• Mark Ryan

9th Cir. Partially Overturns EPA Approval of Idaho NDPES Permit Program

In the unreported decision below, the 9th Cir. last week remanded without vacatur EPA's approval of the Idaho NPDES program for failure to comply with the minimum federal standard for proving CWA misdemeanor cases. (Full disclosure: I was the attorney of record for ICL.) Idaho was the 47th State to seek authorization. The mens rea issue will be interesting to watch because Florida is currently seeking state authorization for its 404 program, and I understand that Florida's mens rea standard is also substandard. In a survey I did of state mens rea standards, many have negligence standards that do not meet the minimum federal standard. Although the statute of limitations has long run to challenge those approved state programs, the SOL is reset when someone petitions EPA to withdraw a program, and EPA denies the petition (which can take years). This will be one to watch.

Idaho Conserv. League v. EPA, 2020 WL 5422448 (9th Cir 2020) (unpublished) (in petition for review of EPA’s approval of Idaho state NPDES program, held that EPA was not arbitrary and capricious in approving state’s 2-year SOL and CAFO program where state had sub-delegated CAFO work to department of agriculture; where state standard is gross negligence, and federal standard is simple negligence, EPA abused its discretion in approving the state standard in violation of 40 C.F.R. § 123.27(b)(2), which requires that states not have a mens rea standard “greater than the burden of proof or degree of knowledge or intent EPA must provide when it brings an action.”; remanded without vacatur to address the state program deficiency)

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