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   I. Introduction                       183
  II. Historical Background              186
 III. The Effects of Fertilizer
      on Waterways                       188
      A. How Hypoxic Areas are Created   189
      B. Complications, Consequences,
      and Impacts of HABS                193
      C. Consequences to Louisiana       196
  IV. Ecological Engineering and
      Agricultural Management
      Solutions                          197
      A. Best Agricultural Practices     198
      B. Water Management Solutions      199
         1. Controlled Drainage          199
         2. Bioreactors                  199
         3. Vegetated Biofilters         200
      C. Wetlands as a Line of Defense   200
   V. The Failings of Federal
      and State Law                      201
      A. The Clean Water Act             201
         1. Section 208                  202
         2. Section 319                  202
         3. Section 404                  203
         4. Section 303(d)               203
      B. Federal Rules Outside of the
         Clean Water Act                 204
         1. The Coastal Zone
         Management Act                  204
         2. Harmful Algal Bloom and
         Hypoxia Research and
         Control Act of 1998             205
         3. The Farm Bill                205
      C. State Laws                      206
  VI. Historical Approaches
      to Combating Upstream Pollution
      from Polluting Downstream
      Waters Through the Legal
      System                             207
      A. Federal Common Law              207
      B. Citizen Suit Provision          209
 VII. Approaches in the Gulf of Mexico   209
      A. The Mississippi River/Gulf
      of Mexico Hypoxia Task
      Force                              210
      B. Gulf Restoration Network
      v. Jackson                         211
VIII. The Solution                       213
      A. The Louisiana Master Plan       214
      B. The Farm Bill                   216
      C. The Chesapeake Bay
      Cleanup Program                    216
  IX. Conclusion                         218


The summer of 2017 headlines declaring that the Gulf of Mexico's seasonal dead zone was roughly the size of New Jersey littered the local and national news. The stories detailed the horrific particulars of a growing area located on the Louisiana-Texas continental shelf that cannot sustain life annually. The statistic was frightening, even to those who did not fully grasp the consequences of it.

A hypoxic zone, more popularly known as a dead zone, is an area in a large water body that lacks the oxygen necessary to sustain marine life, with the potential to cause severe complications to human and marine health, commercial fisheries, and tourism. (1) While there are at least 166 dead zones in the United States, (2) the annual Gulf of Mexico dead zone is the largest.

In the 1970s, scientists and fishermen started to observe a hypoxic zone in the Gulf of Mexico (the Gulf). (3) In 1985, the National Oceanic and Atmospheric Administration (NOAA), funded a study to measure the hypoxic zone. (4) The team of scientists, led by Nancy Rabalais, succeeded in finding the zone, a now familiar and predictable part of summer for the citizens who live near the Gulf. With only a few exceptions, NOAA has measured the area every year since Scavia's maiden study. (5) This past year, in the summer of 2017, NOAA announced this year's Gulf of Mexico's dead zone was 8,776 square miles, (6) which is the largest dead zone ever recorded in the United States, and the second largest dead zone ever recorded in the world. (7)

It is well understood that agriculture runoff, mainly in the form of nitrogen and phosphorous, is chiefly responsible for the Gulf of Mexico's dead zone. (8) The United States has approximately 915 million acres of agriculture land, the most productive of which is in the Midwest. (9) The water from this land contains excess fertilizers, which drains into the Mississippi Atchafalaya River Basin (MARB). The Gulf of Mexico is the destination for the MARB, the third largest drain basin in the world. Surface and groundwater of thirty-one states flow into this basin, which accounts for forty-one percent of the water of the forty-eight contiguous states. (10) Before 1972, loads of nitrate from the Mississippi River into the Gulf of Mexico were less than 300,000 metric tons annually. (11) The United States Geological Survey (USGS) estimated that in the month of May 2017, approximately 165,000 metric tons of nitrate drained into the MARB, capable of filling over 2,800 train cars. (12)

While the state of Louisiana contributes minimally to the problem, it bears the brunt of the consequences of the fertilizers. Thirty-seven streams empty into the Gulf of Mexico. (13) However, the Mississippi and Atchafalaya Rivers account for ninety-one percent of the total nitrogen load and eighty-eight percent of the total phosphorus load into the Gulf. (14) Historically, the highest contritmtors of this runoff are Iowa, Indiana, Illinois, Ohio, and southwest Minnesota. (15) These states have implemented some effective nitrate reform practices as this comment will discuss. Still, high nitrate (N03- (16)) loads continue, particularly from Iowa, which accounted for up to fifty-two percent of the N03- load into the MARB in 2016. (17)

This leaves the question: how does Louisiana deal with the economic and health fallout from other states' pollution? Traditionally, citizens have legal redress through tort law when a person or entity intrudes or destroys private land. What happens when the intrusion or destruction becomes so widespread and common that it is impractical to sue every offender? What if the intrusion is flowing through the air or water, causing negative consequences far and wide? What if it is difficult to pinpoint the exact source of the tort?

Traditional legislation, litigation, and concepts of state sovereignty have been ineffective to protect downstream waterways. This comment seeks to address Louisiana's available solutions to the failings of the CWA to protect downstream states from harmful agriculture runoff originating upstream. Part II provides a short historical, explanatory background about the pertinent water systems and the start of the effort to maintain them. Part III explains why the failure matters by discussing the effects of fertilizers and pesticides, with a particular emphasis on the consequences to the Gulf of Mexico and Louisiana. Part IV describes the ecological engineering (18) and agricultural management solutions to this issue. Part V identifies the failure of the CWA and the federal government, along with state governments, to properly regulate agriculture runoff. Part VI discusses historical common law approaches to combatting the destruction of interstate waterways, and the legal failings of these causes of action in the context of pollution. Part VII explores what some states and organizations are currently doing or have done to tackle the hypoxia in the Gulf of Mexico. Part VIII posits a three-part solution to this issue: 1) the federal government should ensure that Louisiana receives the funding the Louisiana's Coastal Master Plan calls for to restore the wetlands; 2) the Farm Bill should implement nutrient management requirements that prevents nitrogen loss; and 3) the EPA should enforce a Total Maximum Daily Load similar to those set in the Chesapeake Bay area.


When the United States first formed, many communities settled near major river systems for resources and trading purposes. As populations grew, these waters became channelized, dammed, and polluted. To alleviate the nuisance and health issues modernization caused, cities constructed water carriage sewers to move the water into waterbodies. (19) The construction of sewers did not alleviate the health hazards of the pollution, as downstream communities suffered greater incidences of waterborne diseases from the disposed sewage. (20) Realizing that these ever flowing waters must be regulated to maintain the water for navigation, Congress passed the first water pollution legislation, the Rivers and Harbors Act in 1899. (21) The Act prohibited the altercation or obstruction of navigable waters including the release of "any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state" without a permit. (22) When industry swelled during World War II, new facilities, chemicals, and industrial byproducts entered the waterways at a substantial rate, (23) and in 1948, Congress passed the Federal Water Pollution Control Act. (24) Over time, this Act evolved into the Clean Water Act (CWA), (20) the principal federal law in the United States regulating water pollution. Its purpose is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (26) The Act lists two national goals:

(1) . that the discharge of pollutants into the navigable waters be eliminated by 1985;

(2)... that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983. (27)

This Act produced a considerable reduction to discharges of pollutants to United States waterways. (28)

Still, the purpose of maintaining the integrity of our Nation's waters can never truly be realized through this Act as it is written because it does little to protect state waterways that are downstream from agriculture runoff. The CWA created an effective system to regulate point source pollution, defined as "any discernable, confined, and discrete conveyance... from which pollutants are or may be discharged." (29) Essentially, point source pollution is pollution that comes from a distinct, localized source, such as a pipe. Yet, this definition explicitly demarcates return flows from irrigated agriculture and agricultural stormwater discharges from point source pollution. (30) Rather, runoff from agriculture is stipulated as a nonpoint source pollutant, which is defined as any source of water pollution that does not meet the CWA's definition of point source pollution. (31)

Regrettably, the Act provides no direct mechanism to regulate nonpoint source pollution and leaves regulation of this pollution almost fully to the states. (32) Due to the lack of cohesive regulation, eighty-two percent of the rivers and streams and seventy-seven percent of lakes are severely impaired because of agricultural runoff and hydrological modifications. (33) States that lay downstream remain vulnerable to upstream nonpoint source pollution from state laws that they effectively have no control over.


