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

Water Drainage
StewardshipNew System Could Remove Two Water Pollutants from Ag Fields
August 14, 2017
Algae blooms in the Gulf of Mexico use up the majority of the oxygen in the water, leading to massive Read More
Iowa waterways
Stewardship2,600 Iowa Farmers Commit $8.7 Million to Water Quality Practices
August 9, 2017
Iowa Secretary of Agriculture Bill Northey announced Tuesday that a record number of Iowa farmers signed up to install nutrient Read More
Darin Lickfeldt Verdesian In Field
Crop InputsVerdesian: Sustainability Goes Hand in Hand with Profits
July 25, 2017
Sustainability is a hot topic in agriculture these days. And while measuring sustainability and its on-farm impact can seem difficult Read More
Stewardship‘Gonna Fly Now’ with Environmental Respect
July 20, 2017
One of the most memorable moments in movie history occurred in the Academy Award-winning 1976 film “Rocky.” Haven gotten his Read More
Trending Articles
Iowa waterways
Stewardship2,600 Iowa Farmers Commit $8.7 Million to Water Quality Practices
August 9, 2017
Iowa Secretary of Agriculture Bill Northey announced Tuesday that a record number of Iowa farmers signed up to install nutrient Read More
Greg Musson, Gar Tootelian
CropLife 100Cause of Gar Tootelian Fire Under Investigation
August 7, 2017
Over one hundred firefighters and equipment responded to a four-alarm shop fire at the Gar Tootelian, Inc. (GAR) facility in Read More
Rob Versprille
ManagementCeres Solutions, North Central Co-op Merger to Bring New Opportunities for Indiana, Michigan Farmers
August 1, 2017
More than 40,000 customers and almost 9,000 Indiana and Michigan farmers will begin doing business with the new Ceres Solutions Read More
CPS-Norwood-and-Dupont-reps
Eric SfiligojA Message to Ag Retailers: Do Tell Your Good Stories
July 26, 2017
As the daughter of a peanut farmer, Krysta Harden, Chief Sustainability Officer for DuPont Crop Protection, understands the importance ag Read More
Tim Hassinger Dow AgroSciences President and CEO
Crop InputsDow’s Tim Hassinger Named President, CEO of Lindsay Corp.
July 24, 2017
Lindsay Corp. has  announced the appointment of Timothy Hassinger as president and CEO and a member of its board of Read More
Stewardship‘Gonna Fly Now’ with Environmental Respect
July 20, 2017
One of the most memorable moments in movie history occurred in the Academy Award-winning 1976 film “Rocky.” Haven gotten his Read More
Latest News
Corn Seed
Seed/BiotechSeed Innovations Benefit All of the Seed Industry
August 17, 2017
Innovations from throughout the seed industry help address many of the economic, environmental and health issues we face as a Read More
SpreadersGVM to Introduce New Prowler at MAGIE
August 17, 2017
The newest Prowler in GVM’s line-up will be introduced next week at the Midwest Ag Industries Expo (MAGIE), August 23 Read More
AcreEdge bag
Seed/BiotechLandus Cooperative’s AcreEdge Seed Brand Gears Up for 2…
August 17, 2017
Growers in more than 26 Iowa and Minnesota counties are seeing field signs with a new brand name at end Read More
Engenia soybeans
ManagementCorn and Soybean Yield Forecasts Larger than Expected
August 17, 2017
The USDA’s August Crop Production report contained larger-than-expected forecasts for the 2017 U.S. corn and soybean crops. At 169.5 bushels Read More
ManagementU.S. Ag Secretary Introduces SCORE
August 17, 2017
U.S. Agriculture Secretary Sonny Perdue signed a new agreement to support new and beginning farmers. On August 5, Perdue joined Read More
CHS-FFA-Minnesota
CropLife 100CHS and FFA: A Homerun Partnership
August 17, 2017
CHS hosted the Minnesota FFA for its annual FFA night at CHS Field. FFA students, educators and CHS leadership enjoyed Read More
Greg Musson, Gar Tootelian
CropLife 100Gar Tootelian Foundation Donates Half Million Dollars t…
August 16, 2017
Students at Immanuel Elementary are looking forward to the first day of school for two reasons this year. One, they Read More
Water Drainage
StewardshipNew System Could Remove Two Water Pollutants from Ag Fi…
August 14, 2017
Algae blooms in the Gulf of Mexico use up the majority of the oxygen in the water, leading to massive Read More
Eric SfiligojThe Top 10 Crop Protection Companies, Post-Mega Mergers
August 14, 2017
Everyone loves a good Top 10 list. In fact, some prominent celebrities such as David Letterman spent much of their Read More
ManagementThe DuPont-Granular Deal, Dicamba Update, and Upcoming …
August 11, 2017
Matthew Grassi joins Paul Schrimpf for the second week in a row to talk about DuPont’s acquisition of Granular, as Read More
Soybeans weeds
HerbicidesOngoing Evaluation Key to Controlling Weeds, Improving …
August 10, 2017
As the sun bears down on record U.S. soybean acres this August, farmers keep their eyes on their fields to Read More
Young Corn Plants
Seed/BiotechMycogen Seeds Offers Novel Product to Battle Pythium, O…
August 10, 2017
After a season plagued by seedling diseases caused by cool, wet soils at planting, farmers have a new option to Read More
Corn Field
FertilizerProtect Applied Manure Straight From the Manure Pit to …
August 10, 2017
Farmers who use liquid manure to fertilize corn crops can now mix Instinct nitrogen stabilizer in their pit for easy Read More
Iowa waterways
Stewardship2,600 Iowa Farmers Commit $8.7 Million to Water Quality…
August 9, 2017
Iowa Secretary of Agriculture Bill Northey announced Tuesday that a record number of Iowa farmers signed up to install nutrient Read More
Natives-First-Purple_Prairie_Clover
Seed/BiotechLa Crosse Seed Continues Focus on Soil and Water Conser…
August 9, 2017
La Crosse Seed is doing its part to lead communication to ag retailers across the country on the importance of Read More
HerbicidesAg Secretary Perdue Comments on Dicamba Issue
August 9, 2017
Agriculture Secretary Sonny Perdue indicated to reporters this week that he would like to see the industry work out a Read More
Treated-Seed-in-planter
Seed/BiotechSeed Treatment Q&A: Insight from Iowa State’s…
August 8, 2017
Technology has changed drastically since the 1990s. Televisions are thinner, phones are smaller and tractors can steer themselves. Technology has Read More
soybeans
Seed/BiotechWhen and Why to Double Inoculate Your Soybeans
August 8, 2017
Double inoculation is the act of using a double application of a rhizobial inoculant. This quickly establishes high populations of Read More