Mississippi River Litigation Highlights Complexities of Nutrients

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A few weeks ago, NACWA and a number of other groups filed legal briefs in an ongoing federal court case over regulation of nutrients in the Mississippi River Basin (MRB).  At its heart, the case is about whether the federal government or individual states should take the lead in developing nutrient water quality criteria, and about which approach will lead to the most effective, holistic reduction in nutrient impairment.  The case is also a perfect example of just how complex the nutrient issue can be from both a legal and regulatory perspective.  It has implications not just for municipal clean water utilities discharging to the MRB, but for all utilities across the country. 

The court battle began in March of last year when several environmental activist organizations sued the U.S. Environmental Protection Agency (EPA) over its decision not to develop federal numeric nutrient criteria (NNC) for the MRB.  But in reality, the legal fight stretches back much further. 

In 2008, the activist groups filed a petition with EPA, alleging that the individual states within the MRB had failed to make adequate progress in addressing nutrient issues or developing nutrient criteria.  The groups also stated that EPA was legally required under the Clean Water Act to develop federal NNC for the entire MRB—as well as for other waters where necessary nationwide—in the states’ stead.

In 2011, EPA issued a letter denying the petition’s requests.  EPA’s response acknowledged the significant environmental concerns presented by nutrient water quality impairment, but also indicated its belief that use of federal rulemaking authority was not an effective or practical means of addressing nutrient problems.  EPA outlined some of the significant work it is already doing with individual states to help address nutrient issues.  The Agency also poignantly noted that imposition of federal NNC would do little to address the significant nutrient impairment coming from nonpoint sources.   The activist groups were not satisfied with EPA’s answer, so challenged the decision in court in March 2012.

NACWA moved quickly to participate in the case after it was filed and represent the municipal clean water perspective.  Several other groups potentially affected by the case moved to join as well, including the American Farm Bureau and related agricultural interests, a group representing the fertilizer industry, and the Federal Water Quality Coalition. 

Together with NACWA, this group filed a joint brief in early March 2013 supporting EPA’s denial of the petition and decision not to promulgate federal NNC.  At first blush, this may seem an odd group to join together on a legal document, particularly given some of the legal disagreements (see prior posting on Chesapeake Bay nutrients litigation) that NACWA and agricultural interests have had over the role of nonpoint sources in nutrient impairment.  But in this specific case, we could all agree that federal NNC for the MRB would be both illegal and inappropriate, and that individual states must take the lead in developing standards and criteria for water quality protections with each state’s jurisdiction.

However, because nonpoint sources do play an outsized role in the nutrient problem, NACWA also filed our own,standalone brief presenting the unique municipal perspective on these critical nutrient issues.  NACWA’s brief goes beyond the joint brief to make clear that a fair and balanced watershed approach among all contributing sources of nutrients—especially nonpoint sources—is the only way to achieve meaningful nutrient reduction.  The brief argues that federal NNC are an insufficient tool to solve a problem that demands a holistic solution, and instead suggests that states should take the lead on developing nutrient criteria and control programs that will result in more equitable reduction efforts across all sources.

Interestingly, several individual MRB states have also joined the case and submitted their own joint brief in support of EPA and against promulgation of federal NNC.  The state brief highlights both the importance of state primacy on water quality criteria development and the need for greater nonpoint source control.  These are both points that echo and reinforce arguments raised in the NACWA brief.

Resolution of the case is still a long way off.  The activist plaintiffs will have an opportunity to respond to all the briefs filed in the case, and the judge will have to review all of the competing arguments and ultimately make a decision.  Regardless of the judge’s final ruling, it is likely some party to the case will not like the outcome and will decide to appeal. 

But one thing is clear from all of the competing arguments and positions outlined by the various parties in the case: Nutrient control is an exceptionally complex issue, and especially so when viewed through a legal lens.  Just as clean water agencies both within the MRB and nationwide will continue to do their part to address nutrients in a fair and equitable way, NACWA will continue to aggressively advocate on their behalf and provide a valuable municipal perspective on this complicated topic.

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