4
Implementing the Clean Water Act Along the Mississippi River

Achieving the goals of the Clean Water Act along the entire length of the Mississippi River and into the Gulf of Mexico presents scientific and regulatory challenges similar to those presented by many of the nation’s other waterbodies. At the same time, the size and interstate nature of the Mississippi River entail many distinctive administrative and implementation issues and problems. As discussed in Chapter 3, great progress has been made in the control of point source pollution—or the “first stage” of Clean Water Act implementation. Today, along the Mississippi River and across its basin, the more pressing pollutant issues involve management of nonpoint source sediments and nutrients.

A fundamental factor that inhibits effective implementation of the Clean Water Act along the Mississippi River, particularly in efforts to address nonpoint source pollution, is the limited amount of adequate water quality data. Such data are essential for understanding the condition of a given waterbody and for assessing whether or not that waterbody is attaining its designated uses. These data are also crucial in creating Total Maximum Daily Load (TMDL) allocations and in evaluating TMDL effectiveness. The importance of Mississippi River water quality monitoring is discussed further in Chapter 5.

This chapter discusses the multistate nature of the Mississippi River basin, and how this creates unique challenges regarding Clean Water Act implementation and effective water quality management. Cooperation and coordination among the 10 Mississippi River mainstem states has been largely absent over the years. The states generally have focused their attention and resources on water quality monitoring and protection of



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4 Implementing the Clean Water Act Along the Mississippi River A chieving the goals of the Clean Water Act along the entire length of the Mississippi River and into the Gulf of Mexico presents scientific and regulatory challenges similar to those presented by many of the nation’s other waterbodies. At the same time, the size and interstate nature of the Mississippi River entail many distinctive administrative and imple- mentation issues and problems. As discussed in Chapter 3, great progress has been made in the control of point source pollution—or the “first stage” of Clean Water Act implementation. Today, along the Mississippi River and across its basin, the more pressing pollutant issues involve management of nonpoint source sediments and nutrients. A fundamental factor that inhibits effective implementation of the Clean Water Act along the Mississippi River, particularly in efforts to ad- dress nonpoint source pollution, is the limited amount of adequate water quality data. Such data are essential for understanding the condition of a given waterbody and for assessing whether or not that waterbody is at- taining its designated uses. These data are also crucial in creating Total Maximum Daily Load (TMDL) allocations and in evaluating TMDL ef- fectiveness. The importance of Mississippi River water quality monitoring is discussed further in Chapter 5. This chapter discusses the multistate nature of the Mississippi River basin, and how this creates unique challenges regarding Clean Water Act implementation and effective water quality management. Cooperation and coordination among the 10 Mississippi River mainstem states has been largely absent over the years. The states generally have focused their attention and resources on water quality monitoring and protection of 

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 MISSISSIPPI RIVER WATER QUALITY AND THE CLEAN WATER ACT waterbodies that lie wholly within their respective boundaries. As explained in this chapter, this has contributed to a situation in which the Mississippi River is to a large degree an “orphan” from a water quality monitoring and assessment perspective. This chapter examines administrative issues and challenges regarding implementation of the Clean Water Act along the interstate Mississippi River. It begins with discussion of the progress in controlling point source pollution and concludes with a focus on efforts to address the more com- plicated nonpoint source challenges. It discusses the respective roles and responsibilities of federal and state agencies in implementing the Clean Water Act (CWA) along the Mississippi River; the fragmented jurisdictional picture that underlies and affects CWA implementation; the state of water quality assessment along the 10-state Mississippi River corridor; and the development of TMDLs and nutrient criteria for the river. THE NPDES PROGRAM AND POINT SOURCE CONTROL ON THE MISSISSIPPI RIVER NPDES Program Implementation Water quality protection and improvement programs of many of the states bordering the Mississippi River started well before the increasing na- tional environmental consciousness that began in the 1950s and 1960s and before passage of the original Clean Water Act. As explained in Chapter 3, after the Clean Water Act’s passage in 1972, the National Pollutant Dis- charge Elimination System (NPDES) became an important mechanism for reducing Mississippi River point source pollution. Table 4-1 lists the agen- cies that, in large part, currently administer the NPDES and water quality standard programs for each of the Mississippi River mainstem states. Along the Mississippi River, NPDES permits have been issued to thou- sands of industrial, municipal, and other point source dischargers, both large and small. Table 4-2 identifies the “major” Mississippi River dis- chargers that currently have NPDES permits. Although the Environmental Protection Agency (EPA) Permit Compliance System (PCS) database gives only a fragmentary and not completely up-to-date picture of the status of the permit program, Table 4-2 nevertheless provides an indication of the extent of major point source discharges to the Mississippi River. NPDES permits impose “best-technology” requirements on point sources and, therefore, constitute one of the principal mechanisms within the Clean Water Act to reduce pollutant discharges into “navigable wa- ters,” which are defined very broadly. Although the NPDES program re- sulted in substantial reduction of pollutant inputs to the Mississippi River (especially sewage-related pollutants as documented below), limited data

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 IMPLEMENTING THE CLEAN WATER ACT ALONG THE MISSISSIPPI TABLE 4-1 Stage Agencies with Principal Clean Water Act Responsibilities Other Agencies Primary Sharing CWA Responsibilitya Agency Web Site Predecessor Agencies Minnesota Minnesota Office of None http://www.pca. Pollution Environmental state.mn.us/ Assistanceb Control Agency Wisconsin Wisconsin None None http://www.dnr. Department state.wi.us/ of Natural Resources Iowa Iowa Iowa Natural None http://www. Department Resouces Council; iowadnr.com/ of Natural Iowa Department Resources of Environmental Quality; Iowa Department of Water, Air, and Waste; Iowa Energy Policy Council Illinois Illinois Illinois Department None http://www.epa. Environmental state.il.us/ of Public Health Protection Agency Missouri Missouri None None http://www.dnr. Department mo.go/ of Natural resources Kentucky Kentucky Kentucky Water None http://www.dep. Department of ky.go/ Pollution Control Environmental board Protection Tennessee Tennessee http://www.state. Department Tennessee Wildlife Department of tn.us/enironment of Health and Resources Agency Environment Environment (commercial and fishing bans); Conservation Tennessee Department of Agriculture (Section 319) continued

