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City of Kennett v. United States Environmental Protection Agency

United States District Court, E.D. Missouri, Southeastern Division

February 28, 2017




         This matter is before the Court on the parties' cross motions for summary judgment (#50, #63) and plaintiff's motion to exclude exhibits (#67). After an extended briefing schedule, this matter is ripe for disposition.

         I. Factual Background

         The following facts are undisputed except where indicated.

         Congress enacted the Clean Water Act (“CWA”) in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters” and attain “water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.” 33 U.S.C. § 1251(a), (a)(2). Section 303 of the CWA requires each state to establish and implement water quality standards subject to review and approval by the Environmental Protection Agency (“EPA”). 33 U.S.C. §§ 1313(a)-(c), 1362(3).

         For the waters designated on a state's “impaired waters” list under Section 303(d), the state must establish a total maximum daily load (“TMDL”) for any pollutants the EPA identifies as being suitable for such calculation. The TMDL sets the maximum allowable “load allocation” of a pollutant to a waterbody --- a sort of “pollution diet” ---with the goal of meeting water quality standards.

         The States have primary responsibility for developing, reviewing, revising, and adopting water quality standards. The EPA has authority to review and approve or disapprove a state's standards. 33 U.S.C. § 1311(c); 40 C.R.F. § 131. States adopt water quality standards to meet the objectives of the Clean Water Act, which includes restoration and maintenance of the chemical, physical, and biological integrity of the waters and protection and propagation of aquatic life, wildlife, and recreation in and on the water when attainable. 33 U.S.C. § 1251. Water quality standards consist of three components: the designated beneficial uses, water quality criteria to protect those designated beneficial uses, and a policy to prevent degradation of those designated beneficial uses. 33 U.S.C. § 1311(c); 40 C.F.R. § 131.

         This litigation pertains to “Buffalo Ditch, ” a man-made stream that originates on the northeast side of Kennett, Missouri and flows south-southwest into the State of Arkansas. It is part of the “Little River Drainage District, ” which was formed in 1907 with the goal of opening the region for settlement and agricultural production. Historically, the area comprising the Buffalo Ditch watershed was a swampland, but the area was transformed between 1893 and 1989 through construction of a system of ditches, levees, and canals throughout the Bootheel Region of Missouri.

         Missouri adopted water quality standards for Buffalo Ditch and, in doing so, designated its beneficial uses to include protection of warm water aquatic life. The “pollutant” identified by Missouri causing the impairment of the designated beneficial use is “dissolved oxygen, ” which is one of the most critical components of waterbodies because aquatic life uses dissolved oxygen to survive. The Missouri Department of Natural Resources (“MDNR”) assesses and ensures attainment of the designated beneficial use through the maintenance of adequate levels of dissolved oxygen. The water quality criterion adopted by Missouri for the amount of dissolved oxygen in Buffalo Ditch is a daily minimum of 5 mg/L.

         In 1994, Missouri placed Buffalo Ditch on its list of “impaired waters” pursuant to Section 303(d) of the Clean Water Act, with the Kennett, Missouri Wastewater Treatment Plant (“KWTP”) listed as a source of pollutants. The EPA approved MDNR's list of “impaired waters” on February 13, 1995.

         The MDNR sampled and analyzed Buffalo Ditch in July 2003, August 2003, and January 2004. The sampling data revealed that Buffalo Ditch was not meeting the water quality standard for dissolved oxygen. In accordance with the CWA, 33 U.S.C. § 1313(d), the MDNR developed the “Buffalo Ditch TMDL” to address the low dissolved oxygen impairment of Buffalo Ditch identified on the Missouri 2004/2006 and 2008 “303(d) Lists” of impairments.

         The addition of nutrients and other organic material to waterbodies, including nitrogen, phosphorous, and suspended solids, causes the promotion of algae and aquatic plants which results in depletion of dissolved oxygen during the plants' nighttime respiration processes. Nitrogen, phosphorous, and suspended solids are found in wastewater effluent. In addition, organic matter can come from both wastewater effluent and “nonpoint” sources. The rate at which organic matter decays and consumes oxygen can be measured instream as biochemical oxygen demand. The MDNR found that high nutrient loads (total nitrogen and total phosphorous) and total suspended solids (“TSS”) are “contributing to excessive algal growths in Buffalo Ditch . . . [which] in turn are causing low dissolved oxygen to occur late at night, when the algae are consuming but not producing oxygen . . . . Large amounts of algae may also be contributing to low dissolved oxygen when the plants die and decay.” (#64-3 at 14; AR 4014[1].)

         The parties dispute the characterization of Buffalo Ditch's dissolved oxygen problems. The EPA states that “the area where the dissolved oxygen water quality standard is not attained is within the three-mile section immediately downstream of the KWTP.” (#65 at ¶ 20.) In response to that statement, the City states that “the TMDL itself recognizes that Buffalo Ditch is impaired across its entire length, including upstream of the KWTP, and acknowledges the role natural background conditions play in preventing the dissolved-oxygen standard from being met.” (#70 at ¶ 20, citing AR 38.) The City did not dispute, however, that the MDNR reported that water quality studies revealed “that there are no aquatic macroinvertebrates downstream of the [KWTP] for many miles” (#65 at ¶ 21) or that “MDNR found that the [KWTP] ‘is contributing to the high nutrient loads that are causing levels of dissolved oxygen to be below the criterion required by State water quality standards'” (id. at ¶ 22). In addition, the EPA explains that although diurnal fluctuations of dissolved oxygen occur both upstream and downstream, the amplitude of these fluctuations is higher downstream of the KWTP.

         The MDNR targeted pollutants that result in depletion of dissolved oxygen, including fine particle size sediment, high nutrient levels, and suspended particles of organic matter. As part of the TMDL for Buffalo Ditch, MDNR calculated a “loading capacity, ” which is the greatest amount of a pollutant that a waterbody can receive without exceeding water quality standards. A “loading capacity” is expressed as wasteload allocations, plus load allocations, plus a margin of safety. Hazardous dissolved oxygen levels generally occur during periods of low flow, so “critical low flow condition” was considered when the load capacity was calculated. MDNR calculated wasteload allocations and load allocation using a Load Duration Curve (“LDC”). MDNR then assigned a wasteload allocation for total nitrogen, total phosphorus, and TSS, for each of the seven point sources covered by the TMDL, including the KWTP, the Kennett Municipal Separate Store Sewer System, and other permits not associated with the City of Kennett. The wasteload allocations reflect that the KWTP is ...

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