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September 11, 2000

Mr. John Wilson
U.S. EPA
Assessment and Watershed Protection Division (AWPD)(4503F)
1200 Pennsylvania Avenue NW
Washington, D.C. 20469

Dear Mr. Wilson:

The Fertilizer Institute (TFI), on behalf of its member companies, submits these comments regarding the U.S. Environmental Protection Agency's (EPA) Draft Action Plan for Reducing, Mitigating and Controlling Hypoxia in the Northern Gulf of Mexico.

The Fertilizer Institute

TFI is a voluntary, non-profit trade association of the fertilizer industry. TFI's 200 member companies include producers, manufacturers, distributors and retail dealers of fertilizer and fertilizer materials. The fertilizer industry has a long-standing commitment to provide products and services to farmers to help them use all nutrient sources in a manner that is productive and protective of the environment.

The Fertilizer Institute is pleased to see an emphasis in the action plan on reducing nutrient loss - a goal we address each day in working with our farmer customers to help them be as efficient as possible in their use of inputs. The reduction of nutrient loss is one of the ways to increase farmer profitability while addressing the contribution of agriculture to nutrient overenrichment in the environment.

However, TFI believes the action plan places too much emphasis on reducing nutrient loss only and as a result will not have a significant impact on Gulf of Mexico hypoxia. Hypoxia is the result of several natural and man-made factors working together. The scientific assessments that led to the draft action plan have focused primarily on addressing nitrogen and not on the other significant factors. In each of the six assessments and the integrated assessment this has led to internal inconsistencies which are reflected in the draft action plan.

TFI supports the general goal of reducing the potential for nitrogen losses to surface and ground water of the Mississippi Basin and to the Gulf of Mexico. We have long supported many of the specific, on-the-field implementation actions outlined in the report, and believe that they would be strengthened by greater involvement by, and reliance on, the private sector rather than being all government-based. TFI believes that a series of vague, bureaucratic initiatives that are designed to address only nitrogen, instead of locally-led, in-the-field approach that address all facets of a multi-part problem will not ultimately do much to reduce hypoxia in the Gulf of Mexico.

1. There is still a disconnect between stated causes and the singular focus on nitrogen loss reduction as the only remedy.

In fact, all of the suggested goals are built on inaccurate quantification of sectors' loadings to the Basin, which in turn lead to inequitable load reduction goals for the agriculture sector. As discussed in response to the six initial assessment reports and the draft integrated assessment, the use of land application of fertilizer as a surrogate measure for agriculture's nitrogen loading to the Mississippi River is inaccurate and disingenuous.

Further, others have provided the Task Force with relevant data and analyses that strongly suggest that loadings from nonpoint sources have been overrepresented and loadings from point source have been underrepresented. For example, the Task force relies on a single, unpublished report estimating point source contributions to the Mississippi River from the Permit Compliance System (PCS). Not surprisingly, the data show no increase in loadings over an approximate 110- year period. However, the EPA and states are approximately eight years behind in reviewing and entering data into the system.

TFI cannot support any quantitative nutrient reduction goals that are based on deficient analyses of all available data. The following statement on page 6 should be removed or modified: "The primary approaches to reduce hypoxia in the Gulf of Mexico appear to be to: ..." The Task force should remove all quantitative references to loadings (e.g., "About 90% of the nitrate load to the Gulf comes from nonpoint sources . . ." and ". . . about 11 percent from municipal and industrial point sources, 65 percent from agricultural nonpoint sources, and about 24 percent from other nonpoint sources:") and no quantitative load reductions should be included in the goals until more complete and representative data are collected and analyzed.

Interestingly, the scientific assessment process has evolved from listing a single cause of hypoxia to now listing three factors: 1) excessive nutrients, primarily nitrogen; 2) physical changes in the basin, such as channelization and loss of natural wetlands and vegetation; and 3) stratification in the Gulf.