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00 MISSISSIPPI RIVER WATER QUALITY AND THE CLEAN WATER ACT TABLE 4-1 Continued Other Agencies Primary Sharing CWA Responsibilitya Agency Web Site Predecessor Agencies Arkansas Arkansas Arkansas Water Arkansas Natural http://www.adeq. Department of state.ar.us/ Pollution Control Resources Environmental Commission; Commission Quality Arkansas Pollution (Section 319) Control Commission; Department of Pollution Control and Ecology Mississippi Mississippi Mississippi None http://www.deq. Department of state.ms.us/ Department of Environmental Natural Resources Quality Louisiana Louisiana Louisiana Louisiana http://www. Department of deq.louisiana. Department of Department Environmental go/portal Wildlife and of Health and Quality Fisheries, Water Hospitals, Safe Pollution Control Drinking Water Division; Office Program of Environmental Affairs aThis does not include agencies that share water monitoring and/or testing or other natural resource functions. bPrimarily responsible for solid waste management. inhibit comprehensive analysis of the extent of water quality improve- ment brought about by the NPDES program. A judgment with regard to the effectiveness of the NPDES program in cleaning up the Mississippi River would be facilitated by data indicating the amounts of pollutants that would likely be discharged from industrial and municipal sources had the program not been enacted. However, there are no such data at this point (USEPA Inspector General, 2004). Sewage Treatment Under the Clean Water Act The Clean Water Act’s construction grant and revolving loan fund programs have financed the construction and improvement of thousands of publicly owned treatment works (POTWs) nationwide, producing measur- able water quality improvements across the nation and in the Mississippi River. By 2000, almost 16,000 POTWs existed in the United States, about

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0 IMPLEMENTING THE CLEAN WATER ACT ALONG THE MISSISSIPPI TABLE 4-2 NPDES Permits for Dischargers into the Mississippia,b Facility Type Facility Number Total Permits Minnesota Sewerage Systems 32 117 General industrial, other 85 Wisconsin Sewerage Systems 18 23 General industrial, other 5 Iowa Sewerage Systems 24 81 General industrial, other 57 Illinois Sewerage Systems 65 167 General industrial, other 102 Missouri Sewerage Systems 13 86 General industrial, other 73 Kentucky Sewerage Systems 2 11 General industrial, other 9 Tennessee Sewerage Systems 5 9 General industrial, other 4 Arkansas Sewerage Systems 13 29 General industrial, other 16 Mississippi Sewerage Systems 7 26 General industrial, other 19 Louisiana Sewerage Systems 78 254 General industrial, other 176 aData in this table come from EPA’s Envirofacts PCS database as of May 21, 2006; http:// www.epa.go/eniro/html/pcs/adhoc.html. bData obtained from various state agencies varied from PCS data. The reason for this dis- crepancy appeared to be the inclusion in the PCS database of major dischargers to tributaries of the Mississippi. 29 percent of which were found in the 10 Mississippi River states. Box 4-1 lists examples of sewage treatment improvements and other advances in Mississippi River water quality realized under the Clean Water Act. The EPA and the states plan renovation of many existing POTWs, and expect construction of an additional 1,688 POTWs in the near future, more than 20 percent of which will be in the 10 mainstem states (USEPA, 2003a). At the same time, however, state and local government needs for sew- age treatment funds remain high. In 2003, the EPA indicated that state needs for secondary wastewater treatment, advanced wastewater treatment,

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0 MISSISSIPPI RIVER WATER QUALITY AND THE CLEAN WATER ACT BOX 4-1 Clean Water Act-Related Progress on the Mississippi River Increases in Dissolved Oxygen: Minneapolis-St.Paul. In the past, sewage pollution strongly affected dissolved oxygen concentrations in the Mississippi River. For example, the 100-kilometer reach downstream from Minneapolis-St. Paul was severely polluted with sewage for many decades, and this discharge degraded water quality and depleted dissolved oxygen downstream through Lake Pepin in pool 4 (Wiebe, 1927; Fremling, 1964, 1989). The depletion of dissolved oxygen adversely affected fish and pollution-sensitive organisms (e.g., nymphs of burrowing Hexagenia mayflies). To reduce impacts of pollutants and protect human health, the Twin Cities Metropolitan Wastewater Treatment Plant (St. Paul) was built in 1938 and, in response to the CWA, was upgraded from primary to secondary treatment in 1978. Currently, it treats about 80 percent of the waste- water generated in the metropolitan area and daily discharges about 0.85 million cubic meters of treated wastewater into the Upper Mississippi River (D. K. John- son, 2006, Metropolitan Council, Environmental Services, St. Paul, Minnesota, personal communication) at pool 2, river mile 834.5 (Boyer, 1984). Improvements to the plant in recent decades have reduced effluent concentrations of biochemi- cal oxygen demand and other pollutants. As early as the 1980s, water quality in the river downstream of the Twin Cities had improved, and burrowing mayflies began re-colonizing suitable habitats (Fremling, 1989; Johnson and Aasen, 1989; Fremling and Johnson, 1990). Reduction of Sewage Inputs: St. Louis. The reach downstream from St. Louis, Missouri, has also been affected by sewage discharges. St. Louis began using the river officially for municipal waste disposal in 1850, when cholera epidemics swept the city (Corbett, 1997). Raw sewage discharge from the City of St. Louis and surrounding areas continued until 1970, when the first of two major treatment plants was opened by the Metropolitan Sanitary District (Corbett, 1997). Water quality downstream has since improved in response to wastewater treatment, and the last large primary treatment facility was upgraded to secondary treatment in 1993 (MDNR, 1994). Sewage Treatment: Memphis. In 1970, Memphis, Tennessee, was the largest U.S. city with no wastewater treatment, although studies suggested there was only a modest impact on water quality because of the high dilution factor at its location on the Mississippi. It was not until the late 1960s that Tennessee’s Divi- sion of Stream Pollution Control could convince Memphis to hire a consultant to conduct a sewage needs study. That 1969 study recommended the construction of two primary wastewater treatment plants. The South Treatment Plant opened in 1975; the North Treatment Plant came online in 1977. Moving from no municipal wastewater treatment to secondary treatment constituted the largest impact in terms of reduction in point source pollutants discharged at any location along the Mississippi River.

