» Advocacy Alerts Archive

NACWA submitted briefs March 4 in ongoing litigation (Gulf Restoration Network, et al. v. EPA) over nutrient criteria in the Mississippi River Basin (MRB), supporting EPA’s denial of a request to promulgate federal numeric nutrient criteria (NNC) for the MRB and arguing that meaningful progress on nutrients can only be made through a holistic watershed approach addressing all sources of impairment.

This Advocacy Alert provides an overview of NACWA’s briefs and related filings in the case.

NACWA submitted its own, standalone brief  arguing that federal NNC are insufficient to achieve the holistic watershed improvements needed for nutrient control in the MRB in because they cannot meaningfully address the significant role of nonpoint sources in the nutrient pollution problem.  Additionally, NACWA participated in a joint brief  with a number of other groups to highlight the lead role states must take under the Clean Water Act (CWA) in developing water quality standards and to argue that federal action on NNC would unlawfully displace state primacy on this critical issue.  These briefs reinforce NACWA’s important participation as an intervenor in this critical litigation, and highlight the Association’s role as the leading advocate for municipal clean water utilities on nutrient issues.

NACWA’s Standalone Brief Provides Clean Water Community Perspective

The litigation was initiated last year in federal court by environmental activist groups seeking to challenge EPA’s 2011 denial of a petition requesting federal NNC for the entire MRB. The plaintiffs argue that EPA’s denial of their petition was procedurally deficient, and that EPA’s decision not to impose federal NNC for the MRB is illegal and in violation of the CWA. NACWA moved quickly to intervene in the case and aggressively represent the perspective of the municipal clean water community.

NACWA’s standalone brief presents the unique municipal clean water utility position on the complex issue of nutrient control, making clear that a fair and balanced watershed approach among all contributing sources of nutrients – especially nonpoint sources – is the only way to achieve nutrient reduction that will result in meaningful water quality improvements. 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.

Additionally, NACWA’s brief explains that municipal clean water utilities have made and will continue to make significant investments to reduce nutrient discharges when necessary and informed by sound science. However, the brief also underscores EPA’s recognition of the need for meaningful nutrient reductions from nonpoints in its decision not to impose federal NNC for the MRB, and contends that EPA acted correctly in considering this factor.

Joint Brief Provides Broader Perspective on State Primacy

The joint brief focuses the CWA’s clear statutory mandate that states, not EPA, must take the lead in developing standards and criteria for protection of water quality within each state’s jurisdiction. The brief stresses that EPA may step in and take over the criteria development process from states only in very limited circumstances, and argues the plaintiffs in this case have failed to demonstrate that such circumstances exist to warrant federal NNC for the entire MRB. Furthermore, the brief contends that EPA’s decision not to promulgate federal NNC was reasonable and based on permissible factors such as the Agency’s desire to continue collaborative nutrient reduction efforts with the states. In addition to NACWA, the joint brief was signed by agricultural interests, fertilizer groups, and industrial point source dischargers.

State Brief Underscores Importance of State Primacy, Nonpoint Source Control

A number of states in the MRB also submitted a joint state 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 but also the need for greater nonpoint source control. These are both points that echo and reinforce arguments raised in the NACWA brief.

Additional information on the case, including copies of previous court filings by the plaintiffs and EPA, is available on NACWA’s Litigation Tracking webpage. Any NACWA members with questions about the litigation or NACWA’s recent briefs can contact Nathan Gardner-Andrews at This e-mail address is being protected from spambots. You need JavaScript enabled to view it . We will continue to keep the membership updated on developments in the case as they unfold.