We support EPA's Decision To Add The Gulf "Dead Zone" To The Impaired Waters List

We support EPA's Decision To Add The Gulf "Dead Zone" To The Impaired Waters List
From Lower Mississippi Riverkeeper and Louisiana Environmental Action Network

The Gulf of Mexico hypoxic zone along the Louisiana coast, commonly called the "Dead Zone" has been a well documented problem for decades now. However, the state and federal environmental agencies have failed to take even the most basic regulatory steps to address this problem. The U.S. Environmental Protection Agency (EPA) has finally proposed to add these waters to the official list of impaired waters.

Comments on the 2010 Integrated Report and Rationale on Water Quality in Louisiana

The following is a summary of comments from Louisiana Environmental Action Network (LEAN) and Gulf Restoration Network (GRN) in support of EPA's November 30, 2011, proposal to add Gulf of Mexico "Dead Zone" areas (Subsegments 120806, 070601 and 021102) to Louisiana's 2010 "Impaired Waters" (303(d)) list, and assignment of a priority ranking. A link to the full comments can be found at the bottom of this summary.

The comments also object to EPA's failure to disapprove Louisiana's delisting of certain waterbodies (from the impaired list) without supporting documentation; EPA's decision to not add the Mississippi River and nearshore Gulf waters as impaired by Nitrate/Nitrite and Phosphorous pollution; EPA's decision to set low priority rankings and schedules (8-13 years) for the TMDLs (maximum allowed amounts of pollution daily) for the Gulf "Dead Zone"; and EPA's failure to promulgate TMDLs for the area.

I. EPA's Decision to List Subsegments 120806, 070601 and 021102 of Louisiana's Coastal Waters Violate the Numeric Criteria for Dissolved Oxygen is Correct.

EPA's supporting data in its administrative record, upon which LDEQ also based its finding of impairment, clearly shows that D.O. in all three subsegments consistently fell below the numeric criterion during the summer months.

II. EPA's Priority Ranking Does Not Properly Take Into Account the Urgency of Action Required to Reduce the Hypoxic Zone.

EPA should rank the Gulf coastal water subsegments higher based upon the severity of the pollution there. Hypoxic conditions can persist for several months of the year, and make the marine environment unsuitable for aquatic life.

III. EPA Should Develop the TMDLs for Subsegments 120806, 070601 and 021102 of Louisiana's Coastal Waters.

EPA should promulgate TMDLs for Subsegments 120806, 070601 and 021102 in accordance with the statutory language of 303(d)(2). The EPA must "identify such waters in such State and establish such loads" upon disapproval of a 303(d) submission. In addition to identifying WQLSs that should have been submitted, the Administrator has a dual duty to also "establish such loads." The word "such" in this statute is continually referring to the same "waters," thereby linking the duty to "establish such loads" to the specific waters that the Administrator identified upon disapproval.

IV. EPA Should Require LDEQ to Classify Certain Waterbody Segments as Category 5 for Nitrate/Nitrite and/or Total Phosphorus.

LDEQ can and must use narrative nutrient criteria to determine impairment.

A. LDEQ Should Include on Its § 303(d) List Nearshore Waters West of the Mississippi River for Nitrate/Nitrite and Phosphorus.

The status of the Gulf and the Dead Zone has been extensively reported and studied; LDEQ must make use of this readily-available information for purposes of this list.

B. LDEQ Should Include on Its 303(d) List the Mississippi and Atchafalaya Rivers for Nitrate/Nitrite and Phosphorus and Dissolved Oxygen.

Nitrogen and phosphorus pollution flowing down the Mississippi River in 2010 caused one of the largest Gulf of Mexico Dead Zones ever recorded. And researchers have stated that it might have rivaled the largest if they had been able to complete their 2010 survey. Yet, LDEQ has not listed the Mississippi or Atchafalaya Rivers as impaired for these pollutants.

V. EPA Should Disapprove LDEQ's Methodology Where It Fails to Adequately Protect Water Quality.

A. LDEQ Provides Insufficient Data to Justify Its Delistings.

B. LDEQ Provides Insufficient Information to Determine the Adequacy of Its Monitoring.

C. LDEQ Must Provide Details on its Use of Downstream Testing to Determine Water Quality of a Waterbody.

D. LDEQ Did Not Include Information About the Methods it Used in Collecting the Data Used to Prepare the 2010 Integrated Report.


EPA correctly found that available data supports listing the nearshore waters of the Gulf of Mexico as impaired for D.O. LDEQ cannot justify placing these subsegments in Category 4b because its alternative measure, the Gulf Hypoxia Plan, is not a "control measure," relies exclusively on voluntary measures, contains no schedules or deadlines beyond unenforceable, aspirational "goals," and has had no impact whatsoever on the Dead Zone in its 10 years of existence.

The EPA correctly established a priority ranking for the nearshore waters of the Gulf of Mexico, but should have set a higher priority ranking given the importance of these waters and the urgency of the problem. Further, EPA should develop a TMDL for these nearshore Gulf waters.

Available data also supports listing the nearshore waters of the Gulf of Mexico as impaired for Nitrate/Nitrite, and Phosphorus, and listing the Mississippi River for both D.O. and nutrients, and the Atchafalaya River for nutrients. The absence of numeric criteria for nutrients is not an excuse for not listing these waterbodies, particularly where LDEQ has enforceable narrative or "general" criteria, and where LDEQ has developed nutrient targets many times for use in TMDLs.

LDEQ should also improve its protections in areas in which it departs from established EPA guidance; it must show that its failure to use EPA methodology provides at least as much protection for Louisiana waterbodies as the EPA methodology. Simply stating that EPA guidance is not binding is insufficient; LDEQ cannot arbitrarily and with no explanation pick some EPA guidance to apply and some to ignore. The most troubling example of this deviation from EPA-approved methods is in LDEQ's reliance on "suspicions" by regional staff to delist waterbodies, and acting without authority or documentation.

Go to the LEAN website to get the full comments:


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