Missouri Soybean v. Missouri Clean Water

Citation102 S.W.3d 10
Decision Date22 April 2003
Docket NumberNo. SC 84336.,SC 84336.
CourtUnited States State Supreme Court of Missouri

Alok Ahuja, Terry J. Satterlee, John A. Felton, Kansas City, for Appellants.

Jeremiah W. (Jay) Nixon, Atty. Gen., Timothy P. Duggan, Asst. Atty. Gen., William H. Bryan, Asst. Atty. Gen., Jefferson City, for Respondents.


The appellants, several trade and business associations,1 challenge a decision by the Missouri Clean Water Commission (Commission) to include the Missouri and Mississippi Rivers (Rivers) on the State's 1998 impaired waters list that is submitted to the Environmental Protection Agency (EPA) pursuant to the federal Clean Water Act. In their petition for declaratory judgment and injunctive relief, brought under the Missouri Administrative Procedure Act, (MAPA), section 536.010, et seq., the appellants alleged the Commission's inclusion of these rivers on the list was rulemaking.2 Premised on this claim of rulemaking, the appellants asked the court to declare the list void and unenforceable because the Commission had not complied with statutory notice, comment and fiscal-note procedures in promulgating the list and because the Commission's decision to include the two rivers was arbitrary and capricious. The Circuit Court of Cole County dismissed the appellants' petition with prejudice, for lack of subject-matter jurisdiction. An appeal was brought in the Court of Appeals, Western District. After opinion, this Court granted transfer. Mo. Const. article V, section 10. The impaired waters list is not a rule and the inclusion of the rivers not rulemaking because the list has no impact on the appellants. Further, the controversy cannot be resolved by a declaratory judgment and is not yet ripe for such adjudication. The judgment of dismissal is affirmed. However, because the circuit court lacked subject-matter jurisdiction, and because the controversy is not ripe for review, such dismissal is without prejudice.

I. Background
A. The Clean Water Act

In response to increasing amounts of water pollution, and a growing public concern for the quality of the nation's waters, Congress passed the Clean Water Act (CWA) in 1972, enacting sweeping, comprehensive revisions to the nation's water pollution laws, which had proved to be inadequate and ineffective.3 See generally EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 202-3, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976); Pronsolino v. Marcus, 91 F.Supp.2d 1337, 1341(N.D.Cal.2000); Natural Resources Defense Council v. EPA, 915 F.2d 1314, 1316 (9th Cir.1990); Drew Caputo, A Job Half Finished: The Clean Water Act After 25 Years, 27 Envtl. L. Rep. 10574 (1997). Congress's intent in enacting the CWA was to establish "an all-encompassing program of water pollution regulation," and "to establish a comprehensive long-range policy for the elimination of water pollution." City of Milwaukee v. Illinois and Michigan, 451 U.S. 304; 318, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981). The CWA "anticipates a partnership between the States and the Federal Government, animated by a shared objective: `to restore and maintain the chemical, physical and biological integrity of the Nation's waters.'" Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992) quoting 33 U.S.C. sec. 1251(a).

The CWA employs a variety of interrelated programs designed to regulate water pollution and achieve improved water quality. Two of these programs are the National Pollution Discharge Elimination System (NPDES) permit program and, the program at issue in this appeal, the Total Maximum Daily Load (TMDL) program. For purposes of this case, a detailed explanation of the intricacies of the NPDES permit program is not necessary but, because these programs are interrelated, a basic explanation is necessary. Under the CWA, no pollution may be discharged from a point source unless the point source obtains, and complies with the terms of, a NPDES permit.4 See, e.g., Arkansas, 503 U.S. at 102, 112 S.Ct. 1046; Sierra Club, North Star Chapter v. Browner, 843 F.Supp. 1304, 1306 (D.Minn.1993). Included among the terms of a NPDES permit are effluent limitations — restrictions on the quantities, rates, and concentrations of specified substances that may be discharged from point sources.5 Sierra Club, North Star Chapter, 843 F.Supp. at 1306; 33 U.S.C. sec.1362(11); see also 33 U.S.C. secs.1311, 1342. These limitations, which are not derived from water quality goals and measurements, apply to point sources regardless of whether a particular water-body is polluted. See California, 426 U.S. at 204-5, 96 S.Ct. 2022; Natural Resources Defense Council, 915 F.2d at 1316; Marcus, 91 F.Supp.2d at 1341; Kenneth J. Warren, Total Maximum Daily Loads: A Watershed Approach to Improved Water Quality, SH041 ALI-ABA 113, 115 (2002). Under the CWA, point sources are required to use the best-available technological controls to treat their waters and limit the discharge of pollutants. 33 U.S.C. sec. 1311; See also Natural Resources Defense Council, 915 F.2d at 1316; Marcus, 91 F.Supp.2d at 1341; Warren, supra, at 116.

