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September 23, 2013
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Court orders EPA to assess fertilizer runoff pollution in U.S. waterways, including Kentucky

CHICAGO  (Sept. 23, 2013) – The U.S. District Court in Eastern Louisiana ordered the U.S. Environmental Protection Agency on Friday to determine within six months whether to set new limits on the pollution that is fueling the dangerous algae growth choking the waters throughout the Mississippi River basin, the Gulf of Mexico and waters across the country, including Kentucky recreation lakes.

Attorneys at the Natural Resources Defense Council led the suit, filed on behalf of several conservation groups and based on longstanding efforts by the Mississippi River Collaborative to break decades of inaction from the federal government on the issue of nitrogen and phosphorus pollution. These chemicals fuel the formation of the Gulf Dead Zone and toxic algae blooms and cause damage to drinking water supplies.

“For too long, EPA has stood on the sidelines while our nation’s waters slowly choke on algae,” said NRDC Senior Attorney Ann Alexander. “They have acknowledged the problem for years, but could not muster the gumption to address it. The court is telling the Agency that it is time to stop hiding from the issue and make a decision already.”

Nitrogen and phosphorus from sewage plants, urban stormwater systems and agricultural operations fuels the growth of algae in waterways around the country.  Algae, in turn, chokes out other aquatic life and can rob water of the oxygen that fish and shellfish need to survive. One of the most devastating consequences of this pollution has been the emergence of the dead zone in the Gulf of Mexico – an area the size of Connecticut where algal growth has driven levels of oxygen at the sea floor so low that virtually nothing can live there.  Similar issues are driving the dramatic collapse of Lake Erie and threatening other portions of the Great Lakes.

“EPA must address the nutrient issue, and we appreciate the court’s ruling to that affect,” said Judy Petersen, executive director at Kentucky Waterways Alliance. “The Army Corps of Engineers monitored Kentucky’s recreational lakes for Harmful Algae Blooms for the first time this past summer and recorded excessive numbers throughout much of the summer at several lakes. Nutrient pollution is clearly just as much of a problem in Kentucky as it is in other Mississippi River Basin states and down in the Gulf, and EPA must address it.”

The suit, filed a year and a half ago, challenged EPA’s denial of the Mississippi River Collaborative’s 2008 petition to EPA asking it to establish quantifiable standards and cleanup plans for nitrogen and phosphorus pollution. The suit charged that EPA had unlawfully refused to respond to the question posed to it, which is whether such federal action is necessary to comply with the Clean Water Act.  The court agreed with plaintiffs, holding that the Agency’s refusal to provide a direct answer was unlawful.

The decision does not tell the Agency how to address the problem, only to make a decision on the issue. However, EPA has repeatedly acknowledged the severity of the problem and stated that federal intervention is appropriate because states are not doing enough to solve it.

Plaintiffs in the suit included Gulf Restoration Network, Waterkeeper Alliance, Environmental Law and Policy Center, Iowa Environmental Council, Missouri Coalition for the Environment, Prairie Rivers Network, Kentucky Waterways Alliance, Tennessee Clean Water Network, Minnesota Center for Environmental Advocacy, Sierra Club, and NRDC.  Attorneys at the Tulane Environmental Law Clinic, NRDC, and the Environmental Law and Policy Center brought the case.

Following are comments from groups involved in the suit:

Susan Heathcote, water program director of the Iowa Environmental Council in Des Moines, Iowa, said, “Lake recreation is a big business in Iowa—generating $1.2 billion in annual spending and supporting 14,000 jobs. Yet Iowa’s lakes have among the highest nitrogen and phosphorus levels in the world, and consequences of this problem, including algae blooms and poor water clarity, have already landed 79 of the state’s top recreational lakes on Iowa’s impaired waters list. In addition, harmful algae blooms led to two dozen advisories against swimming at Iowa’s state park beaches this summer due to high toxin levels that threaten the health of people and pets.”

“It should be apparent that pollution limits are essential to controlling pollution” said Kelly Foster, Senior Attorney for Waterkeeper Alliance, “With this decision, we are hopeful that EPA will finally do what it has long known is necessary to address the Gulf Dead Zone and the staggering number of other fisheries, water supplies and recreational waters decimated by nitrogen and phosphorus pollution across the nation.”

Kris Sigford, Water Quality Director at Minnesota Center for the Environment notes, “We are gratified that EPA cannot duck this important decision, and hope that EPA takes quick and decisive action to control widespread nitrogen and phosphorus pollution in the Mississippi River. In Minnesota, over one-quarter of our streams and rivers are polluted by nitrogen in excess of safe drinking water standards, and the trend is increasing rapidly.”

Bradley Klein, attorney for the Environmental Law & Policy Center added, “This isn’t just about the Dead Zone in the Gulf of Mexico. Algae blooms threaten the Great Lakes–and smaller waterways across the nation are being impacted by this huge problem. Hopefully EPA will move in the right direction on this because until we deal with the sources, which are sometimes thousands of miles away, we cannot get to the problem.”

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