Partnership of U.S. EPA and States in failing to implement the
Clean Water Act – Albert Ettinger March 2014
The Clean Water Act (CWA) allows the states to do much of the work
but clearly contemplates active federal supervision of state decisions.
Unfortunately, USEPA has often taken a “hands off” approach even when
states are deliberately work against achievement of the goals of the
CWA. Recent court decisions have made the situation still worse by
precluding action by citizen groups on the basis that USEPA must have
somehow approved of the state action or inaction even though U.S. EPA
did nothing more than follow its usual do nothing policy.
The “PARTNERSHIP”
The CWA articulates Congress' policy to recognize, preserve, and
protect the primary responsibilities and rights of States to prevent,
reduce, and eliminate pollution. 33 U.S.C. §1251(b); Save the Bay, 556
F.2d 1282, 1285 (5th Cir. 1977). Accordingly, as recognized by the U.S.
Supreme Court, the CWA envisions a partnership between the states
and the federal government. Arkansas v. Oklahoma, 503 U.S. 91, 101, 112
S. Ct. 1046, 117 L.Ed.2d 239 (1992); see also United States v. Cooper, 482
F.3d 658, 667 (4th Cir.2007) (referring to the CWA as a scheme of
cooperative federalism). In furtherance of that policy, the CWA
empowers each state to administer its own permit program for
discharges into navigable waters within its jurisdiction..... 33 U.S.C.
§1342(b); see also Andersen v. Dept. of Natural Resources, 332 Wis. 2d
41, 796 N.W. 2d 1, 10 (Wis. 2011)
NPDES PERMITS
The CWA generally prohibits the discharge of any pollutant into
navigable waters except when done pursuant to a National Pollution
Discharge Elimination System (NPDES) permit. 33 U.S.C. § 1311(a); U.S.
Dep't of Energy v. Ohio, 503 U.S. 607, 611, 112 S. Ct. 1627, 118 L.Ed.2d
255 (1992); Arkansas, 503 U.S. at 102, 112 S. Ct. 1046; Am. Paper Inst.,
Inc. v. U.S. Envtl. Prot. Agency, 996 F.2d 346, 348-49 (D.C.Cir.1993). The
EPA has express authority to issue NPDES permits. See 33 U.S.C. §
1342(a)(1); U.S. Dep't of Energy, 503 U.S. at 611, 112 S. Ct. 1627; Save
the Bay, 556 F.2d at 1285. The CWA mandates that every permit contain
(1) effluent limitations that reflect the best practicable control
technology available to achieve pollution reduction, 33 U.S.C. §
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1311(b)(1)(A), and (2) any more stringent limitations necessary to
meet the water quality standards of the applicable body of water,
§1311(b)(1)(C). See Am. Paper Inst., 996 F.2d at 349.
If a state wishes to administer its own permit program, the governor of
that state must submit to the EPA (1) a letter requesting program
approval; (2) a complete description of the proposed program; (3) a
statement from the Attorney General assuring that the state's laws
provide adequate authority to carry out the program; (4) a
Memorandum of Agreement with the Regional Administrator of the
EPA; and (5) copies of all applicable state statutes and regulations,
including those governing state administrative procedures. 33 U.S.C.
§1342(b); 40 C.F.R. §123.21(a).
33 U.S.C. § 1342(b) sets forth the requirements that a state's proposed
permit program must meet in order to gain approval by the EPA. For
example, a state's proposed permit program shall not be approved if the
EPA determines that adequate authority does not exist for the state to
issue permits which apply, and insure compliance with, the
requirements of the CWA and of 40 C.F.R. pt. 123. 33 U.S.C. _
1342(b)(1)(A), (2)(A); § 1342(c)(1); 40 C.F.R. § 123.61(b);U.S. Dep't of
Energy, 503 U.S. at 611, 112 S. Ct. 1627. In particular, 40 C.F.R. § 123.25
sets forth the permitting requirements that a proposed permit program
must meet. If the EPA determines that the proposed permit program
meets the enumerated requirements, then the EPA must approve the
program. 33 U.S.C.§1342(b). National Association of Homebuilders v.