According to the Census of Agriculture, two-fifths of United States land, more than 900 million acres, is farmland. (34) More than 326 million people currently reside in the United States, (35) and this number is expected to rise. (36) With an ever-increasing population, the country will need more food and energy sources to sustain the growing human population. Certainly, farmers grow vegetables, fruits, and grains for food. However, farmers are also growing corn for purposes other than to directly feed humans. Meat consumption is increasing in the United States, and that livestock is fed corn. (3)' In fact, thirty-six percent of corn crops are used to feed chicken, cows, and pigs. (38) Additionally, the country is starting to rely heavily on corn, in the form of ethanol, to produce energy. (39)

The Energy Independence and Security Act of 2007 called for the production of 15 billion gallons of corn-based ethanol. (40) That required a tripling of corn production in the United States. (41)

Though these crops are feeding and fueling us, this increase of agriculture production is doing great damage to waterways. Agricultural pollution, in the form of fertilizers, is the primary source of destruction to water quality on rivers and lakes, the second largest source of damage to wetlands, and a leading supplier of pollution of estuaries and groundwater. (42) In 2016, corn crops were largely responsible for the majority of the 1.15 million metric tons of the nitrogen and phosphorus pollution that was released into the Gulf. (43) A region's accessibility to clean water is largely controlled by agriculture practices. (44)

A. How Hypoxic Areas are Created

Fertilizers are any material that is applied to soils or plants to supply nutrients that are essential to the growth of the plants. (40) Fertilizers supplement the soil with three main macronutrients--nitrogen, phosphorous and potassium--in varying proportions known as NPK ratios. (46) They are directly linked to higher growing productivity and are responsible for the extreme success of growth productivity, allowing for higher yields to feed more humans. (47) However, continuous use of fertilizers leads to surface runoff of nitrogen and phosphorus, leaching of nitrate into groundwater, and hypertrophication (excess nutrient enrichment) of aquatic systems. (48)

Farming management practices in the United States have fundamentally changed over several decades. Traditionally, agricultural soils were fertilized using livestock manure, rich in nutrients and organic matter. (49) Farmers also practiced crop rotation (50), often coupled with cover crops' (11), allowing organic matter to accumulate and decompose, restoring nutrients to the soil. (52) Industrial agriculture has severely altered the nutrient management practices used on farms." (3) Today's large-scale industrial farms depend on synthetic, man-made chemical fertilizers to support high-intensity monocrop systems. (54)

Farmers often purposefully over-apply synthetic fertilizers to cropland to compensate for any that may be lost from runoff. (00) Studies show that, on average, fifty percent of fertilizer is lost through irrigation before the plant ever uses it. (06) Organic farms are not immune to the fertilizer problem. As the population continues to grow in size and more land is used for agriculture, even organic farms run the risk of contributing to the excess of nutrients in our soil and water. (57)

Waterways require a delicate balance of nutrients to remain productive. Nutrients, including nitrogen and phosphorus, occur naturally and are vital for natural ecosystem evolution. (58) However, an influx of nutrients from fertilizers and manure disrupts the naturally occurring balance of nutrients. (59) When this natural balance is disrupted, the waterway becomes hypertrophic, a system that has an excess of nutrients caused by some form of land runoff and has serious long-term effects. (60)

The most well-known effect is harmful algae blooms (HABs). Fertilizers and livestock manure have been directly linked to algal blooms. (61) One study used NASA satellite equipped with light-sensitive instruments to document the blooms for five years. (62) AH of the blooms occurred within days of irrigation events upstream. (63)

Algal blooms do occur naturally when cold-water upwellings bring nutrients to the surface, which stimulates "rapid reproduction and growth of microscopic algae, also known as phytoplankton." (64) These blooms often benefit marine ecosystems by providing algae for larger organisms to consume. (60) However, if over produced, algal blooms can quickly become detrimental to marine ecosystems.

A harmful algal bloom is any large increased density of phytoplankton (algae) (66) that results in negative impacts. (67) High concentrations of nutrients introduced from fertilizer and manure runoff into water systems, coupled with warm surface water temperatures, result in an increased growth of algae and plants. (68)

In the Gulf of Mexico, the dead zone typically appears in spring and summer. As rain and snow melt increases in the northern part of the country, larger quantities of water filled with nutrients are carried into the streams and tributaries of the Mississippi and the Atchafalaya River. (69) Water temperature, along with sunlight intensity and duration, increases in the spring. As storms decrease in the late spring and early summer, the conditions are ideal for the growth of algae. Algae tend to grow very quickly under high nutrient availability but are short lived.'[degrees]

While still alive, the blooms sit on the surface of the water, blocking sunlight from seagrass, aquatic plants that grow along the ocean floor.' (1) These plants require some of the highest levels of sunlight than any plant group in the world. (72) Without sunlight availability, seagrasses do not grow properly, resulting in consequences that mirror the fall of a house of cards when you pull out a card from the bottom. In fact, seagrass meadows are the third most valuable ecosystems on the planet, only less valuable than wetlands and estuaries. (73) The consequences of their disappearances are devastating.

Under proper growing conditions, seagrass beds are structurally complex. This complexity creates an effective habitat for feeding, reproduction, and avoidance of predators.' (4) Complexity among these beds increases survivorship of organisms, such as redfish (Sciaenops ocellatus) in the Gulf of Mexico, from predators.' (5) When an area changes from a structurally complex seagrass bed habitat to a macroalgae habitat or bare substrate,

(69) Elizabeth Carlisle, The Gulf of Mexico Dead Zone and Red Tides (Jan. 2000), abundance, biomass, and diversity of swimming organisms decline. (76)

Additionally, seagrasses provide necessary oxygen to other aquatic organisms through photosynthesis, producing ten liters of oxygen per square meter of seagrass every day." Without these seagrasses, many organisms die.7 (8)

After hindering vital plants below the surface water from growing, the algae die. This large concentration of dead, organic matter decomposes by bacteria eating it, which consumes dissolved oxygen in the water during this process. (79) If the decomposition process consumes oxygen at a greater rate than oxygen is diffused from the surface of the water, depleting the dissolved oxygen in the water lower than 2 milligrams per liter, the area becomes hypoxic. (80) If the hypoxia is great enough, a dead zone is created. (81)

B. Complications, Consequences, and Impacts of HABS

The ominous name dead zone accurately describes a hypoxic area. When the water is low in oxygen, organisms become stressed, resulting in lower biodiversity and an altered ecosystem. (82) These organisms experience direct mortality, forced migration, physiological impairments, reduction in suitable habitat, increased susceptibility to predation, and changes in food resources. (83) Additionally, HABs can have negative impacts on humans and marine organisms when they come into direct contact with them.

Marine organisms need oxygen to survive. When an area becomes depleted of oxygen, fish vacate the area, while less mobile, benthic (bottom-dwelling) organisms, such as oysters and mud crabs, suffocate. (84) Along with direct death and migration, HABs have other grave negative ecological impacts. Some organisms living in the Gulf of Mexico experience physiological impairments. (85) One such impairment is reproductive impairment. Atlantic croakers, which typically produce gametes and spawn during the end of summer in the Gulf, experience impaired gonadal growth and gamete production in hypoxic areas. (86) Furthermore, male germ cells are found in female croaker ovaries, which are smaller in size, in these zones, limiting their ability to reproduce. (87) Moreover, croakers sex ratio is skewed heavily towards males. (88) Studies suggest that these reproductive impairments occur across many fish species in hypoxic areas.

Hypoxic conditions in the Gulf coincide with the active reproduction season of some organisms. The lack of oxygen caused by an HAB makes it more difficult for these organisms to reproduce. White shrimp release their eggs in the bottom of the water where hypoxic zones are greatest. (89) Brown shrimp spawn earlier than white shrimp, and their larvae tend to migrate towards the shore before the seasonal dead zone occurs. (90) However, the juveniles return offshore at the height of the hypoxic conditions. (91)

Another serious consequence for marine life of HABs is habitat destruction. As stated above, the initial shading effect of the algae before it dies kills aquatic plants, which provide a necessary habitat for many fish populations, including nurseries for commercially important species. After the plants die, the hypoxia makes the area an inhospitable habitat. The marine organisms that are capable of migration move to less optimal habitats, where more organisms must compete for food in smaller areas. (92) In the dead zone, if hypoxic conditions are severe enough, the sediment at the bottom of the water is covered by a layer of sulfur-oxidizing bacteria, and small organisms that typically reside in the sediment and may have otherwise survived, are shortlived. (93)

Some algal blooms pose an additional threat because they produce toxins. Harmful algal blooms have been linked to degradation of water quality, destruction of economically important fisheries, and public health risks. (94) Toxic algae produce neurotoxins which are transferred through the food web in potentially lethal levels for organisms ranging from zooplankton and shellfish to whales and humans. Poisonings of domestic animals, wildlife and humans by blooms of toxic cyanobacteria have been documented throughout the world. (9)" The first observation of dead livestock associated with a bloom of cyanobacteria was in 1878. (96) Cyanobacteria can result in off-flavor compounds in municipal drinking water systems (97) and aquaculture-raised fishes which spread to wild fishes, resulting in financial losses. (98) Toxins can also accumulate in commercially important fish, which endanger human health if consumed, causing allergic reactions, neurological disorders, liver disorders, gastrointestinal distress, and skin irritation. (99) As algal toxins move through food webs, broad effects on organisms result from both chronic and acute exposure. (100)

In addition to posing substantial health risks, toxic cyanobacteria are inferior quality food for most zooplankton grazers. (101) Zooplankton such as jellyfish, eat algae, aiding in controlling algae blooms. (102) However, if the blooms produce poor food quality for zooplankton, their ability to control blooms is greatly reduced. (103)

These dead zones not only have negative ecological impacts, but they create tremendous economic, recreational, and social loss as well. The Gulf of Mexico yields approximately forty percent of the United States commercial fishing and is home to many recreational fishing activities. These fisheries generate 2.8 billion dollars annually. A reduction in fish, shrimp, crab, and oyster beds could do serious damage to the states that rely on the Gulf. (104)

C. Consequences to Louisiana

Louisiana is a state that thrives, both economically and culturally, on the Gulf of Mexico. The commercial fishing fleet in the Gulf is composed of vessels--a craft that can carry more than five tons, and boats--a craft capable of carrying less than 5 net tons. (105) With 2,084 vessels and 8,874 boats, Louisiana has the largest fleet of all the Gulf states. (106) Louisiana also leads the region in volume of fishery products. (107) Furthermore, fifty percent of seafood wholesale establishments in the Gulf region operate out of Louisiana. (108) The oyster industry in particular is critically important to Louisiana. It is the largest supplier of oysters in the United States, producing 47 percent of the country's oysters, resulting in $35 million annually in dockside sales. (109) Oyster cultivation has been an integral part of Louisiana's culture since the 1800s. (110) However, concerns remain regarding oyster consumption due to toxins as well as development and investment decisions in coastal aquaculture due to algal blooms. Nearly one-half of the shellfish producing areas along the Gulf Coast have been either permanently closed or declared indefinitely prohibited by health officials.

