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Ohio Valley Envtl. Coalition, Inc. v McCarthy

Citation: 47 ELR 20033
No. 3:15-0271, (S.D. W. Va., 02/14/2017) (Chambers, J.)

A district court held that EPA violated a nondiscretionary duty under the CWA in not reviewing West Virginia's TMDL submissions. The West Virginia Department of Environmental Protection (WVDEP) identified ionic toxicity as a cause of biological impairment in many streams throughout the state since at least 2006, but had not issued TMDLs for ionic toxicity. In the fall of 2010, EPA and WVDEP began a project to develop a pilot TMDL for ionic toxicity in four streams in the state. WVDEP did not see the project through to the end and informed EPA it would develop its own methodology to determine biological impairment. Environmental groups challenged EPA's failure to compel WVDEP to comply with CWA TMDL submission requirements. EPA contended that WVDEP was not refusing to submit TMDLs but was reprioritizing TMDLs for biological impairment. The court held that the CWA does not permit a state to discontinue developing required TMDLs to work on some other aspect of its water regulation scheme. The court granted the environmental group's motion for summary judgment on the matter.