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6 Overcoming Perceived Obstacles to Action This report’s authoring committee was charged to offer advice on initiating pollutant control programs, load reduction allocation options, and on documenting the effectiveness of loading reduction strategies. In an effort to both stimulate initial actions and define a viable longer-term strategy toward progress on nutrient control and water quality improvements, this report identifies several scientific and institutional recommendations. Those recommendations aim to create a more systematic framework for nutrient control actions, improve and better coordinate the knowledge base of conservation intelligence, and to eventually realize local and downstream water quality improvements. Action and progress on reducing nutrient loads to the Mississippi River basin and reducing northern Gulf of Mexico hypoxia have been stalled for years. Many obstacles to progress on these issues derive in large part to policy, institutional, and historical inertia. Many of this report’s recommendations call for decisive, immediate actions to help overcome some of this inertia. These recommendations are likely to raise objections that they are infeasible, impractical, or legally unsupported. In anticipation of these objections, this brief closing section identifies some common objections and obstacles that have affected past progress, along with explanations of why these are not defensible reasons not to move forward with implementing this report’s recommendations. These objections fall into a number of categories. Below, these common objections are grouped into the categories, along with counterpoints. SCIENTIFIC UNDERSTANDING Objection: the limited quantitative understanding of sources and delivery of nutrients to the gulf and the full nature of gulf hypoxia, imply that decisive actions cannot yet be taken. The major nutrient sources and their approximate, relative importance are well known. Furthermore, as demonstrated in the results from the ongoing work of the USGS SPARROW modeling team, this knowledge is becoming more detailed. This knowledge allows identification of the largest contributors and of the geographic locations where the largest reductions in nutrient pollutants will 57

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58 NUTRIENT CONTROL ACTIONS FOR IMPROVING WATER QUALITY be required and where actions can begin. Perfect knowledge of relative contributions of nutrients and their ultimate downstream impacts, in a system as large as the Mississippi River basin and northern Gulf of Mexico, will remain elusive. In addition, the adaptive management paradigm and approach were developed in part to address exactly the type of situation that exists with nutrient loadings and water quality impacts across the Mississippi River basin and into the northern Gulf of Mexico. That is, a large complex ecosystem in which biophysical responses to human actions cannot be perfectly predicted, but in which management actions are necessary to enhance ecological benefits. Additional scientific research certainly will be valuable for many reasons but it will not change fundamental understanding of the priorities for addressing these issues. The adaptive approach embodied in the NCII is designed for decisive initial actions in order to make incremental progress in better understanding of the system, best land management practices, and water quality improvements. Objection: we lack a reliable assessment of the percentage of nutrient loading reductions required to substantially reduce the extent of gulf hypoxia. The existence of gulf hypoxia is a national-level water quality problem that has been persistent, has become larger over time, and will require decisive actions to remedy. The nature of this problem is such that estimates of the nutrient loadings necessary to reduce the size of the hypoxia zone—such as the 45 percent figure offered by the EPA SAB’s Hypoxia Advisory Panel—will be based on some degree of judgment. The NCII approach in this report emphasizes that whatever management actions are initially taken, they will be adjusted and fine-tuned as water quality changes and improvements across the river basin are monitored. Further, the NCII initiative and a new Mississippi River Basin Water Quality Center will enhance scientific knowledge and will help improve the accuracy of the values of estimated nutrient loading reductions necessary to reduce the area of the hypoxia zone. Regardless of whether an initial loading reduction goal is 20, 30, or 45 percent, substantial reductions in nutrient loadings will be necessary, at least initially. Data from the USGS SPARROW modeling activities and other sources (e.g., the references cited in the EPA SAB 2007 report) identify clearly the areas of higher loadings across the river basin. Focusing initial actions on these areas, with adequate resources and support, promises to produce the largest initial gains. Objection: we do not know whether to focus on reducing nitrogen or phosphorus. There is scientific consensus that nitrogen is causing the northern Gulf hypoxic zone in the largest areas and for the longest period. Phosphorus is also a factor, but in localized areas (especially in the upper basin) and earlier in the year. Reductions in the loadings of both nitrogen and phosphorus are needed to

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OVERCOMING PERCEIVED OBSTACLES TO ACTION 59 realize local water improvements and a reduction in the northern Gulf of Mexico hypoxic zone. These points led the EPA SAB to recommend the “dual nutrient strategy” to addressing gulf hypoxia. Objection: hypoxia is affected by climate variations and is largely beyond our control to affect. There is a connection between precipitation (climate) variability and nutrient fluxes in the river and related Gulf of Mexico hypoxia. Nutrient fluxes will be higher in wet years than in dry years. However, increased nitrate concentrations and yields across the river basin are more significant drivers of changes in Mississippi River nitrate loadings into the gulf (Justic et al., 2002). Studies have shown that, for example, only 20-25 percent of the increased nitrate loadings into the Gulf of Mexico between the mid-1960s and the mid- 1990s were attributable to greater runoff and river discharge, with the remainder due to increased nitrogen concentrations in the lower river (Donner et al., 2002). PLANNING, ALLOCATIONS, AND PAST ACTIONS Objection: there is no comprehensive plan. A comprehensive plan involves scientific, water quality, social, political, and economic considerations that will take years to understand better, and hence any comprehensive plan will remain a work in progress for at least several decades. This report’s recommendations for the NCII program and the new Mississippi River Basin Water Quality Center would constitute a significant, important step toward establishing a more comprehensive and systematic program and plan. Moreover, this scale of water quality problem means that any plan necessarily will be adjusted and changed over time. Any scientific and comprehensive plan expected to achieve any measure of success will require decisive action on the largest sources, and immediate actions directed toward the largest sources will be consistent with any comprehensive plan. The longer that decisive actions to address this problem are delayed, the longer it will take until effective approaches are implemented. Given that it will require years, if not decades, to see downstream responses to nutrient control actions, it is important to begin quickly and move forward decisively. Objection: a fair allocation of needed reductions has not been determined. Any equitable allocation will not ignore the need to focus on the larger sources. Also, fair allocation relates more to how to act on smaller sources and more expensive incremental actions, not for the larger sources and “low hanging fruit.”