The shrimp industry is another crucial Louisiana fishery adversely impacted by algal bloom. "Louisiana is the top shrimp producer in the United States," (111) accounting for a 1.3 billion-dollar contribution to the state's economy. (112) White and brown shrimp are the highest volume of shrimp caught in the state. (113) As noted above, these organisms struggle in hypoxic environments. One study estimates that the hypoxic zone has resulted in about a twenty-five percent habitat loss for brown shrimp along the Louisiana coast. (114) Another study found that the hypoxic zone raises the prices of large shrimp in comparison to smaller shrimp, causing a negative economic impact. (115)

Marine sport fishing is also a critical economic component of the Gulf states, with retail sales in relation to marine sports fishing in the area bringing in over $1 billion annually to these states. (116) Half of the participants in this sport were non-residents of these states, with Florida accounting for the most popular destination and Louisiana accounting for the second most popular. (11)' All of the Gulf states, particularly Louisiana, stand to lose a lot if the fertilizer runoff issue is not solved.


Despite these devastating consequences of fertilizer runoff, there are ways to significantly mitigate them. Integrating best agricultural practices, using creative solutions, such as wooded bioreactors, and restoring the wetlands in the MARB would significantly reduce the nutrient load.

A. Best Agricultural Practices

Conventional agricultural practices are often in conflict with protection of the Gulf of Mexico. Currently, the agricultural landscape is largely dominated by farms that participate in monocropping techniques.

The EPA acknowledges that more sustainable agricultural techniques are needed to reduce nitrogen loads. It recommends applying fertilizers more efficiently, planting cover crops and buffer crops to recycle nutrients, and reducing tilling of the land. (118)

The Fertilizer Institute, which called for nutrient management in the 2018 Farm Bill in October 2017, (m) classifies applying fertilizer properly as: 1) ensuring a balanced supply of nutrients by using specific products; 2) ensuring fertilizers are applied at the proper rate by testing soil supply and assessing plant demand; 3) ensuring fertilizers are applied at the right time for optimal crop uptake and loss risks; and 4) applying fertilizers in the right place for optimal crop uptake and loss risk. (120) Planting cover crops on the farmed land and buffer zones comprised of trees, shrubs, and grasses will aid in absorbing residual fertilizer, ultimately reducing the amount of nutrients that run off. (121) Reducing tilling on land aids in soil compaction and the growth of organic matter in soil, which leads to a reduction in nutrient run off as well. (122) Crop rotation also would improve nutrient runoff. A study showed that changes in cropping patterns over time has had a more significant role in the overload of nitrogen in waterways than an increase in nitrogen application and an increase in precipitation from climate change. (123)

B. Water Management Solutions

In addition to soil and crop management, there are several water management solutions farmers can implement. A short summary of a few of these are outlined below.

1. Controlled Drainage

Plants need water to survive. However, roots need oxygen to grow, and during wet seasons, the soil may become so inundated with water that there is no oxygen for the roots to access. Like the roots attached to a house plant in a pot with no drainage holes, the roots of crop plants sitting in water become stressed. Most farmers utilize tile drainage, which typically consists of an underground piping system that allows the excess water to drain from the soil. (124) While tile drainage has increased crop production, it also is one of the main conduits of nutrient pollution. (120)

To combat this, farmers can install controlled drainage, a high-depth water control structure placed in sections of the tile drainage piping. (126) The structure collects water in the soil, so it is available when the soil is dry, reducing the amount that drains into waterways. (127)' In lieu of this structure, some farmers place a large box that collects water at the end of the tile drainage and manually empty it during dry seasons. (128) These types of controls are effective at reducing nutrient loads by as much as eighty percent. (129)

2. Bioreactors

Another management practice available to farmers is installing a bioreactor. "Bioreactors are covered pits filled with high-carbon materials such as wood chips" or straw, which serve as a productive habitat for bacteria. (130) The bacteria convert nitrate (N03) into an essential gas (N02) for our atmosphere. (131) The water exits the bioreactor and flows back into the drainage system with less nutrient load, never disturbing the tile drainage or the crops. (132) Wood chip bioreactors remove on average thirty-three percent of the nutrient load of the water that flows through them. (133) On estimate they cost approximately $8,000, which cost share programs often subsidize, require minimal or no human maintenance, and have a lifespan of fifteen to twenty years. (134)

3. Vegetated Biofilters

Vegetated biofilters, downstream buffers where vegetation is grown to facilitate sedimentation attenuation and pollution removal, are also an inexpensive, effective management practice. (130) There are several types, such as grass swales, vegetative filter strips, and bioswales. There are differences between the different types. However, they all are systems with dense vegetation designed to mimic natural processes to alleviate nutrient load, similar to the wetland processes described in the next section.

C. Wetlands as a Line of Defense

Wetlands are a key component to protecting the Gulf from fertilizer runoff. Participating in best agricultural practices, such as planting cover crops and efficiently using fertilizers will reduce nutrient pollution by thirty percent. (136) However, healthy wetlands reduce nutrient pollution by forty-five percent when combined with best agricultural practices. (137) Their complex ecosystems serve as large filters, removing nitrogen runoff through physical, biological, and chemical processes. (138)

The physical processes consist of sedimentation, adsorption, and volatilization, into the substrate. Sedimentation occurs when particles settle out of the water and are deposited, reducing the concentration of nutrients from runoff. (139) Adsorption occurs when chemicals attach to soil, which further aids the reduction of nutrient loads. (140) Volatilization is the release of the newly created N02 by bacteria into the atmosphere. (141)

The critical biological processes are uptake and denitrification. Wetland plants uptake nitrogen and phosphorus through their roots and foliage. (142) Ten to twenty percent of these nutrients remain in the wetland plants. (143) Denitrification is a highly successful nutrient removal process, in which bacteria living in wetland plants convert N03 into (N02), similar to bacteria in bioreactors. (144)


A. The Clean Water Act

In 1972, the Senate formally declared "that the national effort to abate and control water pollution [had] been inadequate in every vital respect." (140) Consequently, Congress passed the Clean Water Act to more comprehensively address this issue. The Act implements a "cooperative federalism" strategy, meaning regulating water pollution is a shared responsibility of the federal and state governments. (146) The core of the Act is the National Pollutant Discharge Elimination System (NPDES) which "prohibits the discharge of any pollutant" into the waters of the United States without a permit. (147) The CWA defines "discharges of pollutants" as "any addition of any pollutant to navigable waters from any point source." (148) A polluter must obtain one of these permits through their state government with approval of the EPA. (149)

Notably however, the CWA's definition of discharge of pollutants, and therefore the NPDES, excludes nonpoint pollution sources, despite nonpoint sources being far more common than point sources.

Additionally, the amount of actual pollution caused from these sources varies depending on weather and geography. For these reasons, many consider nonpoint sources more difficult to pinpoint, and the framers of the NPDES chose to exclude them. Recognizing that nonpoint pollution sources could not be ignored, Congress attempted to address them in other sections of the CWA, Section 208, Section 319, Section 404, and Section 303(d)(1)(c).

1. Section 208

To address the exemption of nonpoint sources from the NPDES program, Congress incorporated Section 208 into the initial CWA. This section required states to identify water sources that were substantially polluted, detect nonpoint sources contributing to the inadequate quality of the water, and control them "to the extent feasible." (150) States were "required" to submit their plans to the EPA, but there was no sanction for failure to submit or implement it. (151) Additionally, the section essentially set up a paltry federal funding program for the states to implement these plans, which was completely gone by 1980.

2. Section 319

Section 208 was a failure, and Congress sought to address this failure by creating Section 319 in the Water Quality Act in 1987. (152) Under this section, states are instructed to identify water bodies not meeting water quality standards due to nonpoint source pollution and develop and implement Best Management Practices (BMP). (1,3) However, these practices are not mandated, and federal spending continues to attempt to, usually unsuccessfully, incentivize voluntary participation. (154) In the case of Louisiana and the abatement of the Gulfs dead zone, this section is particularly useless, because Louisiana has no control over other states BMPs. The Section has done little to affect nutrient pollution from agricultural sources.