As this year's results showing a greatly diminished zone demonstrate, other factors, which contribute to hypoxia, can be managed. The discharge of the Mississippi and Atchafalaya Rivers is managed and controlled by federal law. Dr. Rabalais cites lower than average discharge as one reason for the reduced size of the zone this year. We believe the action plan can be much broader in suggesting to Congress possible actions that can be taken. The list of suggestion actions has been reduced to a focus on reducing nitrogen losses.

In addition, the action plan and previous assessments claim much of the benefit of implementation will be increased water quality in the basin. On page 5 of the action plan, "excessive nutrients, primarily nitrogen," is the cause of hypoxia in the Gulf, yet two paragraphs later it is stated, "Most States in the Basin have significant river miles impaired by high nutrient concentrations, primarily phosphorous." The Action Plan is confusing if the focus is on reducing nitrogen loads to the Gulf, but phosphorus has caused impairment in a significant number of river miles within the basin.

2. None of the listed goals are supportable.

The action plan lists three alternative coastal goals. The first is a numeric goal for reducing discharges of nitrogen to the Gulf via the Mississippi/Atchafalaya Rivers. This approach is widely opposed by state officials, who rightly point out such a numeric goal is inappropriate for an action plan that relies on voluntary, incentive-based actions by millions of stakeholders in multiple jurisdictions. There is also wide dispute about the actual effect on the hypoxic zone that would result from such a goal.

The second alternative focuses on a reduction of the hypoxic zone itself - but then circles right back to the first alternative by saying the way to achieve this is through a 30 percent reduction in nitrogen loads. Thus, these two alternatives are one and the same. Further, it is not clear that any basin activities are required to meet these goals. The dramatic reduction in the size of the zone this year is testament to the overwhelming impact of natural phenomenon in dictating the size and duration of hypoxia in the Gulf.

The third alternative is far more appropriate to a voluntary, incentive-based plan, but the cause-effect relationship between upstream actions and downstream results should be eliminated. Farmers should be educated on the benefits of voluntary, incentive-based actions they can implement that will make them more profitable and reduce potential impact on local water quality. Asking midwestern states to take all practical measures to make sure their farmers protect resources thousands of miles away is far too broad an opening for litigators and regulators.

A. Long-term Goals: Within Basin Goal:

The "Within Basin Goal" should be to continue to provide farmers the education and resources necessary so they can continue to be productive, while also considering the impact their actions have on the local watershed and ecosystems. Water quality goals also have to be seen within the context of other societal goals, particularly food production and food security. Both can be addressed simultaneously, but this action plan fails to achieve such balance.

B. Long-Term Goals: Quality of Life Goal

The "Quality of Life" goal, finally, is the best statement of any needed goal. It is the only one that recognizes the important economic goals and the important role of the private sector in meeting the overall goals of the action plan. This goal should also look at the potential negative impact of reducing nutrients in the Gulf on the fishing industry. Lowering the amount of nitrogen may reduce food sources for the fisheries in the Gulf, and no work has been presented which attempts to quantify the amount of nutrients needed for productive fisheries.

3. The Draft Action Plan is bureaucratic and inefficient.

The Final Action Plan should include a more transparent discussion of the coasts and benefits of the plan. Public Law 105-383 requires that "the plan shall also include the social and economic costs and benefits of the measure for reducing, mitigating, and controlling hypoxia." Under the "Basin-wide Goal: State/Tribal led Strategies within a National Commitment" section, there is a brief reference to:

      "…an investment in keeping with the scale of investments planned or undertaken in South Florida and the California Bay Delta, and greater than those pursued in the Chesapeake Bay and Great Lakes."

