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News and Reports > EPA Launches Novel Effort To Impose Strict Numeric Nutrient Limits In States

February 25, 2011 — EPA is launching a novel effort to require key Midwestern states to adopt strict numeric limits to protect waters from excessive nutrients, requiring Illinois and possibly other states to translate their narrative water quality criteria into stricter and more controversial numeric permit limits.

The agency’s move comes months after it issued a controversial, first-time numeric criteria for nutrient discharges in Florida waters, an approach that states and industry groups have urged the agency not to adopt nationally since there is no proven or reliable method for setting numeric effluent limits from narrative standards. But environmentalists, while acknowledging the challenge in translating narrative criteria into numeric limits, are praising the agency’s latest move, noting that activists have long been urging officials to take such a regulatory approach.

In a Jan. 21 letter from EPA Region V to Illinois Environmental Protection Agency (IEPA), the agency is requiring the state to ensure that state-issued permits contain numeric limits sufficient to prevent excursions from the state’s narrative criteria.

The agency is also requiring state officials to reconsider 20 existing discharge permits to ensure they include numeric limits that attain the state’s narrative water quality criteria for nutrients. The Region also asked the state to provide any permits it issues after June 30 for new or modified sources so EPA can ensure they include adequate numeric limits. EPA reiterates long-standing policy that states that have delegated Clean Water Act authority cannot issue permits in the face of an agency objection.

An EPA Region V source says the recent correspondence with Illinois pushing the need for numeric nutrient effluent limits reflects both a regional and national priority of reducing hypoxia and algal blooms caused by excess nutrients in surface waters. The source adds that while Illinois is the first state the region has targeted for stricter nutrient controls, EPA is beginning to consider reducing nutrient loads through effluent limits in other states as well.

Other states that fall within Region V include Indiana, Ohio, Michigan, Wisconsin and Minnesota. Of those, Wisconsin recently adopted a numeric criteria for phosphorous.

Under the Clean Water Act (CWA), states draft and EPA approves water quality criteria—risk-based limits that regulators use, along with waterbodies’ designated uses and antidegradation policy—to set enforceable water quality standards and permit limits. But most states have long opted for “narrative standards,” which allows discharges to continue so long as there is no discernible effect on the waterbody, rather than a stricter numeric standard.

Environmentalists and others say the issue is critical in the Mississippi and other large watersheds, where high levels of nitrogen and phosphorous contribute to elevated levels of algal bloom, which eventually eutrophy, lowering dissolved oxygen levels and contributing to large “Dead Zones” in the Gulf of Mexico and elsewhere.

They sued EPA to set numeric criteria for nitrogen and phosphorous in Florida and separately petitioned EPA to set similar criteria, as well as an aggregate pollution limit, known as a total maximum daily load (TMDL), for the Mississippi River and the Gulf of Mexico.

But EPA’s numeric criteria for Florida, issued late last year, is drawing heated concerns from industry and other dischargers who fear it will result in costly new control requirements at wastewater treatment plants that will be passed on to consumers, limit the use of fertilizer and other steps. Industry groups have filed a host of lawsuits challenging the rule. Now EPA is requiring Illinois and possibly other states to ensure their permits do not “cause or contribute to an excursion beyond the [state’s narrative] water quality criteria.”

EPA says the water act requires permit limits sufficient to attain water quality standards while agency rules require delegated states to determine whether discharges have a “reasonable potential” to exceed water quality criteria and/or set effluent limits when the state determines the permit may result in exceedances. “The regulation applies whether the relevant criteria are expressed numerically or in a narrative fashion,” the agency’s letter say.

In Illinois’ case, the state’s narrative criteria provide that waters shall be from plant or algal growth of other than natural origin, and others pertaining to phosphorous in certain lakes and reservoirs and dissolved oxygen levels.