3. Section 404

Section 404 requires a person who is discharging "dredged or fill material into the navigable waters at specified disposal sites" to get a permit from the U.S. Army Corp of Engineers. (155) These permits serve to protect wetlands and do succeed in decreasing nonpoint source pollution in wetlands. However, often it is a wash because developers who do not receive a permit simply move locations and still release nonpoint source pollution.

4. Section 303(d)

The CWA requires states to identify waterways that do not meet water quality standards after point source controls through the NPDES program have been implemented. (156) States must establish a total maximum daily load (TMDL) for that waterway. (107) A TMDL is a calculation of the maximum amount of a pollutant that a water body can receive and still meet water quality standards. (158) For many years, it was not clear whether the TMDL included nonpoint sources. However, clarification came in 2002, when a group of citizens sued the EPA for establishing a TMDL on a river in California that was polluted exclusively by nonpoint sources. (159) The citizens claimed the EPA did not have authority to set a TMDL on the river because Section 303(d)(1) did not cover nonpoint source pollution. (160) The Ninth Circuit ruled that TMDLs pertained to waterways even if they were solely polluted by nonpoint sources. (161)

If a state's TMDL is not satisfactory to the EPA, the agency is required to establish a TMDL. (162) However, while the EPA can demand that a state set its TMDL, the EPA cannot force them to implement a plan to accomplish the TMDL. (163) Therefore, the section does little to abate nonpoint source pollution. A state that suffers the effects of nonpoint source pollution as a result of another state's failure to implement a TMDL has no remedy against that state to decrease the problem through TMDLs.

B. Federal Rules Outside of the Clean Water Act

Other federal laws, aside from the Clean Water Act have attempted to address the nonpoint source pollution problem. Two such laws are the Coastal Zone Management Act and the Harmful Algal Bloom and Hypoxia Research and Control Act of 1998. Additionally, Congress has attempted to address the problem through incentives in the United States Farm Bill, a law that covers most agriculture or food policy.

1. The Coastal Zone Management Act

Congress passed the Coastal Zone Management Act in 1972 but amended it in 1990 to acknowledge nonpoint source pollution as a significant degrader of water quality. (164) This Act created coastal zone enhancement grants, which encourages states to submit a nonpoint source coastal management plan to the EPA. (160) A state is to implement the plan in conjunction with the state's Section 319 plan. (166) However, states are not required to participate. (167) States' only incentive is that they will receive grant money from the federal government if they choose to participate. (168) Like Section 319, this Act has been little help to the abatement of the Gulf's dead zone, because Louisiana has no control over other states' optional coastal management plan.

2. Harmful Algal Bloom and Hypoxia Research and Control Act of 1998

Recognizing that the Gulf of Mexico dead zone was a serious issue that laws were failing to solve, Congress passed the Harmful Algal Bloom and Hypoxia Research and Control Act of 1998. This law established a Federal Task Force on Harmful Algal Blooms and Hypoxia, provided for assessments of ecological and economic consequences of harmful algal blooms and hypoxia, and required a plan for controlling hypoxia in the northern Gulf of Mexico by March 30, 2000. Since the enactment, Congress has authorized two amendments to the Act. The Harmful Algal Bloom and Hypoxia Amendments Act of 2004 did very little. It reaffirmed and expanded the mandate for NOAA to advance research to predict, assess, and monitor HABs and hypoxia events. (169) The Harmful Algal Bloom and Hypoxia Research and Control Amendments Act of 2014 acknowledged new hypoxic concerns, extended the scope of the legislation to include freshwater, and recognized the need for further coordinated action with the federal government to address these issues. (170) The law called for federal agencies to provide integrated assessments on the causes and consequences of HABs particular emphasis on the Great Lakes. (171) The Act and its amendments cover research, but notably require no mandatory rules or TMDLs and are ultimately toothless.

3. The Farm Bill

The United States Farm Bill is the primary food and agriculture policy tool in the United States. (172) It controls all of the programs that may fall under the purview of the United States Department of Agriculture. (173) Multiple reauthorizations, including the most recent in 2014, included a version of the Environmental Quality Incentives Program (EQIP). (174) EQIP is a voluntary conservation program that provides farmers and ranchers with financial cost-share and technical assistance to implement conservation practices on working agricultural land. (175) While these types of incentives have been useful in some situations, (176) most farmers consistently choose to operate "as is" rather than receiving them. (177)

C. State Laws

Some states have attempted to creatively solve the nonpoint source pollution issue but have had limited success. (178)

California has arguably the most aggressive solution, requiring that point and nonpoint dischargers file a report for every discharge under the Porter-Cologne Act. (179) The Regional Water Quality Control Board may issue a limitation on discharges, require the discharger implement a BMP to maintain water quality standards, or exempt the discharge. (180) Wisconsin requires farmers to comply with statutory BMPs. (181) Oregon has the ability to force a landowner to follow a state-administered water quality management plan. (182) However, many states who opt to do anything at all rely on voluntary incentive programs. (183)


A. Federal Common Law

Traditionally, the federal common law allows for individuals to sue for trespass, nuisance, and negligence. In fact, the first attempt at water quality control were common law nuisance claims. (184) However, federal statutes and regulations often now preempt many common law claims. (185) Soon after the enactment of the CWA, the Supreme Court held in City of Milwaukee v. Illinois that the CWA preempted Illinois' federal common law nuisance claims against the city of Milwaukee for failing to treat sewage before dumping it into Lake Michigan. (186) To determine whether the CWA had displaced Illinois' federal common law, the court employed a two-part test, assessing "the scope of the legislation and whether the scheme established by Congress addresses the problem formerly governed by federal common law." (187) It found that the scope of the CWA "occupied the field" through a "comprehensive regulatory program" for the elimination of water pollution. (188) It further held that the CWA addressed the problem previously governed by federal common law because it was Congress' intent "to establish an all-encompassing program of water pollution regulation" through the CWA. (189)

Two months later, in Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, a group of commercial shell fishermen sued under federal common law of nuisance, claiming damages to fishing grounds caused by discharge of sewage into the ocean. (190) The Court rejected the plaintiffs' use of the federal common law, and applied similar language to Milwaukee, holding that "the federal common law of nuisance in the area of water pollution is entirely pre-empted by the more comprehensive scope of the [CWA]." (191) Though both of these cases addressed point source pollution, it is widely accepted that the United States Supreme Court has effectively gutted federal common law tort claims as an environmental remedy. (192)

Still, the CWA contains a clause in its citizen suit provision that the provision is not meant to restrict the rights a person has "under any statute or common law." (193) Many courts have interpreted this to mean that Congress did not aim to preempt state law tort actions through the CWA. (194) This leaves the ability for one state to sue another through state law. However, interstate nuisance cases are governed by the law of the source state, not the receiving state. (195) Furthermore, environmental regulation is not "a gateway to common law tort liability." (196) The violation of an environmental law shall not serve as a basis for negligence. Rather, the state's law must independently provide a remedy for the harm.

Nuisance and negligence actions' purpose is not to improve or prevent negative environmental conditions. (197) The purpose is to restore the parties to their original condition. (198) To succeed under the theory of nuisance or negligence, a harm must have already occurred. (199) Therefore, tort law is fruitless for future and prevention of behavior. Additionally, discerning which parties are at fault, causation, and actual harm can be difficult to prove in environmental cases. (200) In the context of the Gulf dead zone, studies are so new at this juncture, it would likely be difficult for a Louisiana resident to sue for any real harm. Though there are extensive studies showing that the dead zone is caused by fertilizer runoff, the studies linking economic harm specifically to fertilizer runoff is in the beginning stages and likely only constitutes as future harm.

To further complicate matters, every state has enacted some form of a "Right to Farm" law. (201) Though every state law varies, the idea is the same under each--individuals have limited ability to file a claim for negligence or nuisance against farmers. (202) These laws are aimed to ensure farmers are able to engage in typical farming practices without interference. (203) Yet, these laws severely hinder the use of tort law to abate fertilizer issues.

B. Citizen Suit Provision

Section 505 of the CWA provides an individual or group the standing to file a lawsuit against a violator, called a citizen suit provision. (204) Additionally, an individual may sue the EPA for not properly adhering to the CWA, (205) such as in Pronsolino v. Nastri. (206) However, a citizen suit provision is limited to requiring the EPA to execute nondiscretionary duties. Because the sections of the CWA that pertain to nonpoint source pollution are all discretionary, citizen suits fail to provide a state's citizens any remedy in abating nonpoint source pollution.


It is not as if the Gulf of Mexico has been specifically ignored. To the contrary, the Gulf gets attention from the federal government, state governments, and through litigation efforts. Two of the largest efforts to address the dead zone in the Gulf have been in the form of a watershed approach, known as the

Mississippi River/Gulf of Mexico Hypoxia Task Force (the Hypoxia Task Force) and in a lawsuit brought by the Mississippi River Collaborative against the EPA.