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0 IMPLEMENTING THE CLEAN WATER ACT ALONG THE MISSISSIPPI sewage collection infrastructure, and combined sewer overflow correction totaled $161.9 billion (USEPA, 2003a). The EPA has, however, noted that the focus of POTW infrastructure spending is changing (USEPA, 2003a): Since the early 1970s, EPA has documented significant improvements in the treatment of municipal wastewater. It is expected that in the future municipalities will need to focus more on capital renewal (rehabilitation and replacement) of existing infrastructure than on infrastructure improve- ments measured by increased population served and improved levels of treatment. This is a reasonable progression because much of the Nation’s infrastructure has reached, or soon will reach, the end of its design life. In light of an aging sewage treatment infrastructure, this 2003 report indi- cates that funding for sewage treatment infrastructure remains an important water quality issue under the Clean Water Act for the Mississippi River states and the nation as a whole. Beyond construction and rehabilitation of sewage treatment infrastructure is the issue of adequate sewage treatment in existing POTWs. Sewage discharges to the Mississippi River, for example, remain a source (albeit a small percentage) of the nutrients that contribute to hypoxia in the Gulf of Mexico (USEPA, 2001). Another Mississippi River sewage pollution problem is the continued existence of combined sewer overflows (CSOs) and some sanitary sewer overflows (SSOs) as well. SSOs are not permitted under the Clean Water Act and, where they exist, must be remedied. Discharges from CSOs, which can be permitted under the Clean Water Act, derive from older sewer systems that channel both sewage and stormwater through POTWs. Heavy rains can cause these systems to overflow, carrying untreated waste and other pollutants into river systems. Along the Mississippi River, CSO problems vary considerably from location to location. For example, Minneapolis has been working to separate sewers from storm drains since 1922. Today, only 5 percent of the city’s surface area drains into a combined sewer system, resulting in only eight outfalls that discharge waters from CSOs (City of Minneapolis, undated). In contrast, further down the river, St. Louis has 208 CSO outfalls, many of which discharge directly into the Mississippi (Metropolitan St. Louis Sewer District, 2006). The development of POTWs, the concomitant reduction of sewage pollution from municipalities, and the mitigation of industrial point source inputs represent significant achievements of the CWA and the NPDES pro- gram. Compliance with discharge limits under the NPDES program has not, however, eliminated water quality problems for the Mississippi River, as Mississippi River water quality also is affected by inputs from many nonpoint source pollutants. Both point and nonpoint pollutants therefore must be adequately managed in order to realize water quality standards. As described previously, the Clean Water Act has achieved many successes in

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0 MISSISSIPPI RIVER WATER QUALITY AND THE CLEAN WATER ACT addressing point source pollution, but nonpoint source pollution remains a significant water quality management challenge. One impediment to effec- tively managing nonpoint sources of pollution is nonexistent or inconsistent water quality standards for the pollutant of interest. MISSISSIPPI RIVER WATER QUALITY STANDARDS Although the EPA has oversight authority, particularly with regard to interstate water quality, states implement most of the Clean Water Act, including the establishment of water quality standards. For interstate waterbodies such as the Mississippi River, however, this multistate imple- mentation of the Clean Water Act on the same river often undermines the act’s effectiveness. In particular, each state develops state water quality standards that reflect and respect its priorities and preferences, but may not adequately protect water quality and aquatic resources of cross-stream and downstream states. Inconsistencies Among State Water Quality Standards The Clean Water Act vests significant, although not unlimited, discre- tion in the states to designate uses for streams and lakes within and along their borders. This discretion, however, is subject to the Clean Water Act’s goal of attaining water quality that supports aquatic life and recreation (the “fishable and swimmable” objectives). State water quality standards authority is analogous to zoning, because the setting of those standards involves determination of whether a particular segment of a stream should be usable, for example, for human contact recreation or as a cold water fishery. The states’ power to define the quality of water necessary to meet the designated uses through water quality criteria is constrained by EPA’s ability to supercede state scientific and technical judgments where appro- priate. State-adopted designated uses for its waterbodies and the criteria defining the quality of water necessary to meet those uses are, collectively, referred to as a state’s water quality standards. In this legal and technical context, it is almost inevitable that inconsis- tencies will arise among state-adopted water quality standards for streams and rivers flowing between or through two or more states. Nevertheless, mere inconsistency in state water quality standards is not necessarily prob- lematic, even if the states with inconsistent use designations and water qual- ity criteria are located along the same river or, indeed, share the river as a common boundary. For example, State A may designate the part of the river within its borders as a cold water fishery, requiring a high dissolved oxygen content. Downstream of State A and also on the river, State B may have designated its portion of the river as a warm water fishery, which would