In enacting the CWA, Congress realized that the strategy of imposing effluent limitations on point sources alone might be insufficient to achieve and maintain improved water quality. Kingman Park Civic Association v. EPA, 84 F.Supp.2d 1, 2 (D.D.C.1999); Natural Resources Defense Council, 915 F.2d at 1317; Warren, supra, at 116. The NPDES permitting system is aimed only at controlling pollution coming from a point source. See, e.g., Sierra Club v. Meiburg, 296 F.3d 1021, 1024 (11th Cir.2002). However, water pollution can also come from nonpoint sources which, by their nature, cannot be regulated by permits "because there is no way to trace the pollution to a particular point, measure it, and then set an acceptable level for that point." Id at 1025. The CWA uses different methods and programs in order to control pollution from these other sources. See Marcus, 91 F.Supp.2d at 1342, 1346; Warren, supra, at 115-6.

Thus, in addition to imposing effluent limitations, the CWA also utilizes a water-quality based approach to achieve its goals. Sierra Club, North Star Chapter, 843 F.Supp. at 1307. In enacting the CWA, Congress supplemented the technology-based effluent limitations with the preexisting regime of water quality standards. Natural Resources Defense Council, 915 F.2d at 1317; Marcus, 91 F.Supp.2d at 1341-2, 1346; 33 U.S.C. sec.1313; See also Meiburg, 296 F.3d at 1025. Water quality standards establish the desired condition of a waterway. Arkansas, 503 U.S. at 101, 112 S.Ct. 1046; 40 C.F.R. sec. 131.2. And once established, these standards also serve as the basis for establishing water-quality-based treatment controls and strategies beyond the technology-based levels of treatment. 40 C.F.R. sec.131.2(A). These standards not only serve as a means to mitigate nonpoint source pollution, but water quality standards also supplement effluent limitations "so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels." California, 426 U.S. at 205 n. 12, 96 S.Ct. 2022; Arkansas, 503 U.S. at 101, 112 S.Ct. 1046.

States are required to establish water quality standards for each body of water within the state's borders.6 33 U.S.C. sec. 1313(a)-(c). To establish a water quality standard, a state first designates the beneficial uses for which a given body of water is to be protected.7 See, e.g., Natural Resources Defense Council, 915 F.2d at 1317. The state then determines the "criteria"8 for that water — the acceptable ambient level of pollutants that the body of water may contain without jeopardizing the designated use. Id. The ultimate objective is to achieve water quality so as to render the waterbody safe for its designated use. Warren, supra, at 117.

One program designed to help achieve these water quality standards is the TMDL program set forth in 33 U.S.C. sec.1313(d), known as "section 303(d)." In general, this program requires states to identify waters not meeting standards and then to establish the total maximum daily load of a pollutant for that water so that standards are met and water quality is restored.

As the first step in this program, states are required to identify and compile a list of impaired waters — those waters in that state that do not meet, or are not expected to meet, the applicable water quality standards even after effluent limitations are imposed. 33 U.S.C. sec.1313(d)(1)(A); See also, e.g., American Canoe Association, Inc. v. EPA, 30 F.Supp.2d 908, 912 (E.D.Va.1998). As succinctly stated, if effluent limitations and the best effluent reduction technology alone can "bring a waterway into compliance with standards, well and good. If not, then Section 303(d)(1) require[s] the waterway to join a list of unfinished business." Marcus, 91 F.Supp.2d at 1343. This list of impaired waters, commonly referred to as a "303(d) list," also identifies the pollutant(s) affecting the water and causing a violation of the water quality standard. 40 C.F.R. sec. 130.7; see also American Canoe, 30 F.Supp.2d at 912. Additionally, states must designate a priority ranking for treatment for each water on the list, taking into account the designated uses for the water and the severity of the water's impairment. 33 U.S.C. sec.1313(d)(1)(A); See also, e.g., Sierra Club, North Star Chapter, 843 F.Supp. at 1307; American Canoe, 30 F.Supp.2d at 912.9 Once compiled, a state's 303(d) list is submitted to the EPA for review and approval or disapproval.10,11 33 U.S.C. sec.1313(d)(2). Missouri's development of its 303(d) list of impaired waters for the year 1998 is the subject of this appeal.12


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