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Environmental Group Continues Aggressive Nutrients Legal Strategy in Puget Sound

August 25, 2021

The Northwest Environmental Advocates (NWEA) recently filed a petition for a writ of mandamus to the U.S. Court of Appeals for the Ninth Circuit asking the court to force EPA to respond to its February 2017 petition requesting that the Agency revoke the State of Washington’s authority to issue permits pursuant to the Clean Water Act’s (CWA) National Pollutant Discharge Elimination System (NPDES) program. 

NWEA has sought through several means to force Washington to develop a Total Maximum Daily Load (TMDL) for nutrients in the Puget Sound and include stringent discharge limits in NPDES permits for clean water utilities.  In light of Washington’s failure to take NWEA’s requested actions, the group has more recently sought to compel EPA to do the same.

This latest filing is an unusual step aimed at utilizing a federal appellate court to force EPA to respond – either through an approval or a denial – to the group’s request that EPA either force changes to Washington’s program to address nutrients, or take over Washington’s NPDES permitting authority entirely.  According to NWEA, a writ is appropriate in this case in light of EPA’s failure to act on the 2017 petition and the need to “protect Puget Sound and all its inhabitants.” 

Meanwhile, NWEA has also objected to the draft Puget Sound nutrient general permit Washington is in the process of developing for nearly 60 domestic wastewater treatment plants as being too lenient to protect against nutrient pollution.  Clean water agencies, including NACWA member the City of Tacoma, have also notably already challenged the legality of Washington’s actions in the development of the draft permit, which could cost clean water utilities hundreds of millions of dollars to comply with.   

NACWA will keep you updated on these issues as they continue to unfold.  In the interim, please contact NACWA’s Chief Legal Counsel, Amanda Aspatore, with any questions. 

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