HUNTINGTON — Several environmental agencies have filed a lawsuit against the U.S. Environmental Protection Agency and several officials alleging they have violated the Federal Water Pollution Control Act.
Sierra Club, West Virginia Highlands Conservancy and the West Virginia Rivers Coalition filed the lawsuit alleging the EPA, EPA Administrator Michael S. Regan and EPA Region III Regional Administrator Adam Ortiz violated the Act.
The case focuses on the failure to establish total maximum daily loads (TMDLs) for ionic toxicity in waters of the Lower Guyandotte River Watershed in West Virginia, according to a complaint filed in U.S. District Court for the Southern District of West Virginia.
The Clean Water Act was enacted in 1972 and aims to restore and maintain the integrity of the nation's waters by eliminating pollutants discharged into navigable waters.
Section 303 of the Act requires each state to establish water quality standards, subject to EPA approval, the complaint states.
These standards include designated uses of waters and criteria to protect public health, enhance water quality, and serve the Act's purposes, according to the suit.
The lawsuit alleges that the EPA failed to perform non-discretionary duties and to establish TMDLs for ionic toxicity in the Lower Guyandotte River Watershed. These duties were triggered by various failures by the West Virginia Department of Environmental Protection (WVDEP), such as missed deadlines and failures to submit required TMDLs, according to the suit.
"TMDL's for ionic toxicity are lacking in our waterways because WVDEP has failed to develop them in any of West Virginia’s waters," Autumn Crowe, the interim executive director for West Virginia Rivers said in an interview with The West Virginia Record. "This has been a long-standing problem for over a decade. For the Lower Guyandotte, West Virginia Rivers submitted comments on WVDEP's draft TMDL in 2021 calling out their failure to address biological impairments in 20 streams. WVDEP committed to develop ionic toxicity TMDLs for some of those streams by December 31, 2021."
Crowe said WVDEP completed TMDLs for other pollutants in that watershed in 2022, but instead of addressing the issue, they "suspended" biological impairment TMDLs.
She said the WVDEP's failure to address those impairments violated the Clean Water Act.
"Under the CWA, when a state fails to develop TMDLs, the obligation to do so passes to EPA," Crowe said. "For those reasons, the Lower Guyandotte Watershed is the focus of the lawsuit against EPA."
Crowe said when coal mining activities leach metals and other ions into the water it causes ionic pollution that's toxic to aquatic life resulting in the stream's biological impairments.
"For WVDEP to develop TMDLs for ionic pollution, they'd have to require the coal industry to reduce their pollution and hold the coal industry accountable for the damages that mining inflicts on West Virginia’s streams," Crowe said. "Unfortunately, West Virginia has a long and complicated history of letting the mining industry off the hook for the damages that have occurred to our lands and waters."
Crowe said for over a decade, West Virginia Rivers and other environmental groups have advocated for TMDLs in our state's streams to address the biological impairments due to ionic toxicity.
"In 2015, we sued EPA to encourage the federal agency to step in," Crowe said. "That lawsuit resulted in a schedule for TMDL development that WVDEP never met. So, in February 2023, we notified EPA of our intent to sue them once again on this issue."
Crowe said the WVDEP will have to speak to what steps they have taken, but from West Virginia Rivers' perspective, they failed to comply with the deadlines in the agreed-upon schedule and our streams continue to suffer for their negligence.
"EPA’s approval of WVDEP's 2022 TMDL for the Lower Guyandotte left numerous impaired streams without a plan for recovery, necessitating our lawsuit," Crowe said. "Without an effective TMDL that addresses ionic pollution, the quality of these streams will continue to decline."
The plaintiffs filed previous litigation involving the same issue. The current action is a sequel to a prior action litigated in the Huntington Division, highlighting ongoing issues related to TMDLs.
In response to the previous court's decision, the EPA conditionally approved WVDEP's submission of "no TMDLs" for ionic stress streams, provided WVDEP adhered to an agreed-upon schedule.
The approval was contingent on WVDEP developing and submitting TMDLs for approval, particularly for ionic toxicity, the complaint states.
Despite the conditional approval, WVDEP failed to meet the agreed-upon schedule for developing TMDLs for ionic toxicity. WVDEP later submitted TMDLs for the Lower Guyandotte River Watershed in 2022, explicitly stating they had suspended the development of TMDLs for biological impairment, including ionic toxicity.
The plaintiffs claim the EPA approved WVDEP's 2022 TMDLs for the Lower Guyandotte River Watershed, noting WVDEP's suspension of biological impairment TMDL development but not addressing ionic toxicity TMDLs.
The plaintiffs claim that the EPA's conditional approval automatically converted to disapproval when WVDEP failed to adhere to the schedule.
The EPA allegedly failed to develop necessary TMDLs for streams in the Lower Guyandotte River Watershed, violating nondiscretionary duties under the Clean Water Act, according to the suit.
The plaintiffs claim that WVDEP's submission of "no TMDLs" for ionic stress streams triggered EPA's duty to approve or disapprove within 30 days. EPA allegedly failed to perform this duty, neither disapproving WVDEP's submission nor developing its own TMDLs for these streams.
The lawsuit asserts that EPA failed to fulfill its duties under the Clean Water Act regarding TMDLs for ionic toxicity in the Lower Guyandotte River Watershed.
The plaintiffs are seeking damages for failure to perform non-discretionary duties. They are represented by Derek O. Teaney and Elizabeth A. Bower of Appalachian Mountain Advocates in Lewisburg.
U.S. District Court for the Southern District of West Virginia case number: 3:24-cv-00130
