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Environmental Law & Policy Center v. United States Environmental Protection Agency

ELR Citation: 48 ELR 20052
Nos. 3:17CV01514, (N.D. Ohio, 04/11/2018) (Carr, J.)

A district court held it could not rule on the merits as to whether EPA violated the APA when it approved Ohio's 2016 impaired water list, but nevertheless remanded the case to EPA so it could approve or disapprove Ohio's incomplete CWA §303 list. Under the CWA, states must submit to EPA a list of state waters that fail to meet water quality standards. For certain limited areas of Lake Erie, Ohio has done that. But it has routinely failed to assess Lake Erie's open waters, and in 2016, it explicitly refused to do so. Rather than disapproving the submission, EPA approved the list and deferred to the state's judgment not to assess the open waters, despite the fact that hazardous cyanotoxins were identified there just two years earlier. However, EPA then issued a withdrawal letter revoking its approval, particularly as it pertained to the open waters. Because there is no approval, there is no final agency action and the court denied without prejudice environmental groups' motion for summary judgment. The court, however, noted that Ohio's incomplete §303(d) list submission remains pending before EPA for either final approval or disapproval. It therefore remanded the case to EPA so it could render a decision within 30 days.