But EPA says that its review for “more than 20” of the state’s point source permits found that IEPA did not evaluate whether nutrient loads from the point sources’ discharges would degrade water quality. In response, the agency asked the state to determine whether nutrient loads—either alone or in combination with other pollutants in a waterway—will contribute to water quality degradation, and if so, to set and apply numeric effluent limits in its National Pollutant Discharge Elimination System (NPDES) for dischargers. To that end, the agency asked IEPA to establish “procedures that it will use when making determinations relative to nutrient discharges and [the state water quality standard], and to provide a draft of the procedures to EPA for review by April 15, 2011.”

The agency also requested that “the procedures identify the method that [IEPA] will use to set effluent limits based on a numeric expression of the [state’s narrative water quality] criterion. “Through a review and subsequent dialogue, we hope to reach an agreement with [IEPA] on the final procedures and method, thereby reducing the possibility that EPA may object to [IEPA] permits,” the letter reads.

The Region V source says nutrient pollution is “a pervasive problem” that the agency has begun to focus on “with all the states,” and that some states—namely Wisconsin, whose numeric criteria for phosphorus EPA accepted in December—have already made significant headway in that respect. “Nutrients are a big issue in general for EPA, and certainly in Region V,” the source says. “It’s an area we’re working on with all the states. We’re working with the states to develop criteria and [addressing the] need for nutrient limits in permits.”

The source says Region V is planning to meet with IEPA in the coming weeks to discuss the letter and its provisions. Calls to IEPA for comment were not returned by press time.

But industry sources say it will be extremely difficult for Illinois, or any state, to develop numeric effluent limits based on narrative criteria. One industry source says it is unclear whether the resources listed in the letter would be sufficient to aid Illinois in developing a plan to extrapolate numeric nutrient limits from the state’s narrative standard. “The question is, is all that [information] listed with the letter sufficient for that translation?” the source says. “Some of the guidance listed there is germane, but I don’t know if it’s sufficient to derive” a numeric effluent limit.

But since virtually every state relies on narrative water quality criteria, especially for nutrients, there is very little stopping EPA from making similar requirements nationwide, a second industry source says. One exception would be in states like Wisconsin or Florida that have numeric water quality criteria, or in waterbodies that already have total maximum daily loads (TMDLs) in place with numeric effluent limits for point source dischargers. “I don’t think that there is any reason that EPA could not send a letter like this to another state with a narrative standard,” the source says.

One environmentalist familiar with the Region V letter says the requirement to develop numeric limits from state narrative standards is a regulatory tactic that they have been urging the agency to undertake for some time, since according to CWA regulations, effluent limitations have to be derived in such a way as to be consistent with state water quality standards, be they narrative or numeric. Since the agency’s effort to establish numeric water quality criteria in Florida has met with such staunch opposition, using existing narrative criteria to reduce effluent limitations for nutrients is an attractive alternative, the source says.

“They’ve been making too much out of numeric water quality standards in Florida, because they’re supposed to be enforcing the narrative [criteria],” the source says. “The law is quite clear, you’re supposed to apply both numeric and narrative [criteria], but narrative is quite hard.” The second industry source says that if IEPA follows the letter’s guidelines and begins including numeric effluent limits in its permits, the immediate effect will likely be a wave of permit appeals from point sources. Illinois law governing permit appeals places the burden on the state to defend the permit—rather than on the permittee to prove the permit is unfair. So if Illinois has a scientifically shaky basis for requiring specific effluent limits, that would make it more attractive for permit holders to appeal the new limits, the source says.

But an alternative scenario could be that IEPA does not comply with the terms of the letter—or doesn’t comply to Region V’s satisfaction—which could result in EPA rejecting IEPA permits and issuing its own permits instead. That could lead to an appeal by the state to EPA’s Environmental Appeals Board (EAB), based on the argument that the region required the state to issue a numeric limit from a narrative standard despite the absence of any scientific method for doing so.

“The issue then would be whether setting permit limits based on a narrative is legitimate when the state has not yet been able to develop the scientific basis for water quality criteria—if you can’t set a numeric criterion, how can you set a numeric interpretation of a narrative?” the source says. “That would be an interesting debate.”—John Heltman