reduce spam. Learn how your comment data is processed.