The Road to Perdition: The Demise of TMDL Litigation

Citizens have filed more than two dozen suits and sent nearly four dozen notices of intent to sue EPA to implement the Clean Water Act's once vaunted total maximum daily load (TMDL) program. 33 U.S.C. §1313(d). The results are striking. Since 1997, states and EPA have identified nearly 20,000 waters previously thought to comply with water quality standards that do not. Since 2000, EPA has established or approved nearly 8,000 plans that aim to make these dirty waters fishable and swimmable. EPA is under court order to move the TMDL program along in more than 20 states. TMDL litigation, particularly that in the cases, however, display a program with spare bark and no bite. Leading and long-litigated cases in California, New Jersey, New York, Oklahoma, Georgia, Louisiana, Montana, Maryland, Missouri and Virginia have concluded. Eight other cases settled by consent decree. Some of the news is good, but far more is dubious, for TMDL enthusiasts. This article discusses the various aspects of TMDL litigation and its demise, including the no-duty-to-establish TMDLs standard, the fact that TMDL applies to waters impaired by nonpoint as well as point sources, and the wide discretion that EPA retains to approve TMDL content.