March 01, 2013

The Back Page

Mark Ryan, Editor

A subtle, but important power shift may be on the horizon in Washington, and it is arising from lowly Element 15 on the Periodic Table. Phosphorus has begun to dominate water quality law around the country. Whether it is a permit appeal involving a new strict phosphorus limit or an enforcement action against a discharger for dumping too much into a water body, or a challenge to a new Total Maximum Daily Load (TMDL) or water quality standard, phosphorus, it seems, is everywhere these days. Florida has been grappling with nutrient issues on an epic scale for several years now in order to protect the Everglades, and the Chesapeake Bay TMDL is embroiled in litigation over, among other things, phosphorus loadings.

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Phosphorus, like most nutrients, is beneficial in small quantities but harmful to the environment in larger amounts. Agricultural runoff and municipal discharges are the two biggest sources of phosphorus, and many of the nation’s water bodies are now suffering the adverse effects of too much phosphorus and other nutrients, such as nitrogen. Destructive algal blooms and other problems associated with excess nutrient loading are becoming more common.

What makes phosphorus and other problematic nutrients so hard to corral is our inability to directly control agricultural runoff, which is mostly exempt under the Clean Water Act. (Concentrated animal feeding operations are the only part of the agriculture industry that is regulated under the Act.) Runoff from fertilizer-laden farm fields is one of our largest sources of phosphorus inputs to our nation’s waters. If a river or lake is not meeting water quality standards for pollution, the CWA requires the state to develop a cleanup plan, or TMDL. Under a TMDL, discharges from point and nonpoint sources of the pollutant at issue are cranked down in order to reduce loadings to the water body. Since most agricultural runoff is an exempt nonpoint source, the ability to force phosphorus reductions from agriculture is very limited. The result is the point sources end up with very stringent limits, effectively placing the brunt of the cleanup effort on their shoulders.

I have long found it interesting that the municipalities haven’t squawked more about the inequity of that situation. Many are now being required under their new permits to reduce phosphorus discharges 95–99 percent from current levels. The cost of installing equipment to reach such low levels for a city of 200,000 can run $40 million. And even after making such enormous investments in treatment plant upgrades, we will not have solved the problem because unregulated agricultural runoff continues unabated.

It will be interesting to watch how the lobbying in Washington shifts over the next few years. The traditionally powerful agriculture lobby may start to see pushback from the thousands of municipalities around the country that will soon be forced to make large-scale investments in treatment technology to combat a problem for which they would argue agriculture is mostly responsible.

Mark Ryan, Editor

Mark Ryan is Assistant Regional Counsel in the EPA Region 10 Boise Office and a member of the editorial board of Natural Resources & Environment. The views expressed here are Mr. Ryan’s alone and do not necessarily reflect the views of the EPA.