Yesterday, a federal district court in Pennsylvania heard oral arguments in a litigation challenge to EPA’s total maximum daily load (TMDL) for the Chesapeake Bay. In five hours of intense and complex argument, agricultural interests, EPA, environmental activists groups, and municipal utility groups including NACWA presented their perspectives on the legal and policy issues underlying the TMDL. The judge was well-versed in the legal arguments underlying the case, asked probing questions, and seemed especially skeptical at times of the position advanced by the agricultural plaintiffs.
But underneath all of the legal arguments and statutory interpretations involved in this case, the most fundamental issue at play is one of basic fairness – namely, how will we equitably spread the burden of improving water quality? And the answer to this question will impact not only the Chesapeake Bay, but waterways all across the nation.
In filing this lawsuit, agricultural groups are attempting to limit EPA’s ability to regulate non-point ag discharges through allocations under the TMDL. In essence, the non-point sources are trying to walk away from the TMDL entirely, leaving the municipal point source community holding the bag. The claims present by agriculture in this case present a significant threat to the comprehensive watershed approach upon which point source interests are highly dependent and which NACWA strongly supports, and will result in increased regulatory pressure on point sources such as municipal wastewater and stormwater dischargers.
The approach advocated by the agricultural plaintiffs is unfair and scientifically unsound, sticking urban communities with billions of dollars of additional costs to reduce pollutants such as nutrients on top of the billions they have already spent. And at the same time, non-point sources are let off the hook, despite the fact that in many waterways around the nation – including the Chesapeake Bay – they are the leading source of nutrient impairment. For these reasons, NACWA and its municipal association partners in Maryland and Virginia intervened in the Bay litigation to defend the interests of the clean water utility community.
NACWA’s briefs in the case have strongly support the holistic watershed approach embodied in the final Bay TMDL, arguing that inclusion of non-point sources provides the greatest potential for equitably, cost-effectively, and successfully restoring the tens of thousands of water bodies nationwide that are affected by excessive pollutant loads. NACWA has also highlighted the significant investments and achievements municipal clean water utilities have made to improve water quality in the Chesapeake Bay, particularly with regard to nutrient impairments.
A decision from the court in the current Chesapeake Bay TMDL case will likely take a number of months. But whatever the outcome, NACWA will continue fighting to ensure that the costs of improving our nation’s waters are allocated fairly. Municipal utilities will continue to their part, but it’s time for the non-point sources to increase their share of the burden as well.