December 10, 2010

Beware of “Impaired” Surface Water Designations

Posted on December 10, 2010 by Chester Babst

Is the act of adding a stream segment to the Clean Water Act section 303(d) list of impaired waters appealable? At least one Pennsylvania administrative law judge thinks not, as the mere publishing of the list creates no new duties on anyone. But the list is a discrete, final agency action that is predicate to direct administrative action. The science supporting the listing should be subject to challenge, just as are the specific load and waste allocations following the list.

Section 303(d) requires states to complete and submit a biennial Integrated Water Quality Monitoring and Assessment Report to the United States Environmental Protection Agency (“USEPA”) that lists all impaired surface waters in the state not able to support the specific uses of that water body (e.g., potable water supply uses), even after implementation of pollution control technologies and practices. Impairment status can have a significant impact on regulated entities that discharge into a designated water body.

As impaired, these state surface waters will require the development of a Total Maximum Daily Load (“TMDL”) to attain applicable water quality standards. A TMDL accounts for all point and non-point sources of the specified pollutant and it sets a cumulative pollutant load limit that applies to all dischargers, so as to prevent a violation of water quality standards. The USEPA and state agencies use TMDLs to compel best management practices and set discharge limits in National Pollutant Discharge Elimination System (“NPDES”) permits.

On April 3, 2010, the Pennsylvania Department of Environmental Protection (“Department”) published its draft 2010 Integrated Water Quality Monitoring and Assessment Report (“Draft Integrated Report”) for public comment. The Draft Integrated Report does not reveal how the Department reached the decision to designate a water body as being impaired, nor does the Department provide any supporting data for its designations. It is also unclear how pollutant loading allocations will be handled with respect to water bodies that extend into contiguous states.

Should a party wish to challenge an impairment designation, it is unclear when this agency action would be ripe for appeal. In a recent Pennsylvania Environmental Hearing Board case, an Administrative Law Judge offered his view of the process in dicta.

[A] state’s Section 303(d) list submitted to the EPA would not appear to be a final disposition of even what is on the list since, once submitted, it is for the EPA to pass upon the propriety of the list…. Even if the state’s listing as such of a waterway on the state’s Section 303(d) list were construed as a purely state action we still do not see that the state’s mere listing or de-listing of a waterway on the Section 303(d) list creates any immediate duties or liabilities which would be the key to appealability to the Board.

Telford Borough Authority, et al. v. DEP, EHB Docket No. 2010-111-K, slip op. at 7 (Opinion and Order issued September 7, 2010). Although providing insight into one judge’s view, whether a designation is ripe for appeal at the time a state submits a Section 303(d) list to EPA and/or at the time EPA approves or disapproves the list is still an open issue in Pennsylvania. It is also unclear whether a failure to perfect an appeal at either of these points in the process would affect appeal rights of individual sources at the time limitations are set in permits based upon the impairment designation. Given this uncertainty, an appeal of the designation is a prudent step for a source or group of sources that could ultimately be impacted by state actions designed to address the impaired status of a water body.

Because of the significant economic impacts associated with an impairment designation and the potential that such impacts could extend beyond state borders, it is important to monitor state and federal activities for designated water bodies and to consider the potential impact on your client and whether an appeal of the designation is necessary to protect your client’s rights and defenses.

Tags: Water


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