Fairfield County, Ohio v. State of Ohio

The Ohio Supreme Court issued a ruling  on March 24, 2015, in the Fairfield County v. State of Ohio case, vacating the phosphorus limits in a National Pollutant Discharge Elimination System (NPDES) permit because the limits were derived from an underlying total maximum daily load (TMDL) that should have been promulgated as a rule pursuant to the state Administrative Procedures Act (APA). The court’s ruling echoes arguments made by NACWA and the Association of Ohio Metropolitan Wastewater Associations (AOMWA) in a joint amicus brief  filed in the case in February 2014.

In a 5-2 decision, the court held that the TMDL had not been promulgated as a rule in violation of Ohio Revised Code 119, the Ohio APA, which the court held was a violation of the permittee’s due process. The permittee, Fairfield County, was denied the ability for meaningful review of the limits and the ability to challenge the TMDL. In determining that the TMDL is a rule, the court distinguished guidelines, which are not subject to formal rulemaking:

While it is true that guidelines for interpreting existing rules that do not substantively alter them are not subject to formal rulemaking, the TMDL is a “standard” that has “a general and uniform operation” within the meaning of [the state APA]. It does more than simply aid in the interpretation of existing rules or statutes. Instead, it prescribes a legal standard that did not previously exist. As such, it must first be formally promulgated as a rule … before it can be enforced against the general public.

The court further held that the rulemaking process must be undertaken before the TMDL is submitted to U.S. EPA for review and approval. This process gives interested parties – including clean water utilities – an opportunity to challenge both the legal and scientific bases of TMDLs.

The joint NACWA/AOMWA brief argued that permittees should have an opportunity for meaningful review – and potential legal challenge – of TMDL allocations before incorporation into a discharge permit, and that the failure to provide such review is a violation of due process. Of particular note in this case is the fact that the permittee had scientific evidence questioning its TMDL allocation and indicating it was not a significant contributor to the water quality impairment. Thus, the NACWA/AOMWA brief also highlighted the importance of ensuring TMDLs are based on sound science, and noted that the lack of meaningful TMDL review can unfairly force clean water utilities to expend significant funds complying with limits that may be scientifically invalid.

Before this ruling, state regulators in Ohio argued that a utility could not mount a legal challenge to a specific TMDL allocation or limit until that allocation was used to derive a particular effluent limit in an NPDES permit. Although this ruling only applies to Ohio, it sets a very positive precedent nationwide for clean water agencies making similar arguments and may impact how other courts elsewhere in the country examine this issue in the future.

Rulings/Pleasdings (All in  format)

• Fairfield County Request for Ohio Supreme Court Review, 07/08/2013
• Fairfield County Merits Brief, 12/30/2013
• Joint AOMWA/NACWA Amicus Brief , 02/05/2014
• State of Ohio Merits Brief, 03/27/2014
• Fairfield County Reply Brief, 05/06/2014
• Ohio Supreme Court Decision, 03/24/2015