Cheating the Law with Conditional Approvals

Cheating the Law

Many federal laws tell agencies what to do and when to do it. For example, the Clean Water Act (CWA) tells the U.S. Environmental Protection Agency (EPA) to approve or disapprove state submissions of water quality standards within a matter of months. The Endangered Species Act (ESA) tells EPA that it needs to consult with expert fish and wildlife agencies to evaluate if actions that it plans to take—such as approving state water quality standards—might affect threatened or endangered species. The Coastal Zone Act Reauthorization Amendments (CZARA) instruct EPA and the National Oceanic and Atmospheric Administration (NOAA) to jointly approve or disapprove state submissions of coastal nonpoint source pollution control programs by the late 1990s.

The ramifications of the federal agencies’ actions can be significant—for pollution sources, for state governments, for the federal agency work loads, and for the protection of public resources such as a clean environment. If it turns out that state-submitted water quality standards won’t protect species on the brink of extinction, either EPA or the state must make them better. If EPA and NOAA disapprove a state’s coastal nonpoint program, the state will lose a minimum of one third of federal grants, by law, until the state has protections in place.

“Conditional Approvals”

For this reason, EPA is always looking for a work-around, a way to avoid the law that still gives the appearance of being lawful. One such work-around is the “conditional approval.” For many years, EPA has been approving state water quality standards with cover letters saying that those approvals are subject to the outcome of later consultation under the ESA. The trouble is, EPA rarely gets around to actually asking the fish and wildlife agencies for their formal opinions. In the case of the coastal nonpoint programs, Congress made the deadlines very clear. But EPA and NOAA—faced with many states that had submitted deficient coastal water quality programs—decided to use “conditional approval” in 1995 to avoid statutory deadlines that would have resulted in funding cuts starting in 1996. When states failed to meet the extended deadlines, EPA and NOAA just quietly stopped establishing any deadlines for states to meet, completely circumventing the requirements of CZARA.

Conditional approval is not legal. That’s why NWEA has challenged EPA’s use of conditional approval in water quality standards. And that’s why NWEA has challenged EPA and NOAA’s use of it in ducking their legal responsibility to determine whether states have programs to control coastal pollution. Federal laws cannot work when federal agencies refuse to implement them as written.

Failure to Act

Another common work around is EPA’s simply not acting. Although the Clean Water Act tells states to take responsibility for many actions, such as water quality standards and Total Maximum Daily Load (TMDL) clean-up plans for polluted waters, EPA is required to approve or disapprove these once the states submit them. In many instances, a disapproval requires more work—and sometimes a lot more work—for EPA. Whereas for disapproved water quality standards, EPA has to tell the state what it should do, for disapproved TMDL clean-up plans, EPA is stuck developing a

replacement itself. So, EPA just sits on the submissions, hoping that nobody will notice that it hasn’t acted. The expert fish and wildlife agencies—the National Marine Fisheries Service (NMFS) and U.S. Fish and Wildlife Service (FWS)—do the same when they can’t come to an agreement with EPA on the effects of a proposed EPA action. They just sit on it. That’s often when NWEA steps in to enforce the Clean Water Act or the Endangered Species Act by asking a court to order agency action.