NACWA Files Brief in Support of Cooperative Federalism, State Authority Over TMDLs

Aug 1, 2017

threeNACWA filed an amicus curiae brief in Ohio Valley Environmental Coalition (OVEC) v. Pruitt, on July 24. The case involves EPA’s appeal of a district court decision finding that West Virginia’s delay in submitting total maximum daily loads (TMDLs) for ionic toxicity (which is measured in terms of conductivity) amounted to constructive submission of no TMDLs.  NACWA’s brief lends support to EPA’s position that the lower court erred in applying the constructive submission doctrine, and in support of preserving states’ discretion to address TMDLs based on science. NACWA’s participation also provides a national perspective on the broader implications of the district court’s holding.

First, the brief argues that the Clean Water Act (CWA) does not provide a basis for constructive submission, and therefore discretion should be left to EPA and the states as to the proper sequencing and schedule for developing TMDLs. Congress did not establish a deadline for states to develop TMDLs, but rather provided states with discretion to propose and revise TMDLs “from time to time,” so that states can best meet their individual needs. A court, the brief argued, cannot rewrite the statute to meet its own views.

Second, the brief argues that even if constructive submission exists under the CWA, it should be applied in only the most extreme cases where states have clearly and unambiguously refused to establish any TMDLs. In West Virginia’s case, the state developed numerous TMDLs over the years, and has established a schedule both to develop a method for reviewing ionic toxicity and to complete the missing TMDLs. Given this evidence, the theory was incorrectly applied to the facts of the case.

Finally, the brief argues that the CWA is based on a system of cooperative federalism, in which the states have the primary role in establishing TMDLs, and EPA provides oversight.   Because Congress intended for EPA to retain oversight of the states’ programs, courts should defer to EPA’s expertise on the topic and not insert themselves by requiring EPA to rush development of complex and unsettled science.

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