Time’s up. Way back in April 2006 (the 4th to be exact), we sent a 60–day Notice of Intent to Sue to the US Environmental Protection Agency (EPA) for failure to cause the Missouri Department of Natural Resources (MDNR) to comply with the federal Clean Water Act and its regulations, which have the power of law. The 60–Day Notice is required by law in order to give the agency the opportunity to get it right. The provision of law in question is Section 303(d) of the Clean Water Act. Section 303(d) has to do with waterbodies—streams, rivers, lakes or any section of these—which are “impaired.” Impaired in this case means badly polluted.
The section of the Code of Federal Regulations that pertains to Section 303(d) of the Clean Water Act requires that each state submit a list of impaired waters by April 1 of each even-numbered year. MDNR has yet to submit a list for 2004 and has promised to compile and submit the 2004 list along with the 2006 list (which was due as of April 1 of this year). This is to be done, if MDNR folks are to be believed, by October 2006. Lead agency staff readily acknowledge that they have not submitted the 2004 list…but point to underfunding and consequent staffing shortages as the main reason.
One of the barriers to MDNR’s compliance with federal law was removed by the 2006 General Assembly. A state law had required that any impaired body list be done through an Act of Rulemaking—the procedures for that are spelled out in the Revised Statutes of Missouri and add from 12–18 months to an already-lengthy procedure. That law was repealed until 2009 (legislators were reluctant to just repeal it outright, so put a “sunset clause” on it).
BUT, the Missouri Clean Water Commission, in the tradition of Ned Ludd, has thrown a shoe into the works. The Commission through what is called the “listing methodology document”—which details how MDNR goes about deciding which waters are impaired—has directed MDNR staff to begin anew. The methodology document is a state regulation, and must go through the rulemaking process.
What beginning anew means in reality is that all of the streams, rivers and lakes that were on the last list done—the 2002 list—will be ignored, in spite of guidelines from EPA stating that if a waterbody is to be removed from the list, a good and sufficient reason must be documented. There are only two reasons for removal—a stream meets its “designated and beneficial use” standards (i.e., it is not polluted nearly so bad as it was) or a study—called a Total Maximum Daily Load study—has been conducted that shows where the pollution is coming from and what the plans are to deal with it.
Sixty days from April 4 was June 4. We could file a lawsuit at any time. We may still do so. Today. Tomorrow. Next week.
However, we probably won’t file anything if the MDNR compiles and submits a list to EPA that meets all the requirements. It is up to the MDNR and the EPA. If they follow the law, then we likely won’t do a thing. If they don’t follow the law and don’t meet the requirements, well, we’ve sent the Notice.