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0 IMPLEMENTING THE CLEAN WATER ACT ALONG THE MISSISSIPPI require a lower level of dissolved oxygen. In this instance, the respective water quality goals of States A and B are consistent in the sense that nei- ther will interfere with the other’s attainment and maintenance. However, this happy coincidence may not always occur. For instance, State A may designate its half of a river for human contact recreation; State C, directly across the river, may designate its portion for sewage discharge receiving waters. Alternatively, State A may be immediately downstream from State C. In either case, the waters of State A may be at risk as a result of the probably less stringent controls required to meet the regulatory regime of State C. This type of situation may arise along the Mississippi River, where 10 states either share common borders or find themselves the recipients of pollutants discharged upriver. Many groups have examined and considered the differences among the Mississippi River states’ water quality standards. For example, the Upper Mississippi River Basin Association (UMRBA) is a regional interstate or- ganization formed by the governors of Illinois, Iowa, Minnesota, Missouri, and Wisconsin to coordinate the states’ river-related programs and policies and work with federal agencies with river responsibilities. The UMRBA sponsors programs and studies related to ecosystem restoration, hazardous spills, water quality, floodplain management and flood control, commercial navigation, and water supply. The UMRBA issues reports on these upper Mississippi River issues and has a long-standing interest in water quality, water quality standards, and the Clean Water Act. An UMRBA water quality task force studied the water quality stan- dards among the upper Mississippi River states of Illinois, Iowa, Minne- sota, Missouri, and Wisconsin and issued a report on the topic in 2004. In its report, the task force noted (UMRBA, 2004): Differences among the [Upper Basin] states in their implementation of the Clean Water Act are not necessarily problematic. Indeed, the Clean Water Act explicitly confers broad latitude upon the states. While federal regulations require a state to “ensure that its water quality standards pro- vide for the attainment and maintenance of the water quality standards of downstream waters,” uniformity of standards and listing decisions is not necessarily the objective. Thus, state actions on shared water bodies should be consistent with this requirement, but need not be identical. Whether the differences on the Upper Mississippi River among the five states’ water quality standards afford differing levels of protection requires further evaluation. Table 4-3 presents a selection of water quality criteria adopted by the mainstem Mississippi River states that apply to the Mississippi River. This table shows many differences that could, under certain circumstances, undercut the ability of at least some states to achieve their water quality standards. In addition, many variations among state water quality stan-

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0 MISSISSIPPI RIVER WATER QUALITY AND THE CLEAN WATER ACT TABLE 4-3 Water Quality Criteria Applicable to the Mississippi River [1] Fecal Temperature Dissolved Coliform Turbidity [2] [2] pH [2] Oxygen [2][5] [2][8] 6.5 ≤ X Minnesota 10 NTU 30°C 5 mg/L 200 col/100 ≤ 8.5 mL [15] 6.0 ≤ X Wisconsin N/A [4] 5 mg/L 200 col/100 ≤ 9.0 mL 6.5 ≤ X 5 mg/L 25 NTU [B] Iowa Cannot add N/A ≤ 9.0 3°C 6.5 ≤ X 5 mg/L Illinois N/A [3] 200 col/100 ≤ 9.0 mL [13] 6.5 ≤ X 5 mg/L [7] Missouri “substantial [3] 200 col/100 ≤ 9.0 visible contrast” mL [12][16] 6.0 ≤ X Kentucky N/A 31.7°C 5 mg/L [6] 1,000 col/100 ≤ 9.0 mL [9] [12] 6.0 ≤ Tennessee No turbidity or 30.5°C Daily average N/A[D] color in such and the X ≤ 9.0 of 5 mg/L with amounts or of maximum (FAL) a minimum of 6.5 ≤ such character rate of 4 mg/L (specific that will change shall X ≤ 9.0 to ecoregion materially affect not exceed (REC) 73a) fish and aquatic 2°C/hr life (FAL); none that will result in any objectionable appearance (REC) 6.0 ≤ X 5 mg/L Arkansas 50 NTU, 75 NTU 32°C 1,000 col/100 ≤ 9.0 stormflow mL [9] [10] 6.0 ≤ X Daily average of Mississippi 50 NTU[A] 32.2°C [C] 200 col/100 ≤ 9.0 5 mg/L with an mL (May-Oct) instantaneous 2,000 col/100 minimum of mL (Nov-Apr) 4 mg/L [11] 6.0 ≤ X Louisiana 150 NTU Cannot add 5 mg/L 2,000 col/100 ≤ 9.0 2.8°C mL [14] [1] Unless otherwise indicated, all water quality criteria come from the individual state regulations and apply specifically to the Mississippi River. [2] The specific water quality criteria listed for a particular state for a particular pollutant may vary depending on the designated use for a specific segment of the Mississippi River. [3] Dependent on month. [4] Dependent on month. [5] 24-hour minima. [6] DO shall not be below 4.0 mg/L on any instantaneous reading.

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0 IMPLEMENTING THE CLEAN WATER ACT ALONG THE MISSISSIPPI PCBs (24-hour Chlordane (24-hour average except average except where otherwise where otherwise indicated) [2] indicated) [2] Phosphorous [2] Nitrogen [2] 0.014 ng/L 0.073 ng/L N/A [E] N/A [E] 0.01 ng/L 0.41 ng/L N/A [E] N/A [E] 0.014 µg/L 0.004 µg/L N/A [E] N/A [E] 0.015 ng/L 0.003 mg/L [18] N/A [E] N/A [E] 0.000045 µg/L [17] 0.00048 µg/L [17] N/A [E] N/A [E] 0.000064 mg/L 0.00080 mg/L [19] [19] 0.00064 µg/L 0.0080 µg/L Must not stimulate Must not stimulate algal growth, must algal growth, must meet regional goals. meet regional goals. Use 0.25 mg/L to Use 0.39 mg/L to interpret narrative interpret narrative criteria along criteria along with biological with biological criteria unless criteria unless other other scientifically scientifically defensible defensible method is method is produced produced 0.4 ng/L 5.0 ng/L N/A[E] N/A[E] 0.00035 µg/L 0.0021 µg/L N/A [E] N/A [E] 0.01 ng/L 0.19 ng/L [20] [20] continued

