In an opinion issued earlier this month, a United States District Court for the Northern District of Ohio once again considered challenges made by environmental groups against the Environmental Protection Agency (“EPA”) for alleged missteps in the agency’s approval of the State of Ohio’s listing Western Lake Erie as an impaired waterbody under the Clean Water Act (“CWA”). The litigation of this case began in 2017, and the order just issued by the court denied EPA’s motion to dismiss, advancing the plaintiff’s claims closer to trial.

Under the CWA, every two years states are required to prepare and submit to EPA a list of waterbodies within their boundaries for which existing pollution control measures are not sufficient to get those waterbodies to meet current water quality standards. Those waters are known as “impaired waterbodies.” After a state identifies the impaired waterbodies within its jurisdiction, it must establish a priority ranking for each impaired waterbody by taking into account the severity of the pollution and the uses of the waterbody. The priority ranking must identify which waterbodies will have a Total Maximum Daily Load (“TMDL”) developed within the next two years. EPA has issued a guidance document to help states accurately report the water quality attainment status and priority ranking of the waters within their jurisdictions. Waterbodies with a high priority ranking must have a TMDL. There are five categories outlined in this guidance document ranging from a waterbody that is fully meeting water quality standards and has no threatened uses to one where none of the water quality standards are met and every use is threatened. In 2015, EPA modified the guidance document to include a new category referred to as a “Category 5-alternative.” Waterbodies assigned that category are “impaired without a TMDL completed but assigned a low priority for TMDL development because an alternative restoration approach is being pursued.” A state that decides to designate a waterbody as Category 5-alternative must submit to EPA a description of the restoration approach the state plans to take.

Ohio first designated the entirety Western Lake Erie as impaired in May, 2018. At that time, Ohio identified the lake as being “on of the highest, if not the highest, priority” waterbody that the state had to address. Although this designation was submitted to EPA in May, 2018, it was submitted as part of Ohio’s 2016 designation of impaired waterbodies. Later in 2018, when Ohio submitted to EPA its 2018 designation of impaired waterbodies, it once again identified Western Lake Erie as “a high priority for action,” but also as “low priority for a TMDL” and opted to pursue alternative methods to bring the lake into attainment. However, Ohio did not designate Western Lake Erie as a Category 5-alternative and it did not submit to EPA a description of its planned restoration approach. Nevertheless, EPA approved Ohio’s designation of the lake.

That action lead to the recent court opinion, Envtl. Law & Policy Ctr. et al. v. U.S. EPA, et al., No. 3:19CV295 2019 WL5962802 (N.D. Ohio Nov. 13, 2019). The plaintiffs had already begun litigation against EPA in 2017 for approving Ohio’s 2016 impaired waterbody list despite the list not including all of Western Lake Erie. Now, the plaintiffs have continued their litigation, bringing two counts against EPA’s approval of Ohio’s 2018 impaired waterbodies list. First, the plaintiffs argue that EPA’s approval of Ohio’s designation of Western Lake Erie was arbitrary and capricious in violation of the Administrative Procedure Act (“APA”) because the State of Ohio has “flip-flopped” on its priority ranking for the lake. Second, the plaintiffs allege that Ohio’s decision to defer developing a TMDL in favor of alternative conservation methods without designating Western Lake Erie as a Category 5-alternative triggered EPA’s duty to approve or deny the submission as though the lake had been designated high priority, but was given no TMDL. EPA moved to dismiss both claims.

Under their first claim, the plaintiffs argued that if Ohio had actually considered the severity of Western Lake Erie’s impairment, it could not have rationally concluded that the lake was low priority for a TMDL, nor could EPA have found that Ohio’s low priority ranking complied with the CWA. By failing to come to a rational conclusion, the plaintiffs argued that EPA violated the APA. EPA moved to dismiss this claim, arguing that its approval of Ohio’s designation of the lake was not a final agency action. The court disagreed, finding that not only had EPA made a final agency action, but that the plaintiffs had plausibly suggested that EPA’s action was arbitrary and capricious in violation of the law. Next, EPA argued that the plaintiffs’ allegation that the agency had violated a nondiscretionary duty when it failed to approve or disapprove Ohio’s alleged constructive submission of “no TMDL” for Western Lake Erie should be dismissed because plaintiffs failed to allege a plausible constructive submission claim. The court disagreed, concluding that the plaintiffs had sufficiently alleged that Ohio “clearly and unambiguously decided to submit no TMDL for Western Lake Erie.”

Because the court has declined to dismiss either of the plaintiffs’ claims, both will proceed to the next stage of litigation. Western Lake Erie’s impairment is attributed to algal blooms caused by fertilizer and manure runoff by agricultural sources. How Ohio implements conservation measures on the lake will likely impact many agricultural operations within the state.

To read the full opinion in Envtl. Law & Policy Ctr. et al. v. U.S. EPA, click here.

To learn more about the Clean Water Act, click here.