NACWA Regulatory Alert (RA 07-04)

Action Please By:
July 23, 2007

NACWA has reviewed a working draft of a report on the hypoxic zone in the Gulf of Mexico and is recommending that its public agency members review the report and consider participating in two upcoming conference calls to discuss the report’s findings. Given the possible precedent-setting nature of this report as well as NACWA’s work via its Strategic Watershed Task Force, the Association urges member participation in this review process. Among its recommendations, the report suggests that all major wastewater treatment plants in the watershed should upgrade to near limit of technology removal for nitrogen and phosphorus. The report (http://www.epa.gov/sab/pdf/5-24-07_hap_draft.pdf) was prepared by the U.S. Environmental Protection Agency’s Science Advisory Board (SAB) Hypoxia Advisory Panel (Panel) and publicly released in June following a meeting of the Panel in New Orleans.

This Regulatory Alert provides a brief overview of the current draft of the report. NACWA expects a new draft of the report to be released on or around July 23. Additional information on the Panel’s deliberations and any new drafts of the report will be posted on the SAB’s website (http://www.epa.gov/sab/panels/hypoxia_adv_panel.htm).

Two public teleconferences have been planned to discuss the draft report – July 30, 2:00 – 4:00 pm Eastern and August 1, 2:00 – 4:00 pm Eastern. Details for the calls will be posted on the SAB website, but those interested in participating or in providing comments during one or both of the calls should contact Dr. Holly Stallworth of the SAB by July 23 ((202) 343-9867 or stallworth.holly@epa.gov). Written statements may also be submitted, but must be sent to Dr. Stallworth by July 23rd to be considered. NACWA plans to submit a written statement and participate on the calls.

SAB’s Draft Report on Gulf of Mexico Hypoxia Issues
The lengthy report covers three main topics: characterization of the hypoxia problem; nutrient fate, transport, and sources; and the scientific basis for goals and management options. While the report does acknowledge the major role of nonpoint sources and the fact that point source discharges are “not the dominant source of N [nitrogen] or P [phosphorus]” to the problem, point sources, including municipal wastewater treatment plants, are listed as important and growing sources of nutrients. The Panel has also taken the view that point source nutrient control is cost-effective.

The report’s recommendations are targeted toward all point and nonpoint sources of nutrients in the Mississippi-Atchafalaya River Basin (MARB), including the Ohio, Missouri, Platte, Arkansas, and Tennessee river systems. The report’s recommendations specifically refer to all major (1 million gallons per day or greater) wastewater treatment plants in these basins.

Sections 1 through 3 provide a significant amount of background on the hypoxia issue, the extent of the problem in the Gulf, and the sources and amounts of nutrients flowing into the Gulf. Section 4 of the report, Scientific Basis for Goals and Management Options, contains the most critical recommendations. This section begins with a discussion of the importance of adaptive management (Section 4.1) – using models and monitoring data to learn and change tactics as efforts to control the problem proceed – a concept that NACWA has supported in past efforts. However, the Panel’s report fails to recognize the limitations of an adaptive approach – that mid-course corrections are much more difficult, if not impossible, for point sources that must install treatment equipment or make other process changes in order to reduce nutrient discharges. In addition, most of the report’s later recommendations regarding point sources simply ignore the concept of adaptive implementation for wastewater treatment plants and instead seek to achieve maximum reduction from all major plants.

Panel Promotes Best Available Technology Approach
The Panel’s targets for nitrogen and phosphorus reductions (Section 4.2) were based on a goal of shrinking the 5-year running average size of the hypoxic zone to below 5,000 km2 by 2015. The Panel estimates that nitrogen reductions of at least 40 - 45% and phosphorus reductions of at least 40% would be necessary to meet the 2015 goal, but also speculates that additional reductions might be necessary due to the consequences of climate change. The Panel admits that data is lacking on phosphorus, but that enough information currently exists to set a goal in an “adaptive management context beginning with the P reductions that are already feasible given existing technologies.” The Panel proceeds to ignore its own adaptive approach and states that a “start should be to address point sources of P in the basin” and that a reduction of 21% in total P loads could be achieved by applying best available technology to all major discharges in the MARB. Because point sources represent only about a third of the total P load, this 21% reduction in total P would require a 67% reduction in phosphorus from point sources. On top of that, following upgrades, the Panel states that “point sources would need to be capped…such that further increases in flow are accompanied by further reductions in discharge concentrations.”

The report fails to mention the implications of a technology-based approach followed by concentration caps for all major point sources. Requiring near limit of technology controls for all major point sources would likely eliminate future nutrient trading, something the report considers as one option for reducing nutrient concentrations in the Gulf, as a cost effective means to achieve compliance. Furthermore, the recommended point source caps would effectively stop or severely limit the ability of the affected communities to grow.

Section 4.4 contains an extensive discussion on what the Panel considers “cost effective approaches to implementation” of controls on nutrient discharges. Most of the specifics are focused on nonpoint source controls and the Panel makes it clear that current nonpoint source control programs are not as effective as they could be. The report notes that voluntary agreements without economic incentives are not likely to be adequate to obtain the necessary load reductions and suggests that additional accountability is necessary for existing subsidy programs to achieve the maximum environmental benefit. The Panel’s report contains only very limited information on the cost of possible point source controls but states that “it is possible to reduce hypoxia and protect water quality in the MARB without significant government funding.”

Panel Looks to Chesapeake Bay, Long Island Sound for Guidance on Nutrient Control Options
Section 4.5.8 is the most critical for clean water agencies. While the report states that point source discharges are not the dominant source of N or P in the MARB, they note that “sewage treatment plants and industrial dischargers represent a more significant source of N and P in the MARB than was originally identified.” Citing the application of biological nutrient removal and enhanced nutrient removal technologies in Tampa Bay, the Chesapeake Bay, and Long Island Sound, the report notes that wastewater treatment plant upgrades have proven to “be as cost effective and more certain than estimated reductions from agricultural best management practices.” The section concludes by highlighting that point sources may “offer some of the most certain short-term and cost-effective opportunities for substantial nutrient reductions.”

The Panel’s working draft recommends the following for point sources:

• MARB wastewater treatment plant upgrades to achieve total N concentrations of 3 mg/L and total P concentrations of 0.3 mg/L;
• Industrial reviews to identify cost effective opportunities for nutrient reductions; and
• Consideration of nutrient concentrations or loading limits in permit renewals for major wastewater treatment plants and selected industrial facilities in the MARB.

Appendix C of the report outlines the Panel’s methodology for estimating N and P loads from wastewater treatment plants in the basin.

Implications for Clean Water Agencies and NACWA Next Steps
The SAB is a Federal Advisory Committee that provides scientific advice and information to the EPA Administrator and to Congress. The recommendations of the SAB’s Hypoxia Advisory Panel do not have any direct regulatory or legal implications, but the report’s recommendations regarding point sources could still factor heavily in future policy and regulatory decisions by EPA’s Office of Water and potential legislative efforts regarding the Gulf. NACWA plans to continue reviewing the report and will prepare a written statement by July 23 for the Panel to consider during its public teleconferences.