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Upper Blackstone Water Pollution Abatement District v. EPA


Upper Blackstone Water Pollution Abatement District v. EPA

The U.S. Supreme Court announced May 13 that it would not review a lower court ruling on controversial nutrient limits in a federally issued discharge permit.   The High Court’s decision not to accept Upper Blackstone Water Pollution Abatement District (UBWPAD) v. EPA means an August 2012 ruling from the U.S. Court of Appeals for the First Circuit will stand, including the decision’s finding of significant deference to EPA in setting nutrient permit limits.  NACWA filed a brief in support of UBWPAD and asking the Supreme Court to grant review, in part because the case is the first federal decision to address the proper way to translate narrative nutrient criteria into numeric limits in permits.  NACWA also filed briefs in support of the utility during earlier portions of the litigation before the First Circuit.

NACWA is disappointed the Supreme Court declined review, particularly due the national importance of narrative-to-numeric translations of nutrient criteria.  NACWA recently sent EPA a letter on this issue, and will continue its advocacy on nutrient criteria concerns moving forward.

The case stems from a 2008 discharge permit issued directly by EPA Region 1 that UBWPAD has appealed.  The focus of Upper Blackstone’s appeal is on the permit’s nitrogen and phosphorus limits, which were developed based on significantly flawed science and modeling.   Additionally, Upper Blackstone is challenging the imposition of the significant additional costs required to meet the new nutrient limits in the permit, which will be close to $200 million, on top of the $180 million the utility has already spent to achieve the nutrient reductions mandated in its previous NPDES permit.  Of particular concern is the timing of the new nutrient permit limits.  Upper Blackstone’s previous permit was issued in 2001 and gave the utility until 2009 to complete the initial $180 million nutrient reduction project.   Before the first project was even completed or its beneficial impacts on water quality could be determined, EPA issued the new permit in 2008, requiring additional reduction of nutrients, totaling an additional $200 million.

NACWA filed a brief in the case in November 2011 supporting UBWPAD’s challenge to the permit. In August 2012, the court issued a ruling denying Upper Blackstone’s permit challenge.  The decision found that EPA is entitled to significant deference when establishing permit discharge limits, even where there may be existing uncertainty regarding the data and modeling for water quality in the receiving waterbody.  The court noted that EPA is entitled to exercise its judgment when setting permit limits in the face of scientific uncertainty, and that courts should not second-guess this judgment as long as EPA follows proper procedure and acts with a reasonable basis.  The court further concluded that EPA’s actions in the current case were reasonable and justified, and thus upheld the challenged permit and nutrient limits.

NACWA believes the August ruling wrongly decided two questions of significant national importance to municipal clean water utilities. First, the NACWA contends the court incorrectly found that EPA and other permitting authorities must issue new discharge permits under the CWA every five years.  NACWA’s brief supporting rehearing pointed out that current regulations allow for continuance of expired permits where necessary for a variety of reasons, and that the ability to administratively continue permits is critical to the effective operation of the permitting system.  Second, NACWA believes the court misinterpreted EPA’s regulation on how permitting authorities derive numeric permit limits based on narrative water quality standards.

In early February 2013, NACWA submitted a brief to the U.S. Supreme Court encouraging review of the First Circuit decision.  The NACWA brief argued that allowing permit writers to derive numeric limits from narrative standards, without regard to relevant local water quality information, is inconsistent with EPA’s own regulations, and exposes public clean water utilities to the threat of spending limited public dollars on investments that are not necessary to address local water quality concerns.  The brief noted this is the first federal case to address the proper way to translate narrative nutrient criteria into numeric limits in permits, and that the lower court’s erroneous findings on this issue have national implications.


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