National Association of Clean Water Agencies (NACWA)

NACWA seeks intervention in chesapeake bay daily load litigation, defends holistic watershed approach

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The National Association of Clean Water Agencies (NACWA) filed a Motion to Intervene on May 25 in the case of American Farm Bureau, et al. v. U.S. Environmental Protection Agency (EPA) as an intervenor defendant on the side of EPA.  By doing so, NACWA is seeking to protect the interests of its municipal clean water agency members in the litigation and defend EPA’s ability to address all sources of water quality impairment, including agriculture, through a holistic watershed approach to total maximum daily load (TMDL) program implementation.

NACWA’s proposed intervention is limited to Claim One and Claim Four as outlined in the Plaintiffs Amended Complaint and is focused on preserving EPA’s ability through the TMDL process to address all sources of water quality impairment in the Bay watershed, including nonpoint sources such as agricultural.  NACWA’s proposed intervention will allow the Association to speak with an independent municipal voice in this important litigation.

The case is being brought by a collection of agricultural interests challenging the TMDL process and arguing that EPA has no authority to regulate or assign allocations to nonpoint agricultural sources.  Of particular concern to NACWA is the agricultural plaintiffs’ claim that the TMDL violates the Clean Water Act by alleging that EPA has no authority to establish allocations for individual sources and source categories, including nonpoint sources; that EPA has no authority to establish allocations to upstream water segments and to upstream nonpoint source dischargers; and that EPA has no authority to insist on “reasonable assurance” of nonpoint source implementation.  These claims present a significant threat to the comprehensive watershed approach, which is the only viable way to address the nutrient challenge to the Bay and other key watersheds going forward.  Absent such an approach, NACWA is concerned that the result will be increased regulatory pressure on point sources such as municipal wastewater and stormwater dischargers without addressing the underlying water quality problems.

“The effort of the agricultural plaintiffs in this case to try and remove themselves from the TMDL process and leave municipal wastewater and stormwater dischargers on the hook has serious implications for NACWA members not only in the Chesapeake Bay watershed but throughout the entire country,” said Ken Kirk, NACWA’s Executive Director.  “The reality is that municipal clean water utilities have done and will continue to do their fair share to help clean up the Bay, but nonpoint agricultural discharges are the largest single contributor to water quality impairment in the Chesapeake Bay and they must be part of this process as well.  While NACWA continues to have concerns with some of the science and modeling used to establish the Bay TMDL, we are much more concerned with the attempts by the Plaintiffs to walk away from the TMDL process.  Our intervention in this case will allow us to protect our municipal members’ interests and defend EPA’s ability to include nonpoint sources as part of a holistic watershed approach to cleaning up the Bay through the TMDL program.”

NACWA anticipates filing additional pleadings in the coming months and will be pursuing all avenues — legal, regulatory and legislative — to ensure that all sources of nutrient loadings are responsible for their fair share of the solution.      

NACWA represents the interests of more than 300 public agencies and organizations that have made the pursuit of scientifically based, technically sound and cost effective laws and regulations their objective. NACWA members serve the majority of the sewered population in the United States and collectively treat and reclaim more than 18 billion gallons of wastewater daily.

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