[82WashLRev0767] Murky Waters: Courts Should Hold That the "Any-Progress-Is-Sufficient-Progress" Approach to TMDL Development Under Section 303(d) of the Clean Water Act is Arbitrary and Capricious

Abstract: Congress enacted the 1972 Amendments the Clean Water Act (CWA) combat pollution stemming from both discrete and diffuse sources. Section 303(d) of the CWA reduces both types of pollution by requiring each state promulgate total maximum daily (TMDLs) of pollutants for all waters that are unable meet quality standards. A TMDL is the maximum amount of a pollutant that can be discharged from all combined sources into a given body of if that is going comply with quality standards. Although section 303(d) required states promulgate by 1979, they universally ignored the mandates of section 303(d) for decades. However, in recent years, lawsuits initiated by environmental organizations seeking enforce section 303(d) have spurred TMDL development. Courts adjudicating these lawsuits have adopted different approaches when reviewing a decision of the Environmental Protection Agency (EPA) approve state submissions of TMDLs, and these approaches have fallen into two groups. One set of courts has adopted what one commentator has dubbed the any-progress-is-sufficient-progress approach TMDL development and has upheld EPA approval as long as a state has promulgated some TMDLs and has set deadlines for TMDL development. In contrast, a second set of courts has adopted a more holistic approach reviewing EPA approval effectuate Congress's intent. This set of courts considers factors such as a state's actual rate of TMDL development and history of noncompliance with section 303(d) as relevant its determination and has declined uphold the EPA's approval of only some TMDLs when a state needs many achieve quality standards. This Comment argues that courts should decline adopt the any-progress-is-sufficient-progress approach TMDL development and should adopt the approach of the second set of courts effectuate the text, legislative intent, and proper function of section 303(d) of the CWA. By 1972, Congress believed that pollution in the United States was so severe that it amended the Water Quality Act of 1965(1) in an attempt to restore . . . the chemical, physical and biological integrity of the Nation's waters.2 The 1972 Amendments, known as the Clean Water Act (CWA), substantially improved quality.3 The CWA dramatically reduced pollution originating from discrete and identifiable sources, called point sources.4 Despite such improvements, most waters in the United States do not meet quality standards.5 Water quality standards specify each body of water's designated uses and water quality criteria, taking into account its use and value for public supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes . . . .6 The 1972 Amendments failed dimmish pollution from non-point sources, such as run-off from agriculture, forestry, and housing subdivisions,7 and this pollution remains the leading cause of states' quality problems.8 Congress designed section 303(d) combat both point and non-point sources of pollution by providing a mechanism for regulating discharges according their impact on the receiving body of water.9 States must identify those bodies of that would remain polluted after point sources of pollution have been regulated under the CWA10 and then determine the total maximum daily (TMDLs)11 of pollutants that may be present in each body of while still meeting applicable quality standards.12 Once states have established for a given body of water, the loads of pollutants are allocated among the various discharge sources through discharge permits and state quality plans.13 If a state fails establish sufficient TMDLs, the CWA requires the Environmental Protection Agency (EPA) promulgate for the state.14 Once states have implemented TMDLs, the can help improve the quality of states' impaired waters. …