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City of Kennett v. Environmental Protection Agency

United States Court of Appeals, Eighth Circuit

April 9, 2018

City of Kennett, Missouri Plaintiff- Appellant
Environmental Protection Agency; Karl Brooks, in his official capacity as Regional Administrator of EPA Region 7 Defendants - Appellees

          Submitted: January 11, 2018

          Appeal from United States District Court for the Eastern District of Missouri - Cape Girardeau

          Before COLLOTON, BENTON, and ERICKSON, Circuit Judges.

          BENTON, Circuit Judge.

         The City of Kennett, Missouri, sued the Environmental Protection Agency, challenging the EPA's approval of a total maximum daily load for Buffalo Ditch. The district court granted summary judgment for the EPA. The City appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part, vacates in part, and remands.

          The Clean Water Act requires, subject to EPA approval, states to establish "water quality standards." See 33 U.S.C. § 1313(a). Standards "shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses." § 1313(c)(2)(A). States must review standards at least once every three years and modify them "as appropriate." § 1313(c)(1).

         To achieve water quality standards, the Act imposes "effluent limitations" under sections 1311(b)(1)(A) and (B). An "effluent limitation" is "any restriction . . . on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into" certain waters. § 1362(11). A "point source, " is "any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged"-e.g., a drainpipe at a wastewater treatment plant. § 1362(14). But these effluent limitations may not be enough for all waters. States must "identify those waters within its boundaries for which the effluent limitations required by section 1311(b)(1)(A) and section 1311(b)(1)(B) of this title are not stringent enough to implement any water quality standard applicable to such waters." § 1313(d)(1)(A). These are called "impaired waters." See, e.g., Missouri Soybean Ass'n v. EPA, 289 F.3d 509, 511 (8th Cir. 2002) (referencing Missouri's list of "impaired waters"); Am. Farm Bureau Fed'n v. EPA, 792 F.3d 281, 309 (3rd Cir. 2015) ("§ 1313(d) requires 'impaired waters' to be listed . . .").

         For impaired waters, states shall establish, subject to EPA approval, "the total maximum daily load" (TMDL) for certain pollutants. § 1313(d)(1)(C), (d)(2). "Such load shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety . . . ." § 1313(d)(1)(C). The TMDL calculates the impaired water's "loading capacity"-the greatest amount of a pollutant that can be introduced without violating water quality standards. 40 C.F.R. §§ 130.2(e)-(i), 130.7(c). It allocates loading capacity between point sources and "nonpoint, " "natural background sources." § 130.2(g)-(i). Allocations to point sources are "wasteload allocations" and "constitute a type of water quality-based effluent limitation." § 130.2(g).

         TMDLs are implemented by a pollution permitting program. A "discharge of any pollutant" must comply with specified provisions of the Act. 33 U.S.C. § 1311(a). See § 1362(12) (defining "discharge of a pollutant" as the "addition of any pollutant" into certain waters). One specified provision is section 1342, which establishes the National Pollution Discharge Elimination System (NPDES). § 1342. Under NPDES, point-source operators obtain permits for discharge. Id. Permits must have limits on discharge necessary to achieve water quality standards. 40 C.F.R. § 122.44(d)(1). "When developing water quality-based effluent limits under [section 122.44(d)(1)] the permitting authority shall ensure that . . . [e]ffluent limits developed to protect [water quality criteria] are consistent with the assumptions and requirements of any available wasteload allocation for the discharge prepared by the State and approved by EPA . . . ." § 122.44(d)(1)(vii), (B). In other words, a permit for discharge into an impaired water must have limits on discharge that are consistent with the wasteload allocations in the TMDL.

         The EPA can issue permits, but states can-and Missouri does-administer their own NPDES permit programs. § 1342(a)-(b). States must notify the EPA when they intend to issue a permit. § 1342(d)(1). If the EPA objects that the permit is "outside the guidelines and requirements" of the Act, "[n]o permit shall issue." § 1342(d)(2). See 40 C.F.R. §§ 123.44 ("EPA review of and objections to State permits"); 123.29 ("State permit programs shall provide that no permit shall be issued when the Regional Administrator has objected in writing under § 123.44."). Permits issued by states must be for "fixed terms not exceeding five years." § 1342(b)(1)(B).

          Buffalo Ditch is a stream that runs southwest into Arkansas from the City. The City's Wastewater Treatment Plant is a point source of pollutants into it. Parts of Buffalo Ditch have been on Missouri's EPA-approved list of impaired waters since 1994, due to low levels of dissolved oxygen (DO), which benefits aquatic life. The water-quality criterion for DO in Missouri streams (with exceptions not relevant here) is 5 mg/L. Parts of Buffalo Ditch have historically not met this criterion (had less than 5 mg/L DO).

         In 2001, with the EPA behind on establishing TMDLs, a court ordered it to approve a TMDL for Buffalo Ditch by the end of 2010. Before then, Buffalo Ditch had no TMDL. In 2009, Missouri published a draft TMDL, which identified the Treatment Plant as the primary point source. The City submitted comments and questions. Missouri responded, made adjustments, and submitted a final version to the EPA. The EPA approved it in 2010.

         The final TMDL sets wasteload allocations for pollutants from the Treatment Plant. These wasteload allocations are more stringent than the limits in the City's NPDES permit. For example, the City's permit has limits of 65 mg/L of biochemical oxygen demand and 110 mg/L of total suspended solids (both on a weekly-average basis). The TMDL sets wasteload allocations for these two pollutants at 5 mg/L and 31 mg/L, respectively. The City's permit was to expire in 2015.[1]

          In its "Implementation Plan" for point sources, the TMDL says (emphasis added):

This TMDL will be implemented partially through permit action. . . . Wasteload allocations developed for this TMDL will be used to derive new effluent limits . . . . However, it is the intention of the [Missouri Department of Natural Resources] that prior to implementation of these wasteload allocations, either the department or the city will determine whether the dissolved oxygen criterion of 5 mg/L . . . is appropriate or if a site-specific dissolved oxygen criterion is required. . . . If it is determined that the current water quality criterion for dissolved oxygen is appropriate, the wasteload allocations from the TMDL will be ...

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