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A federal district court issued a decision  Sept. 20 finding that EPA is required under the Clean Water Act (CWA) to make a determination whether federal numeric nutrient criteria (NNC) are necessary for the Mississippi River Basin (MRB) and Gulf of Mexico, but affirming that EPA has discretion to consider a wide variety of factors in making the determination. The ruling by the U.S. District Court for the Eastern District of Louisiana in Gulf Restoration Network, et al. v. EPA granted in part and denied in part a challenge from environmental organizations to EPA’s 2011 denial of a petition for federal NNC in the MRB. The decision gives EPA 180 days to make a determination regarding whether federal nutrient criteria are necessary for the MRB.

Background

The lawsuit was initiated in March 2012 by environmental activist groups challenging EPA’s decision to deny a 2008 petition seeking the establishment of federal NNC and nutrient total maximum daily loads (TMDLs) for all waters nationwide where such criteria have not been developed but, at a minimum, to establish such criteria and TMDLs for all waters in the MRB and Gulf of Mexico. The plaintiffs argued that EPA’s petition denial was procedurally deficient because the Agency failed to make a determination whether federal standards were necessary to meet the requirements of the CWA, and also that EPA’s decision not to impose federal NNC was a substantive violation of the CWA. NACWA requested and was granted intervention in the case in late May 2012 and filed briefs in 2013. More information on NACWA’s court filings is available in Advocacy Alert 12-08 and Advocacy Alert 13-05.

Summary of Decision and Implications

In the Sept. 20 decision, the court agreed with the environmental plaintiffs that EPA, under CWA Section 303(c)(4), must make a “yes” or “no” determination whether federal nutrient criteria are necessary. In their 2008 petition, the activist groups specifically asked EPA to make a determination under CWA Section 303 that federal NNC are necessary to address the nutrient impairment problem in the MRB. However, in the 2011 answer to the petition, EPA essentially side-stepped this question by denying the overall petition without making a clear determination on the need for federal NNC. The court, looking at both the CWA statutory language and controlling U.S. Supreme Court case law from the 2007 Massachusetts v. EPA decision, found that “EPA could not simply decline to make a necessity determination in response to Plaintiffs’ petition for rulemaking” but was required to make a clear “yes” or “no” decision. Accordingly, the court gave EPA 180 days to make a necessity determination.

However, in an important positive development for NACWA and its utility members, the court also expressly rejected arguments by the environmental plaintiffs that EPA cannot rely on non-scientific factors when making a necessity determination. Instead, the court affirmed that EPA has wide discretion regarding the factors it can consider when making a determination, including policy judgments. The court even noted that many of the reasons provided by EPA in the 2011 petition denial could also be used by the Agency in making a formal determination that federal nutrient criteria are not necessary, stating that nothing in the CWA “expressly precludes EPA from considering the very factors that it cited in the Denial.” This provides an opportunity for EPA to make a “no” decision on the need for federal NNC – thus meeting the court’s directive to make a formal necessity determination – while basing the decision on many of the same factors from the 2011 petition denial, including EPA’s belief that working cooperatively with the states, rather than using a heavy-handed federal approach, will be the most “effective and sustainable way” to address nutrients.

Another important outcome from the case that will help NACWA members is the court’s clear affirmation that states have primary responsibility under the CWA for developing water quality standards. The court explained that “the necessity determination in §303(c)(4)(B) of the CWA is more than a mere speed bump on federal regulation because by design it serves as a hurdle to federal jurisdiction – a hurdle that EPA must overcome before it moves in to preempt a state’s sovereign authority to regulate its own waters.” This echoes NACWA’s longstanding position – and expressed in this case through briefing – that states must take the lead in developing water quality standards and criteria.

NACWA believes this decision provides EPA with a clear path forward to make a formal determination that federal NNC are not necessary for the MRB, and the Association looks forward to advocating strongly with EPA in support of this outcome. NACWA will also monitor any further developments in the litigation, including any potential appeal by EPA.

Any NACWA members with questions about the court’s decision or its impacts can contact Nathan Gardner-Andrews, NACWA’s General Counsel, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it . Additional information on the case and copies of relevant court filings are available on NACWA’s Litigation Tracking webpage. The Association will continue to keep the membership updated on developments in the case as they unfold.