A. The Mississippi River/Gulf of Mexico Hypoxia Task Force

A watershed approach is a coordinating framework for environmental management that focuses public and private sector efforts to address waterway issues. Watershed approaches vary but rely on the principles of partnership, geographic focus, and management based on science and data. (20)'

One such ambitious watershed approach is the Mississippi River/Gulf of Mexico Hypoxia Task Force established in 1997. This Task Force consists of twelve Basin states, including the three worst offenders, Iowa, Illinois, and Indiana, and five federal agencies. (208) Its goal is to study the causes and effects of eutrophication in the Gulf of Mexico and coordinate activities to reduce the Gulf's dead zone. The Task Force is aiming for a twenty percent reduction in nutrient loads by 2025 and a 2,000 square mile dead zone by 2035. (209)

In 2001, the Task Force released a 2001 Action Plan, which was a four-year scientific assessment of the dead zone. In 2008, the Task Force released the 2008 Action Plan, which laid out steps to go forward, including the necessity of farmers to participate in nutrient management and scientists to continue to analyze nutrient pollution. (210) It noted that because the proposed approaches were voluntary in nature, "broad acceptance and a willingness to pursue the identified actions" is necessary. (211) The

Action Plan also required that the EPA, in concert with other state and federal agencies, publish yearly reports. (212)

As members of the Task Force, Iowa and Illinois have implemented state programs to assist in controlling the Gulfs dead zone. (213) Illinois enacted the Illinois Fertilizer Act in 2012, which allocated $0.75/ton on all bulk fertilizer sold in Illinois to research and educational programs focused on nutrient use and water quality. (214) In 2013, Iowa enacted the Iowa's Water Quality Initiative, which consists of outreach and education, statewide practice implementation, targeted demonstration watershed projects, and tracking and accountability. (215) Still, both were enacted more than six years ago before the record breaking 2017 Gulf of Mexico dead zone. In fact, Iowa's contribution to the nitrogen load rose forty-seven percent in 2016 based on a five-year analysis. (216) It is solely responsible for fifty-five percent of the nitrogen load in the Missouri River, while only contributing twelve percent of the water in this river, which flows into the MARB. (217) Many of the states in the Hypoxia Task Force have made successful strides in lowering nitrate load. Iowa, however, continues to raise concerns. A study by the University of Iowa reported that "[w]ithout Iowa, the Gulfs overall nitrate loads would have declined 43,400 tons over 18 years. Instead nitrate loads grew by 52,000 tons." (218)

This Task Force came into existence nineteen years before the 2017 dead zone. These voluntary programs are not enough. Without mandatory instructions, the dead zone will persist.

B. Gulf Restoration Network v. Jackson

The Administrative Procedure Act, a federal statute, states that federal agencies "must give interested persons the right to petition for the issuance, amendment, or repeal of a rule." (219) In 1998, the EPA claimed that it would establish numeric nutrient criteria for the waterways if the offending states had not done so by 2001. (220) Using this Act, Mississippi River collaborative groups filed petition with the EPA in 2008 asking it to establish that criteria for MARB states, as well as TMDLs, for the Mississippi River and the Gulf of Mexico. (221)

The Petition described the state of the Gulf and noted the "failed attempts to address the problem through workgroups, collaboration, guidance to states, and 'action plans.'" (222)

Three years later, on July 29, 2011, the EPA issued a response. (223) In its response, the EPA agreed that nitrogen and phosphorus posed a significant threat to water quality in the Mississippi River Basin, but concluded that the action plans, along with other initiatives, were preferable to a nutrient criteria rulemaking. (224) The Agency declined to state whether nutrient criteria were "necessary." (220)

In 2013, the Gulf Restoration Network, along with other partners, filed a petition for rulemaking, requesting the court compel the EPA to issue federal standards for controlling nutrient pollution. (226) The U.S. District Court for the Eastern District of Louisiana held that, under the Clean Water Act, the EPA is required to determine if new water quality standards were needed to address nutrient loading in the Mississippi River and the mouth of the Gulf of Mexico. (227) The EPA appealed.

The Fifth Circuit Court of Appeals held that the district court was incorrect regarding whether the EPA had to answer if nutrient limits were required. The court stated that the EPA has

"the option of declining to make a necessity determination," and remanded the case back to the district court "to decide in the first instance whether the EPA's explanation for why it declined to make a necessity determination was legally sufficient." (228)

On remand, the district court held that the EPA's refusal to make a necessary determination based on its "assessment that working in partnership with the States to reduce nutrient pollution" is a more effective approach is grounded in Section 303(c)(4)(B) of the CWA. (229) The district court further noted that the "CWA is by design a states-in-the-first-instance regulatory scheme" and that the EPA is only required to step in "when the states demonstrate that they either cannot or will not comply." (230)


The Gulf of Mexico's annual dead zone has experienced over thirty years of research and monitoring, over 15 years of assessments and goal-setting, and over $30 billion in federal conservation funding. Numerous scientific and law journals have attempted to tackle the issue. There are, of course, gaps in niche scientific research involving dead zones. These gaps are generally the result of the nature of scientific inquiry in that more answers create more detailed, nuanced questions. Nevertheless, with respect to the general understanding of how dead zones are created, what their overall effect is, and how they can be curtailed, there is a vast wealth of scientific information. So, if the scientific community has a deep understanding of what is happening, why then, with more than ten federal Acts, two executive orders, multiple state laws, and numerous advisory boards, programs, and task forces addressing this issue, has this problem not been solved?

Most legal journal solutions to the nonpoint source pollution problem revolve around voluntary action or waiting for the courts to suddenly change the way they have handled this problem. For example, there was hope in the legal community when Des Moines, Iowa's water treatment facility filed a complaint, arguing that farmers' tile drainage system was a point source and should be regulated as such. (231) There was hope that it would be an opportunity to open the door to qualify many farm drainage systems as nonpoint sources. However, the Iowa Supreme Court ruled that drainage systems in Iowa are immune from lawsuits. (232) Other solutions revolve around the idea that the NPDES permit program should be expanded to include nonpoint source pollution. (233) However, Congress made clear when writing and amending the CWA that nonpoint source pollution is simply too difficult to ascertain the source and is therefore unmanageable through the NPDES program. Court decisions and Congress' action has made clear that this is likely never to happen.

More than ten federal Acts, two executive orders, multiple state laws, and numerous advisory boards, programs, and task forces, have looked to solve this issue. Yet, even with all of this "action", average nitrogen levels in the MARB have not declined since the 1980s, (234) and the Gulfs dead zone remains bigger than ever. Additionally, a frightening report was published in March of 2018 stating that, even if nitrogen and phosphorus loads were eliminated immediately, there are so many excess nutrients already present in the groundwater that it will take thirty years for the waterways to recover. (235)

This comment suggests a three-part solution to this issue: 1) the federal and the Louisiana government should ensure that Louisiana receives the funding the Louisiana's Coastal Master Plan calls for to restore the wetlands; 2) the Farm Bill should implement nutrient management requirements that prevents nitrogen loss; and 3) the EPA should enforce a Total Maximum Daily Load similar to those set in the Chesapeake Bay area.

A. The Louisiana Master Plan

The Louisiana's Comprehensive Master Plan for a Sustainable Coast (the Master Plan) is "a long-term, state-wide, action-specific plan to achieve the state's protection, restoration and resiliency goals." (236) The Master Plan consists of 124 projects that build or support more than 800 square miles of land. A large part of this plan revolves around restoring the lost wetlands in Louisiana. However, this plan is estimated to cost 50 billion dollars over the next 50 years, approximately half of which is to be directly spent on the restoration of the wetlands. However, the billion-dollar question remains: where will this money come from?

Currently, the Master Plan has only procured approximately eight billion dollars from various federal and state sources and several lawsuits. The reality is obtaining funding for the Master Plan is not only necessary to restore the wetlands for purposes of filtering nutrient runoff but is imperative to saving the entire state.

Funding should come from the oil and gas industry. Louisiana produces "ninety percent of the country's domestic energy supply, fifty percent of its refining capacity, and a port vital to the economies of thirty-two states." (237) However, the state only receives twenty-seven percent of federal royalties of oil and gas production from three to six miles offshore, while Texas receives one hundred percent of royalties from production from three to nine miles offshore. (238) This industry is largely at fault for the destruction of the Louisiana wetlands, (239) yet pays the state very little in taxes. (240) Louisiana should either place a fee on oil and gas transported through the state or tax oil companies to operate in the state. Currently, the oil industry is collecting the state's natural resources, leaving land destruction for the Louisiana taxpayer to live with the fallout. It is well within reason to place a higher fee for operating in the state to cover the cost of restoring the land. This would ensure the wetlands can be restored as outlined in the Master Plan, and therefore will be a line of defense from nutrient runoff that is destroying the fisheries in Louisiana, which many of the residents rely on.

