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Originally published June 7, 2010 at 6:11 p.m., updated June 8, 2010 at 10:35 a.m.
TOPEKA An environmental group has delivered formal notice to the U.S. Environmental Protection Agency that it intends to sue the agency for failure to enforce certain federal water quality standards in Kansas.
The required 60-day notice of intent was sent June 2 to EPA Administrator Lisa Jackson by the Kansas City-based law firm Dugan Schlozman, which is representing Friends of the Kaw, a group that works to protect the Kansas River and its tributaries from pollution and to improve public use and access to the stream.
The Kaw or Kansas River flows east from Manhattan through Topeka and Lawrence to Kansas City and is a leading source of drinking water in the state's heaviest populated quadrant.
Should Friends of the Kaw prevail in their lawsuit or in a settlement, as a similar group recently did in Florida, it could have broad ramifications for the agriculture industry in the Kaw River Valley, which is the main source of the fertilizer run-off that contains the phosphorus, nitrogen and other “nutrients,” that are the pollutants the group is suing about. It also could effect cities that rely on the Kansas River for water.
“What this lawsuit will eventually enable us to do is to hold agriculture, businesses and communities' feet to the fire to fix the problem,” said Kansas Riverkeeper Laura Calwell and an active member of Friends of the Kaw. “The Kansas River watershed is predominantly industrial agriculture, which does contribute a lot of non-point pollution to the waters. There are a few cities that contribute to the problem. But it's mainly agriculture. I think a lot of our (Kansas) waters are impaired and that needs to be addressed...not just for our health but for the Gulf of Mexico.”
Excess nutrients from run-off into streams can lead to fish kills, algae blooms and so-called "dead zones" in water bodies, such as the one about the size of New Jersey that currently exists in the Gulf of Mexico resulting from nutrients discharged into it by the Mississippi River, the watershed for the nation's most fertile agricultural regions.
The Kansas River drains into the Missouri River, which drains to the Mississippi.
Kansas currently does not have numeric standards for the amount of nutrients allowed in streams. Instead, its regulations have “narrative” standards that Calwell said were inadequate because they don't provide for accurate measurement of the pollutants.
In the group's letter to EPA, it asserted that the agency informed states in 1998 that they should have numeric standards for nutrients in place by 2003 because narrative standards were insufficient.
“EPA determined 12 years ago...that numeric water quality criteria for nutrients were necessary to meet the requirements of the (Federal Water Pollution Control) Act,” attorney Mark Dugan wrote. “Kansas, however, still has not imposed such numeric criteria. The time for prompt response has long since passed in Kansas.”
Dugan said the law requires that EPA directly impose the standards since Kansas has failed to act on them.
Spokesmen for EPA or the Kansas Department of Health and Environment were not immediately available Monday afternoon for comment about the notice.
Calwell said the group was filing the lawsuit now because it believes the Obama administration might be more interested in enforcing pollution laws than were earlier administrations.
“The Riverkeeper in Florida filed the same kind of suit and won,” she said, “and I also believe this new administration is taking a little different look at some of the environmental laws.”