Potential Implications Of The Mississippi River Basin Nutrient Criteria Lawsuit

Back on March 13, 2012, several environmental advocacy groups sued the EPA in federal district court in Louisiana on nutrient related issues. The case, Gulf Restoration Network, et. al. v. Jackson, et al., Case No.12-cv-677 Eastern District of Louisiana, challenges an EPA denial of a 2008 petition requesting new water quality standards and total maximum daily loads to address excess nitrogen and phosphorous in the Mississippi River Basin (MRB) and the Gulf of Mexico. Approximately 60% of the fertlizer used in the United States is consumed in the MRB. This case has even broader implications for the industry than the EPA’s efforts to impose numeric nutrient criteria in the state of Florida.

The Agricultural Retailers Association (ARA), The Fertilizer Institute (TFI), American Farm Bureau Federation (AFBF), National Corn Growers Association (NCGA), National Pork Producers Council (NPPC), and several other agricultural groups intend to intervene in this case given the significant impact it could have on fertilizer production and application in the MRB watershed. Crowell & Moring will be representing the above-mentioned agricultural organizations in this case.

We strongly encourage all member companies and state agribusiness organizations with operations within the MRB watershed to contact your Governor and state agricultural department and urge the state to also intervene in this case. Early intervention by industry and impacted states will be useful in helping EPA craft legal arguments against the plaintiffs and allow participation in any potential negotiations.

What are the legal ramifications of this lawsuit?

If EPA loses or settles this case, the result would likely be federal rulemakings establishing numeric water quality criteria for Total Nitrogen and Total Phosphorus throughout the Mississippi River Basin as well as EPA-promulgated nutrient TMDL(s) for the River and Northern Gulf of Mexico. The nutrient criteria and TMDLs stemming from a negative judicial ruling would be translated into nutrient water quality based effluent limitations in NPDES permits and TMDL load and wasteload allocations. In other words, local governments, industry, and agriculture in the Mississippi River Basin states could have new limits placed on the amounts of nitrogen and phosphorus they discharge or allow to runoff into the river system.

Would these nutrient limits likely be stringent?

Yes. Likely, very stringent. It would be reasonable to expect that EPA’s numeric nutrient criteria would be in the same general range as those EPA recently imposed on the State of Florida (i.e. 0.06-0.49 mg/LTP; 0.67-1.87 mg/L-TN). EPA imposed the Florida standards after settling a lawsuit that similarly sought the establishment of numeric criteria for Florida waters.

Would these nutrient limits likely be expensive to achieve?

The economic impact of numeric nutrient criteria and nutrient TMDLs on the Mississippi River Basin states would likely be enormous. By way of comparison, EPA’s recent numeric nutrient criteria rules for Florida freshwater systems are estimated to carry a Florida-wide implementation price tag of $298 million to $4.7 billion per year. Another study calculated that Florida sewer utility bills would have to increase $570 to $990 per year to fund the substantial capital projects required to achieve EPA’s nutrient water quality criteria.

What can be done by the states and the regulated community to protect their interests?

Given the potential implications, the states and regulated entities in the Mississippi River Basin should consider intervening in this litigation. The ongoing numeric nutrient criteria litigation and rulemakings in Florida, which also began with the filing of a lawsuit by environmental advocates against EPA, demonstrate the importance of early involvement in these types of lawsuits. It is simply too perilous to rely upon EPA to defend its policies and stay the course with cooperative arrangements with the states.

Intervening interests (particularly, state environmental regulators) can demonstrate the reasonableness of EPA’s decision to deny the rulemaking petition by informing the court of the states’ efforts and achievements in addressing nutrient pollution; the significant challenges associated with establishing scientifically defensible numeric nutrient criteria; and the substantial technical and economic difficulties in addressing non-point sources of nutrient pollution (e.g. agricultural, septic tanks).

Topics:

