WHAT IS A STATE TO DO? WHEN POLLUTION LAW AND POLICY SOLUTIONS SEEM DEAD IN THE WATER.

AuthorWhitaker, Kelly A.

TABLE OF CONTENTS I. Introduction 183 II. Historical Background 186 III. The Effects of Fertilizer on Waterways 188 A. How Hypoxic Areas are Created 189 B. Complications, Consequences, and Impacts of HABS 193 C. Consequences to Louisiana 196 IV. Ecological Engineering and Agricultural Management Solutions 197 A. Best Agricultural Practices 198 B. Water Management Solutions 199 1. Controlled Drainage 199 2. Bioreactors 199 3. Vegetated Biofilters 200 C. Wetlands as a Line of Defense 200 V. The Failings of Federal and State Law 201 A. The Clean Water Act 201 1. Section 208 202 2. Section 319 202 3. Section 404 203 4. Section 303(d) 203 B. Federal Rules Outside of the Clean Water Act 204 1. The Coastal Zone Management Act 204 2. Harmful Algal Bloom and Hypoxia Research and Control Act of 1998 205 3. The Farm Bill 205 C. State Laws 206 VI. Historical Approaches to Combating Upstream Pollution from Polluting Downstream Waters Through the Legal System 207 A. Federal Common Law 207 B. Citizen Suit Provision 209 VII. Approaches in the Gulf of Mexico 209 A. The Mississippi River/Gulf of Mexico Hypoxia Task Force 210 B. Gulf Restoration Network v. Jackson 211 VIII. The Solution 213 A. The Louisiana Master Plan 214 B. The Farm Bill 216 C. The Chesapeake Bay Cleanup Program 216 IX. Conclusion 218 I. INTRODUCTION

The summer of 2017 headlines declaring that the Gulf of Mexico's seasonal dead zone was roughly the size of New Jersey littered the local and national news. The stories detailed the horrific particulars of a growing area located on the Louisiana-Texas continental shelf that cannot sustain life annually. The statistic was frightening, even to those who did not fully grasp the consequences of it.

A hypoxic zone, more popularly known as a dead zone, is an area in a large water body that lacks the oxygen necessary to sustain marine life, with the potential to cause severe complications to human and marine health, commercial fisheries, and tourism. (1) While there are at least 166 dead zones in the United States, (2) the annual Gulf of Mexico dead zone is the largest.

In the 1970s, scientists and fishermen started to observe a hypoxic zone in the Gulf of Mexico (the Gulf). (3) In 1985, the National Oceanic and Atmospheric Administration (NOAA), funded a study to measure the hypoxic zone. (4) The team of scientists, led by Nancy Rabalais, succeeded in finding the zone, a now familiar and predictable part of summer for the citizens who live near the Gulf. With only a few exceptions, NOAA has measured the area every year since Scavia's maiden study. (5) This past year, in the summer of 2017, NOAA announced this year's Gulf of Mexico's dead zone was 8,776 square miles, (6) which is the largest dead zone ever recorded in the United States, and the second largest dead zone ever recorded in the world. (7)

It is well understood that agriculture runoff, mainly in the form of nitrogen and phosphorous, is chiefly responsible for the Gulf of Mexico's dead zone. (8) The United States has approximately 915 million acres of agriculture land, the most productive of which is in the Midwest. (9) The water from this land contains excess fertilizers, which drains into the Mississippi Atchafalaya River Basin (MARB). The Gulf of Mexico is the destination for the MARB, the third largest drain basin in the world. Surface and groundwater of thirty-one states flow into this basin, which accounts for forty-one percent of the water of the forty-eight contiguous states. (10) Before 1972, loads of nitrate from the Mississippi River into the Gulf of Mexico were less than 300,000 metric tons annually. (11) The United States Geological Survey (USGS) estimated that in the month of May 2017, approximately 165,000 metric tons of nitrate drained into the MARB, capable of filling over 2,800 train cars. (12)

While the state of Louisiana contributes minimally to the problem, it bears the brunt of the consequences of the fertilizers. Thirty-seven streams empty into the Gulf of Mexico. (13) However, the Mississippi and Atchafalaya Rivers account for ninety-one percent of the total nitrogen load and eighty-eight percent of the total phosphorus load into the Gulf. (14) Historically, the highest contritmtors of this runoff are Iowa, Indiana, Illinois, Ohio, and southwest Minnesota. (15) These states have implemented some effective nitrate reform practices as this comment will discuss. Still, high nitrate (N03- (16)) loads continue, particularly from Iowa, which accounted for up to fifty-two percent of the N03- load into the MARB in 2016. (17)

