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CLEAN WATER ACT/TOTAL NITROGEN EFFLUENT LIMITATION: FEDERAL ENVIRONMENTAL APPEALS BOARD ADDRESSES CHALLENGE

December 31, 2013

Category: Arkansas Environmental, Energy, and Water Law

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Author: Walter G. Wright

The Great Bay Municipal Coalition, representing the municipalities of Dover and Rochester, New Hampshire ("Coalition"), petitioned the Federal Environmental Appeals Board ("Board") to review an effluent limitation for total nitrogen ("nitrogen") in a Clean Water Act ("CWA") National Pollution Discharge Elimination System ("NPDES") permit that the Environmental Protection Agency Region 1 ("EPA") issued to the town of New Market, New Hampshire ("Town"), for its wastewater treatment plant. The NPDES permit reauthorized discharges of treated wastewater effluent into the Lamprey River from Town's treatment plant and included a nitrogen effluent limit of 3.0 mg/l nitrogen.

The Board addressed the challenge in a December 2nd decision styled In Re Town of New Market, New Hampshire "“ NPDES Appeal No. 12-05.

The Coalition argued that the Board should review EPA's decision because:

  • EPA abused its discretion in determining that a permit effluent limit of 3.0 mg/l for nitrogen is necessary to achieve New Hampshire's narrative water quality standards for the relevant waterbodies (i.e., EPA erred by relying on proposed numeric nutrient criteria in the 2009 New Hampshire Department of Environmental Services study referred to as the Great Bay Nutrient Report because the analysis was scientifically flawed);
  • EPA erred by using the state's proposed nutrient criteria without undertaking rulemaking;
  • EPA erred in its consideration of the contribution of nonpoint sources in determining the NPDES permit's nitrogen limits; and
  • EPA did not satisfy applicable procedural obligations in issuing the NPDES permit

The Board in the December 2nd decision upheld EPA's decision in all respects.

The remainder of the Board's decision provides a rationale for its conclusion as to each of the four issues.

The opinion is approximately 99 pages and therefore will be posted in two parts. A copy of the document can be downloaded below and in the next post.

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