Circuit Court Decisions Reduce the Influence Environmental Groups and EPA Have Over Local Water Quality Management

Lee A. DeHihns
Robert D. Mowrey
Peter K. Floyd

Decisions last year by the United States Courts of Appeal for the 9th and 11th Circuits represent a change in the influence that the U.S. Environmental Protection Agency (EPA) and environmental groups can exert over local government water quality management decisions. These court decisions do not reduce the responsibility local governments have to ensure that the water quality of the lakes, rivers and streams within their jurisdictions remain safe for recreation and drinking water supply, but instead place the oversight where it belongs – at the state government level.

The Association of County Commissioners of Georgia (ACCG) and the Georgia Municipal Association (GMA) jointly participated as Amicus Curiae parties to protect their members rights in a suit (Sierra Club, et al. v. Hankinson, et al., No. 1:94-CV-2501-MHS (N.D. Ga. 1994)) brought by Sierra Club and several state and local environmental organizations (including the Ogeechee River Valley Association, Trout Unlimited, Georgia Environmental Organization, and the Coosa River Basin Initiative) against the EPA in the United States District Court for the Northern District of Georgia (District Court). ACCG and GMA also participated in the same capacity when a ruling from the District Court was appealed to the 11th Circuit.

In 1994, the Sierra Club sued EPA to force EPA to establish Total Maximum Daily Loads (TMDLs) for Georgia waterways pursuant to the Clean Water Act (CWA). 33 U.S.C § 1313(d)(1)(C). TMDLs must be established for all waterways known as “water quality limited segment[s]” (Impaired Waters). See 40 C.F.R. § 130.2(j). The parties to the Georgia litigation agreed to, and the District Court entered, a Consent Decree that set out a timetable for the establishment of those TMDLs, but the Consent Decree did not address the mandatory development of implementation plans for those TMDLs. Sierra Club, (1997)(consent decree). Under the Consent Decree schedule, all TMDLs are to be established by 2004 with interim deadlines for various river basins in Georgia. Under the Consent Decree, Georgia and EPA share responsibility for the establishment of TMDLs.

Under the Consent Decree, TMDLs must be used to adjust individual discharge permits at point sources (e.g., locally managed wastewater treatment plants) so as to reduce the pollutants discharged to the levels specified in the TMDL. Sierra Club, et al. v. Meiburg, et al., 296 F.3d 1021, 1026 (11th Cir. 2002). This approach to regulation of point sources usually does not reduce pollutant discharges enough to meet TMDL levels. More importantly, nonpoint sources are typically beyond EPA’s jurisdiction and are subject to regulation, if at all, by state and local governments in Georgia. In the National Water Inventory 2000 Report issued by EPA in August 2002, Georgia reported that only 40 percent of river miles, 16 percent of lakes and 59 percent of estuarine areas fully meet beneficial uses. These measurements mean that more than half of the waters are still impaired. The major causes of the continuing impairment in each instance, of more waters than not, were pollutants from urban runoff and other nonpoint sources. See Inventory at p.96-97. The major work left to be done therefore has to occur at a level of government below the federal level.

In February 2000, Sierra Club, dissatisfied not only with EPA and Georgia’s progress in establishing TMDLs, but also no evidence showing compliance with water quality standards in the impaired waters, asked the District Court to enforce the Consent Decree to compel EPA to take further action. Specifically, Sierra Club asked the District Court to order EPA to prepare implementation plans for the TMDLs subject to the Consent Decree. Prior to a Court response to Sierra Club’s request, Georgia agreed to develop implementation plans for the calendar year 1998 TMDLs within nine months. The District Court postponed ruling on Sierra Club’s request for relief until April 2001. Subsequently, the state did develop implementation plans for all of the 1998 TMDLs.

Because Georgia’s action effectively addressed the basis for Sierra Club’s motion, EPA asked the District Court to dismiss Sierra Club’s motion. In July 2001, the District Court denied EPA’s request and held that the Consent Decree required EPA to see to it that Georgia develops TMDL implementation plans. The Court also extended the obligation to all TMDLs subject to the Consent Decree. EPA appealed that District Court Order to the 11th Circuit.

