Yesterday a group of organizations with ties to the Shenandoah River sued the EPA claiming that EPA violated the Clean Water Act (CWA) by approving Virginia’s 2014 305(b)/303(d) Water Quality Assessment Integrated Report (Integrated Report) which includes a listing of Virginia’s water quality-impaired rivers. The groups claim that Virginia failed to evaluate data and information showing impairments to the North Fork, South Fork, and main stem of the Shenandoah River and their tributaries (collectively the Shenandoah River) due to algae blooms resulting from nutrient over enrichment, and as a result failed to add the Shenandoah River to the impaired waters list. The groups claim that EPA’s approval of Virginia’s Integrated Report violated the CWA because EPA relied on Virginia’s determination that it is too challenging to apply Virginia’s water quality standards to algal blooms, and therefore EPA failed to require that the Shenandoah River be listed as impaired by excessive algae and that as a result EPA also failed to promulgate a Total Maximum Daily Load (TMDL) for the pollutants causing the impairment in violation of its obligations under CWA § 303(d)(2).
Plaintiffs, who include the Shenandoah Riverkeeper (a program of the Potomac River Network), the Potomac Riverkeeper, the Potomac River Smallmouth Club, and the Warren County Chapter of the Izaak Walton League of America, filed suit in the Federal District Court for the District of Columbia against the EPA and its Administrator, Scott Pruitt. The suit arises after years of the Potomac Riverkeeper and the Shenandoah Riverkeeper submitting public comments to the Virginia Department of Environmental Quality (DEQ) with evidence and information regarding the extent of algal growth and its impairment of the Shenandoah River. The Riverkeepers also nominated the Shenandoah River for inclusion in Virginia’s annual water quality monitoring plan, which the complaint alleges DEQ rejected because DEQ lacks criteria for assessing algae. For the 2014 Integrated Report, Riverkeepers submitted a technical review by a water quality expert, over 1,000 photographs and 15 videos document algal blooms, as well as 126 citizen testimonials. The complaint notes that DEQ claimed it could not assess the evidence without a numeric threshold.
The complaint argues that DEQ’s refusal to evaluate Riverkeepers’ data and list the Shenandoah River as impaired is inconsistent with Virginia’s designated uses for recreation and aquatic life and the narrative water quality criteria supporting those designated uses. DEQ did classify seven assessment units totaling 25 miles of stream as Category 3C waters in the 2014 Integrated Report. Category 3C waters are waters for which there is “data collected by a citizen monitoring or another organization indicating water quality problems may exist but the methodology and/or data quality has not been approved for a determination of support of designated uses(s).” DEQ has committed to developing a field methodology to evaluate impacts of algal growth and will prioritize monitoring of these segments. Despite some comments regarding DEQ’s failure to fully address Riverkeepers’ comments, EPA approved the 2014 Integrated Report citing DEQ’s assertion that implementing narrative water quality criteria related to substances that nourish nuisance aquatic plant life presents unique challenges and that the narrative criteria can lead to subjective interpretations of impairment.
The complaint asks the court to find that EPA’s approval of the 2014 Integrated Report was arbitrary and capricious, an abuse of discretion, and beyond EPA’s statutory authority under the Administrative Procedure Act. The Plaintiffs ask the court to vacate EPA’s approval of Virginia’s Integrated Report and remand the issue to EPA to reevaluate and revise its approval of the Integrated Report. The complaint is available here.