Briefs filed in Chesapeake Bay TMDL appeal defend court ruling, watershed approach

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WASHINGTON, DC, April 22, 2014 -- On Monday, April 21, the National Association of Clean Water Agencies (NACWA) filed a brief (available here) with the U.S Court of Appeals for the Third Circuit supporting the Environmental Protection Agency's (EPA) Total Maximum Daily Load (TMDL) for the Chesapeake Bay. The brief urges that the Third Circuit affirm a 2013 federal district court ruling upholding the load and to support the holistic watershed approach, including allocations for nonpoint source dischargers, incorporated in the TMDL.

NACWA's brief in American Farm Bureau Federation, et al. v. U.S. EPA argues that the watershed approach embodied in the Bay TMDL is both lawful and necessary to restore water quality and further argues that EPA's inclusion in the TMDL of specific allocations for nonpoint source discharges -- especially agricultural sources -- was both legal and appropriate. Further, the brief highlights the investments NACWA's municipal clean water utility members have made and will continue to make to improve water quality but notes that true water quality advancements can only be achieved with the participation of nonpoint sources. The brief also disagrees with arguments made by the appellants, and their supporting amicus briefs, that the TMDL infringes on state and local land-use decisions.

"The brief filed by NACWA highlights the importance of meaningful participation by nonpoint sources in efforts to improve water quality, and that is exactly what the Bay TMDL requires," said Ken Kirk, NACWA's Executive Director. "The parties that continue to fight this TMDL falsely claim that it infringes on local land use decisions, but that is simply not true. If it were, NACWA would be first in line to oppose it. Instead, we strongly support this TMDL because of what it does do -- embraces a holistic watershed approach that requires all sources, both point and nonpoint, to do their fair share to improve water quality."

Endorsing NACWA's position, a group of major U.S. cities -- including New York City, Baltimore, Chicago, Los Angeles, Philadelphia, and San Francisco -- also recently filed an amicus curiae brief (available here) in the litigation in support of NACWA's brief, echoing the importance of the watershed approach for large municipal governments. The cities' brief emphasizes the inequitable burden that municipal governments bear in addressing water quality concerns if nonpoint sources are not included in a meaningful way through the TMDL process. "This amicus brief filed in support of the Bay TMDL by six of the largest cities in the country simply reinforces how important the holistic watershed approach is -- not only within the Chesapeake Bay but also nationally -- to achieving fair, equitable and environmentally effective water quality improvement," noted Kirk.

NACWA has been an active participant in the litigation since its inception to defend the interests of the Association's municipal clean water utility members and support EPA's watershed approach in the TMDL. NACWA believes that the appeal lodged by the appellants -- a collection of agricultural and development interests -- is an effort by nonpoint sources to walk away from the TMDL process and represents a significant threat to a comprehensive watershed approach, which is the only viable way to address the growing issue of nutrient pollution in U.S. waters.

See also:

"Watershed approach key to water resource management, finds report

"Chesapeake Bay sees reduction in nutrient, sediment runoff with Farm Bill programs"

"NACWA seeks to intervene in Chesapeake nutrient trading litigation"

About NACWA

NACWA represents the interests of more than 300 public agencies and organizations that have made the pursuit of scientifically based, technically sound and cost effective laws and regulations their objective. NACWA members serve the majority of the sewered population in the United States and collectively treat and reclaim more than 18 billion gallons of wastewater daily. For more information, visit www.nacwa.org.

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