B. The Farm Bill

Voluntary incentives have failed. It is beyond time to act. Donald Scavia and Don Boesch, two leading experts in the scientific study of hypoxia, both agree that the only answer is to set legally binding limits and do an overhaul of the agriculture system. (241) The Farm Bill has sought to address the over enrichment of our waterways through incentives. It is time to require farmers to implement a nutrient management plan. Part IV (A) and (B) of this comment explained both traditional farming techniques and water management techniques to reduce the nutrient load from farms. The Farm Bill should require any farm that is receiving crop insurance from the federal government to submit and follow a nutrient management plan created from a combination of techniques that alleviate nutrient runoff. Farmers purchase crop insurance, which is subsidized by the federal government, to protect against loss of crops from natural disasters or loss of revenue if prices of agricultural commodities decline. The Farm Bill should subsidize the efforts of the farmers to implement these plans, therefore alleviating farmers from the cost of these management plans.

The reality is, though these solutions should be required, this may not come to fruition quickly enough to have an impact on the Gulfs dead zone. First, the 2014 Farm Bill expires in September 2018 and will likely be renewed then. This bill is only renewed approximately every five years. Additionally, the American Farm Bureau Federation has strong lobbying power in Congress. This may be a hard sell, but it is imperative that nutrient load is limited.

C. The Chesapeake Bay Cleanup Program

In the 1970s, one of the first recognized dead zones in the United States occurred in the Chesapeake Bay. (242) As a result, Congress funded research into dead zones in the 1970s and 1980s. (243) In 1983, Maryland, Virginia and Pennsylvania, the District of Columbia, and EPA co-signed The Chesapeake Bay Agreement of 1983, forming the Chesapeake Bay Cleanup Program, an ambitious watershed approach. (244) In the year 2000, Delaware, New York and West Virginia joined the watershed effort.

The agreement included advocacy, education, and physical restoration methods. Furthermore, each state was expected to establish a TMDL. (245) However, despite extensive restoration efforts, the dead zone in the Bay remained. (246) Finally, in 2010, the EPA stepped in and established TMDLs and implementation plans for each part of the Bay. (247) Additionally, each state began to submit two-year milestones. (248) Today, the Bay is slowly starting to see positive impacts, with a slight reduction of the dead zone and a recovering fishery. (249) Still, based on projections of continued fertilizer use, the progress is far too slow. (250) As established, the Chesapeake Bay Cleanup Program is beginning to see some positive results. However, this only came after the EPA stepped in and required the implementation of TMDLs. While the people who participate in the Mississippi River/Gulf of Mexico Watershed Nutrient Task Force work tirelessly, there has not been any tangible positive results towards their goal of reducing the dead zone. In fact, that goal seems to move further and further away each year. The EPA should require that the participating states establish and implement a TMDL for the MARB and the Gulf of Mexico.


For decades, legislators, lawyers, citizens, and scientists have tried to address the agriculture runoff problem through a myriad of innovative ideas. This problem is getting worse and has the potential to upset the cultures and economies of the Gulf of Mexico states, particularly Louisiana. No single plan will be enough to reverse the Gulfs dead zone. The only way is to implement multiple solutions that work in tandem with each other. Our country has watched afar as our industrial farms continue to grow and disregard sustainable farming habits. It is time to directly address this problem.

Kelly A. Whitaker (*)

(*) J.D. Candidate 2019, Loyola University New Orleans College of Law; B.S. 2015, University of New Orleans.

(1) N. N. Rabalais et al. Hypoxia in the Northern Gulf of Mexico: Does the Science Support the Plan to Reduce, Mitigate, and Control Hypoxia? 30 ESTUARIES AND COASTS 753, 754 (2007).

(2) Brian Palmer, Dead Zones: Devil in the Deep Blue Sea, LIVE SCI. (Aug. 9, 2014. 2:18 AM)

(3) Nancy N. Rabalais et al., Gulf of Mexico Hypoxia, a.k.a. "The Dead Zone," ANNU. REV. ECOL. SYS. 235, 246 (2002).

(4) Megan Scudellari, Coastal Command, THE SCIENTIST (Sept. 1, 2013),

(5) Rabalais et al., supra note 1, at 755.

(6) Gulf of Mexico 'Dead Zone' Largest Ever Measured, C0ASTALSC1ENCE.N0AA.GOV (Aug. 8, 2017),

(7) Gulf of Mexico dead zone is "largest" ever recorded in U.S., CBSNEWS.COM (Aug. 16, 2017, 07:47 AM),

(8) Michael Parsons et al., Reconstructing the Development of Eutrophication in Louisiana Salt Marshes. 51 LIMNOLOGY AND OCEANOGRAPHY 534, 534-35 (Jan. 2006). Nancy N. Rabalais et al., Gulf of Mexico Hypoxia, a.k.a. 'The Dead Zone,' ANNU. REV. ECOL. SYS. 235, 237 (2002).

(9) USGS, 1 2012 Census of Agriculture 25 (issued May 2014). The Census of Agriculture data is collected every five years and issued two years later. This is the most recent census published.

(10) Nancy N. Rabalais et al., Global Change and Eutrophication of Coastal Waters, 66 ICES J. OFMAEINE Scr., 1528, 1532 (2009).

(11) Donald A. Goolsby, et al., Sources and Transport of Nitrogen in the Mississippi River Basin, USGS.GOV,

(12) NOAA, USGS and partners predict third largest Gulf of Mexico summer 'dead zone' ever, COASTALSClENCE.NOAA.GOV (June 20. 2017),

(13) Rabalais et al., supra note 3, at 239.

(14) Id.

(15) Mark B. David et al., Sources of Nitrate Yields in the Mississippi River Basin, 39 J. ENVTL. QUAL. 1657, 1657 (2010).

(16) Nitrate (N03-) is the typical form of nitrogen in fertilizers. It is an inorganic compound with a negative charge, composed of one nitrogen atom surrounded by three hydrogen atoms. WEBFlNANCE, INC. Nitrate (N03), BUSINKSSDICTI0NARY.COM, (last visited March 06, 2019).

(17) Christopher S. Jones et al., Iowa Stream Nitrate and the Gulf of Mexico, 13(4): e0195930 PLOS ONE 7 (Apr. 12, 2018).

(18) Ecological engineering is "the design of sustainable ecosystems that integrate human society with its natural environment for the benefit of both." William J. Mitsch, 108 Ecological Engineering of Sustainable Landscapes, ECOLOGICAL ENGINEERING 351, 351 (Nov. 2017).

(19) Steven J. Burian et al., Urban Wastewater Management in the United States: Past, Present, and Future, 7 J. OF URB. TECH. 33, 40 (2000). 20 Id. at 47.

(21) See Michael C. Blumm & D. Bernard Zaleha, Federal Wetlands Protection Under the Clean Water Act: Regulatory Ambivalence, Intergovernmental Tension, and A Call for Reform, 60 U. COLO. L. REV. 695, 700-01 (1989).

(22) Rivers and Harbors Appropriations Act of 1899, ch. 425, 30 Stat. 1151.

(23) National Accomplishments in Pollution Control 1970-1980 Some Case Histories, 5.

(24) Sean M. Helle, Note, Aquaculture and Pollutants Under the Clean Water Act: A Case for Regulation, 89I0WAL. REV. 1011, 1016(2004).

(25) Id. at 1017.

(26) Clean Water Act, 33 U.S.C. [section] 1251(a).

(27) Id.


(28) Clean Water Act [section] 502(14), 33 U.S.C. [section] 1362 (2014). 30 Id.

(31) HOLLY D. DOREMUS ET AL., ENVIRONMENTAL POLICY LAW: PROBLEMS, CASES, AND READINGS 787 (Robert C. Clark et al. eels. 5th ed. 2008).

(32) Id. at 740.

(33) William L. Andreen, Water Quality Today Has the Clean Water Act Been a Success?, 55 ALA. L. REV. 537, 593 (2004).

(34) See USGS, supra note 9.

(33) Worldometers, U.S. Population Live, U.N. DEP'T OF ECON. & Soc. AFF., POPULATION DlV., (last visited Mar. 2018).

(35) Probabilistic Population Projections based on the World Population Prospects: The 2017 Revision, U.N. DEP'T OF ECON. & Soc. AFF., POPULATION DlV., (last visited Mar. 2018).

(37) Emily Atkin, The Most Overlooked Environmental Crisis of 2017, NEW REPUBLIC (Dec. 2017),

(38) Id.

(39) Carol Potera, Fuel: Corn Ethanol Goal Revives Dead Zone Concerns, 116 ENVTL. HEALTH PERSPECTIVES A 242, A 242 (2008),

(40) Id.

(41) Id.

(42) Protecting Water Quality from Agricultural Runoff, U.S. ENVTL. PROT. AGENCY, fact_sheet.pdf (last visited Oct. 15, 2018).

(43) Atkin, supra note 37.

(44) EPA, Agriculture and Land Use, (last visited Mar. 2018).

(45) Fertilizer 101: The Big 3 - Nitrogen, Phosphorus and Potassium, THE FERTILIZER INSTITUTE (May 7, 2014),

(46) Id.

(47) A. O. Adesemoye & J. W. Kloepper, Plant-Microbes Interactions in Enhanced Fertilizer-Use Efficiency, 85 APPLIED MICROBIOLOGY AND BIOTECHNOLOGY I, 2 (Nov. 2009).

(48) Donald M. Anderson et al, Harmful Algal Blooms and Eutrophication: Nutrient Sources, Composition, and Consequences, 25 ESTUARIES 704, 707 (2002).

