The Clean Water Act Returns (Again): Part I, TMDLs and the Chesapeake Bay
| Date | 01 March 2011 |
| Author |
41 ELR 10208 ENVIRONMENTAL LAW REPORTER 3-2011
A R T I C L E S
The Clean Water
Act Returns
(Again): Part I,
TMDLs and the
Chesapeake Bay
by Oliver A. Houck
Oliver A. Houck is Professor of Law, Tulane University. e
research assistance of Claire Yancey, J.D. 2010, and Walewska
M. Watkins, LLM 2010, Tulane Law School, is acknowledged
with gratitude, as is informational assistance from G. Tracy
Mehan, former EPA Assistant Administrator for Water; Cy
Jones, Senior Associate, World Resources Institute; Yee Huang,
Policy Analyst, Center for Progressive Reform; and Rick Parrish,
Senior Attorney, Southern Environmental Law Center.
e CWA, with multiple paths to its destination, is
reinventing itself once more. Enacted in modern form
in 1972, the next quarter century saw EPA focused on
the development of technology standards for indus-
trial and municipal point sources. In the mid-1990s,
prodded forward by a stream of citizen suits, the
Agency started to address nonpoint sources of pollu-
tion through water quality standards and the TMDL
program. is movement stalled from 2000-2009,
and the current revival raises the question whether
EPA, at last, can make nonpoint and ambient-based
controls eective. e answers are being tested in two
venues where the problems are among the most acute
and their solutions the most resisted: the Chesapeake
Bay and Florida. As go the Chesapeake and the Sun-
shine State, so will go the future of clean water for
years to come.
Natio n’s wat ers.
—Clean Water Act, 33 U.S.C. §1251(a)
e Clean Water Act (CWA)1 has emerged from an eight-
year slumber.2 New initiatives are everywhere: upgraded
standards for coal-red power plants that have enjoyed
minimal controls for 30 years3; practice requirements for
stormwater, which is currently out of control4; for concen-
trated animal operations, which are only marginally under
control5; for mountaintop mining, which has bounced
between the U.S. Environmental Protection Agency (EPA)
and the U.S. Army Corps of Engineers (the Corps) for
more than a decade6; new proposals for mercury, the lead-
ing toxin in the nation’s waters7; for endocrine disruptors,
the chemicals that change our bodies8; for the oceans,
1. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.
2. e slumber could have been worse: while the CWA lay unattended, the
Clean Air Act (CAA) faced signicant challenges. OMBWatch.org, e
Bush Legacy: An Assault on Public Protections (Jan. 2009), available at
http://www.ombwatch.org/les/bushlegacysmallle.pdf; Patrick Parenteau,
, 14 D E-
. L. P’ F. 363 (2004).
3. Linda Roeder, EPA Plans Proposal in 2012 to Reduce Pollution From
Coal-Fired Power Plants, 40 E. R. 2197 (Sept. 18, 2009). e U.S.
Environmental Protection Agency’s (EPA’s) initial best available technology
(BAT) regulations for the steam electric power category covered suspended
solids and thermal discharges, 39 Fed. Reg. 36186 (Oct. 8, 1974). EPA
amended these regulations in 1982 to add copper, iron, zinc, chromium,
and phosphorous. 47 Fed. Reg. 52290 (Nov. 19, 1982).
4. Linda Roeder,
Regulatory Priority, 41 E. R. 1191 (May 28, 2010); Linda Roeder,
-
opment, 95 D E’ R. (BNA), A-13 (May 19, 2010).
5. Press Release, U.S. EPA, New Requirements of Controlling Manure,
Wastewater, From Large Animal Feeding Operations (Oct. 31, 2008); see
also Linda Roeder, -
trated Animal Feeding Operations, 105 D E’ R., A-15, June 30,
2010.
6. Coeur Alaska Inc. v. Southeast Alaska Conservation Council, 129 S.
Ct. 2458, 39 ELR 20133 (2009) (holding that the Corps’ issuance of per -
mit under CWA §404 permit displaces new source performance standards
applicable to pollutant discharges under CWA §402); Tom Zeller, EPA to
Limit Water Pollution From Mining, N.Y. T, Apr. 1, 2010 (imposing
surface runo controls, the practiced result of which will “make it far more
dicult for so-called valley-ll gradations”); Alan Kovski,
,
108 D E’ R., A-6 ( June 8, 2010) (having lost §402 jurisdiction
over the mining activity to the Corps, EPA is now proposing to veto a Corps
§404 permit under CWA §404(c). 33 U.S.C. §1344(c)).
