NACWA Moves to Intervene in Mississippi River Litigation on Nutrient Pollution

The National Association for Clean Water Agencies (NACWA) filed a Motion to Intervene May 23 in a lawsuit initiated by the Gulf Restoration Network and other NGOs seeking to force the U.S. Environmental Protection Agency (EPA) to establish costly federal numeric nutrient criteria (NNC) and nutrient total maximum daily loads (TMDLs) for all water bodies in the Mississippi River Basin and Northern Gulf of Mexico.

NACWA’s filing ensures that the interest of the municipal clean water community will be aggressively represented in the litigation.

In the case—Gulf Restoration Network, et al. v. EPA—filed with the U.S. District Court for the Eastern District of Louisiana, the plaintiffs are trying to force EPA to impose NNC and TMDLs regardless of the cause of site-specific water quality impairment. Such an approach would place nutrient load reductions on clean water utilities without sufficient scientific support and would not address the underlying problem of nonpoint source discharges from agricultural sources.

“Instead of solving the nutrient problem, the relief sought by the Plaintiffs in this case will simply force municipal ratepayers to shoulder the burden and the cost of reducing nutrient loads—even if their local water quality needs do not require such reductions —while letting those most responsible for the problem, nonpoint sources, off the hook,” said Ken Kirk, executive director of NACWA.

NACWA’s filing argues that a previous denial by the U.S. EPA for a similar petition by environmental activists in 2008 was appropriate and that the necessary legal basis for a federal NNC in the Mississippi River Basin does not exist. The motion also contends that the technical and scientific basis for NNC and nutrient TMDLs by EPA is inappropriate because it would place a disproportionate share of the regulatory and financial burden on point-source discharges, including municipal wastewater and storm water utilities, while failing to address nonpoint sources.

“The environmental community knows that a one-size-fits-all approach to federal numeric nutrient criteria will force wastewater treatment plants to install costly treatment upgrades but will not solve the nutrient pollution problem in this country,” said Kirk. “Not when the majority of the nutrient problem in the Mississippi River Basin and the Gulf of Mexico is due to farm runoff.”

According to the U.S. Geological Survey and EPA’s water quality data, runoff and groundwater leaching from agricultural fields are the major sources of nutrient pollution impairing U.S. waterways. These studies have shown that agriculture is the dominant source of nutrient pollution causing dead zones in the Gulf of Mexico and elsewhere. Wastewater treatment plants account for less than 10% of the nutrients flowing to the Gulf of Mexico.

The association’s filing asserts that NACWA meets the necessary legal requirements for intervention, including sufficient interest in the litigation because of the adverse effects that would ensue should the plaintiffs prevail. NACWA highlights for the court previous instances where it has been granted legal intervention in similar cases involving critical water quality issues—including federal litigation over the final TMDL for the Chesapeake Bay—and emphasizes the important role the Association can play in helping the court understand and resolve the complex and important issues involved.

NACWA has spearheaded the Healthy Waters Coalition—a diverse coalition of stakeholders representing municipal water and wastewater utilities, state regulators, agriculture and conservation interests—that is urging Congress to include provisions in the Farm Bill to control nutrients runoff for agricultural sources.

Source: NACWA