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60 NUTRIENT CONTROL ACTIONS FOR IMPROVING WATER QUALITY Objection: unless major basin wide reductions occur in all states, all watersheds, and among all sources, no benefit will be gained. If progress is to be seen within these water quality problems, initial actions must be taken somewhere, at some time. Further, all basinwide plans will require initial targeted controls as a foundation. These initial actions are part of an adaptive approach that is essential to addressing a long-term, large-scale problem like water quality management across the Mississippi River basin and into the northern Gulf of Mexico. It makes sense to target initial actions where gains might be largest and realized more quickly. These gains can translate to both local and regional improvements in water quality and therefore would be widely beneficial. Objection: actions have already been taken and improvements have been realized. There is some truth to this, and credit should be given for past, positive efforts. Nevertheless, despite good past efforts toward nutrient load reductions, collectively they have not yet made a noticeable difference because loads have not been reduced substantially. Results from the SPARROW modeling exercise and other sources identify agriculture sources as the largest (but not only) source of nutrient loadings across the basin. If gulf hypoxia is to be reduced, ways must be found to reduce further the most significant loads. LEGAL, INSTITUTIONAL, AND REGULATORY AUTHORITIES Objection: there is a lack of institutional authority to realize large reductions in nonpoint source loadings. As explained in this report and in the previous, 2008 NRC report on the Mississippi River and the Clean Water Act, the EPA has authority and responsibility to investigate, promote interagency and interstate coordination, while the USDA has authority to direct its conservation funds to areas of high priority with respect to land and water quality goals. There is authority to direct resources, target programs, develop plans, develop standards, and engage in cooperative efforts for ecological improvements, including water quality. Objection: there is no federal regulatory authority within the Clean Water Act to address nonpoint source pollutants, water quality standards and water quality criteria do not exist, and no TMDL does or can exist that will require reductions in nutrient loadings across the Mississippi River and in its tributary rivers and streams. Some of these points are correct. The Clean Water Act does leave nonpoint source regulation primarily to the states, and numeric criteria or standards for nutrients are rare in any water quality context. Nevertheless, these shortcomings should not impede initial steps to reduce nutrient loading and to address northern

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OVERCOMING PERCEIVED OBSTACLES TO ACTION 61 Gulf of Mexico hypoxia. First, the EPA has fairly broad authority to address interstate water pollution. In an interstate water quality context such as that presented by the Mississippi River and the Gulf of Mexico, the EPA's authority over water quality is considerable. For example, under Section 103, the EPA must: (1) "encourage cooperative activities by the States for the prevention, reduction, and elimination of pollution"; (2) "encourage the enactment of improved and, so far as is practicable, uniform State laws relating to the prevention, reduction, and elimination of pollution"; and (3) "encourage compacts between States for the prevention and control of pollution" (NRC, 2008). With respect to water quality-impaired water bodies, the EPA may set TMDLs when the relevant state fails to do so (Section 303(d)), and the federal courts have upheld the EPA's authority to set these TMDLs even when the water's impairment derives solely from nonpoint source pollution. Moreover, as a practical matter, the EPA is already establishing TMDLs that must have interstate regulatory effects, such as in the mercury TMDL for the Ochlockonee River in Georgia and the fish-tissue mercury TMDL for Louisiana's Gulf of Mexico waters (NRC, 2008). Second, even in the absence of numeric water quality criteria and standards, narrative standards that apply to water quality management do exist, and most if not all states have listed certain waterbodies as impaired for nutrients. Third, as noted above, there is no question that nutrient loadings in the Mississippi River basin are causing water quality problems and gulf hypoxia. Therefore, even though the development of numeric water quality standards and a TMDL will take years, more precise standards are not needed to begin making improvements. The absence of precise quantitative goals does not change the fact that the major sources of nutrient loading can be readily identified and that progressive reductions of those loadings can begin now, regardless how the final goal is eventually defined. Moreover, these initial actions, such as those outlined in this report, will provide useful information for development of a TMDL. FINANCIAL AND ECONOMIC Objection: there is a lack of funding to realize all improvements and actions necessary to fully address the problem. There are substantial resources in the USDA conservation programs described in this report. Some of these programs allow discretion in deploying resources more effectively to areas of higher nutrient yields. There are also modest EPA resources available for nonpoint source programs that could be drawn upon. In addition, new funding may be attainable through leveraging of state, local, and private resources consistent with existing programs.

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62 NUTRIENT CONTROL ACTIONS FOR IMPROVING WATER QUALITY LEADERSHIP Objection: there is a lack of leadership to comprehensively address the many different factors underlying these nutrient loading-water quality issues. Stronger leadership and better cooperation among governmental bodies and key players certainly is necessary for improving management practices and water quality improvements. Historically, USDA has made commodity production a top priority for agriculture, while EPA’s regional office structure has four regional offices overseeing various portions of the river corridor—an arrangement that, in part, led the conclusion in the 2008 NRC report that the river is an “orphan” from a water quality and monitoring perspective. USDA and EPA will have to synchronize better their production, conservation, and water quality monitoring and administration programs to make significant progress on the hypoxia problem. The creation of a Mississippi River Basin Water Quality Center would offer the agencies the opportunity to demonstrate leadership on these issues and to productively engage state governments, the private sector, NGOs, and citizens in the collective NCII effort to better manage nutrient loadings in the river basin and improve local and national water quality.