Hawaii's TMDL Program: Legal Requirements and Environmental Realities

order to restore environmental integrity of our nation's waters, Congress in 1972 enacted Federal Water Pollution Control Act, commonly referred to as Clean Water Act (CWA). To achieve this objective, Congress declared as a national goal that the discharges of pollutants into navigable waters [of United States] be eliminated by 1985 33 U.S.C. § 1251(aXl).Where pollution cannot be abated by limiting discharges of point source pollutants through National Pollution Discharge Elimination System (NPDES) permit process, CWA requires that states designate water quality-limited segments (WQLSs) for waters within their jurisdiction that have water quality below state's water quality standards; establish a priority ranking of such waters; and adopt more stringent pollution limits, called total maximum daily loads (TMDLs). 33 U.S.C. § 1313(dXlXA) and (C). TMDLs set an absolute upper limit on amount of a pollutant that a WQLS can receive from NPDES-permitted point sources and nonpoint sources. This section briefly discusses implementation of TMDL programs by states, viewed against backdrop of CWA's congressional mandate that water pollution be eliminated by 1985. The Clean Water Act establishes a procedure whereby states must submit lists of their water quality limited segments and TMDLs to EPA at periodic intervals. The first submission of such lists was due on June 26, 1979. Idaho Sportsmen's Coalition v. Browner, 951 F. Supp. 962, 965 (D. Wash. 1996). Many states failed to make initial submissions before deadline expired. Both Illinois and Indiana failed to meet this deadline, and a citizens' suit, Scott v. City of Hammond, Ind. ,7 41 F.2d 992 (7th Cir. 1984), was subsequently brought, calling into question remedy that should be imposed, if any, for a state's inaction in initiating a TMDL program. In Scott case, court of appeals held that CWA requires EPA Administrator to approve a stateproposed TMDL not later than thirty days following submission. If Administrator disapproves state submission, EPA must then establish TMDLs as neces-