On March 24, 2015, the Ohio Supreme Court decided the Fairfield County v. Nally (former Ohio EPA Director) case.  This was a challenge brought by Fairfield County to a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit limit, which was based on a total maximum daily load (TMDL) report prepared by Ohio EPA to limit phosphorus discharges from the county’s wastewater treatment plant. The Court agreed with the lower appellate court in finding the NPDES permit limit was invalid.  The Court ruled that a TMDL established by Ohio EPA under the CWA is subject to the rulemaking requirements under Ohio Rev. Code Chapter 119, which provides among other things, procedures for public notice and comment.  The Court also ruled that the TMDL must be properly promulgated by Ohio EPA before it is submitted to US EPA for approval, and before Ohio EPA may implement TMDL requirements such as “target values” or similar pollutant reduction goals, into an NPDES permit.  

Read more about the decision in this Vorys Client Alert.