Summary of a Recent
Judicial Development in
Clean Water Act

Challenge To EPA's Approval of
Pollution-Impaired Waters Not Ripe

Brandy L. Brown
National AgLaw Center Graduate Fellow

In an action brought by a nonprofit farmers' association against the Environmental Protection Agency ("EPA") challenging the EPA's approval of Missouri's Clean Water Act listing of pollution-impaired waters, the United States Court of Appeals for the Eighth Circuit has ruled that it lacked proper jurisdiction to hear the matter because the challenge was not yet ripe for adjudication. Missouri Soybean Ass'n v. United States EPA, 289 F.3d 509, 513 (8th Cir. 2002) (per curiam). The Eighth Circuit dismissed the action without prejudice because its decision was not an adjudication on the merits. See id. at 513.

The Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387, requires states "to identify and prioritize those waters within the state's boundaries that despite the use of technical controls for pollution do not meet the state's water quality standards." Id. at 510 (citing 33 U.S.C. § 1313(d)). States are required to "'assemble and consider all existing and readily available water quality-related data and information' when preparing the list of impaired waters within the state." Id. (quoting 40 C.F.R. § 130.22). This list, commonly referred to as the § 303(d) list, is then submitted to the EPA for approval. See id. After the EPA approves the § 303(d) list, "the impaired waters undergo scientific study to establish the total maximum daily load (TMDL) of specifically identified pollutants that may be released without violating state water quality standards." Id. (citing Sierra Club, North Star Chapter v. Browner, 843 F.Supp. 1304, 1306-07 (D.Minn. 1993) (describing the TMDL process)). States may then utilize "a variety of regulatory techniques to implement the TMDL standards." Id.

In 1998, Missouri developed a § 303(d) list of pollution-impaired waters. See id. In doing so, it divided its waters into three separate categories. See id. Waters under the first category were considered to be "impaired" and were scheduled for full TMDL development. See id. Waters under the second category "were scheduled for further monitoring because the water quality data was 'older or of lesser quality.'" See id. If this monitoring confirmed that a particular body of water was "impaired," then that body of water would be scheduled for full TMDL development. See id. Waters under the third category "were recognized as impaired, but no practical remedy was available because the polluting conditions resulted from naturally occurring minerals, nutrients, or sediment." Id.

Missouri did not include the Missouri River and the Mississippi River on its § 303(d) list because it determined that "'there [were] no water quality contaminant violations.'" See id. The EPA examined Missouri's § 303(d) list and added several waters to Missouri's list. See id. The EPA also determined that the waters in all three categories were "impaired" and required full TMDL development. See id. The Missouri Clean Water Commission then added the Missouri and Mississippi Rivers to the § 303(d) list, "claiming the pollutant was 'habitat loss' occurring because of 'channelization.'" Id. This revised list was approved by the EPA. See id.

The Missouri Soybean Association ("Association") challenged the EPA's approval of Missouri's § 303(d) list under § 1365(a)(2) of the CWA and the Administrative Procedures Act, 5 U.S.C. §§ 551-559, 701-706, claiming that "the EPA should have disapproved Missouri's § 303(d) list because the category two waters and the [Missouri and Mississippi] rivers lacked the required documentation of pollution to be listed as impaired." Id. The Association alleged that:

the premature listing of the challenged waters injures its members through potential changes in land management practices, limitations on crop growth and rotation, limitations on sale and use of fertilizers, pesticides and herbicides, decreases in property values, increases in farming costs, and the inability to plan for and rely on the use of certain waters and land caused by Clean Water Act requirements.

Id.

The Association moved for partial summary judgment "on the merits of the challenged water classification dispute." Id. at 512. The EPA filed a motion to dismiss, arguing that the Association lacked standing and that the action brought by the Association was not yet ripe for adjudication. See id. The EPA alternatively moved "for summary judgment on the merits of the challenged water classification dispute." Id.

The district court assumed that the Association had standing, but granted the EPA's motion for summary judgment because it found that the Association's action was not yet ripe for adjudication. See id. The Association then moved for reconsideration of the district court's decision. See id. The district court denied the Association's motion for reconsideration and dismissed the action with prejudice. See id. The Association appealed the district court's rulings to the Eighth Circuit. See id.

The Eighth Circuit first examined the Association's argument that the suit was ripe for adjudication because the EPA challenged jurisdiction in the action under a motion to dismiss, not under a motion for summary judgment. See id. The Association argued that it "should be held to a 'relatively modest' standard of asserting jurisdiction in its pleadings." Id. (citing Bennett v. Spear, 520 U.S. 154, 171 (1997)). Under this standard, the Association contended that the potential decreases in land values were sufficient to meet the hardship requirement necessary to be ripe for adjudication. See id. at 512-13.

The EPA contended that the Association's claim was not ripe for adjudication because the listed hardships or injuries suffered by the Association were only speculative in nature. See id. at 512. The EPA further contended that the Association's reliance on potential decreases in land values as a hardship was premature because it had not occurred as of the time the action was filed. See id.

The Eighth Circuit held that the Association's claim was not ripe for adjudication. See id. The court stated that "to be ripe for decision a case must be fit for judicial resolution and the parties must experience hardship if the court withheld consideration of the case's merits." Id. (citing Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733 (1998)). The court agreed with the district court that the Association failed to show any firm proof of injury to its members as a result of the EPA's approval of Missouri's § 303(d) list. See id. The court further pointed out that the Association relied on potential harm to its members in its complaint that would result from the stricter controls on the waters' use. See id. The court reasoned that only after TMDLs were developed and implemented would the stricter controls on the use of the challenged waters potentially result in the Association's alleged harm to its members. See id.

The court specifically addressed the Association's alleged hardship in decreasing land values by reasoning that it was "not a sufficiently immediate or sizeable threatened harm to warrant judicial intervention at this time." Id. at 513 (citing Nebraska Pub. Power Dist. v. MidAmerica Energy Co., 234 F.3d 1032, 1038 (8th Cir. 2000)). The court added that it "agreed with the district court that until objectionable TMDLs are developed and implemented, [the] 'Association's claims of harm are too remote to be anything other than speculative' and are not ripe for adjudication." Id.

The court also held that because the Association's claim was not ripe, it lacked proper jurisdiction. See id. The court concluded that because the dismissal was for lack of jurisdiction, it was not an adjudication on the merits, and therefore the claim should be dismissed without prejudice. See id.

The case was decided on May 6, 2002; this summary was posted May 6, 2002