Thursday, September 4, 2008

Kentucky Waterways Alliance v. Johnson

Sep 3: In the U.S. Court of Appeals, Sixth Circuit, Case No. 065614. Plaintiffs, Kentucky Waterways Alliance, Sierra Club Cumberland Chapter, Kentuckians for the Commonwealth, and Floyds Fork Environmental Association, appealed the district court’s grant of summary judgment in favor of Defendants, U.S. EPA Administrator Stephen L. Johnson, the Commonwealth of Kentucky, the Kentucky Coal Association, Associated Industries of Kentucky, the Kentucky Chamber of Commerce, and the Kentucky League of Cities. Plaintiffs’ challenge was brought pursuant to the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq. (2000), regarding EPA’s approval, under § 303(c) of the Clean Water Act (CWA), 33 U.S.C. § 1313(c) (2000), of Kentucky’s regulatory implementation of its "Tier II water quality antidegradation rules."

The Appeals Court affirmed in part and reversed in part the district court’s opinion and order. Additionally, the Appeals Court vacated in part, EPA’s approval of Kentucky’s Tier II antidegradation rules, and remanded the matter to the EPA for further proceedings consistent with these opinions.

Tier II protection applies when “the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water.” 40 C.F.R. § 131.12(a)(2). For such waters, the regulation requires that their “quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State’s continuing planning process, that allowing lower water quality is necessary to accommodate important economic and social development in the area in which the waters are located.” 40 C.F.R. § 131.12(a)(2). However, “[i]n allowing such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully.” 40 C.F.R. § 131.12(a)(2).

According to the Sixth Circuit, "Kentucky’s Tier II exemption for coal-mining discharges was not ambiguous. The antidegradation regulations stated, in explicit terms, that Tier II review 'shall not apply' to coal mining discharges regulated under existing regulations. . . Those existing regulations do not require socioeconomic review. Indeed, when the EPA first queried the State on socioeconomic review for coal-mining discharges, the State responded that there was no such review. . . Only after further inquiries from the EPA did Kentucky adopt a starkly different position -- that its regulations (it did not cite a particular one) compelled a socioeconomic review for each proposed discharge. . . This securing an informal commitment from a state agency rather than requiring the state to amend its regulations violates the federal approval procedure established by 33 U.S.C. § 1313(c)(3) -- the EPA either approves or disapproves the regulations proposed by a state."

The Appeals Court also said, "Enforceability also argues against the EPA’s reliance on informal state commitments." Citing two precedent-setting cases, the Appeals Court ruled, "Because the EPA relied on an informal Cabinet commitment to approve Kentucky’s Tier II exemption for coal mining discharges, we find that the agency’s approval was 'not in accordance with law.' 5 U.S.C. § 706(2). Accordingly, we hold that this exemption too requires remand to the EPA for reconsideration."

Access the complete opinion (
click here).

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