Submitted: January 11, 2018
from United States District Court for the Eastern District of
Missouri - Cape Girardeau
COLLOTON, BENTON, and ERICKSON, Circuit Judges.
BENTON, Circuit Judge.
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.
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).
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 . . .").
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. §§
130.7(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).
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.
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."
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
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.
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
"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