EPA Efforts to Limit the Application of 8th Circuit Loss Could Result in Nationwide Litigation

Earlier this year, the Iowa League of Cities successfully challenged The United States EPA regarding the management of wastewater flows during heavy rain. The Eight Circuit Court of Appeals sided with the League and threw out EPA policies restricting utilities’ options for handling wet weather flows. As a result of this case, the EPA can no longer use internal policy determinations to ban mixing zones at wastewater discharge points in rivers and streams that are designated for primary contact recreational activities like swimming or fishing. The Court also ruled that the agency cannot bar wastewater utilities from blending partially treated wet weather flows with fully treated wastewater from inside a facility. The Court stated further  that if the agency wishes to restrict mixing zones and blending, that it must promulgate a formal rule, which would be subject to full public notice and comment procedures and would be subject to legal challenges. The justice department released a statement in October that EPA will not appeal this ruling to the U.S. Supreme Court. 

The EPA is, however, attempting to limit the application of this unfavorable ruling to the 8th Judicial Circuit, which includes North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Missouri and Arkansas. Based on the stated agency position, this case will have no impact whatsoever on public utilities in the rest of the country. This position is contrary to the historical practice of the EPA and has many cities and public utilities across the country preparing for  legal battles with the agency.

The National League of Cities and the U.S. Conference of Mayors recently petitioned EPA to apply this ruling uniformly across the country. They contend that the EPA’s current stance is costly, inefficient and will result in years of litigation, which the agency will likely lose. They contend further that delays associated with NPDES permit litigation will prevent planning and infrastructure upgrades that would greatly improve the environment and address many of the pollution issues that EPA was attempting to address with its wet weather policies. Additionally, there are no facts or circumstances in the 8th Circuit opinion that are unique to Iowa or to the 8th Circuit. As such, regulated entities see the decision to restrict the application of the ruling to the 8th Circuit as nothing more than sour grapes on the part of EPA.

EPA’s position regarding these wet weather policies also contradicts EPA’s own regulations and the Clean Water Act. In the CWA, Congress expressly granted the circuit courts jurisdiction to review nationally applicable NPDES permit standards. If the agency does not change its position regarding the application of these policies, we can expect a great deal of litigation across the country to settle the issue.

Marc Bryson concentrates his practice in the areas of environmental law, administrative law, and energy law. He regularly advises industrial, municipal, and oil and gas clients on matters involving permitting and regulatory requirements for water and wastewater, solid and hazardous waste, and other environmental and regulatory matters.
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