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 IMPLEMENTING THE CLEAN WATER ACT ALONG THE MISSISSIPPI EPA’s authority under Section 303(c) extends beyond merely harmonizing inconsistent state water quality standards. Under Section 303(c)(4)(B), the EPA can establish a water quality standard “in any case where the Administrator determines that a revised or new standard is necessary to meet the requirements” of the Clean Water Act. Accordingly, the EPA can establish a more demanding standard than any of the states included within a significant national watershed as long as, in the EPA’s judgment, that standard is necessary “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” or to achieve the fishable and swimmable goal of the Clean Water Act. Given Congress’s desire gen- erally “to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” (CWA Section 101(b)), this supervening authority of EPA is most appropriately exercised only in limited circumstances. The Mississippi River, however, would seem clearly to qualify for special treatment, being the nation’s only waterbody with congressional recognition as “a nationally significant ecosystem and a nationally significant commercial naigation system,” as stated in the Upper Mississippi River Management Act of 1986. Moreover, most of the area in the northern Gulf of Mexico that experiences hypoxic conditions is subject to exclusive federal control and protection under the Clean Water Act (see Chapter 3). Accordingly, the EPA could adopt the necessary numerical nutrient goal(s)(criteria) for the terminus of the Mississippi River and waters of the northern Gulf of Mexico. An amount of aggregate nutrient reduction, from across the entire watershed and necessary to achieve that goal, then could be calculated. Each state in the Mississippi River watershed then could be assigned its equitable share of the reduction. The assigned maximum load for each state then could be translated into numerical water quality criteria applicable to each state’s waters. Each state would then be required to develop a TMDL for “waters within its boundaries” that are identified as failing to meet applicable nu- trient criteria, consistent with the language of Section 303(d)(1)(A) of the Clean Water Act. If states failed to adopt the required TMDLs within a rea- sonable time frame set by the EPA, the EPA could under Section 303(d)(2) promulgate the TMDLs by deeming the failure of states to submit necessary TMDLs a constructive submission of inadequate TMDLs. This “construc- tive submission” doctrine has so far been developed by the courts as a mechanism to force the EPA to act where states have not adopted TMDLs (e.g., Scott . City of Hammond, 741 F.2d 992 (7th Cir. 1984)). Similarly, the EPA could read Section 303(d) in a way that would allow the agency, on its own initiative, to deem a state’s failure to act as equivalent to the submission of inadequate TMDLs. Because TMDL load allocations for nonpoint sources are not legally enforceable under federal law (although states can make them so), and

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 MISSISSIPPI RIVER WATER QUALITY AND THE CLEAN WATER ACT because point sources comprise only a comparatively small percentage (roughly 10 percent) of the nutrient pollutant load transported downstream to the Gulf of Mexico, strong efforts would be required to reduce nonpoint source contributions to the Gulf. In this regard, EPA could, on the petition of Gulf-bordering states or on its own initiative, convene an interstate con- ference pursuant to Clean Water Act Section 319(g). The conference would be useful in helping reach agreement among Mississippi River watershed states regarding the steps they will take to reduce nonpoint nutrient dis- charges to meet load allocations established by the nutrient TMDLs. Improving Mississippi River water quality with respect to nutrients will require coordinated effort among states in TMDL development and other activities on a scale that is commensurate with the scale of the problem. This is a challenge, but there are precedents, most notably from the Chesa- peake Bay, where the states in the bay’s watershed have been cooperating under EPA leadership for the three-decade-long history of the program. FEDERAL-STATE COOPERATION IN THE CHESAPEAKE BAY The case of the Chesapeake Bay offers an example of how the EPA, working collaboratively with the states, can make progress toward nutri- ent reductions by developing and implementing guidance criteria for new water quality standards for an interstate waterbody. Efforts in water quality improvements in the Chesapeake Bay present an interesting model, with points of comparison and contrast, relevant to the challenges of nutrient loadings into the Mississippi and the Gulf of Mexico. The Chesapeake Bay is the largest estuary in the United States (Fig- ure 4-5). Its watershed includes parts of six states—Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia—and all of the Dis- trict of Columbia, and drains a basin of 64,000 square miles. From north to south, the bay is approximately 200 miles long; it ranges in width from 3.4 miles in its upstream areas to 35 miles near the mouth of the Potomac River. The bay is relatively shallow, with an average depth of about 21 feet. It supports thousands of species of plants, fish, and animals. More than 16.5 million people live in the Chesapeake Bay watershed area, a figure that is increasing by 1.7 million people every 10 years. The Chesapeake Bay and its tidal tributaries are listed as impaired waters under Section 303(d) of the Clean Water Act, with nutrients and sediment as the primary sources of impairment. The bay experiences nutri- ent overenrichment from nitrogen and phosphorus, with pollutant loadings coming from a variety of point and nonpoint sources, including air depo- sition. Excess nutrients create algae blooms that cloud the water, deprive underwater grasses of sunlight, and consume oxygen that is needed by bay creatures.

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 IMPLEMENTING THE CLEAN WATER ACT ALONG THE MISSISSIPPI FIGURE 4-5 Chesapeake Bay watershed. SOURCE: Phillips et al. (1999). Efforts to reduce nutrient loadings to the bay and develop a basinwide, nutrient management program date back to the 1980s. In the late 1970s and early 1980s, Congress funded scientific research on the bay, and the findings pinpointed three areas that required immediate attention: nutrient overenrichment, dwindling underwater bay grasses, and toxic pollution. Once this initial research was completed, the Chesapeake Bay Program was established in 1983 as a regional partnership to direct bay restoration. The program was formed via the Chesapeake Bay Agreement of 1983, which was signed by the governors of Maryland, Virginia, and Pennsylvania; the mayor of the District of Columbia; and the administrator of the U.S. En- vironmental Protection Agency. Since the signing of the 1983 agreement, the Chesapeake Bay Program partners have adopted two additional agree- ments that provide overall guidance for bay restoration: the 1987 Chesa-

