Compelling a nutrient pollution solution: how nutrient pollution litigation is redefining cooperative federalism under the Clean Water Act.

• Author: Kerr, Laura

1. INTRODUCTION II. THE CLEAN WATER ACT A. Overview of Water Quality Standards B. Establishment and Implementation of Water Quality Standards 1. The Role of States 2. The Role of the Environmental Protection Agency 3. CWA Section 303(c)(4)(B) Necessity Determinations C. The Establishment and Implementation of Water Quality Criteria for Nutrient Pollution 1. Utilizing Narrative Nutrient Criteria 2. Movement Toward Numeric Nutrient Criteria Development III. COOPERATIVE FEDERALISM IN THE CLEAN WATER ACT A. The Evolution of Cooperative Federalism in the Clean Water Act B. Cooperative Federalism in the Water Quality Standard Program IV. FLORIDA WILDLIFE FEDERATION V. JACKSON A. Early Efforts to Address Nutrient Pollution B. The Legal Controversy 1. Consent Decree 2. A Change in Direction C. The Aftermath V. GULF RESTORATION NETWORK V. EPA A. Early Efforts to Address Nutrient Pollution B. The Legal Controversy 1. The Petition 2. EPA's Denial 3. The Lawsuit 4. The Appeal VI. IMPLICATIONS OF THE NUMERIC NUTRIENT CRITERIA LITIGATION IN FLORIDA AND THE MISSISSIPPI-ATCHAFALAYA RIVER BASIN A. The Narrowing Role of Section 303(c)(4)(B) B. Addressing Nutrient Pollution by Achieving the Operable Balance of Authority Under the CWA 1. Theoretical Underpinnings of Cooperative Federalism 2. How Theory Informs Practice VII. CONCLUSION I. INTRODUCTION

   Nutrient pollution is one of the most complex, expensive, and pervasive environmental problems in the United States. (1) While nitrogen and phosphorus are essential nutrients for plants and animals, in overabundance, nitrogen and phosphorous pollution--collectively referred to as "nutrient pollution"--have devastating ecological, (2) human health, (3) and economic impacts. (4) Nutrient pollution, which comes primarily from wastewater and stormwater discharges (5) as well as agricultural runoff, (6) affects all types of water bodies, including rivers, lakes, bays, and oceans. (7)

   Despite the quixotic goal of the Clean Water Act (CWA) (8) to eliminate pollution by 1985, the nation's waters remain impaired and nutrient pollution is one of the top contributors to water quality impairment in the United States. (9) In 1998, recognizing the severity of the nutrient pollution problem in the United States, the U.S. Environmental Protection Agency (EPA) published a National Nutrient Strategy outlining important steps to address nutrient pollution. (10) To combat the environmental, health, and economic impacts of nutrient pollution, EPA emphasized that the CWA's water quality standards (WQS) program is essential to assess the health of water bodies and to implement management programs. (11) Under the WQS program, which utilizes a cooperative federalism model, states have primary authority over the development and implementation of their own WQS programs while EPA plays a supervisory role. (12)

   State WQS programs have not achieved much progress in addressing the growing problem of nutrient pollution. (13) Frustrated with the lack of progress states have made, environmental organizations in both Florida and the Mississippi-Atchafalaya River Basin (MARB) attempted to compel EPA to act under section 303(c)(4)(B). (14) Section 303(c)(4)(B) enables EPA to establish WQS when it deems it necessary under the CWA. (15) These environmental organizations argue that since states have been too slow in enacting numeric water quality limits for nutrient pollution, it is necessary under the CWA for EPA to step in and promulgate federal numeric nutrient water quality criteria. (16)

   This Comment examines the litigation that unfolded as a result of this claim in Florida and then, in the MARB. The nutrient pollution battles that ensued, first in Florida Wildlife Federation v. Jackson, (17) and subsequently in Gulf Restoration Network v EPA, (18) are redefining the contours of section 303(c)(4)(B) and, more broadly, cooperative federalism under the CWA. In both cases, environmental organizations attempted to utilize section 303(c)(4)(B) to compel EPA to promulgate federal numeric nutrient criteria, and in both cases, these attempts ultimately failed due to cooperative federalism concerns. (19) While nutrient pollution has been the focus of environmental legal scholars, no legal scholarship has focused specifically on the rise of section 303(c)(4)(B)--until recently, a rarely utilized provision within the CWA--and its implications for cooperative federalism within the CWA.

