NACWA’s significant victory in the BEACH Act litigation was cemented on August 8 when a settlement agreement with the U.S. Environmental Protection Agency (EPA) was filed in Natural Resources Defense Council (NRDC) v. U.S. EPA.  The case involved a legal challenge over EPA’s failure to develop new recreational water quality criteria as required by Congress in the Beaches Environmental Assessment and Coastal Health Act (BEACH Act).  Partial summary judgment was granted to NACWA and the other plaintiffs on April 7, 2008, which lead to the final settlement with the Agency.  Under the terms of the settlement agreement, EPA will be given until 2012 to conduct the necessary scientific studies and develop new recreational water quality criteria and will also be required to solicit stakeholder input during the development process.  This agreement ensures that EPA will have sufficient time to develop the new criteria and that key stakeholders including NACWA will have an opportunity to participate in the criteria development, achieving the Association’s two primary goals for participating in the litigation.

This Alert summarizes the settlement terms and its implications for NACWA members.  A copy of the settlement is available in the Litigation Tracking section of NACWA’s Member Pipeline, or by clicking here (PDF).  Other documents relating to the lawsuit can also be found on the Litigation Tracking page.  NACWA’s participation in this case was supported by the Association’s Targeted Action Fund (TAF), and the Association worked with Legal Affiliate Squire, Sanders & Dempsey to take part in the litigation.  Please feel free to contact NACWA’s General Counsel Keith Jones at 202/533-1803 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spam bots, you need JavaScript enabled to view it with any questions regarding this case or NACWA’s ongoing legal activities.

I. Background

NRDC initiated the litigation against EPA in August 2006 as a result of the Agency’s failure to comply with the mandates set forth in the BEACH Act, which was enacted in 2000.  The legislation required EPA to conduct the necessary scientific studies to develop new recreational water quality criteria by 2003 and to publish revised criteria based on these studies by 2005.  EPA failed to meet both of these deadlines, leading NRDC to sue the Agency to force compliance.  NACWA moved to intervene in the case as a party in December 2006 to ensure that the interests of the clean water community would be represented during the litigation and any settlement discussions, and to ensure that any court-ordered deadline provided EPA with sufficient time to develop new recreational water quality criteria based on valid science.  Los Angeles County and the Los Angeles County Flood Control District also moved to intervene in late 2006.  NACWA’s request for intervention was granted in March 2007 over the objections of NRDC and the Association has been an active participant in the litigation since that time.

II. Summary of Settlement Agreement

The terms settlement agreement provide that EPA will complete the necessary scientific studies to develop new recreational water quality criteria by December 2010 and will publish the resulting criteria in the Federal Register no later than October 2012.  The Agency began a number of the necessary studies in 2007 and the timeline put forth in the agreement provides EPA with a total of five years from the start of the study period to complete the BEACH Act’s statutory requirements.  EPA has committed to carry out a number of specific studies during the study period, including efforts to determine appropriate indicators for new water quality criteria that will be protective of public health and based on sound science.  Under the terms of the agreement EPA has agreed to conduct studies in a variety of different geographic regions across the country as well as beaches affected by different forms of water contamination.  The Agency has also committed to following many of the recommendations and suggested studies outlined in the Agency’s Critical Path Science Plan, which was a report drafted in August 2007  by a panel of international water quality experts outlining the key studies necessary to develop new or revised water quality criteria.  Additionally, the agreement commits EPA to validate and publish a rapid test method for the new or revised criteria by October 2012.  The rapid test method will be based on indicators deemed appropriate by the Agency during the research period and will be validated through an inter-laboratory study.

Another important element of the settlement agreement is the opportunity for stakeholder input during the scientific study period and criteria development process.  The agreement requires EPA to convene at least one stakeholder workshop per year during 2009, 2010, and 2011 to provide an opportunity for interested parties to receive an update on EPA’s efforts and offer input on both the scientific studies and criteria development.  Additionally, the Agency will convene an Experts Scientific Workshop no later than December 2011 involving both EPA and external scientists to review the data collected during the scientific study period and determine if there are additional studies and data required to develop scientifically valid recreational water criteria.  This experts workshop will provide an important “off-ramp” during the criteria development process to ensure that the necessary scientific data needed for meaningful criteria development has been obtained and was a key request made by NACWA during the settlement discussions.

Among the other terms of the agreement, EPA is required to provide NACWA and the other parties to the litigation with semi-annual written status reports on the progress being made under the terms of the settlement.  Additionally, at NACWA’s insistence, EPA has agreed to make the raw data from all past and future epidemiolical studies publicly available as soon as necessary quality control and privacy issues have been addressed.  NACWA also secured a commitment from EPA that in future epidemiological studies, the Agency will use a full suite of the most promising indicators and test methods used in past studies, including both standard culture methods and rapid molecular methods for various indicator bacteria.

III. Impact on NACWA Members

This settlement represents a significant victory for NACWA and its clean water utility members by ensuring that the municipal utility voice will be heard during the development of new recreational water quality criteria.  The agreement provides NACWA with a key stakeholder role in development of the new criteria and provides EPA with sufficient time to carry out the necessary studies to create scientifically valid standards.  NACWA involvement in this process will protect its members from the publication of criteria based on potentially flawed science, including criteria that could result in unnecessary increased regulatory or financial requirements.  This settlement will also aid NACWA in ongoing discussions with Congress on the pending reauthorization of the BEACH Act, helping to ensure that any requirements in the legislation for development of rapid testing methods are consistent with the terms agreed on by all parties in the settlement.  NACWA looks forward to working with EPA, NRDC and others over the coming years to develop new criteria that are protective of public health and the environment and scientifically sound.