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The Insider

EPA Water Quality Decisions Underscore Growing 'Trust' Of States

Several recent EPA actions demonstrate an increasing deference to state decisions on water quality standards under the Trump administration, part of what agency and state officials say is a shift to a more hands-off oversight approach if the agency believes a state's environmental program is generally sound.

While states are praising the moves, environmentalists continue to press in the courts for stricter regulation, arguing that EPA is failing to fulfill its duties under the Clean Water Act (CWA) to ensure the protection of water quality standards.

At an Environmental Council of the States (ECOS) meeting in Washington, D.C., earlier this week, state and EPA officials said the agency is shifting from the “paternalistic” approach to a broader “trust” that states' programs are adequate.

Kenneth Wagner, senior adviser to EPA Administrator Scott Pruitt for regional and state affairs, said the agency would adopt a new “audit culture” approach that would avoid case-by-case reviews of state-issued permits or state-led enforcement actions if the agency more generally believes a state's environmental programs to be working.

In Arkansas July 20, Pruitt informed top state officials that for the first time since 2008, EPA had approved pending state water quality standards and lists of impaired waterbodies.

While no details of the decision are available, Inside EPA reported in 2014 that the dispute centered in part on EPA efforts to require the state to apply its water quality values for minerals as enforceable limits, while the state sought only to use the values as guidelines.

EPA has increasingly "been asking us to apply [the minerals values] like standards," in CWA discharge permits and impairment listings under section 303(d), Ryan Benefield, interim director for Arkansas Department of Environmental Quality (DEQ) told Inside EPA in 2014.

He said this leaves permitted entities struggling to meet effluent limits in their National Pollutant Discharge Elimination System (NPDES) permits, while DEQ's 2010, 2011 and 2012 CWA 303(d) listings stalled over agency concerns, he added.

But DEQ's Senior Associate Director Julie Linck told the ECOS meeting earlier this week that the paradigm of the state-federal relationship under the Trump administration “has shifted very quickly.”

For example, she indicated that after years of declining to approve the Natural State's list of impaired waters and water quality standards, EPA had now approved those items.

EPA Region 6 is generally supporting the state's approach to determining which waterbodies are meeting water quality standards and which should be listed as impaired under CWA section 303(d), she said. “They say things like 'well, we just need to trust the states,' or 'that's really not our role in a 303(d) list -- we're not going to take 60 days to redo your math,' or 'we have to trust states to interpret their own rules,'” Linck said.

In a similar vein, EPA earlier this year approved Ohio's impaired waters list as submitted, which did not include the open waters of the western portion of Lake Erie, even though Michigan's impaired waters included those waters as being impaired due to nutrient pollution.

Environmentalists' Suits

But such decisions are increasingly being met by lawsuits from environmentalists.

Earlier this week, for example, environmentalists sued EPA in federal district court in Ohio, seeking to declare that its approval of Ohio's impaired waters list “violated the CWA and acted in a manner that is arbitrary, capricious, or otherwise not in accordance with law."

EPA said in its approval letter that it was deferring to Ohio's judgment not to assess the open waters of the Western Basin of Lake Erie for the 2016 list and that the agency recognizes the state's ongoing efforts to control nutrient pollution and its intent to evaluate objective criteria for use in making decisions for the 2018 list.

But environmentalists in their lawsuit charge Ohio's decision to leave the open waters of the lake off the impaired waters list violated CWA section 303(d) and federal regulations governing the creation of total maximum daily loads for impaired waters.

Environmentalists are also suing EPA in federal district court in New York over the agency's alleged failure to require the state to update its water quality standards to include criteria based on the agency's 2012 recreational water quality criteria.

The suit asks the court to find that EPA failed to comply with its mandatory CWA duty to promulgate water quality standards that comply with the act. Or, in the alternative, the court should find that EPA failed to expressly approve or disapprove New York's water quality standards.

The Obama EPA criticized the state's approach to recreational water quality criteria but said it was not taking action on the state's criteria, the complaint says.

In California, environmentalists are urging a federal district court to reject EPA’s recent “determination” that changes to California’s rules during the state’s drought did not amount to a change in water quality standards, in a bid to set a precedent that could expand the universe of state water rules that are subject to mandatory federal review under the CWA.

The case, which is scheduled to be heard on Aug. 17, could set a precedent by defining when new state requirements constitute a “revised” state water quality standard subject to mandatory EPA review before they can take effect.

And in Montana, environmentalists have been seeking to overturn EPA's approval of a general variance to strict state numeric nutrient water quality criteria, in a case that the wastewater sector says could prevent the agency from approving variances to any state standard.

But the landmark litigation is facing the prospect of dismissal or delay as the defendants say it is moot since the variance at issue expired at the beginning of the month and the agency is now reviewing a new version.

Environmentalists, however, maintain the case is not moot because EPA has not yet acted on the new variance, and even if the agency acts, their request for declaratory judgment is still relative and the court can still give effective relief.