NACWA Moves to Join Litigation Over Missouri Nutrient Criteria

(February 19, 2020) – NACWA recently joined a coalition of wastewater utilities seeking to intervene in litigation brought by an environmental organization in the US District Court for the Western District of Missouri challenging the US Environmental Protection Agency’s (EPA) approval of Missouri’s newly adopted “Combined Criteria Approach” for aquatic life nutrient criteria in lakes.  

The suit, Missouri Coalition for the Environment Foundation v. Wheeler, alleges that EPA’s approval of Missouri’s use of “Screening Thresholds” and site-specific aquatic life assessments – as opposed to a single stringent numeric nutrient standard – violated the Clean Water Act and Administrative Procedure Act. The suit asks the court to set aside Missouri’s nutrient criteria.    

As discussed at NACWA’s February Board Meeting and Winter Conference, in addition to the direct ramifications the litigation could have on wastewater utilities in Missouri - including multiple NACWA members - a judicial opinion invalidating EPA’s approval of a flexible, response-based approach to nutrient criteria could have ripple effects for other states considering the adoption of a similar process.   

Most important, single-number criteria of the type sought by the environmental plaintiffs in Missouri would likely require public utilities to install costly nutrient removal treatment upgrades and could conflict with other designated uses such as sport fisheries. A judicial decision effectively compelling the adoption of a single-number criteria and restraining the flexibility afforded to states in nutrient criteria development could therefore have significant nationwide implications for NACWA’s members.       

The motion to intervene stresses the direct and substantial permitting and financial impacts nutrient criteria have on public wastewater utilities, as well as the challenges associated with developing criteria for pollutants like nutrients that do not exhibit specific, consistent toxicity thresholds but instead show variability in the relationships between concentrations and biological effects. The coalition’s motion also notes the potential national ramifications of the issues presented to the court and asks that NACWA and the other utility groups be allowed to intervene to defend the important interests of public water treatment permittees. 

NACWA is directly supporting the Missouri Association of Cleanwater Agencies in this case and is joined as an intervenor by a number of other state and regional associations from around the country.  NACWA Legal Affiliate AquaLaw is counsel to the coalition.      

The State of Missouri has also sought to intervene in support of EPA’s approval of its criteria.   

For questions concerning the case or NACWA’s involvement, please contact Amanda Aspatore, NACWA’s Chief Legal Counsel.