EPA Approves Constructive Submittals; Grants More Time on TMDLs

Jun 20, 2017

threeEPA has taken action in a legal case involving development of total maximum daily loads (TMDLs) that could have national legal ramifications, and in which NACWA will soon be participating. 

In accordance with a ruling by the US Court of Appeals for the Fourth Circuit in Ohio Valley Environmental Coalition (OVEC) v. McCarthy, EPA approved on June 13 the constructive submission of “no action” TMDLs for several water bodies by West Virginia Department of Environmental Protection (WVDEP), and reached an agreement with WVDEP to develop TMDLs for the remaining waterbodies.  The approval and agreement arose out of a decision by the US District Court for the Southern District of West Virginia, finding that WVDEP had failed to develop TMDLs for biologic impairment and ionic toxicity since 2012, and that this resulted in the constructive submission of “no action” TMDLs to EPA for the relevant waterbodies. 

EPA sought a legal stay of the Fourth Circuit’s decision, but was denied.  As a result, EPA took the following actions on June 13:

  • Approved the “constructive submission” of “no TMDLs” for biological impairment for 6 water bodies that were no longer listed as impaired; 
  • Approved the “constructive submission” of “no TMDLs” for biological impairment for another 100 water bodies for which ionic toxicity wasn’t identified as a stressor on the grounds that WVDEP has addressed biological impairment through pollutant-specific TMDLs; and
  • Conditionally approved WVDEP’s submission of “no TMDLs” for the remaining water bodies “at this time.”  The conditional approval is based on a Memorandum of Agreement (MOA) setting forth dates for submission of TMDLs for the relevant water bodies, identifying 150 waters for biological impairment TMDLs to be submitted by 12/31/2021. The MOA also states that there will be an addendum within 30 days to address other outstanding waters.  

NACWA’s Board of Directors has approved participation in this case as an amicus curiae to provide a critical national perspective on the issue of constructive submittal of TMDLs.  Despite EPA’s recent actions, the Agency is still challenging the underlying federal district court decision on the constructive submission theory.  This case represents a significant expansion of the constructive submission doctrine that, if upheld, could open the door to similar litigation nationwide on a wide variety of pollutants, particularly those for which the underlying science is complex and development of TMDLs may take many years—e.g., nutrients.

NACWA’s participation will address the appropriate balance of power between EPA and the states, and will argue in favor of allowing states and EPA to work together to develop reasonable regulations based on sound science. Briefing will occur in the coming months and NACWA will keep the membership updated on developments.  

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