Clean Water Current

EPA filed its brief in the Fourth Circuit Court of Appeals, on July 17, regarding the appeal of Ohio Valley Environmental Coalition (OVEC) v. Pruitt. EPA has appealed the district court’s ruling that West Virginia’s delay in developing certain total maximum daily loads (TMDLS) constituted a constructive submission of “no TMDLs,” thus requiring EPA to act.

EPA’s brief focused on two primary arguments: (1) the court incorrectly determined OVEC had standing to bring the suit and (2) the court misapplied the doctrine of constructive submission. First, EPA argued that the court incorrectly found OVEC had standing to bring the case for over 500 bodies of water, when OVEC had established an interest in only 50 water bodies. Second, EPA argued that the court misapplied the theory of constructive submission, which is only applicable in narrow circumstances when the state has clearly and unambiguously shown that it has decided to not submit TMDLs.

In March, the NACWA Board approved participation as amicus curiae in this litigation to prevent the expansion of the constructive submission doctrine, and to preserve the important balance of cooperative federalism that allows the states to exercise discretion over the timing and priority of TMDLs and the time and flexibility to develop the science necessary to support them. NACWA’s brief will provide a critical national perspective on the importance of this balance of power.  NACWA will keep members updated on developments in the litigation.