New Clean Water Act Case From Court of Appeals for the D.C. - Lake Carriers' Association v. EPA

The Court of Appeals for the District of Columbia Circuit just handed down its decision in the case of Lake Carriers' Association v. EPA, 2011 U.S. App. LEXIS 14996 which can be found here.

Summary:  This case involved several maritime trade associations bringing a challenge to a nationwide permit for the discharge of pollutants under the Clean Water Act.  The associations asserted procedural challenges stemming from conditions sought by various States.  The court rejected the petition.

Facts:  The Clean Water Act prohibits discharges of pollutants without a NPDES permit.  For those discharges into the waters of a State, the Clean Water Act provides that the States to review such permit application before issuance.  Further, states can put conditions on the federal permit through the review process, also known as certification process.

When the Clean Water Act was first enacted, the EPA exempted gray water from the requirement to obtain a permit (and State certification).  Gray water is effluent from laundries, sinks, showers, etc.  The Ninth Circuit vacated the regulation in 2008, giving the EPA until 2009 to develop a means to implement the permit process.

EPA developed the process, promulgated the rule and received numerous comments. Several states commented that they sought differing standards to address unique, local environmental conditions.  Others sought a uniform standard.  EPA eventually passed the permit, with approximately 100 state specific conditions.

Various maritime trade associations brought suit under the Administrative Procedures Act.  They argued:

First, they contend that EPA erred in failing to provide notice and an opportunity for comment on the final [Vessel General Permit], which contained the state certification conditions.  Second, they charge that it was arbitrary and capricious for EPA to issue the permit without considering the possible ill-effects of the state certification conditions.  Finally, they allege that EPA failed to consider the costs of compliance with state conditions in assessing the impact of the permit on small businesses....

On the notice and opportunity to comment, the EPA did provide notice of the rule, but the Associations challenge the rule because the States conditions were not also disclosed.  EPA's chief response was that no notice was required, because EPA had no authority to reject the State's conditions.  The court rejected this argument as waived for not raising it before the EPA.

The court rejected the other arguments along similar lines.  The court did mention that the Associations could challenge the States' conditions in the relevant state court.