A New Framework

• Author: Oliver A. Houck
• Pages: 75-130

Chapter 4:

A New Framework

Pieces of the Frame

The descriptions that follow are of complex events surrounding the im-

plementation of CWA§303(d). Every lawsuit is its own private war; ev-

ery initiative proposed by EPA,the FACA committee, the White House, and

other agencies is underpinned by reams of paper, options, and thoughtful, at

times argumentative, discussion; each state response is unique; and each

TMDL relates to a hydrology all its own. The purpose of this discussion is to

capture their commonality, and their places inthis new armada on water pol-

lution that is assembling around and through the use of TMDLs.

The Litigation

While I am pleased with the progress that many States are making,

we still have a long way to go before we achieve our water quality

goals everywhere. I remain very concerned about the extraordi-

narily high rate of litigation in this program and I think it is crucial

that we Federal managers, together with our State partners, take ev-

ery step we can to make sure that this program is carried out effec-

tively and quickly.

—Robert Perciasepe, Assistant Administrator for Water, EPA1

Against a background of federal environmental programs in which litiga-

tion has played a central role, it is hard to think of any program more precipi-

tously driven by citizen suits from absolute zero toward its statutory destiny

than TMDLs. Short of some outside impetus, whatever Congress pre-

scribed in §303(d) was going to be ignored for no more complex reasons

than (1) compliance was hard and (2) ignoring seemed possible. 2

Starting in the early 1990s, a first wave of lawsuits established that ignor-

ing §303 was no longer possible and that continued state inaction consti-

75

tuted action, triggering EPA’s duty to respond.3By January 1999, litigation

had challenged compliance in more than half the states of the country, and

yet more was brewing. The issues in these cases have tracked the literal re-

quirements of the statute, raising first the failure to list state waters, then the

adequacy of these lists, and then the failure to prepare TMDLs, leading to

schedules for their preparation ranging from 12 4years to as few as 5. 5The

early violations were essentially procedural, and the courts were able to

avoid the content, or lack of content, of the TMDLs themselves.

This will change. The newer cases have begun to question the substance

of what is currently being proffered as TMDLs.6Under §303 and EPAregu-

lations, a TMDL is to include the sum of both point source waste load allo-

cations (WLAs) and nonpoint source LAs, plus a margin of error for uncer-

tainty and a margin for future growth. 7The majority of TMDLs in Louisi-

ana, New York, and several other states—if not nearly all states—were

alleged with credible specificity to be point source WLAs, plus nothing. 8

This deficiency was doubtless the result of states, EPA, and, once a case is

filed, the U.S. Department of Justice throwing any information available

into the breach against charges that the environmental agencies had not

been doing their job. On a clear day,and away from the shadow of a lawsuit,

there was no reasonable way EPA could characterize much of the states’

work here as TMDLs and the courts have so held. 9More fundamentally,

however, this limited focus on WLAs resulted from the tendency of state

and federal regulators to finger identifiable point sources, even beleaguered

municipal waste treatment systems, rather than tackle the timber industry,

fertilizer manufacturers, and the rest of the nonpoint world.

Yet more rounds of citizen suits can be expected over the contents and,

then, the implementation of TMDLs. Whether TMDLs should include pro-

vision for their own implementation is a gut issue unsettled by the statute

and was a live debate in the FACA committee. 10 Environmental interests

see implementation as a necessary component of §303(d), which is to say

mandatory.11 Agriculture and other interests see implementation carried out

through §319 planning for nonpoint sources or state water quality plans

under §303(e), which is to say voluntary.12 While these parties war over

the issue of implementation at the national level, citizen suits and state

practice have begun establishing the precedent. A consent decree in the

state of Washington required a schedule for TMDLs to include plans for

their own implementation. 13 A TMDL for the Newport Bay/San Diego

Creek watershed in Orange County,California, included a detailed imple-

mentation and nutrient management plan, with provision for monitoring

and review. 14 EPA’s new proposed TMDL regulations capitulate and call

for a TMDL plan.

76 The Clean Water Act TMDL Program

The litigation will not be all from the citizen side. Industry has already

mounted serious challenges to TMDLs. 15 Agriculture and timber interests

have given notice that they are ready to challenge the application of TMDLs

to nonpoint sources 16 and, by implication, to the inclusion of implementa-

tion and enforcement measures. 17 They have also given notice of their in-

tent, in the name of “sound science,” to challenge listings of waters and

identification of sources based on anything short of dispositive evidence. 18

Responding to this or some other impetus, states have taken more conserva-

tive positions in their latest submissions to EPAon the listing of impaired

waters.19 The adequacy of information needed to list these waters, as well as

the adequacy of information quantifying loadings from particular sources,

is certain to be an issue in cases to come. More of an issue, perhaps, than it

should be. The statute anticipates uncertainty and calls for a margin of error

in its calculations 20; as one EPA official has put it, just add the margin “and

keep moving.” 21 The Agency’s calculations, further, should be afforded

considerable judicial deference. 22 Deference, however, is tested in courts

every day.

The likely role of TMDL litigation in the foreseeable future is for envi-

ronmental groups to keep the process moving at a pace that is plainly un-

comfortable to EPA,the states, and the regulated community 23; for industry

to challenge the basic assumptions of the program before they agree to

buckle down to it; and for both environmentalists and industry to watchdog

the resultant listing and TMDL decisions for those that are grossly insup-

portable in fact, either way.In short, the classic role of environmental litiga-

tion through the years.

Further EPA Guidance

The increased scrutiny that we all face as we assist States in imple-

menting the TMDL program requires that we do our best to help States

develop approvable and defensible section 303(d) lists in 1998.

—EPAMemorandum (August 17, 1997) 24

Pressed by the litigation, in late 1997 EPA issued two guidance documents

on the TMDL program in order to retake the initiative. The first document

clarified the scope of listed waters. 25 The second set first ever schedules for

the resulting LAs and requirements for their content.26 Although couched in

the language of cooperation and assistance to state agencies, each was

clearly intended to move the program forward—and ahead of the courts.

Listings. The listing guidance came first, perhaps to take advantage of

state biennial water quality reviews that were then in motion. Section

A New Framework 77