   This Comment posits section 303(c)(4)(B) will not be a mechanism for shifting the cooperative federalism balance. The recent litigation in Florida and the MARB demonstrates EPA will not take a primary role in addressing nutrient pollution within the WQS program. Instead, a states-in-the-first-instance approach to addressing nutrient pollution will prevail. Therefore, I will argue the principles of cooperative federalism can inform a more successful pathway to numeric nutrient criteria development and, ultimately, a reduction in nutrient pollution in the nations' waters.

   Part II of this Comment examines the development of the statutory scheme to demonstrate the role the WQS program is to play under the modern day CWA, and explains the unique problems that nutrient pollution presents under the WQS program. Part III explores how principles of cooperative federalism shape and inform the CWA and, more specifically, the WQS program. Parts IV and V provide an overview of the recent litigation in Florida and the MARB. Lastly, Part VI examines the implications of this litigation on section 303(c)(4)(B) and proposes how principles of cooperative federalism can inform a better pathway forward on the road to addressing nutrient pollution.

2. THE CLEAN WATER ACT

   Although a comprehensive federal legislative framework for water pollution control was first established in 1948, (20) the 1972 Amendments to the CWA ushered in the modern era of water pollution regulation." (21) One of the largest changes made to the statutory scheme was a shift away from using WQS as the central pollution control mechanism to a technology-based approach. (22) There was much debate between the House and Senate about whether WQS should still play a role in the 1972 Act, and if so, what sort of role they should play. (23) Eventually Congress reached a compromise. (24) WQS were kept as "a measure of program effectiveness and performance." (25) Congress viewed WQS as a backstop to address ambient water quality problems that persist after the implementation of technology-based effluent limitations. (25) However, as early as the 1980s, EPA realized its technology-based National Pollutant Discharge Elimination System (NPDES) permitting program was not, in itself, enough to abate water pollution. (27) Because technology-based standards were not effective enough on their own, WQS have continued to play a prominent role in abating pollution. (28) "In recent years, [WQS] have received renewed emphasis by ... EPA in the continuing quest to enhance and maintain water quality." (29)

   Thus, the modern day CWA utilizes a two-step approach to achieve its goal to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (30) First and foremost, the CWA employs a technology-based approach to pollution control. (31) EPA promulgates effluent standards that limit the amount of pollution various categories of point source dischargers can discharge into the nation's waters. (32) Once promulgated, these effluent limitations are incorporated into individual dischargers' permits through the NPDES program. (33) Second, the CWA relies on ambient WQS to serve as the basis for a water quality approach to control pollution. (34) WQS are narrative or numeric criteria that describe the maximum concentration of a certain pollutant a water body can receive and still achieve its designated use. (35) These are adopted by states for water bodies within their jurisdiction. (36)

   1. Overview of Water Quality Standards

      WQS define "the water quality goals of a water body ... by designating the use or uses to be made of the water and by setting criteria necessary to protect the uses" while also establishing provisions such as antidegradation policies to protect water bodies from pollutants. (37) The purpose of the WQS program is to ensure that water quality protects public health, the aquatic environment, and water-based recreation. (38) WQS are comprised of three basic elements: designated uses, water quality criteria, and antidegradation policies: (39)

      Designated uses are "a [s]tate's concise statements of its management objectives and expectations for each of the individual surface waters under its jurisdiction." (40) A state must specify the appropriate water uses to be achieved and protected for waters within its borders, taking into account "the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and other purposes including navigation." (41) Water quality criteria are standards set to protect designated uses. (42) These criteria represent a quality of water that supports a particular use. (43) They can be expressed as constituent concentrations, levels, or narrative statements when numeric standards cannot be established, representing a quality of water that supports a designated use. (44) A water body will be able to meet its designated use when water criteria are met. (45) Antidegradation policies are statewide policies that preserve "[e]xisting instream water uses and the level of water quality necessary to protect the existing uses." (46)

   2. Establishment and Implementation of Water Quality Standards

      The federal requirements for the establishment and implementation of WQS are set forth in section 303 of the CWA. (47) The statute and accompanying regulations set forth distinct roles for states and the federal government in this process. States act as the...