Defenders of Wildlife, 551 U.S. 644 (2007). Once a state program is
approved, the EPA must suspend its own issuance of NPDES permits
covering the navigable waters subject to the state program.
§1342(c)(1); 40 C.F.R. §123.61(c); Save the Bay, 556 F.2d at 1285.
Currently, only four states and the District of Columbia are not
authorized to administer a permit program. United States EPA, NPDES:
State Program Status, http://cfpub.epa.gov/npdes/statestats.cfm (last
visited Feb. 24, 2014).
After a state obtains approval to administer its own permit program,
the EPA retains significant authority through its continuing oversight of
the state's permit program. For example, a state's permit program must
be revised according to changes in the controlling federal statutory or
regulatory authority. See 33 U.S.C. § 1342(c)(2) (Any State permit
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program under this section shall at all times be in accordance with this
section and guidelines promulgated pursuant to section 1314(i)(2) of
this title); 40 C.F.R. § 123.62(a). To that end, the state must keep the
EPA informed of any proposed modifications to its permit program. 40
C.F.R. §123.62(a). If the EPA determines that the revisions are
substantial, EPA must issue a public notice of the revisions and provide
an opportunity for comments and a public hearing. §123.62(b)(2). The
EPA then approves or disapproves the revisions based upon the
requirements of 40 C.F.R. pt. 123 and of the CWA. §123.62(b)(3).
In addition, the EPA has the authority to withdraw its approval of a
state's permit program if the program no longer complies with the
requirements of 40 C.F.R. pt. 123 and of the CWA, and the state fails to
take corrective action. 33 U.S.C. § 1342(c)(3); 40 C.F.R. §123.63(a); Save
the Bay, 556 F.2d at 1285. For example, the following circumstances are
among those which warrant approval withdrawal: where the state's
legal authority no longer meets the requirements of 40 C.F.R. pt. 123,
including the state's failure to promulgate or enact new authorities
when necessary; or where the operation of the state program fails to
comply with requirements of 40 C.F.R. pt. 123, including the repeated
issuance of permits which do not conform to the requirements of 40
C.F.R. pt. 123. See §123.63(a)(1), (2).
Further, in theory at least, each state is required to send to the EPA a
copy of each permit application received by the state and must provide
notice to the EPA of every action related to the consideration of such
permit application, including each permit proposed to be issued by such
State. 33 U.S.C. §1342(d)(1). The EPA then has up to 90 days to
comment on, object to, or make recommendations on the proposed
permit. 33 U.S.C. §1342(d)(2); 40 C.F.R. § 123.44(a)(2). 40 C.F.R. §
123.44(c) lists the valid grounds upon which the EPA may object to the
issuance of a proposed permit. Those valid grounds include, inter alia:
(1) when the proposed permit fails to apply, or to ensure compliance
with, any applicable requirement of 40 C.F.R. pt. 123; (2) when a finding
made by the state in connection with the proposed permit misinterprets
the CWA or any guidelines or regulations thereunder, or misapplies
them to the facts; (3) when any provisions of the proposed permit
relating to the maintenance of records, reporting, monitoring, or
sampling by the permittee are inadequate to assure compliance with
permit conditions, including effluent standards and limitations, required
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by the CWA or any guidelines and regulations issued thereunder; or (4)
when the effluent limits of the proposed permit fail to satisfy the
requirements of 40 C.F.R §122.44(d). 40 C.F.R. §123.44(c)(1), (4), (5),
(8). If the EPA objects to the issuance of a proposed permit, the state
may not issue the permit as drafted. 33 U.S.C. §1342(d)(2).
In summary, USEPA has statutory authority to oversee state programs
thoroughly and assure that they do not leave the track. In practice, U.S.
EPA almost never takes over a permit from a state and has never
withdrawn approval of a state program (it has threatened a few times).