This leaves the question: how does Louisiana deal with the economic and health fallout from other states' pollution? Traditionally, citizens have legal redress through tort law when a person or entity intrudes or destroys private land. What happens when the intrusion or destruction becomes so widespread and common that it is impractical to sue every offender? What if the intrusion is flowing through the air or water, causing negative consequences far and wide? What if it is difficult to pinpoint the exact source of the tort?

Traditional legislation, litigation, and concepts of state sovereignty have been ineffective to protect downstream waterways. This comment seeks to address Louisiana's available solutions to the failings of the CWA to protect downstream states from harmful agriculture runoff originating upstream. Part II provides a short historical, explanatory background about the pertinent water systems and the start of the effort to maintain them. Part III explains why the failure matters by discussing the effects of fertilizers and pesticides, with a particular emphasis on the consequences to the Gulf of Mexico and Louisiana. Part IV describes the ecological engineering (18) and agricultural management solutions to this issue. Part V identifies the failure of the CWA and the federal government, along with state governments, to properly regulate agriculture runoff. Part VI discusses historical common law approaches to combatting the destruction of interstate waterways, and the legal failings of these causes of action in the context of pollution. Part VII explores what some states and organizations are currently doing or have done to tackle the hypoxia in the Gulf of Mexico. Part VIII posits a three-part solution to this issue: 1) the federal government should ensure that Louisiana receives the funding the Louisiana's Coastal Master Plan calls for to restore the wetlands; 2) the Farm Bill should implement nutrient management requirements that prevents nitrogen loss; and 3) the EPA should enforce a Total Maximum Daily Load similar to those set in the Chesapeake Bay area.

  1. HISTORICAL BACKGROUND

    When the United States first formed, many communities settled near major river systems for resources and trading purposes. As populations grew, these waters became channelized, dammed, and polluted. To alleviate the nuisance and health issues modernization caused, cities constructed water carriage sewers to move the water into waterbodies. (19) The construction of sewers did not alleviate the health hazards of the pollution, as downstream communities suffered greater incidences of waterborne diseases from the disposed sewage. (20) Realizing that these ever flowing waters must be regulated to maintain the water for navigation, Congress passed the first water pollution legislation, the Rivers and Harbors Act in 1899. (21) The Act prohibited the altercation or obstruction of navigable waters including the release of "any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state" without a permit. (22) When industry swelled during World War II, new facilities, chemicals, and industrial byproducts entered the waterways at a substantial rate, (23) and in 1948, Congress passed the Federal Water Pollution Control Act. (24) Over time, this Act evolved into the Clean Water Act (CWA), (20) the principal federal law in the United States regulating water pollution. Its purpose is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (26) The Act lists two national goals:

    (1) . that the discharge of pollutants into the navigable waters be eliminated by 1985;

    (2)... that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983. (27)

    This Act produced a considerable reduction to discharges of pollutants to United States waterways. (28)

    Still, the purpose of maintaining the integrity of our Nation's waters can never truly be realized through this Act as it is written because it does little to protect state waterways that are downstream from agriculture runoff. The CWA created an effective system to regulate point source pollution, defined as "any discernable, confined, and discrete conveyance... from which pollutants are or may be discharged." (29) Essentially, point source pollution is pollution that comes from a distinct, localized source, such as a pipe. Yet, this definition explicitly demarcates return flows from irrigated agriculture and agricultural stormwater discharges from point source pollution. (30) Rather, runoff from agriculture is stipulated as a nonpoint source pollutant, which is defined as any source of water pollution that does not meet the CWA's definition of point source pollution. (31)

    Regrettably, the Act provides no direct mechanism to regulate nonpoint source pollution and leaves regulation of this pollution almost fully to the states. (32) Due to the lack of cohesive regulation, eighty-two percent of the rivers and streams and seventy-seven percent of lakes are severely impaired because of agricultural runoff and hydrological modifications. (33) States that lay downstream remain vulnerable to upstream nonpoint source pollution...

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