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Member Pipeline - Legal - Alert (Leg01-5)

To: Members, Affiliates, & Legal Affairs Committee
From: National Office
Date: June 1, 2001
Subject: STATE COURT REJECTS TMDL & ORDERS § 303(d) DELISTING
Reference: Legal Alert 01-5

AMSA is following how courts across the nation continue to define the boundaries of the Clean Water Act's (CWA) total maximum daily load (TMDL) program for impaired waters. These primarily state decisions are a rich source of opinion on all aspects of the TMDL process. Many of these court cases may assist AMSA members challenging TMDLs in their own states. The May 1, 2001 decision of the West Virginia Circuit Court of Kanawha County, Monongahela Power Company v. West Virginia Office of Water Resources (No. 99-AA-66), provides an excellent example of judicial activism and oversight of a TMDL listing gone astray.

In the case, the court found that the state water quality authority had circumvented proper TMDL procedure and refused to support the state's TMDL calculations or subsequent § 303(d) listing of the Upper Blackwater River. The court's decision highlights the dramatic adverse impacts erroneous TMDLs can have on regional economies, that proper TMDL development is a priority and important to a state's economic well-being, and that states must provide a "minimal level of service" to develop TMDLs. The opinion confirms that the foundation of every TMDL is a sound approach to determining compliance with state water quality standards. The court highlights that states should not blindly accept EPA-prepared TMDLs where their own expertise and judgment would lead to different results. The decision emphasizes that states must follow their criteria for listing waters and that these criteria require notice and comment, citing the City of Anderson case for this principle - a case in which AMSA filed an amicus brief on April 18, 2001. The court found inappropriate the states' shifting to permittees the burden of performing water quality modeling to develop TMDLs. Finally, the court stresses the need for a streamlined permit appeal process, emphasizing the inefficiency and unfairness that results when permittees must appeal permits in several forums.

A summary of the case is attached for your information. The full decision is available on AMSA's Member Pipeline at http://www.amsa-cleanwater.org/private/legalalerts/leg01-5a.pdf ( PDF ~1,300 KB)


Background
West Virginia placed the Upper Blackwater River on its § 303(d) list of impaired waters in 1996 for alleged exceedances of the 6 mg/l dissolved oxygen (DO) standard. West Virginia streams are considered impaired if they violate water quality standards at least 10 percent of the time. The state also listed the river as impaired in 1998 for "biological impairments" without defining the standard it used.

Following U.S. Environmental Protection Agency (EPA) approval of the state's 1996 impaired waters list, the Agency developed a draft TMDL to distribute wasteload allocations throughout the water body. EPA's draft TMDL called for existing permittees to reduce discharges 50 - 75 percent and for withdrawal of all unused wasteload allocations. The state notified Monongahela Power Company that its wasteload allocations was withdrawn, effectively terminating their ability to discharge to the Upper Blackwater River. The company appealed the decision to the state Administrative Board, which found the TMDL "flawed" but rejected the appeal based on a perceived lack of jurisdiction to review the § 303(d) list and the TMDL. In June 1999 the company appealed to the Kanawha County Circuit Court.

 
Circuit Court Rejects State TMDL Approach
The court found serious flaws in every aspect of the state's handling of the Upper Blackwater River TMDL. First, neither the state nor EPA had ever determined that the DO standard would be violated 10 percent of the time, even assuming worst-case scenarios for flow and wastewater discharges. Second, the U.S. Geological Survey found that low DO levels (lower than 6 mg/l) were the result of natural conditions - and not point source discharges - a fact confirmed by EPA. Third, the state acknowledged the river should not have been listed, and that the wasteload allocation could have been allowed and discharges safely assimilated without violation of water quality standards. Finally, the court found the erroneous TMDL adversely impacted the region's entire economy.

Finding that "the evidence conclusively demonstrates that the [river] is not in violation of the water quality standards for DO", the court ordered the state to remove the river from the 1996 and 1998 § 303(d) lists. The court prohibited the state from listing the water again "until such time as sufficient evidence would warrant its listing." The court also struck the entire narrative category of "biological impairment" from the § 303(d) list based on the lack of any identifiable assessment criteria. In so doing, the court restored prior discharge allocations to the point sources.

These key court findings may assist AMSA members facing TMDL problems in their own states:

For further information, please contact Greg Schaner at 202/296-9836 or by e-mail at gschaner@amsa-cleanwater.org.

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