State courts generally apply state law in cases involving NPDES permit
without thinking overmuch about whether state law complies with the
CWA. See e.g., Prairie Rivers Network v. Illinois Pollution Control Board,
781 N.E. 2d 372 (Ill. App. 2002).
The mere possibility of USEPA oversight, however, has been used by
state and federal courts to uphold state permit decisions. In Andersen v.
Dept. of Natural Resources, the Wisconsin Supreme Court upheld a
decision by the Wisconsin DNR to grant an NPDES permit in the face of a
challenge that it did not comply with federal law writing:
[O}n the very grounds espoused by CWAC [the
environmental group challenger], the EPA itself did not
object to the permit reissued to Fort James' Broadway Mill.
Indeed, before the permit was reissued, the EPA was
apprised of CWAC's allegations that the proposed permit
failed to comply with federal law. As previously mentioned,
the EPA requested and received copies from the DNR of any
significant comments the DNR received during the public
notice period.
Stated otherwise, by approving the WPDES permit program
and by failing to object to the permit, the EPA effectively
determined that the permit complies with 40 C.F.R. §
122.44(d) and 122.45(d) and (f). In spite of the EPA's
determination, CWAC asks this court to construe [Wis. Law]
as requiring the DNR to subsequently determine whether
the permit complies with those same federal regulations.
We decline to do so. To adopt CWAC's interpretation of
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[Wisconsin law] would be to empower the DNR to undercut
the EPA's determination. 796 N.W. 2d at 17.
So by doing nothing, EPA was found to have made a “determination.”
Similarly, Wisconsin Resources Protection Council v. Flambeau Mining,
(7th Cir. 2013) held that the failure of U.S. EPA to correct a permitting
scheme for mines that violated the CWA created Due Process issues
limiting a citizen suit against a mining company for discharging without
a proper CWA permit. The case had very unusual facts but again is a
case where the failure of U.S.EPA to act to correct improper state action
was held to mean that U.S. EPA implicitly approved of the state actions.
Further it seems that at least in some cases private parties have a right
to rely on uncorrected state policies even if those policies violate the
CWA.
WATER QUALITY STANDARDS
Section 303(c), of the CWA requires states to promulgate water quality
standards and on paper requires states every three years to hold public
hearings for the purpose of reviewing applicable water quality
standards and, as appropriate, modifying and adopting standards. 33
U.S.C. §1313(c)(1). Any change states make to their standards must be
approved by U.S. EPA for a determination that the change meets the
requirements of the CWA. 33 U.S.C. §1313(c)(3). Florida Public Interest
Research Group v. EPA, 386 F.3d 1070 (11th Cir. 2004). Such EPA
approval of state standards is subject to review under the
Administrative Procedure Act and may be set aside if arbitrary or
capricious. Kentucky Waterways Alliance v. Johnson, 540 F.3d 466 (6th
Cir. 2008).If EPA disapproves a state standard it is supposed to
promptly promulgate a proper standard. Raymond Profitt Foundation v.
USEPA, 930 F.Supp. 1088 (E.D. Pa. 1996)
303(d) LISTINGS AND TMDLs
A TMDL establishes a maximum daily discharge of pollutants into a
waterway. A TMDL must be obeyed even if a monthly allowable average
could be achieved in the face of some daily discharges above the TMDL.
The process of promulgating TMDL's also involves federal-state
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cooperation. CWA Sec. 303(d)(1), 33 U.S.C. Sec. 1313(d)(1), requires
each state to develop TMDL's for those waters within its boundaries
where water quality standards will not be achieved by application of
technology-based limitations. CWA Sec. 303(d) required states within
180 days of December 28, 1978. See, CWA Sec. 304(a)(2)(D), 33 U.S.C.
Sec. 1314(a)(2)(D). After receiving a state submission:
The Administrator shall either approve or disapprove such
identification and load not later than thirty days after the date of
submission. If the Administrator approves such identification and load,
such State shall incorporate them into its current plan under subsection
(e) of this section. If the Administrator disapproves such identification
and load, he shall not later than thirty days after the date of such
disapproval identify such waters in such State and establish such loads
for such waters as he determines necessary to implement the water
quality standards applicable to such waters and upon identification and
establishment the State shall incorporate them into its current plan
under subsection (e) of this section. CWA Sec. 303(d)(2), 33 U.S.C. §
1313(d)(2).
