Clean Water Act Squeeze Play: EPA Asks the Fourth Circuit Not to Force Work on New Water Quality Standards Pending Appeal in “Constructive Submission” TMDL Case

Administrative Watch 

On May 2, 2017, the U.S. District Court for the Southern District of West Virginia (Chief Judge Robert C. Chambers) issued a Memorandum Opinion and Order denying a request by the Environmental Protection Agency (EPA) for a Stay of that court’s earlier decision on liability, in an important pending Clean Water Act case. Ohio Valley Environ. Coalition, et al. v. Pruitt (Civil Action No. 3:15-0271; S.D.W.Va.). At issue is a February 14, 2017 decision issued by Judge Chambers, granting summary judgment to the plaintiff groups (collectively, “OVEC”) against EPA. In that ruling, the court directed EPA to either approve or disapprove the “constructive submission” of “no TMDLs [total maximum discharge limits]” for all biologically impaired bodies of water within West Virginia, within 30 days.

OVEC filed the underlying action based upon the listing by the West Virginia Department of Environmental Protection (WVDEP) of 573 streams as “biologically impaired” under the WVDEP’s narrative water quality standards, one of which prohibits “materials in concentrations which are harmful…to man, animal, or aquatic life.” This list (known as a Clean Water Act “303(d) List”) was started in the late 1990s and includes streams that were added as recently as 2010, using a tool known as the “West Virginia Stream Condition Index.” Ordinarily, when a stream is listed on a 303(d) List as impaired, the relevant state agency develops a TMDL for that stream (which is a formula or method for limiting the concentration of pollutants flowing into the stream and thereby returning it to compliance).

In 2012, the West Virginia Legislature amended the West Virginia Water Pollution Control Act by directing the WVDEP to develop a new tool to assess the health of biological communities for purposes of determining compliance with the WVDEP’s biological water quality standard. Once that new methodology is finalized, an entirely new 303(d) List of biologically impaired streams will be developed, replacing the current one.  The WVDEP is still working on developing that tool.

Nevertheless, because these 573 streams have been listed as impaired, OVEC argued that the WVDEP is obligated to submit a proposed TMDL for each of those streams. In addition, since many of these streams have been on the 303(d) List for years and have not been the subject of a proposed TMDL, OVEC argued that the WVDEP’s inaction should be treated as a “constructive submission” of no TMDLs for any of those streams. In turn, OVEC asked that EPA be forced to evaluate whether the WVDEP’s implied decision not to develop a TMDL was lawful and proper. This is exactly the relief the district court granted.

The Clean Water Act does not require that the states submit TMDLs to EPA on any particular schedule. It only requires that they do so “from time to time,” according to a priority ranking established by each state agency.  Once a state submits a TMDL to EPA, the federal agency has 30 days to approve or disapprove of it.  If EPA disapproves of a proposed state TMDL, then EPA must develop its own TMDL for that stream within 30 days.

Faced with the prospect of potentially having to develop TMDLs for 573 streams while it appeals the district court’s adverse ruling, EPA asked Judge Chambers to stay his decision pending the outcome of EPA’s appeal to the U.S Court of Appeals for the Fourth Circuit. Finding that EPA had not shown “that it has any chance of success on appeal,” the court denied EPA’s request on May 2, 2017.  However, Judge Chambers did grant EPA limited alternative relief, by extending the deadline for EPA to act upon the 573 “no TMDLs” until 14 days after the appeals court rules on EPA’s request for a stay from that court.

On May 8, 2017, EPA filed its Stay motion with the Fourth Circuit.  In it, EPA argued that the district court’s February 14, 2017 ruling threatens to cause irreparable harm because EPA will incur millions of dollars in costs if it is forced to take over this part of the WVDEP’s TMDL program (which are funds that would be unrecoverable in the event EPA prevails on appeal). In addition, EPA noted that the district court’s ruling with respect to the purported “constructive submission” of no TMDLs seemed particularly inappropriate in these circumstances, as “West Virginia has a vigorous TMDL program.” According to EPA, the WVDEP has received approval for more than 4,000 TMDLs since 2004, and has submitted nearly 500 more proposed TMDLs for review by EPA since February 2016. Moreover, since the OVEC lawsuit was filed, the WVDEP has developed TMDLs for pollutants (other than ionic toxicity) for many of the 573 streams that are listed as biologically impaired on the WVDEP 303(d) List.

Regardless of whether a Stay is issued pending appeal, the outcome of this matter may have significant implications for the Clean Water Act programs in all of the states comprising the Fourth Circuit. A refusal of EPA’s Stay request would heighten the great concerns that already exist with respect to the potential massive disruption and uncertainty as to the administration of the Clean Water Act created by the district court’s underlying opinion.

Should you have questions regarding the OVEC TMDL case or other issues arising under the Clean Water Act and its state analogues, please contact Christopher B. (Kip) Power at 681-265-1362 or cpower@babstcalland.com, or any of our other environmental attorneys.

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