How Nutrient Litigation Drives New Regulatory Requirements

Nutrient reduction and regulation is one of the most challenging legal and regulatory issues facing NPDES permittees and public wastewater agencies. Ongoing federal litigation involves nutrient issues in major watersheds throughout the country, including the Mississippi River Basin and the Chesapeake Bay watershed. This paper provides a legal review of recent high profile court cases concerning nutrient regulation and numeric limits and the implications of these developments for permittees and clean water agencies. This review of cases surveys the legal mechanisms available under the Clean Water Act to control nutrient loading, including the pros and cons of technology-based and water quality-based limits, and the legal and scientific bases for numeric nutrient criteria and nutrient effluent limits that are being debated in these lawsuits. The respective roles of the states, the federal government, and non-governmental organizations in nutrient litigation are analyzed.