Leave a Reply

Stewardship Stories

StewardshipOhio Water Quality Project To Determine How Much Phosphorus Is Leaving Fields
July 27, 2015
Researchers with the College of Food, Agricultural, and Environmental Sciences at The Ohio State University are looking for farmers in Read More
StewardshipOhio Farmers Improving Water Quality Through Fertilizer Applicator Training
July 15, 2015
Since last fall, 6,586 growers and producers responsible for farming some 1 million acres of Buckeye State farmland have gone Read More
FertilizerNOAA: Lake Erie Annual Algal Bloom Could Be ‘Historically Bad’
July 13, 2015
If you are hoping there is any hope that harmful algal blooms will not occur in Lake Erie again this Read More
Chesapeake Bay
ManagementCourt Decision Protects Chesapeake Bay’s Water, Wildlife
July 7, 2015
Today, the Third Circuit Court of Appeals upheld the historic clean-up plan for the Chesapeake Bay. Collin O’Mara, president and Read More
Top 100 Articles
CropLife 100Pinnacle Purchases California-Based Specialty Crops Retailer
July 20, 2015
Pinnacle Agriculture Holdings has successfully acquired California-based NH3 Service Co.  Operating as part of Pinnacle’s Performance Agriculture brand, the new locations Read More
Asmus Farm Supply liquid fertilizer facility features 20,000 square feet
CropLife 100Slideshow: Asmus Farm Supply Shows Off Its New Liquid Fertilizer Facility
July 15, 2015
Asmus Farm Supply, Rake, IA, recently added a new liquid fertilizer facility to its company operations. The new liquid fertilizer Read More
CropLife 100Wilbur-Ellis Feed Division Facilities Receive Safe Feed/Safe Food Certification
July 13, 2015
Wilbur-Ellis Co.’s Feed Division, a marketer and distributor of value-added feed ingredients for the aquaculture, livestock and pet food industries Read More
CropLife 100BRANDT Expands To Brazil With Acquisition
July 8, 2015
BRANDT has acquired a majority interest in Target Brasil Fertilizantes Ltda. through its Brazilian subsidiary. Target Brasil manufactures, distributes and Read More
Milan Kucerak, president/CEO, West Central
CropLife 100West Central Cooperative And Its New President Are A Match Made In Deviation
June 29, 2015
To appreciate just how unique West Central Cooperative is in the world of ag retail, an observer need only consider Read More
Winter Wheat
CropLife 100South Dakota Co-op Member Owners Vote No On Unification
June 26, 2015
The Boards of Directors for North Central Farmers Elevator (NCFE) and Wheat Growers (WG) have announced that member-owners have voted Read More
Latest News
StewardshipOhio Water Quality Project To Determine How Much Phosph…
July 27, 2015
Researchers with the College of Food, Agricultural, and Environmental Sciences at The Ohio State University are looking for farmers in Read More
FertilizerKoch Agronomic Services Launches N-TEGRATION Technology
July 27, 2015
Koch Agronomic Services, LLC (KAS) has launched  N-TEGRATION Technology, a process technology platform designed to enable production of enhanced efficiency fertilizers at Read More
HerbicidesExpert: IARC Herbicide Classifications Leading To Confu…
July 24, 2015
Few people in the crop protection industry had heard of the International Agency for Research on Cancer (IARC) before this Read More
ManagementFCI Trade Summit Update & Precision Tank Turns 50
July 23, 2015
Editors Dave Frabotta and Eric Sfiligoj discuss the upcoming FCI Trade Summit in Las Vegas, NV, and how Precision Tank Read More
Palmer pigweed seedhead in cotton
HerbicidesUSDA Deregulates Dow AgroSciences’ Enlist Cotton Trait
July 23, 2015
The USDA today issued its decision deregulating Dow AgroSciences’ Enlist cotton trait in the U.S. The USDA has now completed its Read More
Industry NewsVerdesian Life Sciences Showcases Versatile Product Por…
July 23, 2015
Technology has revolutionized agriculture by bringing farmers, retailers and distributors to the forefront of the digital age. To meet the Read More
FertilizerWSJ: Cf Industries Exploring Merger With Dutch Chemical…
July 23, 2015
U.S. fertilizer maker CF Industries is in advanced merger talks with Amsterdam-listed chemical company OCI NV, the Wall Street Journal Read More
HerbicidesNufarm Releases New Panther SC Herbicide
July 23, 2015
Nufarm has announced the availability of new Panther SC herbicide. Panther SC is the first liquid formulation of flumioxazin available Read More
EquipmentFarmLink Launches Farm Equipment Sharing Program
July 23, 2015
FarmLink has introduced a new online farm equipment sharing community – MachineryLink Sharing – leveraging this new economy business model Read More
HerbicidesCould The South’s Most Troublesome Weed Represent A Thr…
July 22, 2015
Palmer amaranth is undoubtedly the most troublesome weed in the southern United States, taking a devastating toll on both cotton Read More
Industry NewsH.J. Baker Hires New Director Of International Sales
July 22, 2015
Global Agriculture firm H.J. Baker announced today that Steve Langley has joined the company’s Crop Performance Division and Animal Health Read More
InsecticidesSyngenta Recommends Soybean Scouting To Prevent Economi…
July 22, 2015
Proper soybean insect pest control begins with scouting. As the warm weather continues, Syngenta encourages growers to implement a scouting Read More
Crop InputsH.J. Baker Launches Fall Sulphur Campaign
July 22, 2015
H.J. Baker has launched their “Keep Your Future Green – Use Tiger This Fall and Win Big” campaign. The campaign Read More
Central Valley Ag Randolph, NE
Retail FacilitiesStueve Construction Builds Fifth Facility For Central V…
July 21, 2015
Central Valley Ag partnered with Stueve Construction Co. to successfully design and build its Monroe, Oakland, Wakefield and Royal hub facilities Read More
FertilizerNew Research Could Lead To Less Reliance On Nitrogen, E…
July 21, 2015
Farmers often are required to apply nitrogen fertilizers to their crops to maintain quality and improve yields. Worldwide, farmers used Read More
Seed/BiotechMonsanto Targets Farmers, AFBF In Syngenta Takeover
July 21, 2015
As Monsanto Co. struggles to convince rival Syngenta AG to discuss a potential merger, the seed and agrochemical giant is Read More
CHS Building exterior
Retail FacilitiesSackett Helps CHS Expand Blending Facility, Improve Acc…
July 21, 2015
CHS needed a blend plant that could vastly expand their capabilities in St. Charles, MN. The A.J. Sackett & Sons Read More
Industry NewsH.J. Baker Adds To HR Team
July 21, 2015
H.J. Baker announced today that Barbara Sullivan has joined the company’s executive team as Vice President of Human Resources. Prior Read More