The Fertilizer Institute: Water Works
January 11, 2011 
Getting a handle on the legislative outlook for 2011 requires first a look to the recent past. After the wild 2010 mid-term election, the dust is still settling in Washington, DC. In November, voters gave the Republicans a majority in the U.S. House of Representatives and allowed the Democrats to hold onto the majority by a slim margin in the Senate. In the House, Republicans won more than 60 seats.
As in past elections, being an incumbent was not much of a safety net. Three senior Democratic Committee Chairmen — Rep. John M. Spratt, Jr. (SC), the chairman of the House Budget Committee, Rep. Ike Skelton (MO), chairman of the House Armed Services Committee, and Rep. James L. Oberstar, chairman of the House Transportation and Infrastructure Committee, were all defeated.
In the Senate, Blanche Lincoln (D-AR), Chairman of the Senate Committee on Agriculture, Nutrition and Forestry was defeated by Rep. John Boozman (R-AR). Republicans also gained seats in Florida, Illinois, Pennsylvania, Kentucky, Wisconsin, North Dakota and Alaska.
An 11th-hour effort was underway in the “lame duck” session of Congress to include S.1816 The Chesapeake Clean Water and Ecosystem Restoration Act, and in the potential Lands, Waters and Wildlife omnibus legislation. The fertilizer industry and the agriculture community should be aware that S.1816 would pose significant negative changes to the Clean Water Act.
Advocates of the bill are claiming that the tough measures found in S.1816 are justified based upon the results of the draft USDA “Assessment of the Effects of Conservation Practices on Cultivated Cropland in the Chesapeake Bay Region” showing the contributions of agriculture to the Bay. In order to address false claims such as these, The Fertilizer Institute (TFI), the Agricultural Retailers Association (ARA) and other members of the Agricultural Nutrient Policy Council (ANPC) recently asked LimnoTech, one of the nation’s leading water sciences and environmental engineering consulting firms, to compare the assumptions and numbers found in the USDA study and EPA‘s Total Maximum Daily Load (TMDL). The comparison revealed astounding differences between USDA and EPA data concerning pollutant loadings for the Chesapeake Bay. The technical conclusions reached by LimnoTech about the implications of the very different data used by USDA and EPA call into serious question the validity of EPA’s scientific conclusions regarding the role of agriculture as a source of pollutants and the need for the overly aggressive measures now called for by EPA.
Water, Water Everywhere
Another water-related issue is coming from Washington — but this time from EPA. Partially in response to an environmental litigant’s lawsuit, EPA has taken over the development of numeric nutrient criteria (NNC) for the state of Florida. The first of these were issued in November. Wisconsin, responding to pressures from EPA and the environmental community, is now adopting NNC for phosphorous. Kansas may very well be the next battleground for this issue and TFI currently estimates that approximately 44 states have NNC under development in one form or another. Most states’ NNC work is in a holding pattern as states are all watching to see what EPA does with the NNC for Florida, under the reasonable assumption that the approaches/levels used there will be what EPA will accept from other states.
What are NNC and why do they matter? Nutrient criteria are part of the internal, technical workings of the Clean Water Act (CWA), within the general grouping of the CWA technical program called “Water Quality Standards” (WQS). The WQS program and the water quality criteria within it are the “guts” of Clean Water Act implementation.
Regulators use water quality criteria as one of the direct guides to allowable pollutant quantities in a National Pollutant Discharge Elimination System (NPDES), permit holder’s discharge and to determine what is considered acceptable in discharges from non-point sources. Additionally, water quality criteria are used by regulators to judge if a water body contains too much of a specified pollutant and if it is unable to meet its “designated use,” thereby classifying it is as “impaired” under the CWA.
Once a water body is identified as “impaired” under the CWA, the TMDL program is triggered with its cascading requirements and issues, as is now unfolding in the Chesapeake Bay.
Nutrient criteria within the WQS can be classified as either narrative or numeric. An example of a narrative nutrient criteria might be “No phosphorous will be allowed in this stream at levels that will prevent desired levels of aquatic flora and fauna.”
Fighting Back
In early December, TFI filed a legal challenge to EPA’s rule. The lawsuit was filed in the U.S. District Court for the Northern District of Florida Pensacola Division. In the complaint, the lawsuit contends that:
• EPA’s Final Rule is unlawful and should be vacated because it establishes water quality criteria that ignore causation, regulate water bodies that are achieving their designated use and restrict nutrients that do not cause impairment.
• By using simple and overly broad statistical principles EPA’s rule will classify a certain percentage of water bodies as impaired when they in fact are not.
• EPA’s new criteria usurp Florida’s statutory authority to develop standards and are fundamentally in conflict with Florida’s existing efforts to implement narrative water quality standard for nutrients.
• EPA unlawfully ignored the requirements that water quality criteria be based on true biological impairment and instead established numeric criteria for nitrogen and phosphorus in water bodies where they would not actually cause such an imbalance.
• EPA’s shortcut numeric criteria are not based on sound scientific rationale or scientifically defensible methods because they would unlawfully restrict nitrogen and phosphorus in lakes, streams and springs that are not impaired. In other instances, where the lakes, streams or springs are impaired, EPA’s standards will unlawfully regulate nutrients that are not causing the impairment.
• EPA’s regulation wrongly assumes that nitrogen and phosphorus levels above EPA’s numeric criteria will cause algal growth and thus impairment.
• EPA has ignored its own Science Advisory Board and set nitrogen standards when in fact nitrogen is not limiting (and thus not responsible) for impairment in fresh water bodies.
A New Climate For Climate Change
The significant change in the makeup of the new Congress most likely mean that “cap-and-trade” style climate legislation is off the table — at least in the short term. As is the case with water issues, we are faced with a very active (and activist) EPA that is moving forward with several rules to control greenhouse gas emissions. In total, at least six separate rule-makings that could impact the fertilizer industry. While several of these rules are the subject of legal challenges from other potentially regulated industries, EPA has made it clear that it believes it has the authority to move forward and is doing so.
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