On July 2, 2002 the 11th Circuit decision overturned the District Court’s July 2001 Order. The 11th Circuit decided that it had jurisdiction because the District Court’s decision to require implementation plans was a modification of the 1997 Consent Decree, not just an interpretation of it. Id. at 1032. After finding that the District Court’s Order was a modification of the Consent Decree, it found that the District Court abused its discretion.

The critical conclusion made by the 11th Circuit was that “the consent decree … did not require EPA to develop an implementation plan for the water quality standards it was to set, and the clarity of the decree on the point is sufficient that the district court’s later imposition of such a requirement constitutes a modification of the decree. As a result, we have jurisdiction to review the district court’s action, and we conclude that the court abused its discretion by grafting onto the decree a substantial modification that was not part of the original bargain between the parties.” Id. at 1024.

On Jan. 7, 2002, in an independent effort to pressure EPA and Georgia under the Consent Decree as to the timing and adequacy of TMDLs in the case, Sierra Club filed a motion with the District Court asking that the EPA be held in civil contempt for violation of the Consent Decree and that the District Court then “impose appropriate sanctions and other remedial measures on [EPA].” Plaintiff’s Motion to Show Cause at 3, Sierra Club (Jan. 7, 2002). Sierra Club alleged that EPA had not met its TMDL deadline of Feb. 28, 2001. Id. at 1-3. EPA subsequently completed its February 2001 TMDLs, and EPA and Georgia timely issued TMDLs by the Feb. 28, 2002 deadline.

On April 26, 2002, the District Court denied Sierra Club’s motion, but expressed frustration with the pace of compliance with the Consent Decree and directed the parties to meet by June 26, 2002 to confer regarding future compliance with the Consent Decree’s obligations. Sierra Club(order denying Plaintiff’s Motion to Show Cause)(Apr. 26, 2002). The Court further directed the parties to submit a joint status report by July 26, 2002. Id. The parties met and filed a July 26, 2002 Report of the Parties to the Court, which left many substantive issues unresolved.

The issuance of the 11th Circuit decision prior to the deadline for the report to the court obviously strengthened EPA’s position. On Aug. 21, 2002 the District Court issued an Order in response to the July 26, 2002 Report of the Parties to the Court. The Aug. 21, 2002 Order rejected Plaintiffs’ requests for Consent Decree modifications and scheduled a Status Conference “to address any remaining current issues.” The District Court’s Order wisely stated that the 11th Circuit decision is “a well-reasoned opinion.”

EPA’s position that implementation of TMDLs are a state and not a federal responsibility is further supported by the May 31, 2002 9th Circuit Court of Appeals decision in Pronsolino, et al. v. Nastri. Pronsolino, et al. v. Nastri, et al., 291 F.3d 1123 (9th Cir. 2002). The 9th Circuit concluded that while the CWA requires that TMDLs must be established by EPA when the states fail to establish them, the implementation of TMDLs is nevertheless solely a state function: “California chose both if and how it would implement the Garcia River TMDL. States must implement TMDLs only to the extent that they seek to avoid losing federal grant money; there is no pertinent statutory provision otherwise requiring implementation of § 303 plans or providing for their enforcement.” Id. at 1140 (citing CWA § 309, 33 U.S.C. § 1319; CWA § 505, 33 U.S.C. 1365 (emphasis added)).

The conclusion that is derived from these two recent appeals court decisions is that environmental groups have not been successful in getting federal courts to force EPA to implement TMDLs once they have been established. To some extent, their frustration in having pollutant load determinations made but not implemented is one that local governments share.

Well before Sierra Club raised the implem-entation plan issue, ACCG and GMA adopted the Georgia Water Resource Policy – A Call To Action in December 1999. That document states that local governments in Georgia are committed to meeting applicable water quality standards, but only if the timetables and technical and economic aspects are reasonable. Georgia communities have been assisting the Georgia Environmental Protection Division in developing achievable “voluntary” implementation plans.

It is the view of these recent federal court decisions, that managing land use and water resources so as to achieve clean water belongs at the state and local government level, not only in Georgia, but also elsewhere in the country.