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0 MISSISSIPPI RIVER WATER QUALITY AND THE CLEAN WATER ACT peake Bay Agreement and Chesapeake 2000 (C2K). The 1987 agreement established the program’s goal of a 40 percent reduction in the amount of nutrients—primarily nitrogen and phosphorus—that enter the bay by the year 2000. The 2000 agreement was signed by the governors of Maryland, Pennsylvania, and Virginia; the mayor of the District of Columbia; the chair of the Chesapeake Bay Commission; and the EPA administrator. The 2000 agreement is being used to guide restoration activities throughout the bay’s watershed through 2010. In addition, Delaware, New York, and West Virginia have signed a six-state memorandum of understanding to “work cooperatively to achieve the nutrient and sediment reduction targets that we agree are necessary to achieve the goals of a clean Chesapeake Bay by 2010, thereby allowing the Chesapeake and its tidal tributaries to be removed from the list of impaired waters” (Chesapeake Bay Memorandum of Understanding, 2000. For more information on the Chesapeake Bay Program, see www.chesapeakebay.net). The Chesapeake Bay Program represents a multistate, science-based, cooperative effort, with several different agreements, strategies, and time- lines, to reduce nutrient loadings to the bay. Some of the program’s promi- nent aspects follow: • Multiple states’ agreement on shared water quality problems; • An interstate information management system; • Basinwide, coordinated monitoring programs and interstate net- works; • A multijurisdictional framework for reporting ecological indica- tors; • An agreement on designated uses for shared tidal waters; • Consistent water quality standards agreed to by upstream states; • Major tributary basin cap load allocations; and • A basinwide permitting strategy that addresses 467 facilities. Figure 4-6 provides further detail of key program components and their relationships. A key element of the 2000 agreement and the six-state memorandum of understanding is a commitment by Chesapeake Bay watershed jurisdictions to determine the nutrient and sediment load reductions necessary to achieve water quality to protect aquatic living resources. In April 2003, New York, Pennsylvania, Maryland, Virginia, West Virginia, Delaware, the District of Columbia, and the U.S. EPA agreed on the required load reductions that were allocated to each of the watershed’s nine major tributary basins and jurisdictions in the form of “cap loads.” These cap loads are defined as the maximum amounts of pollutants allowed to flow into a waterbody and still ensure achievement of state water quality standards.

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 IMPLEMENTING THE CLEAN WATER ACT ALONG THE MISSISSIPPI Publicly Partners-based distributed Understandable information management Designated Uses system Enhancements to baywide coordinated monitoring program Scientifically-based Baywide coordinated water quality criteria monitoring programs Consistent criteria Coordinated, integrated Basinwide use assessment data analysis program attainability analysis procedures Linked airshed- watershed-tidal WQ- Consistent state water Consistent 303(d) lower trophic level- quality standards listing decision fisheries models regulations making Major tributary Basis for Baywide basin/jurisdiction TMDL Due in 2010 cap load allocations Factoring in state/federal Jurisdictional Clean Air regulations and Basinwide animal manure tributary strategies reductions into water policy and strategy quality decision making Collective policy efforts on Increased state funding for Basinwide 2007 Farm Bill Priorities point, nonpoint reductions permitting strategy actions FIGURE 4-6 Key Chesapeake Bay Program components. SOURCE: Batiuk (2007). Excess nutrient loadings pose problems for the bay’s ecosystems by promoting algal growth, which prevents underwater bay grasses from re- ceiving adequate sunlight and also depletes dissolved oxygen. The Chesa- peake Bay Program partners conduct joint water quality modeling through the Chesapeake Bay Program office to project load reductions that would eliminate persistent summer low- to no-dissolved-oxygen conditions in the bay’s deep bottom waters. Based on model projections, the partners agreed to cap annual nitrogen loads delivered to the bay’s tidal waters at 175 mil- lion pounds and to cap annual phosphorus loads at 12.8 million pounds. Sediments suspended in the water column pose problems for bay ecology because they reduce the amount of light available to support healthy and extensive underwater bay grass communities. The Chesapeake Bay Program partners also agreed that sediment loads needed to be reduced in order to achieve water quality conditions that protect aquatic resources. Water qual- ity models were used to determine load reductions necessary to improve water clarity. Annual sediment load was ultimately capped at 4.15 million

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 MISSISSIPPI RIVER WATER QUALITY AND THE CLEAN WATER ACT tons per year, and a goal of new underwater bay grass restoration was set at 185,000 acres (Chesapeake Bay Program, 2003). Final basinwide nutrient cap loads were allocated to the nine major tributary basins (Figure 4-7, first panel). Basin allocations were further divided and assigned to each of the six watershed states and the District of Columbia based on principles of fairness and equity (Figure 4-7, second panel). These principles were a jurisdiction’s impact on bay tidal water quality; progress to date; and the benefit derived from a restored Chesa- peake Bay and tidal tributaries. Individual states have the option to further subdivide their major tributary basin cap load allocations into 44 state- defined tributary strategy subbasins (Figure 4-7, third panel). Despite nutri- ent and sediment pollution reduction efforts over the past two decades, only recently—in 2003—did the EPA and the bay states establish bay-specific water quality criteria for dissolved oxygen, water clarity, and chlorophyll a, as well as habitat-oriented tidal water designated uses. The new ambient water quality criteria (USEPA, 2003c, 2003d) were developed in accordance with EPA’s National Strategy for the Deelopment of Regional Nutrient Criteria (USEPA, 1998a). This national guidance document as it applied Allocating the Cap Loads …then by 44 state- ...then by 20 major By 9 major river defined tributary tributary basins by basins strategy subbasins jurisdiction Watershed Watershed States Partners Responsibility Responsibility FIGURE 4-7 Chesapeake Bay cap load allocations. SOURCE: USEPA (2003b). Figure 4.7

