NACWA Will Participate in TMDL Cooperative Federalism Litigation

twoThe Fourth Circuit Court of Appeals has recently denied a request by EPA to stay a February federal district court order that requires EPA to federalize the development of Total Maximum Daily Loads (TMDLs) to address West Virginia water bodies with high conductivity levels. 

The Clean Water Act (CWA) provides that when a state identifies a water body as "impaired" for a particular pollutant, the state is required to develop and submit to EPA, for approval, a TMDL for the water body. A TMDL prescribes pollutant limits for relevant sources that are necessary to achieve water quality standards, and is ultimately translated into enforceable permit limits for point sources. If EPA disapproves a state TMDL, it is obligated to promulgate a federal TMDL in its place.

The district court, in Ohio Valley Envt'l Coalition (OVEC) v. McCarthy, held that West Virginia, by failing to develop TMDLs for conductivity for several hundred water bodies, has "constructively submitted" to EPA "no-action" TMDLs. Based on this holding, the Court ordered EPA to approve or disapprove these purported TMDL submissions. 

According to EPA, the court erred in its application of the "constructive submission" theory, which should only apply where a state has either very clearly refused to submit any TMDLs, or where a state’s complete lack of activity or progress suggests they do not intend to submit any TMDLs. In such a situation, EPA would disapprove of the state's position triggering federal review. EPA would then establish its own plans for impaired water bodies.  EPA argues the theory should not apply to West Virginia, which has a "vigorous TMDL program" that permissibly prioritizes water protection efforts.

EPA filed a notice of appeal with the Fourth Circuit, and a contested motion to stay the district court's order pending appeal. To justify the stay, EPA argued compliance with the order – i.e., federal development of TMDLs to address West Virginia water bodies with high conductivity levels - would cost the Agency up to $6 million.  In denying EPA’s request, the Fourth Circuit triggered a 14-day period to act - EPA has until June 13 to either approve or disapprove of West Virginia's decision not to submit TMDLs.

NACWA will file a joint amicus brief with the National Mining Association and National Cattleman’s Beef Association to educate the court on the impracticality and danger of requiring EPA to impose TMDLs for complex pollutants without allowing states to develop the necessary science. The brief will also argue the importance of preserving cooperative federalism under the CWA.