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Food and Water Watch, et al. v. EPA


Food and Water Watch, et al. v. EPA

A federal district court in Washington, DC, issued a ruling  icon-pdf on December 13, 2013, dismissing a legal challenge to the water quality trading provisions in EPA’s final total maximum daily load (TMDL) for the Chesapeake Bay, thereby preserving a vital tool to achieve water quality improvements in the Chesapeake Bay watershed and nationwide. The court dismissed the case because the environmental activists groups that filed the litigation did not have legal standing to bring the challenge and because the provisions of the TMDL discussing trading did not qualify as final agency action.

NACWA joined with a number of other municipal organizations to intervene in the litigation in early 2013 in defense of water quality trading programs as an important tool to achieve water quality improvements through the use of effective, verifiable market-based systems. Although the court did not rule directly on the merits of whether water quality trading programs in general are legal under the CWA, there is language in the decision suggesting that specific programs and offsets can be legal as long as they comply with the overall requirements of the CWA.  In particular, the court noted that “offsets and trades are but one option in the States’ arsenal” to achieve water quality and strike the balance to, “in an environmentally friendly and cost-effective way, (1) comply with the TMDL numbers allotted to them, (2) comport with the CWA, and (3) accommodate population growth, and promote agricultural and industrial growth.” The court also explained that trading programs can help states “meet the goals of the CWA.”  This language acknowledges the environmental and cost benefits of trading and suggests that trading approaches can be consistent with, and help achieve, the requirements of the CWA.

NACWA applauds the decision and the positive language in the ruling in support of water quality trading. It is unknown at this time if the plaintiffs will appeal the decision.

The lawsuit was filed in October 2012 by a coalition of environmental activist groups challenging the trading approach created by EPA in the final Chesapeake Bay TMDL. The complaint alleged that the trading program created by the Bay TMDL – and by extension all trading programs nationally – are illegal under the CWA, including trades between point sources as well as those between point and non-point dischargers. If a decision had been reached in the plaintiffs’ favor, there could have been implications not just for the Chesapeake Bay region but for all water quality trading efforts nationally.

NACWA moved to intervene in the case to push back against the plaintiffs’ misguided attacks on water quality trading and help defend trading programs across the country. NACWA’s participation in this lawsuit defended EPA’s use of trading programs as an effective way to address water quality concerns and ensured the perspective of the municipal clean water community was aggressively represented. The intervention request  icon-pdf explains how water quality trading programs are helping clean water agencies achieve water quality improvement in cost-effective ways, and also highlights the significant effect such litigation could have on trading programs nationally.

NACWA was joined on its intervention by a broad coalition of municipal and trading interests including the Virginia Association of Municipal Wastewater Agencies (VAMWA), the Maryland Association of Municipal Wastewater Agencies (MAMWA), the North Carolina Water Quality Association, the Virginia Nutrient Credit Exchange Association, and the Wet Weather Partnership.

The plaintiffs have indicated they are considering an appeal of the decision. NACWA will monitor any developments and will continue to aggressively defend water quality trading programs nationwide.



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