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 IMPLEMENTING THE CLEAN WATER ACT ALONG THE MISSISSIPPI to the bay was vetted using a multistakeholder approach to implementing Chesapeake 2000. The states, in turn, are incorporating EPA’s guidance into their own water quality standards, as both criteria and designated uses, subject to review and approval by EPA, consistent with Clean Water Act requirements. To date, no formal TMDL has been created for the Chesapeake Bay or its tributaries, although one may be required by court order after 2010 if Chesapeake Bay water quality is not restored by then. Individual states are proceeding with TMDL development for specific waters in the Chesa- peake Bay watershed in order to meet agreed-on nutrient and sediment reduction targets. Although there is an existing tributary strategy agreed to by all basin jurisdictions, the water quality criteria now being adopted by each state will be reflected in revised NPDES permits for point source dischargers for the benefit of the bay and not just local waters. Specifically, Chesapeake Bay states are moving forward with numerical nitrogen and phosphorus permit limits (annual load limits) for 467 significant municipal and industrial discharges throughout the watershed. EPA is also working on a new permit for the Blue Plains Wastewater Treatment Plant in Washing- ton, D.C., with controls approaching the limits of technology for nitrogen and phosphorus. In Virginia alone, 125 major dischargers are now required for the first time to reduce nutrients for the benefit of Chesapeake Bay. This develop- ment, in turn, prompted the Virginia Legislature to enact a new statute establishing point-to-point source water quality trading under a statewide general permit. Ideally, this will lead to point-to-nonpoint source trading when point sources begin to exceed their allocation caps under the tributary strategy. In addition, Pennsylvania has adopted a nutrient trading policy; it focuses on point-to-nonpoint trading of nutrient loads. Maryland and West Virginia are also developing their own trading policies, and EPA is explor- ing implementation of an interstate trading regime for that portion of the Potomac River in the Chesapeake Bay basin that encompasses five of the seven jurisdictions. All of these measures face considerable regulatory and technical challenges if they are to be broadened and further developed. Nev- ertheless, they represent an interest among these states in seeking creative solutions to addressing water quality and nutrient management challenges (Chapter 6 contains further discussion of water quality trading). With regard to the Chesapeake Bay, there was sufficient interstate consensus for actions that were implemented with a high degree of collabo- ration. EPA’s oversight authority with respect to water quality standards, along with a looming court deadline for a TMDL, provided the impetus for the actions taken. The collaborative efforts among the bay states set a precedent for cooperation in reducing nutrient pollution from sources that do not directly affect local waters.

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 MISSISSIPPI RIVER WATER QUALITY AND THE CLEAN WATER ACT The Chesapeake Bay Program has experienced some tangible successes to date: during 1990-2000, there was a reported reduction in nutrient loadings to the bay and an increase in the percentage of dissolved oxygen criteria attainment. Wastewater treatment facilities across the watershed also have reported good progress toward reducing nitrogen and phospho- rus releases. Nevertheless, the program faces several challenges in its effort to improve water quality and ecological conditions in the bay. The role of agriculture will be especially important, and the program is working with farmers from across the watershed to help meet tillage and conservation goals; substantial progress toward meeting cap loads and water quality goals may well require an unprecedented level of involvement in conserva- tion programs by farming communities. For example, Virginia hopes to see an increase of cropland under conservation tillage from 56 percent in 2002 to 96 percent in 2010 (Batiuk, 2007). In general, there have been some reductions in nutrient loadings from watershed farms, but the current rates of reduction suggest that achievement of restoration goals may still be decades away. The program and the reports of progress on water quality goals have not been without critics. For example, in 2004, the program was accused of overstating its progress toward water quality goals (Washington Post, 2004). In sum, whether the problem is nutrient pollution of the Chesapeake Bay or the Gulf of Mexico, the value of federal-state and interstate collabo- ration cannot be overemphasized, especially with regard to adopting and implementing necessary water quality criteria. For Chesapeake Bay, strong interstate and state-federal cooperation, collaboration with municipalities and with the agricultural sector, a thorough scientific process and basis for assessment and for setting goals, and a high degree of transparency have resulted in stronger mutual trust and a comprehensive, coherent nutrient management program across the Chesapeake Bay watershed. The ultimate measure of such programs lies in realizing improvements in water quality and environmental conditions. Given water quality conditions, the ad- ministration and implementation of water laws and policies, and land use practices, improvements in water quality will depend strongly on water- shed-wide collaborative programs based on effective and consistent water quality monitoring, modeling, and evaluation. It is worth emphasizing the many years that were required to establish many parts of the Chesapeake Bay program. As mentioned, nutrient load- ing reduction goals were set in 1987, and the subsequent 20 years saw a lot of give-and-take and numerous meetings and discussions in order to gener- ate the cooperation embodied in the program today. To the extent that the Mississippi River basin states consider the Chesapeake Bay experience in moving forward with basinwide nutrient management programs, this 20- year period should be taken as an indication both of the difficulties involved

