Healy Enviro Law Fall 2012.docx

Degradation in quality is permitted unless 1 current

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degradation (in quality) is permitted unless: 1. Current uses are protected, 2. State has implemented affluent limits for new and existing point sources, and BMPs for NPS pollution, AND 3. Degradation is needed for improvement of social and economic development. iii. Tier 3 : high quality waters that are national resources are not to be degraded under any circumstances. c. Ohio Valley v. Horinko – It is reasonable for the EPA to define Tier 1/Tier 2 waters using either: pollutant by pollutant approach (EPA makes a classification for each pollutant in a given water body, so might be Tier 1 for one pollutant and Tier 2 for another) OR water body by water body (states make one classification for entire body of water—much more general approach). i. But, the EPA must explain their reasons for defining a river as Tier 1 or 2. iii. Effect of WQSs 1. In general, §301(b)(1)(C) provides that NPDES permit limits must be sufficiently stringent to ensure WQS compliance. a. Permit writers usually set permits simply by examining the tech-based standards via categorical standards (look at the categories). b. Tech-based limits are the bare minimum of control and easy to apply. These aren’t tied at all to the effect on water quality. i. But §301(b)(1)(C) says go beyond tech-based controls when necessary. 1. Determined by expected water quality impacts of discharges rather than the availability of technology. ii. Honored in the breach. iv. TMDLs (total maximum daily loads) 1. TMDLs are just another way to translate water quality standards into effluent limits. 2. TMDLs apply when technology based controls are inadequate to meet state WQSs . 35 Most important way WQSs have been translated to NPDES. TMDLs are most specific way to define limits (math New and more protective uses must be protected
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a. **Note: TMDLs are much more important than the sufficiently stringent standard from §301(b)(1)(C) because TMDLs are easy to follow and very enforceable. 3. TMDL requirements (List Rank set TMDL) a. Required Listing by States of Impaired Waters [ 303(d) List ] i. List must include a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters. ii. Statute defined initial deadline and requires periodic updates. iii. Includes waters impaired by ONLY non-point source pollution. (See Pronsolino ) b. State defines TMDLs for waters included on the list. i. TMDL defines maximum amount of daily discharges of each pollutant that is causing impairment of WQSs 1. This must include a margin of safety. 2. In Friends of the Earth , the EPA wanted flexibility with TMDLs based on seasonal changes in water discharge/flow. Court says no because of emphasis on daily. 3. But EPA promulgates rule bringing back some seasonal flexibility. ii. The TMDLs are prioritized based on severity of pollution and uses of waters.
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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