Are “Narrative Water Quality Standards” Incorporated into NPDES Permits and Enforceable as Permit Conditions?

Federal district courts are often confronted with the issue of whether “Narrative Water Quality Standards” are incorporated into National Pollutant Discharge Elimination System (NPDES)permits and enforceable as permit conditions as they preside over citizen suits filed under the Clean Water Act (CWA). Two District Court’s recently weighed in on this issue.

In the latest decision, the U.S. District Court for the Southern District of Georgia ruled that Georgia’s narrative water quality standards were not incorporated into the Georgia NPDES permit issued to Rayonier, Inc. On March 31, 2015, the District Court decided the case of Altamaha Riverkeeper, Inc. v. Rayonier, Inc., et al. Rayonier, which has been granted an NPDES permit by the Georgia Environmental Protection Division, operates a pulp mill which discharges 50 to 60 millions of gallons of wastewater into the Altamaha River on a daily basis. Riverkeeper filed a lawsuit against Rayonier, arguing that this discharge has a negative impact on the river, and that the discharge violates the state’s water quality standards pertaining to color, odor and turbidity. Rayonier’s defense was that the water quality standards were not incorporated into its permit, and the CWA’s “permit shield” provisions shield Rayonier from liability under the CWA. The District Court agreed with Rayonier, and granted Rayonier’s motion for summary judgment on the CWA claims. The District Court interpreted the permit in accordance with established principles of contractual interpretation, and its careful analysis of the permit language, led the District Court to conclude that “as a matter of law, the permit does not incorporate Georgia’s water quality standards” as a condition of its NPDES permit.

By way of contrast, on January 27, 2015, the U.S. District Court for the Southern District of West Virginia ruled that the wastewater discharge permit issued to the Fola Coal Company by the West Virginia Department of Environmental Protection incorporated the state’s narrative biological water quality conditions. As a consequence, the court determined that Fola’s discharge violated its NPDES permit. The case is Ohio Valley Environmental Coalition, et al., v. Fola Coal Company, LLC. This ruling is consistent with the District Court’s earlier decision in Ohio Valley Environmental Coalition, et al., v. Elk Run Coal Company, Inc., et al., 24 F. Supp. 3d 532 (2014).