(49) Matt Liebman & Elizabeth Dyck, Crop Rotation and Intercropping Strategies for Weed Management, 3 Ecological Applications 92. 93 (1993).

(50) Crop rotation is the practice of growing different types of crops in systematic, recurring sequence on the same field, rather than growing the same crop repeatedly in the same plot of land. Id.

(51) Cover crops are crops that are efficient at restoring and improving soil, which are grown in between cash crop season. Id. at 93.

(52) Id.

(53) Id.

(54) Nathan L. Hartwig & Hans Ulrich Amnion, Cover Crops and Living Mulches, 50 Weed Science 688, 688 (2002).

(55) Id.

(56) Id.

(57) Chapter 3: Fertilizers as water pollutants,

(58) Anderson et al., supra note 48, at 705.

(59) Id.

(60) Estela Romero et al., Large-scale Patterns of River Inputs in Southwestern Europe: Seasonal and Interannual Variations and Potential Eutrophication Effects at the Coastal Zone, 113 BIOGEOCHEMISTRY 481, 482 (2013).

(61) See generally Patricia M. Glibert et al., Escalating Worldwide Use of Urea - A Global Change Contributing to Coastal Eutrophication, 77 BIOGEOCHEMISTRY 441 (2006).

(62) See generally Beman et al., Agricultural Runoff Fuels Large Phytoplankton Blooms in Vulnerable Areas of the Ocean, 434 NATURE 211 (2005).

(63) Glibert, supra note 61, at 448.

(64) Mark Shwartz, Researchers Discover Direct Link Between Agricultural Runoff and Massive Algal Blooms in the Sea (Dec. 8, 2004), https://news.Stanford. edu/pr/2004/agugulf-0112.html.

(65) Id.

(66) Phytoplankton are single-celled, photosynthetic organisms. Technically, not all algal blooms are made up of true algae, such as cyanobacteria. However, they are all phytoplankton. For clarity and continuity, the term "algae" will be used throughout the rest of the comment. Fondriest Environmental, Inc.: Algae, Phytoplankton and Chlorophyll, FUNDAMENTALS OF ENVIRONMENTAL MEASUREMENTS (Oct. 22, 2014),

(67) Anderson et al., supra note 48, at 704-05.

(68) Nancy N. Rabalais, Hypoxia in the Gulf of Mexico 478, 483

(69) Elizabeth Carlisle, The Gulf of Mexico Dead Zone and Red Tides (Jan. 2000),

(70) Fondriest Environmental, Inc. Algae, Phytoplankton and Chlorophyll. FUNDAMENTALS OF ENVIRONMENTAL MEASUREMENTS (Oct. 22, 2014),


(72) Robert J. Orth et al., A Global Crisis for Seagrass Ecosystems, 56 BIOSCIENCE 987, 988 (2006).

(73) Pamela L. Reynolds, Seagrass and Seagrass Beds, SMITHSONIAN (Apr. 2018),

(74) Rabalais et al., supra note 10, at 1530.

(75) Linda A. Deegan, Part B: Dedicated Issue: Nutrient Over-Enrichment in Coastal Waters: Global Patterns of Cause and Effect, 25 ESTUARIES 727, 728 (2002).

(76) Id.

(77) Reynolds, supra note 73.

(78) See Orth, et al., supra note 72, at 989.

(79) Rabalais, et al., supra note 1, at 754.

(80) Rabalais, et al., supra note 1, at 754, 763; Rabalais, et al., supra note 3, at 236.

(81) Rabalais, et al., supra note 3, at 236.

(82) Id.

(83) Rabalais, supra note 68, at 478, 483.

(84) See Daniel R. Petrolia & Prasanna H. Gowda, Missing the Boat: Midwest Farm Drainage and Gulf of Mexico Hypoxia, 28 REVIEW OF AGRICULTURAL ECONOMICS 240,240-41 (2006).

(85) Peter Thomas & Saydur Rahman, Extensive Reproductive Disruption, Ovarian Masculinization and Aromatase Suppression in Atlantic Croaker in the Northern Gulf of Mexico Hypoxic Zone, 279 PROCEEDINGS OF THE ROYAL SOCIETY B: BIOLOGICAL SCIENCES 28, 36 (2012).

(86) Id. at 33.

(87) Id. at 35.

(88) Id.

(89) Elizabeth Coleman, What Is Hypoxia and How Does It Affect Fisheries?, LOUISIANA STATE UNIVERSITY AGRICULTURAL CENTER, https://www.seagrantfish.

(90) Id.

(91) Id.

(92) Id.

(93) Hiroaki Tsutsumi et al, Implications of Changes in the Benthic Environment and Decline of Macro-Benthic Communities in the Inner Part of Ariake Bay in Relation to Seasonal Hypoxia, 10 PLANKTON AND BENTHOS RESEARCH 187, 188 (2015).

(94) Carlisle, supra note 69.

(95) See OVERSTREET ET AL., supra note 71, at 1610, 1687, 1697, 1708.

(96) Andrew P. Negri et al., Sheep Mortality Associated with Paralytic Shellfish Poisons From the Cyanobacterium Anabaena Circinalis, 33 TOXICON 1321, 1321 (1995).

(97) Jechan Lee et al., The Role of Algae and Cyanobacteria in the Production and Release of Odorants in Water, 227 ENVIRONMENTAL POLLUTION 252, 252 (May 2017).

(98) Pieter T. J. Johnson & Stephen R. Carpenter, Influence of Eutrophication on Disease in Aquatic Ecosystems: Patterns, Processes, and Predictions, INFECTIOUS DISEASE ECOLOGY, 73, 89 (Richard S. Ostfeld et al. eds., 2008).

(99) See Elizabeth D. Hilborn et al., Center for Disease Control & Prevention, Algal Bloom-Associated Disease Outbreaks Among Users of Freshwater Lakes--United States, 2009-2010, 63 Morbidity and Mortality Weekly Report 11 (Jan. 10, 2014).

(100) See Pieter T. J. Johnson & Stephen R. Carpenter, supra note 97, at 73-99.

(101) Alan E. Wilson et al., Effects of Cyanobacterial Toxicity and Morphology on the Population Growth of Freshwater Zooplankton: Meta-Analyses of Laboratory Experiments, 51 LIMNOLOGY AND OCKANOGRAPHY 1915, 1916 (2006).

(102) See generally Z. Maciej Gliwicz, Why Do Cladocerans Fail to Control Algal Blooms?, 200/201 HYDROBIOLOGIA 83 (1990).

(103) See id.

(104) The Gulf states include Texas, Alabama, Florida, and Mississippi.

(105) Emilio Hernandez-Hernandez et al., The Economic Significance of the Gulf of Mexico Related to Population, Income, Employment, Minerals, Fisheries and Shipping, 47 OCEAN & COASTAL MANAGEMENT 565, 572 (2004).

(106) Id.

(107) Id. at 571.

(108) Id. at 573-74.

(109) Marcy Lowe et al., Louisiana Oyster Industry: Building Competitiveness and Resilience, DATU RESEARCH 7 (2014),

(110) Id.

(111) Sarah Mine et al., Louisiana Shrimp Value Chain: Price Dynamics, Challenges & Opportunities, DATU RESEARCH 3 (2016), Price_Dynamics_Challenges_Opportunities.

(112) Moving Forward: The Louisiana Fishing Industry, COASTAL WETLANDS PLANNING, PROTECTION AND RESTORATION ACT, (June 20, 2018),

(113) Mine, supra note 111, at 13.


(115) Id.

(116) Hernandez-Hernandez, supra note 105, at 576.

(117) Id.

(118) Envtl. Prot. Agency, The Sources and Solutions: Agriculture, NUTRIENT POLLUTION (last updated Mar. 10. 2017).

(119) Jennifer Martin, The Fertilizer Institute Sets Priorities for the 2018 Farm Bill, THE FERTILIZER INSTITUTE (Oct. 5, 2017),

(120) Nutrient Stewardship, What are the 4Rs, 4R PRINCIPLES, (last visited Apr. 4, 2018).

(121) ENVTL. PROT. AGENCY, supra note 114.

(122) Id.

(123) Jerry L. Hatfield et al., Nitrate-nitrogen Patterns in the Raccoon River Basin Related to Agricultural Practices, 64 J. OF SOIL AND WATEK CONSERVATION 190, 199 (May/June 2009).

(124) L.M. Ahiablame et al., Effect of Tile Effluent on Nutrient Concentration and Retention Efficiency in Agricultural Drainage Ditches, 98 AGRICULTURAL WATER MANAGEMENT 1271, 1271 (May 2011).

(125) Id.

(126) Controlled Drainage, TRANSFORMINGDRAINAGE.ORG, https://transforming (last visited Oct. 16, 2018).

(127) Id.

(128) Mark Steil, Controlling Farm Runoff Could Have Multiple Benefits, MPR NEWS (Aug. 5, 2009),

(129) Id.

(130) The Ohio State University College of Food, Agric, and Envtl. Sciences, Wood Chip Bioreactor (NCRS 605), AG BEST MGMT. PRACTICES, (last visited Oct. 16, 2018).

