In Nitrogen Pollution Blame Game, Federal Agency Says ‘Not It’
By: Brian Kehrl
The US Environmental Protection Agency this week offered its first response in the Cape Cod nitrogen pollution lawsuits, arguing in a motion to dismiss the case that the federal agency is not responsible for the accused shortcomings in the effort to clean up the region’s polluted bays and rivers.
“Even a cursory reading of the Complaint reveals that Plaintiff’s grievance is with the Commonwealth (“State”) of Massachusetts and/or the local governing body designated by the State to address water quality issues on Cape Cod, the Cape Cod Commission,” EPA attorneys wrote in the motion. “Plaintiffs’ attempt to expand the powers of EPA beyond its statutory limits is wholly unsupported by the [US Clean Water Act]. It is unsurprising, then, that the Court lacks subject matter jurisdiction over all of Plaintiffs’ claims.”
The federal agency says the lawsuit is the result of a fundamental misreading of the Clean Water Act, which shifts responsibility for pollution control to state governments.
“We are now into the pointing fingers stage in this. EPA is saying it is a state and local problem, not an EPA problem,” said Andrew Gottlieb, executive director of the Cape Cod Water Protection Collaborative. “The plaintiffs’ claim was strongly worded and one-sided, and this is the government’s opportunity to answer it with a strongly worded and one-sided response. Both are saying the other is utterly absurd and without merit…The truth probably lies somewhere in the middle.”
The motion, filed in US District Court on Monday, addresses only the first of two cases filed by a pair of nonprofit environmental advocacy groups, Conservation Law Foundation and Buzzards Coalition, against EPA.
The first case involves accusations that EPA had a responsibility under the Clean Water Act to require an updated regional water quality plan, known as a Section 208 Areawide Plan, and that EPA should not have allowed money from a federal loan program to be used for projects that were not in compliance with water quality improvement plans.
Korrin N. Petersen, senior attorney for the Buzzards Bay Coalition, said, “It is very discouraging. I think it is a sad day for water quality on Cape Cod when the federal government’s lead agency for protecting the nation’s clean water declines to provide the protections that the Cape needs.”
A response to the second case, a broader challenge to the EPA’s approval of 13 pollution limits that may have national implications, has not yet been filed. Under a court schedule agreed upon by both parties, that case is set to unfold in an accelerated process over the next four months. The next documents from each side for the second case are due September 21.
The parties are back in court after announcing first that they had reached a “settlement in principle” through out-of-court negotiations and then, shortly thereafter, announcing that their settlement talks had ultimately failed. Neither party has made public either the terms of the settlement in principle or the cause of the breakdown in negotiations.
In the case EPA opposed this week, the federal agency argued that the state, regional, and local governments are responsible for the Clean Water Act provisions cited by the plaintiffs. Holding EPA responsible for the measures would amount to an expansion of EPA’s authority under the Clean Water Act, creating additional new powers, the agency argued.
EPA contends the Clean Water Act is a partnership, in which “states remain at the front line in combating pollution,” referring to a 2005 federal court decision. “It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution,” according to the motion.
States have responsibility for abating and preventing water pollution, EPA argued, while the federal responsibility is limited to coordination and funding.
The regional water quality plan, for example, is approved by EPA, but the federal agency does not require state and local governments to file a new plan each year, as the plaintiffs contend. EPA has no “mandatory duty” to annually reapprove the regional plan, according to the motion to dismiss.
EPA also pointed out that it has a host of other water quality planning and regulatory documents related to Cape Cod and Massachusetts, several of which are updated regularly. For example, the agency noted that it approved 13 pollution limits for watersheds on Cape Cod between 2006 and 2009.
“At bottom, Plaintiffs’ fundamental complaint is that Massachusetts’ water quality planning for Cape Cod needs to better address the effects of nitrogen on area waters, which in their view the Areawide Plan approved in 1978 does not adequately do. But, as outlined above, water quality issues are continually addressed through the various CWA planning programs that Plaintiffs themselves cite to and rely upon,” according to the EPA motion to dismiss.
Ms. Peterson, however, said the federal plans and regulations have been in place for years, a period of time that has seen a major decline in water quality.
“The Section 208 areawide document is exactly that. It looks at the water quality issues on the Cape in a comprehensive way. EPA may be doing all of the things that they identified in the motion. But clearly it is not working. Water quality on the Cape continues to decline,” Ms. Peterson said. “EPA is required to look at it on an annual basis. It is not just a plan that sits on the shelf. It is a living plan that EPA is required to revisit on an annual basis.”
EPA further argues that the State Revolving Fund loan program, which provides low-interest loans to states for water quality improvement projects, is overseen by the states themselves. EPA ensures that the loans are given out appropriately, but not that they comply with areawide plans.
“Under the SRF program, it is the State that is responsible for selecting the projects that the SRF program will fund and it is the State that must abstain from funding any project that does not comport with plans generated in accordance with the [Clean Water Act], such as the Cape Cod Areawide Plan,” according to the motion filed Monday.
Most of the 32-page document is focused on the technical issues of planning and oversight of the loan program, but one short section gives a window into the larger, separate case between the plaintiffs and EPA in federal court.
The two advocacy groups argued that EPA should treat septic systems as “point sources” of pollution, similar to a large wastewater treatment plant, because they discharge into groundwater that connects directly to surface waters.
However, in the motion filed this week, EPA wrote, “In contrast, States retain primary responsibility for programs designed to reduce pollution from nonpoint sources, e.g., runoff from fields and forests…EPA has no authority to enforce the requirements of the CWA over nonpoint sources; that is left to the exclusive province of the States.”
Ms. Peterson, of Buzzards Bay Coalition, said the advocacy groups will provide a more detailed response to EPA’s motion in its next filing, due in October.
The county water protection collaborative and the Cape Cod Commission, for their part, are working on a regional wastewater plan, Mr. Gottlieb said. That plan is not intended to fill in for the areawide plan in the suit, however.
“Our intent is that it will be sufficient to provide a framework and blueprint for local planning activities and county coordinating, and it has value to us for that purpose,” he said. “We are not tailoring this to them or to their interests. We are tailoring it to the local needs as we understand them.”
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