Using the Everglades as an example, federal funding is estimated at $7.8 billion and Florida has committed $2 billion over the next 10 years - with some concerns that both the costs and timeframe for the restoration project could expand significantly. Therefore, it appears EPA is quietly estimating that the "Omnibus Mississippi-gulf Restoration Fund" is going to cost taxpayers roughly $8 to $10 billion over the next decade independent of other activities to improve water quality. However, the Task force does not provide any indication of how this Fund will be managed and by whom, what cost-sharing will be expected from the states, and how funds will be distributed among the approximately fifteen existing water quality improvement programs. A quantified estimate of the resources and time frame for hypoxia-related initiatives must be explicitly stated in the Final Action Plan. The estimated budget must include quantified estimates of the level of federal funding, the estimated cost share contribution required of the States, estimates of additional full time employees (and associated costs) at the federal and state levels needed to manage these initiatives, costs to the private sector, and a time-frame for funding and implementation of the "Omnibus Mississippi-Gulf Restoration Fund."

The Draft Action Plan spends significantly more time discussing its own self-institutionalization, i.e., the assumption that the Task Force will continue, its assumption that the Task force will be granted any new authorities needed to propose actions, and the establishment of sub-basin committees. The Plan goes as far as to provide a legal justification for its existence:

"The Federal interest in this effort is clear: interstate waters, producing economically valuable goods and services and representing a key component of our national patrimony, are damaged and at further risk."

While some coordination among federal, state, tribal and other decision-making government entities is necessary, the Final Action Plan should minimize rather than accentuate the role of federal bureaucracies in what is essentially a local watershed decision.

The Draft Action Plan makes no attempt to focus on in-the-field activities to address nitrogen losses. The Plan calls for two years of establishing subcommittees and coordination among smaller watersheds and States in order to detail needs for additional assistance and develop promotional materials to request these funds. However, the Plan has identified the fifteen or so state-led programs that must be better funded to minimize nitrogen losses in the basin. Instead of focusing on a top-down, leveraged takeover of local decision-making, the Final Action Plan should focus on apportioning the estimated $1 billion budget over those programs that are identified as keys to minimizing nitrogen losses to surface waters in the basin. Further, the Final Action Plan should delineate what percentage of these funds will be expected to go to in-the-field technical assistance and infrastructure projects versus how much will be spent on overhead and nonfield related costs.

4. More effort should be made to include the private sector.

To date, the CENR process has not been open to agricultural organizations in the development of the Hypoxia Reports, as delineated in section 603(c ) of Public Law 105-383. The Task Force is expected to submit an assessment and action plan for hypoxia "in cooperation with the coastal States, Indian tribes, and local governments, industry (including agricultural organizations), academic institutions, and non-governmental organizations with expertise in coastal zone management." While we appreciate the opportunity to provide responses during formal comment periods, TFI again requests that the Task Force provide the agriculture community a substantive role in the formulation and subsequent implementation of the Final Action Plan. A good example of what such involvement should look like is contained in the comments by The American Farm Bureau Federation, where they suggest a reconstituted task force membership.

5. The Draft Action Plan must focus on voluntary, incentive-based activities

The Draft Action Plan uses the word "voluntary" liberally in the text, but describes initiatives that are statutory in nature. The Plan relies on water quality standards, TMDLs, an NPDES permitting as the true framework for reducing nitrogen losses to surface waters in the Basin. As mentioned earlier, the Plan also assumes that states and Tribes will provide "involved agencies with any new authorities needed to implement proposed actions." Further, EPA officials have recently stated at several meetings that they are contemplating using their authority under the Clean Water Act to formulate coastal water quality standards for the express purpose of addressing hypoxia in the Gulf of Mexico. The Final Action Plan must either be rewritten to truly depend on voluntary, incentive-based initiatives or should be rewritten to recognize that EPA and other federal agencies will use enforceable authority under existing statutes to address this issue. As written, the Action Plan cannot succeed, as no landowner to NPDES permit holder will be willing to expend funds for so-called voluntary measures that will be replaced by more costly mandatory requirements in the near future.

6. Implementation Actions

In the background section, the report states, "Improved coordination and, in most cases, expansion of the excellent private and government supported efforts to reduce losses of nutrients are central to the success of this strategy. We strongly agree, but believe more inclusion of the private sector is needed in the action plan. Listing and documenting current private sector efforts and discussing ways the action plan will capitalize on these private sector efforts could strengthen the plan."