Cases have held that where a state fails to submit a list of waters under
303(d), the state should be held to have “constructively” submitted a
deficient list that EPA should disapprove. Scott v City of Hammond, 741
F.2d 992 (7th Cir. 1984). However, the “constructive submission”
argument has been held to be limited to the situation where the state
has been extremely deficient. San Francisco Baykeeper v. Whitman, 297
F.3d 877 (9th Cir. 2002).
EPA’S DANCE OF INDECISION FALLS FLAT
EPA claim that they are trying to protect the environment while being
good partners. To do this, they have attempted to advise the states as to
how to be good without taking harsh steps such as using the authority
that they have been granted in the CWA to take over permits, dedelegate programs or establish standards for states. Indeed, EPA has
been at pains to try to advise states without being understood actually
to have used its authority. For example, EPA now seeks to change
federal regulations precisely so that it can advise the states without
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itself committing to doing anything. In making this proposal, EPA
explained
The EPA is concerned that the process whereby the
Administrator determines that new or revised standards are
necessary is not always clearly understood or interpreted by the
public and stakeholders. In some instances, this lack of
understanding has led to a mistaken conclusion that the EPA
has made a CWA 303(c)(4)(B) determination when, in fact, the
EPA did not make nor intend to make a determination. For
example, Agency memoranda or documents articulating areas
where states’ WQS may need improvements have sometimes
been construed or alleged by stakeholders to be official
Administrator determinations that obligate the EPA to propose
and promulgate federal WQS for such states. In order to ensure
effective implementation of the national WQS program, to
provide direct, clear, and transparent feedback on state and
tribal actions, and to maintain an open and constructive
dialogue with states, tribes and stakeholders on important water
quality issues, it is essential that the EPA have the ability to
provide feedback, and states and tribes have the opportunity to
consider and evaluate the Agency’s views, without fear of
litigation triggering a duty on the part of the EPA to propose
and promulgate WQS before either a state, tribe or the Agency
believes such a course is appropriate or necessary. Vol.78 No.
171 FR 54518 at 54521 (Sept. 4, 2013)
This proposed reform was addressed at the Florida Wildlife v. EPA case
in which parties concerned about water pollution in Florida alleged that
EPA in the 1998 Clean Water Action Plan which stated that states
needed to have numeric nutrient criteria constituted, determined that
states needed to have numeric nutrient criteria and, thus, EPA should
have promptly established such standards after the states failed to do
so.
In Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013), EPA was
caught through its unwillingness to act directly. A letter to a United
States Senator was held to have been illegal rulemaking. U.S. EPA might
have obtained a different result had it used its authority to establish
rules or to take over state NPDES permits.
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In another case, EPA is now fighting hard to preserve its right to do
nothing in perpetuity. The Mississippi River Collaborative Groups
petitioned US EPA in 2008 to draft numeric standards for some or all of
the Mississippi River Basin
states. http://www.wef.org/2008Petition_NutrientRulemaking (last
checked 3/27/14) That petition was denied over 3 years later without
EPA even answering the question of whether numeric nutrient
standards were needed for the Mississippi Basin. A district court held
that EPA owed petitioners an answer as to whether numeric nutrient
criteria are needed, Gulf Restoration Network v. Jackson, (E.D. La.
9/20/13, Zainey, DJ) but EPA has appealed that decision and argued
that the Administrator’s determination under CWA 303(c)(4)(B) is
committed to the unreviewable discretion of EPA.
In light of this history it must be expected that, despite EPA’s protests
that it is hanging back to allow states to act, states will continue to argue
in the courts that in light of EPA’s heroic efforts to avoid taking action,
no state has to make the effort. Polluters can then argue that they are
protected by “the Partnership” from having to comply with the law.
Albert Ettinger
Chicago, Illinois
Ettinger.Albert@gmail.com
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