Federal Court Affirms EPA's Discretion Against Regulating Nutrient Impaired Waters

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A decision this week by a federal district court Judge in Louisiana affirms the U.S. EPA’s decision not to regulate nutrients in the main stem of the Mississippi River.  The decision is not unexpected, but is viewed as a victory for EPA and the States.  The court decision can be found here.

For those who may not be following this issue, water quality in the Mississippi main stem and the Gulf of Mexico continues to be impaired due to excess nutrients emanating from the 31 states and two Canadian provinces whose waters eventually flow into the Gulf.

In 2008, a group of environmental organizations known as the Gulf Restoration Network petitioned the agency to promulgate a rule under the Clean Water Act that would compel the States to, among other things, adopt numeric nutrient standards that would be incorporated into CWA permits.  The environmental groups argue that without a regulation and numeric limits, there is little opportunity to reduce nutrients from regulated sources.

In 2011, the EPA denied the Network’s petition, arguing that these problems were better and more cost-effectively resolved through a collaborative federal-state process, rather than a new regulation, thus triggering the current litigation. The case eventually made its way to the 5th Circuit Courts of Appeal where that Court concluded that EPA indeed had discretion on whether to accept or deny the petition provided EPA offered a “reasonable explanation.” 5th Circuit Decision here.

The Network’s principle argument with EPA was the agency’s “hands-off-approach” to dealing with the water pollution.

In affirming EPA’s discretion, the court noted the CWA “is by design a states-in-the-first-instance regulatory scheme” which is a policy set forth by Congress in the Act itself.  In the end, the district court concluded that EPA’s denial was reasonably explained, and the case against EPA was dismissed.