(181) Id.

(132) Id.

(133) Laura E. Christianson et al., Denitrifying Woodchip Bioreactor and Phosphorus Filter Pairing to Minimize Pollution Swapping, 121 Water Research 129. 129-30 (Sept. 15, 2017).

(134) The Ohio State University College of Food, Agric. and Envtl. Sciences, supra note 130.

(135) V.H. Popov et al, Vegetated Biofilters: The Relative Importance of Infiltration and Adsorption in Reducing Loads of Water-soluble Herbicides in Agricultural Runoff, 114 AGRICULTURE, ECOSYSTEMS AND ENV'T 351, 351 (2006).

(136) Press Release, Envtl. Def. Fund, Study: Adding Wetlands in the Corn Belt Can Shrink Gulf of Mexico Dead Zone (Feb. 2, 2015),

(137) Id.

(138) THE WETLANDS INITIATIVE, Nutrient Removal, Ask the Scientist, (last visited Oct. 16, 2018).

(139) Id.

(140) Id.

(141) Id.

(142) Id.

(143) THE WETLANDS INITIATIVE, supra note 138.

(144) Id.

(145) S. REP. No. 92-414, at 5 (1972), as reprinted in 1972 U.S.C.C.A.N. 3668, 3674.

(146) DRIESEN ET AL., supra note 28, at 498.

(147) DOREMUS ET AL., supra note 31, at 768.

(148) 33 U.S.C. [section] 1362(12) (2012).

(149) NPDES Permit Basics. ENVTL. PROT. AGENCY (July 25, 2018),

(150) Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act) [section] 208 (a)(2)(C)(ii), (a)(2)(F); 33 U.S.C. [section] 1288(b)(2)(C)(ii), (b)(2)(F) (2012).

(151) See Endre Szalay, Breathing Life into the Dead Zone: Can the Federal Common Law of Nuisance Be Used to Control Nonpoint Source Water Pollution?, 85 TUL. L. REV. 215, 239 (2010).

(152) Id.

(153) 33 U.S.C. [section] 1329(a)(l)(A-C) (2012).

(154) Szalay, supra note 151, at 239.

(155) 33 U.S.C. [section] 1344(a) (2012).

(156) 33 U.S.C. [section] 1313(d)(1)(A) (2012).

(157) 33 U.S.C. [section] 1313(d)(1)(C) (2012).

(158) Clean Water Act Section 303(d): Impaired Waters and Total Maximum Daily Loads (TMDLs) ENVTL.PROT. AGENCY (Sept. 23, 2018),

(159) See Pronsolino v. Nastri, 291 F.3d 1123, 1124 (9th Cir. 2002).

(160) See id. at 1125.

(161) Id. at 1137.

(162) Id.

(163) See Sierra Club v. Meiburg, 296 F.3d 1021, 1032 (11th Cir. 2002). and hypoxia and solutions to reducing them nationally, with

(164) Kenneth Kilbert, Legal Tools for Reducing Harmful Algal Blooms in Lake Erie, 44 U. TOL. L. REV. 69, 94-95 (2012).

(165) See generally 16 U.S.C. [section] 1456b (2012).

(166) Kilbert, supra note 164, at 95.

(167) Id.

(168) Id.

(169) Harmful Algal Bloom and Hypoxia Amendments Act of 2004, P.L. 108-456, 118 Stat. 3630.

(170) Harmful Algal Bloom and Hypoxia Amendments Act of 2014, P.L. 113-124, 128 Stat. 1379.

(171) Id.

(172) What is the Farm Bill?, NAT'L SUSTAINABLE AGRIC. COAL., (last visited Oct. 20, 2018).

(173) Id.

(174) Farm Bill Programs and Grants Overview, NAT'L SUSTAINABLE AGRIC. COAL., (last visited Apr. 4, 2018).

(175) Id.

(176) Id.

(177) DOREMUS ET AL., supra note 31, at 740.

(178) Kyle W. Robisch, Getting to the (Non)point: Private Governance as A Solution to Nonpoint Source Pollution, 67 VAND. L. REV. 539, 555 (2014).

(179) Id. at 556.

(180) Id.

(181) Id.

(182) Id. at 556-57.

(183) Robisch, supra note 178, at 557.

(184) Id. at 543.

(185) DOEEMUS ET AL., supra note 31, at 72.

(186) 451 U.S. 304 (1981).

(187) Id. at 315 n.8.

(188) Id. at 317-18.

(189) Id. at 318.

(190) See 453 U.S. 1 (1981).

(191) Id. at 22.

(192) Robert W. Vindal, Proof of Wrongful Discharge of Pollutant into Waterway under Federal Clean Water Act, 36 Am. Jur. 3d Proof of Facts 533 (Originally published in 1996).

(193) 33 U.S.C. [section] 1365(e).

(194) DOREMUS ETAL., supra note 31, at 58.

(195) Id.

(196) Mark Latham et al., The Intersection of Tort and Environmental Law: Where the Twains Should Meet and Depart, 80 FORDHAM L. REV. 737, 769 (2011) (discussing the difference between tort and environmental law).

(197) Id.

(198) Id.

(199) Id.

(200) Id.

(201) THE NAT'L AGRIC. LAW CENTER, States' Right-To-Farm Statutes, (last visited Apr. 4, 2018).

(212) Id.

(213) Id.

(214) 33 U.S.C. [section] 1365(a)(1) (1994).

(215) Id.

(216) See generally 291 F.3d 1123 (9th Cir. 2002).


(208) WATERWORLD, Hypoxia Task Force Develops New Strategies for Nutrient Reduction in MS River, Gulf of Mexico (Feb. 12, 2015),

(209) Id.


(211) Mat 43.

(212) Id.

(213) WATKRWORLD, supra note 208.

(214) Id.

(215) Id.

(216) Donnelle Eller, Iowa nitrogen pollution in the water is getting worse, despite hundreds of millions of dollars in spending, study shows, DES MOINES REG. (June 22, 2018), water-pollution-gulf- mexico-dead-zone-nitrogren-missouri-mississippi-river-quality-nirtate/697370002.

(217) Id.

(218) Id.

(219) EPA Lawsuit, MISSISSIPPI RIVER COLLABORATIVE, (last visited Oct. 20, 2018).

(220) Id.

(221) Id.

(222) Id.

(223) Id.

(224) EPA Lawsuit, MISSISSIPPI RIVER COLLABORATIVE, http://www. (Last visited Aug. 2018).

(225) Id.

(226) Gulf Restoration Network v. Jackson, CIVA. 12-677, 2013 WL 5328547, at *2 (E.D. La. Sept. 20, 2013), vacated and remanded sub nom. Gulf Restoration Network v. McCarthy, 783 F.3d 227 (5th Cir. 2015).

(227) Id. at *7.

(228) Gulf Restoration Network v. McCarthy, 783 F.3d 227, 243 (5th Cir. 2015).

(229) Gulf Restoration Network v. Jackson, 224 F. Supp. 3d 470, 476 (E.D. La. 2016).

(230) Id.

(231) William Gutermuth, J.D., Circling the Drain: Regulating Nutrient Pollution from Agricultural Sources, 30 J.L. & HEALTH 80, 108 (2017); Amanda L. Crawford, Nutrient Pollution and the Gulf of Mexico Dead Zone: Will Des Moines Water Works Be A Turning Point?, 91 TUL. L. REV. 157, 158 (2016).

(232) Grant Rogers, The Water Works ruling: What You Need to Know, DES MOINES REGISTER (Jan. 2017),

(233) Mary Christina Wood, Regulating Discharges into Groundwater: The Crucial Link in Pollution Control Under the Clean Water Act, 12 HARV. ENVTL. L. REV. 569 (1988).

(234) See id.

(235) Oliver Milman, 'Dead zone' in Gulf of Mexico Will Take Decades to Recover from Farm Pollution, THE GUARDIAN (March 22, 2018),

(236) Louisiana's Comprehensive Master Plan for a Sustainable Coast,

(237) Bob Marshall, The Louisiana Coast: Last Call - Funding The Master Plan,

(238) ROBERT R. M. VERCHICK, FACING CATASTROPHE, 85 (Harvard University Press 2010).

(239) Id. at 87.

(240) Robert Mann, Can We Talk About Our Relationship to the Oil Industry? It's Not Our Savior,, Sept. 29, 2017,

(241) Dan Scavia, Nutrient pollution: Voluntary steps are failing to shrink algae blooms and dead zones, THE CONVERSATION (July 31, 2017),

(242) See Chesapeake Bay Foundation, Our History, (last visited Apr. 4, 2018).

(243) Id.

(244) 1983 Chesapeake Bay Agreement (last modified Mar. 1996),

(245) EPA, Driving Actions to Clean Local Waters and the Chesapeake Bay, (last visited Apr. 4, 2018).

(246) Id.

(247) Id.

(248) Id.

(249) Tom Pelton, We Already Tried Letting States Clean Up the Chesapeake Bay. It Didn't Work., THE WASHINGTON POST (Mar. 23), https://www.

(250) Id.
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Author:Whitaker, Kelly A.
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Date:Jan 1, 2019

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