EPA Wet Weather Policies Limited To Eighth Circuit Jurisdiction, Agency Says

By Amena H. Saiyid  


Nov. 19 --A March appeals court ruling rejecting the Environmental Protection Agency's restrictive policies on wastewater discharges during periods of heavy rainfall, is limited to that court's jurisdiction, the agency said.

The federal agency, however, stopped short of declaring that it would apply the ruling nationwide.

“Outside of the Eighth Circuit, EPA will continue to work with States and communities with the goal of finding solutions that protect public health and the environment while recognizing economic constraints and feasibility concerns, consistent with the agency's existing interpretation of the regulations,” the EPA told Bloomberg BNA in a Nov. 19 statement.

The ruling by the U.S. Court of Appeals for the Eighth Circuit said EPA could not regulate wastewater treatment processes at publicly owned utilities through guidance letters in lieu of rulemaking (2013 WLPM, 3/27/13).

If the EPA decides to limit the appellate ruling to the Eighth Circuit, then the agency can continue to bar mixing zones at wastewater discharge points in receiving waters designated for swimming, fishing or other primary contact recreational activities. The agency also could continue to prohibit wastewater utilities from blending partially treated and fully treated wastewater inside treatment plants outside this circuit's jurisdiction.

A nationwide application of the ruling would end all restrictions on mixing zones in receiving waters unless the EPA promulgates a rule. Moreover, the nationwide application would end restrictions on the practice used by wastewater utilities known as blending, allowing them to route wastewater flows around the biological treatment process during heavy rains and recombine it with treated flows before it is discharged.

Meeting of Four States

The EPA reiterated its stance on the circuit ruling to Bloomberg BNA following reports about the presentation agency officials made Nov. 13 at a public meeting of representatives of four states--Iowa, Missouri, Kansas, and Nebraska--held at the EPA Region 7 headquarters.

At that public meeting was Bruce Bergman, general counsel for the Iowa League of Cities, which successfully challenged the EPA's blending policy and its policy of not allowing mixing zones in receiving waters used for primary contact recreation such as swimming ( Iowa League of Cities v. EPA, 2013 BL 77650, 8th Cir., No. 11-3412, 3/25/13).

Bergman told Bloomberg BNA Nov. 18 that EPA had informed him the decision was “only binding” in those states that fall within the jurisdiction of the Eighth Circuit. The Eighth Circuit includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.

“The EPA led us to the brink but then said the agency has not yet decided on the action it will take,” Bergman said.

EPA's Options

Also present at that four-state meeting was Mike Tate, Bureau of Water director at the Kansas Department of Health and Environment, who told Bloomberg BNA Nov. 18 that the EPA indicated that limiting the appellate ruling to the circuit's jurisdiction was one of the options the agency was considering. The other option would be to apply the ruling nationwide, Tate added.

“To my knowledge, the EPA has made no decision,” Tate said.

According to John Hall, founding partner of Hall & Associates who represented the Iowa League of Cities, the EPA blending policy alone would have cost the wastewater treatment sector an estimated $150 billion nationwide.

“EPA didn't come out and say, yes, we will withdraw the policies,” Hall told Bloomberg BNA Nov. 18. “I take that as the agency not applying it nationwide.”

The Eighth Circuit in July rejected the EPA's petition for a rehearing. In March, the appellate court ruled that the EPA needed to go through the rulemaking process to bar the use of mixing zones in receiving waters used for recreation and prohibit blending of partially and fully treated wastewater inside treatment plants during heavy storms.

The court also ruled that the EPA exceeded its Clean Water Act authority in attempting to prohibit the practice of blending.

The EPA's decision comes less than a month after it decided against appealing the decision in the U.S. Supreme Court (2013 WLPM, 10/23/13).

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com