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 IMPLEMENTING THE CLEAN WATER ACT ALONG THE MISSISSIPPI in such a multistate effort and of the need for immediate, aggressive, and comprehensive action to deal with a pressing environmental problem (in the Gulf of Mexico) of even greater magnitude and complexity. Fifty years ago the late geographer Gilbert White noted that “no two rivers are the same” (White, 1957). This clearly is the case with the Chesa- peake Bay and the Mississippi River and their respective basins. The Missis- sippi River basin is much larger than the Chesapeake and covers many more states than does the Chesapeake. The Mississippi River also flows through four different EPA regions. At the same time, both basins experience simi- lar water quality problems of excess nutrient and sediment loadings, have a large percentage of land use in agriculture, and administer provisions of the Clean Water Act in a federal-multistate setting. Not all aspects of the Chesapeake Bay Program can necessarily be applied directly to the Mississippi River basin. Nevertheless, the Mississippi River states and the federal government should look to the Chesapeake Bay Program as a useful model in guiding future Mississippi River federal-interstate collaboration on defining and addressing water quality problems, setting science-based water quality standards, and establishing a comprehensive water quality monitoring program. SUMMARY The Clean Water Act has provided regulatory mechanisms and finan- cial support that have improved the water quality of the Mississippi River from its pre-1972 condition. In particular, CWA financing of sewage treat- ment infrastructure construction and the NPDES permit program, with its associated pretreatment requirements for indirect dischargers, have done much to protect Mississippi River water from discharges of raw or partially treated sewage and from industrial wastewater effluent. What the St. Paul Pioneer Press reported about local conditions in June 2006 is true for many, though clearly not all, places along the river: “Since the Clean Water Act passed in the early 1970s, more and more people have been reconnecting with a cleaner and more inviting Mississippi River” (St. Paul Pioneer Press, 2006). Although the Clean Water Act has led to many successes in address- ing point source problems, it has not been very effective in addressing large-scale, nonpoint source pollution problems—namely nutrients and sediments—in the Mississippi River. Use of the Clean Water Act to address nonpoint source pollution issues for a large, interstate river such as the Mississippi presents significant challenges. Nonetheless, many key CWA water quality provisions and methods have been under- or poorly utilized in the mainstem Mississippi River. This reflects the river’s interstate nature, the expensive and complex task of comprehensively addressing the water

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 MISSISSIPPI RIVER WATER QUALITY AND THE CLEAN WATER ACT quality of the river as an integrated whole, and the inclination of states to divert limited water quality resources to internal waters. Further progress in improving Mississippi River water quality will require improved interstate coordination and cooperation with regard to water quality standards, water quality assessments, TMDLs, and nonpoint source management. Missis- sippi River states will achieve greater progress in water quality monitoring and other activities by working together, as opposed to each state’s working alone. The federal government—namely the EPA—will also have to assume a more aggressive role in Clean Water Act implementation to realize signifi- cant Mississippi River water quality improvement. The Mississippi River serves as a border between states along the length of its corridor running through the middle of the nation. Many states that border the river view Mississippi River water quality as primarily a federal responsibility, and many states allocate only limited funds for water quality monitoring and related activities. Moreover, there is very limited coordina- tion among Mississippi River states in gathering and assessing water qual- ity data and enacting water quality improvement programs. As a result of limited interstate coordination, the Mississippi River is an “orphan” from a water quality monitoring and assessment perspective. Water quality standards differ significantly among Mississippi River states. The Clean Water Act does not necessarily require consistency among state water quality standards. Having uniform standards among all 10 Mis- sissippi River states is neither feasible nor fully necessary for good water quality management. Nevertheless, only the EPA can ensure that a different or less stringent standard of one state does not interfere with the attainment of other states’ perhaps more stringent standards. The Total Maximum Daily Load framework specified in the Clean Water Act has proven useful in managing water quality in some watersheds across the United States, such as the multistate Chesapeake Bay watershed. The TMDL framework, however, presents implementation challenges for large rivers and interstate settings, particularly with respect to nonpoint source pollution. Despite these challenges, the TMDL framework is appro- priate for system-wide evaluation of pollutant inputs and for prioritizing control efforts. The limited degree of interstate coordination and the lack of effective federal oversight, coupled with the failure of many states to actively include the Mississippi River within their state water quality programs, contribute to degradation of water quality in the Mississippi River basin and in the northern Gulf of Mexico. The Clean Water Act requires the EPA to oversee and approve state water quality standards and TMDLs; to take over the setting of water quality standards and the TMDL process when state efforts are inadequate; and to safeguard water quality interests of downstream and cross-stream states. The Clean Water Act encourages the EPA to stimulate

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 IMPLEMENTING THE CLEAN WATER ACT ALONG THE MISSISSIPPI and support interstate cooperation to address larger-scale water quality problems. It also provides the EPA with multiple authorities that would al- low it to assume a stronger leadership role in addressing Mississippi River and northern Gulf of Mexico water quality. The EPA has failed to use its mandatory and discretionary authorities under the Clean Water Act to pro- vide adequate interstate coordination and oversight of state water quality activities along the Mississippi River that could help promote and ensure progress toward the act’s fishable and swimmable and related goals. The EPA should act aggressively to ensure improved cooperation re- garding water quality standards, nonpoint source management and control, and related programs under the Clean Water Act. The EPA is authorized to step in and address water quality problems that may exist because of limited state action in setting and enforcing water quality standards and related Clean Water Act provisions. Indeed, the EPA has the statutory duty to do so. A more aggressive role for EPA in this regard is crucial to maintaining and improving water quality in the Mississippi River and the northern Gulf of Mexico. There are currently neither federal nor state water quality standards for nutrients for most of the Mississippi River, although standards for nutri- ents are under development in several states. Both numerical federal water quality criteria and state water quality standards for nutrients are essential precursors to reducing nutrient inputs to the river and achieving water quality objectives along the Mississippi River and for the Gulf of Mexico. A TMDL could be set for the Mississippi River and the northern Gulf of Mexico. This would entail the adoption by EPA of a numerical nutrient goal (criteria) for the terminus of the Mississippi River and the northern Gulf of Mexico. An amount of aggregate nutrient reduction, across the entire watershed, necessary to achieve that goal then could be calculated. Each state in the Mississippi River watershed then could be assigned its equitable share of reduction. The assigned maximum load for each state then could be translated into numerical water quality criteria applicable to each state’s waters. The EPA should develop water quality criteria for nutrients in the Mis- sissippi River and the northern Gulf of Mexico. Further, the EPA should ensure that states establish water quality standards (designated uses and water quality criteria) and TMDLs such that they protect water quality in the Mississippi River and the northern Gulf of Mexico from excessive nutri- ent pollution. In addition, through a process similar to that applied to the Chesapeake Bay, the EPA should develop a federal TMDL, or its functional equivalent, for the Mississippi River and the northern Gulf of Mexico.