EPA's ‘Wet Weather' Policies Debated In Court

A U.S. EPA wastewater policy is sparking debate in the courts and among federal regulators.

At issue are the agency’s “wet weather policies,” a suite of agency directions for “the design and permitting of facilities intended to properly manage wet weather flows,” according to the law firm Hall & Associates, which is involved in a lawsuit against the EPA.

The agency is trying to preserve its policies “on how wastewater treatment plants manage excess flows during heavy rains,” but court action may pose a hurdle, according to Bloomberg BNA. The agency found itself before the U.S. Court of Appeals for the D.C. Circuit arguing over the rules.

Here’s the backdrop: The U.S. Court of Appeals for the Eighth Circuit shot down the agency’s wet weather policies three years ago, the report said. “The ruling by the U.S. Court of Appeals for the Eighth Circuit said EPA could not regulate wastewater treatment processes at publicly owned utilities through guidance letters in lieu of rulemaking,” BNA Bloomberg previously reported.

But the EPA continued to enforce it policies in places where that court does not have jurisdiction — a move that landed the EPA back in court.

“The question before the D.C. Circuit was whether the EPA could limit the Eighth Circuit’s ruling to the states — Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota — that fall under the appellate’s legal jurisdiction,” the report said.

The underlying issue is the validity of a practice known as blending, which the EPA banned, citing the Clean Water Act. The agency also restricted mixing zones, “the immediate discharge area in a waterbody that may in certain situations exceed water quality standards,” the report said.

The EPA’s opponents say wastewater utilities should be able to use blending “when excess flows — that could overwhelm the plant — are routed around a portion of the treatment process during storms and recombined with the treated effluent before being discharged,” the report said.

Opponents argue that the blending ban raises costs for wastewater utilities.

Allentown, PA, for instance, “could spend an estimated $37 million to reduce combined sewer overflows of wastewater and stormwater as part of a federal consent decree,” BNA Bloomberg reported, citing a lawyer working against the EPA in the current lawsuit.

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