Posted on April 8, 2013 by Eric Fjelstad
Courts in Alaska issued two decisions upholding agency practice in carrying out antidegradation review under the Clean Water Act. The federal court concluded that adoption of water quality standards does not, itself, require antidegradation review. In the second case, a state court concluded that guidance may be developed to implement antidegradation regulations and need not be promulgated as a regulation provided it does not contain substantive criteria.
In Native Village of Point Hope v. U.S. Environmental Protection Agency, Alaska native and environmental organizations challenged EPA’s approval of the State of Alaska’s adoption of a site-specific water quality criterion (“SSC”) for total dissolved solids (“TDS”). The SSC was challenged on a number of grounds, including on the basis that neither the State of Alaska nor EPA analyzed the SSC under the relevant antidegradation policy. The issue before the U.S. District Court for Alaska was whether antidegradation review applied to the adoption of water quality standards (“WQS”) or, conversely, only when WQS are translated into permits through effluent limitations. In a case of first impression in the federal courts, the court ruled for EPA, holding that agencies are not required to undertake antidegradation review for the adoption of WQS; the obligation is only triggered when a WQS is incorporated into a permit through effluent limitations.
In Alaska Center for the Environment v. State of Alaska, environmental organizations challenged the State of Alaska’s adoption of antidegradation implementation procedures through guidance, arguing that the procedures should have been promulgated as regulations. As background, several NPDES permits in Alaska were withdrawn by EPA in the face of arguments from environmental organizations that the State of Alaska lacked antidegradation implementation procedures. To address this alleged deficiency, the State of Alaska developed a guidance document which EPA found was consistent with EPA’s own antidegradation regulation. The primary issue in the litigation was whether the State of Alaska was required to promulgate the guidance in the form of a regulation or whether it was permissible rely upon guidance to implement its regulations. In a decision that turned largely on the State of Alaska’s Administration Procedures Act, the court held that it was appropriate for the State to develop the guidance to implement its regulatory program, reasoning that the guidance did not add substantive requirements to existing regulations.