Summary of a Recent
Judicial Development in
Environmental Law

EPA Approval of Impaired Water Body Lists Pursuant to CWA § 303

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Thomas v. U.S. EPA, No. C06-0115, 2007 WL 4439483 (N.D. Iowa Dec. 17, 2007), the United States District Court for the Northern District of Iowa held that the plaintiffs failed to show that the United States Environmental Protection Agency's (EPA) decision regarding Iowa's Clean Water Act (CWA) § 303(d) lists in 2002 and 2004 was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. For this reason the court dismissed the plaintiffs' complaint.

Background

On May 26, 2005, the Iowa Department of Natural Resources (IDNR) submitted its CWA § 303 list of impaired water bodies to the EPA. Id. at *1. After reviewing the list, the EPA partially approved and partially disapproved the listed water bodies. Id. The EPA disapproved of the IDNR's decision to remove 20 water bodies, and the EPA restored six water bodies to Iowa's § 303 list. Id. at *5. Thereafter, the plaintiffs filed suit challenging the EPA's partial approval as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Id. at *1.

Arguments

The plaintiffs challenged the EPA's approval of Iowa's 2004 § 303(d) list for the following four reasons:

1. EPA's approval of Iowa's 2004 303(d) list failed to consider important facts and information.
2. EPA's approval of Iowa's 2004 303(d) list improperly addressed Iowa's credible data law.
3. EPA's approval of Iowa's 2004 303(d) list was based on water quality standards that were contrary to the Clean Water Act.
4. EPA's approval of Iowa's 2004 303(d) list improperly allowed Iowa to exclude from the 303(d) list waters "assessed," but not "monitored," as impaired.
Id. at *6.

Analysis and Holdings

Because the CWA does not establish a standard for judicial review, parties must challenge federal and state actions in compliance with the CWA through the Administrative Procedure Act (APA). See id. at *5. Pursuant to APA § 706(2)(A), courts make determinations regarding whether an agency's action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Id. In the Eighth Circuit, courts are required to give agency decisions a great deal of deference under this standard. See id.

In the instant case, the plaintiffs had the "burden of showing that EPA's decision to approve the State's § 303(d) list was arbitrary or capricious." Id. at *10. Ultimately, the court concluded that the plaintiffs fell short in carrying their burden of proof. Id. The court stated, "[t]he shotgun approach adopted by [p]laintiffs-objecting to every instance where EPA approved the delisting of a waterbody-provide[d] the [c]ourt with little guidance in determining how [p]laintiffs believe[d] that EPA abused its discretion or otherwise failed to consider the information provided to it." Id. For this reason, the court was "unable to discern any 'clear error of judgment' or a lack of 'any rational basis' in EPA's determinations and, therefore, its decision [was] upheld." Id. (quoting Voyageurs Nat. Park Ass'n v. Norton, 381 F.3d 759, 763 (8th Cir .2004)).

The case was decided on December 17, 2007.