TMDL Litigation: So Now What?
By Dianne K. Conway
INTRODUCTION
The Federal Water Pollution Control Act (“Clean Water Act”) establishes a goal of fishable, swimmable waters throughout the nation. Twenty-two years after the declaration of this mission, however, approximately forty percent of rivers, lakes, and estuaries in the United States are too polluted for these basic uses. Furthermore, drinking water systems serving twenty percent of the U.S. population are in violation of health based requirements.
Frustrated by the continually poor condition of the nation's waters, environmental groups and private citizens have initiated numerous legal actions aimed at forcing states and the EPA to address what they see as inadequate compliance with the Clean Water Act's provisions. Most of this litigation has attacked industry-friendly regulations and standards4 or industry violations of Clean Water Act-mandated permits. Perhaps environmentalists' greatest and most profound success, though, will result from litigation alleging state and EPA noncompliance with the total maximum daily load (TMDL) requirements found in § 303(d) of the Clean Water Act. Added in the 1972 overhaul of the Clean Water Act, the TMDL program was largely ignored by the states and EPA until recently. Following court decisions, settlements, and consent decrees arising from lawsuits filed by environmental groups, the EPA is now overhauling its TMDL strategy and related programs. As a result, management of water pollution is transitioning from a program of technology-based controls to a program of water quality-based controls to be implemented on a watershed basis. Potentially the entire system for regulation of water pollution in the United States will be restructured.
While a change in the EPA's and states' stance on water quality regulation was desperately needed, the ensuing litigation raises troubling issues about the utility and effectiveness of the TMDL process as it now exists. Problems with weak and inconsistent data, lack of implementation and enforcement authority, continued permitting in impaired waters, and high monetary costs threaten to undermine the effectiveness of this rediscovered water pollution control strategy. Although these obstacles present a substantial hurdle to the full realization of the TMDL process and must be addressed, they do not sound the death-knell for water quality-based pollution control.
Part II of this Note discusses the legal framework for regulating water pollution under the Clean Water Act. Part III examines the history of the litigation arising from the EPA's lack of enforcement of the TMDL program. An overview of the EPA's response to the flood of TMDL litigation is presented in Part IV. Finally, Part V discusses some of the obstacles inherent in the TMDL program and suggests appropriate responses to these problems.
The Federal Water Pollution Control Act (“Clean Water Act”) establishes a goal of fishable, swimmable waters throughout the nation. Twenty-two years after the declaration of this mission, however, approximately forty percent of rivers, lakes, and estuaries in the United States are too polluted for these basic uses. Furthermore, drinking water systems serving twenty percent of the U.S. population are in violation of health based requirements.
Frustrated by the continually poor condition of the nation's waters, environmental groups and private citizens have initiated numerous legal actions aimed at forcing states and the EPA to address what they see as inadequate compliance with the Clean Water Act's provisions. Most of this litigation has attacked industry-friendly regulations and standards4 or industry violations of Clean Water Act-mandated permits. Perhaps environmentalists' greatest and most profound success, though, will result from litigation alleging state and EPA noncompliance with the total maximum daily load (TMDL) requirements found in § 303(d) of the Clean Water Act. Added in the 1972 overhaul of the Clean Water Act, the TMDL program was largely ignored by the states and EPA until recently. Following court decisions, settlements, and consent decrees arising from lawsuits filed by environmental groups, the EPA is now overhauling its TMDL strategy and related programs. As a result, management of water pollution is transitioning from a program of technology-based controls to a program of water quality-based controls to be implemented on a watershed basis. Potentially the entire system for regulation of water pollution in the United States will be restructured.
While a change in the EPA's and states' stance on water quality regulation was desperately needed, the ensuing litigation raises troubling issues about the utility and effectiveness of the TMDL process as it now exists. Problems with weak and inconsistent data, lack of implementation and enforcement authority, continued permitting in impaired waters, and high monetary costs threaten to undermine the effectiveness of this rediscovered water pollution control strategy. Although these obstacles present a substantial hurdle to the full realization of the TMDL process and must be addressed, they do not sound the death-knell for water quality-based pollution control.
Part II of this Note discusses the legal framework for regulating water pollution under the Clean Water Act. Part III examines the history of the litigation arising from the EPA's lack of enforcement of the TMDL program. An overview of the EPA's response to the flood of TMDL litigation is presented in Part IV. Finally, Part V discusses some of the obstacles inherent in the TMDL program and suggests appropriate responses to these problems.