As an example, there should be discussion of the Core 4 Program of the Conservation Technology Information Center. The nutrient management and conservation buffer efforts of this program are excellent examples of private/public sector efforts aimed at reducing nutrient loss.

Another example of a successful public/private partnership has been implemented in Tampa Bay with the use of the Nitrogen Management consortium in reducing the amount of nitrogen discharged into the Bay. Tampa Bay currently receives nitrogen loads that are acceptable for continued ecosystem recovery. The partnership is working to reduce existing loads of nitrogen to offset estimated future load increases that will result from continuing development and growth in the watershed. These voluntary measures are being undertaken by parties from both the public and private sectors with the hope that future stringent regulatory controls and programs will not have to be developed and implemented in order to sustain the recovery of Tampa Bay ecosystems.

Many of the actions listed in this section are commendable. However, more opportunity for private sector involvement needs to be part of the decision-making framework. In addition, these items cannot be successfully implemented without a great deal more data and tools being available.

Implementing these actions while continuing to study the factors that influence hypoxia in short-term action 5 should be re-evaluated and moved to the top of the list. Further study of what affects hypoxia is important to ensure the strategies implemented actually are the ones with the greatest contributions to Gulf hypoxia. Cost of implementation is likely to be high, so economic justification of the strategies is critical.

In short-term action 3, Clean Water Act permitting authorities are being asked to identify point-source dischargers with significant discharges of nutrients and undertake steps to reduce those loadings. What is the definition of a significant discharger?

7. Comments on Agricultural Nutrient Efficiency Fund

We find the proposed Agricultural Nutrient Efficiency Fund interesting. As we have previously stated, a focus on increased nutrient use efficiency is the best way to reduce loss while helping farmers achieve productivity and profitability. We believe this focus on efficiency must be done within the context of productive, high-yield systems in order to protect food security and farmer profitability. Efficiency alone does not capture the broader goals described above. Placing efficiency in the context of high-yielding systems addresses the needed balance with other societal goals.

We are disturbed by the reference this fund could be used to provide payments in lieu of insurance fertilizer use. The concept of insurance fertilizer use arose from anecdotal evidence provided in the scientific assessments. There is no factual basis for asserting there is a widespread practice of what the authors call "insurance fertilizer use" and this reference should be deleted.

8. Measures must include a more realistic and explicit description of time frame

While the Draft Action Plan includes a brief statement that "… it is clear that environmental responses to management actions in the basin likely will be slow, possibly requiring decades to demonstrate that remedial actions have helped in the recovery of oxygen concentrations in the Gulf and have improved water quality in the Basin," the actual initiatives and progress measures do not explicitly incorporate time as a factor. In fact, one of the goals (1B) contradicts the above statement by setting a 2010 date for reducing the hypoxic zone, despite the admission that it is unknown at this point when and if nutrient reductions will decrease the size of the affected area in the Gulf. Again, unrealistic expectations and promises coupled with an estimated $1 billion budget will ensure that all involved in addressing the hypoxic zone will fail. The Final Action Plan must be rewritten to include an up-front discussion of the time frame for implementation and results, and final indicators should be likewise phased to measure incremental programs toward a long-term goal.

9. Other Specific Comments

Background on Issue: The third paragraph of this section includes references to groundwater contamination and human health threats from nitrates, which are both arguable and irrelevant. The issue in the Action Plan is to address hypoxia, which is neither a groundwater nor a human health issue. These references should be removed.

Summary

TFI believes the goal of reducing nitrogen loss is worthy and can benefit farmers, though by itself will do little if anything to reduce the size of Gulf hypoxia. We support additional funding for nutrient management, conservation buffers and other best management practices aimed at reducing nitrogen loss. We support additional funding for water quality monitoring and even for further scientific work on Gulf hypoxia. We do not believe strict numeric goals are appropriate for a voluntary, incentive-based approach.

Sincerely,
Gary D. Myers
President

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