On September 3, 2008, the United States Court of Appeals for the Sixth Circuit issued its opinion in the appeal of the United States District Court for the Eastern District of Kentucky’s decision in Waterways Alliance v. Johnson. The Sixth Circuit partially affirmed and partially reversed Judge Thomas Russell’s decision upholding the Environmental Protection Agency’s (“EPA”) approval of Kentucky’s new antidegradation regulations in response to a challenge by the Kentucky Waterways Alliance and others.
The Sixth Circuit upheld EPA’s approval of Kentucky’s methodology for designating high quality waters for purposes of antidegradation review. The court further upheld Kentucky’s water body-by-water body approach to designating waters, and rejected the plaintiffs’ claims that Kentucky must follow a parameter-by-parameter approach to designation. The court also upheld Kentucky’s exclusion of “impaired waters” from antidegradation review, even if those waters are only designated as impaired for one or a limited number of uses. Finally, the Sixth Circuit rejected the plaintiffs’ claim that Kentucky’s designation of high quality waters has resulted in too few (by percentage) waters being designated. The court stated that Kentucky’s designations are not to be evaluated based on the percentage of waters provided antidegradation protection, but rather upon their consistency with federal law – and the court found that Kentucky’s approach was consistent with federal law.
On the other hand, the Sixth Circuit reversed Judge Russell’s approval of Kentucky’s alternative antidegradation implementation procedures for coal mining discharges and also struck down several “de minimis” exceptions to antidegradation review for high quality waters.
First, on the issue of Kentucky’s alternative antidegradation implementation procedures for coal mining discharges, EPA had concluded that Kentucky’s existing permitting procedures under SMCRA satisfied the federal requirements for antidegradation review, thereby obviating the need for a separate antidegradation review under Kentucky’s water quality regulations. EPA based its conclusion, at least in part, on a letter the Commonwealth provided “interpreting” its existing regulations.
The Sixth Circuit held that this “interpretive” letter was actually an unauthorized amendment to Kentucky’s regulations, not just a clarification. The court stated that use of such a letter (i) violated 33 U.S.C. § 1313(c)(3) because EPA should have required the state to amend its regulations and (ii) hindered public participation in the rule-making process. Thus, the Sixth Circuit held that EPA’s approval was not consistent with the law and remanded the “exemption” to EPA for reconsideration.
Second, the Sixth Circuit considered five of Kentucky’s “exemptions” from antidegradation review for high quality waters. These five exemptions include discharges that do not increase pollutant loading by 20% or more; industrial discharges that emit pollutants at less than half the concentration authorized by a normal NPDES permit; domestic discharges that include certain specified limits; discharges under storm water permits; and discharges from concentrated animal feeding operations. These exemptions were premised on the conclusion that each of these discharges is only a de minimis source of pollution and therefore does not require antidegradation review. The Sixth Circuit, however, found that EPA’s decision document contained insufficient technical data and analysis to support EPA’s conclusion that each of these exempted discharges would result in only insignificant degradation to high quality waters. It therefore remanded the rules to EPA to address that deficiency in its consideration of those exemptions.