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WV TMDL Litigation Challenging EPA

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On January 7, 2015 the Ohio Valley Environmental Coalition, Inc; Sierra Club; West Virginia Highlands Conservancy, Inc; and the West Virginia Rivers Coalition filed a Complaint for Declaratory and Injunctive Relief against U.S. EPA, Region III.  The action challenges six (6) final actions by EPA and seeks to compel EPA to perform non-discretionary duties under the CWA.  Those stated six actions were:

  • EPA’s approval of TMDLs for  selected streams in the Upper Ohio River South Watershed;
  • EPA’s approval of the TMDLs for selected streams in the Dunkard Creek Watershed;
  • EPA’s approval of the TMDLs for selected streams in the Lower Kanawha River Watershed
  • EPA’s approval of the TMDLs for selected streams in the Elk River Watershed
  • EPA’s approval of the TMDLs for selected streams in the Monongahela River Watershed
  • EPA’s approval of the TMDLs for selected steams in the West Fork River Watershed

The nondiscretionary duties they seek to compel are EPA’s duties pursuant to 303(d)(2) to disapprove WVDEPs actual and/or constructive submission of no TMDLs for waters in WV that are biologically impaired by ionic stress and to develop such TMDLs for those waters.  It is asserted that WVDEP refused to develop TMDLs for streams that were biologically impaired because “there is insufficient information available regarding the causative pollutants and their associated thresholds for biological TMDL development for ionic toxicity.”  The complaint asserts that this statement is unsupported.  (See attached).

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