7. Andrew Childers,
Emissions by 50 Percent, 41 E. R. 973 (May 7, 2010); New England
Interstate Water Pollution Control Commission, Northeast Regional Mer-
cury TMDL, available at http://www.neiwpcc.org/mercury/mercury-docs/
FINAL%20Northeast%20Regional%20Mercury%20TMDL.pdf.
8. Endocrine Disruptor Screening Program: Tier 1 Screening Oder Issu-
ing Announcement, 74 Fed. Reg. 54422 (Oct. 21, 2009). For information
about the current status of the Endocrine Disruptor Screening Program
(EDSP), Status of EDSP Orders/DCIs (Apr. 15, 2010) [hereinafter Status
of EDSP Orders/DCIs], visit http://www.epa.gov/endo (follow link “Status
of EDSP Orders/DCIs”) (last visited June 18, 2010). A citizen petition by
the Center for Biological Diversity could prompt EPA’s action on endocrine
Copyright © 2011 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
3-2011 NEWS & ANALYSIS 41 ELR 10209
which are rapidly acidifying from atmospheric carbons9;
and a renewed emphasis on enforcement promising actual
consequences in states and regions where they had been all
but forgotten.10 A rainbow of actions driving, once more,
toward the Act’s overriding goal: clean water.11
e initiatives with the highest stakes, however, are play-
ing out under a very old concept of the CWA, a concept
that indeed predated it and led its predecessors to failure:
ambient water quality standards. Ground zero is the forty-
million-acre watershed of the Chesapeake Bay, the largest
water restoration project in America, indeed the world.
I. The Missing Years
Water quality standards—the backbone of earlier pol-
lution control programs—were retained in the 1972 Act
as a concession to state water administrators, discharge
industries, and congressmen suspicious of federal intru-
sion.12 ey lay unused for the next two decades, during
which EPA struggled with one of the most massive tasks
in all of environmental law: the promulgation of best
available technology (BAT) limits for every industrial and
municipal point source in the country. e Agency faced
daunting deadlines and court challenges every step of the
way.13 Its neglect of water quality standards and the total
maximum daily load (TMDL) program designed to imple-
disruptors under the CWA. Ctr. for Biological Diversity, “Petition for
Water Quality Criteria for Endocrine Disrupting Chemical Under §304
of the Clean Water Act, 33 U.S.C. §1314, Before the Environmental Pro-
tection Agency” (Jan. 11, 2010), http://www.biologicaldiversity.org/cam-
paigns_pesticides_reduction/endocrine_disruptors/pdfs/EPA_304_EDC_
petition.pdf [hereinafter CBD Petition WQC EDC].
9. Linda Larson & Meline MacCurdy, -
, M L (Apr. 1, 2010), available at
http://www.martenlaw.com/newsletter/20100401-cwa-ocean-acidication.
10. Linda Roeder, EPA Administration Tells House Committee Agency Will
, 40 E. R. 465 (Oct. 23, 2009); Charles
Duhigg, , N.Y. T,
Sept. 13, 2009:
In the last ve years alone, chemical factories, manufacturing plants
and other work places have violated water pollution laws more than
half a million times.... However, the vast majority of those pol-
luters have escaped punishment. State ocials have repeatedly ig-
nored obvious illegal dumping, and the Environmental Protection
Agency, which can prosecute polluters when states fail to act, has
often declined to intervene.
11. e original and never-amended goal of the CWA is worth repeating: “e
objective of this chapter is to restore and maintain the chemical, physical
and biological integrity of the Nation’s waters.” 33 U.S.C. §1251(a).
12. Oliver A. Houck,
Water Act, 21 ELR 10528, 10531-33 (Sept. 1991) (describing congressio-
nal rejection of water quality standards approach); O A. H, T
C W A TMDL P: L, P, I
at 14-20 (2d ed., Envtl. L. Inst. 2002) (2000) (describing state and industry
insistence on its retention).
(4th Cir. 1976) (approving accelerated EPA approach to BAT development
due to accelerated deadlines). In the ensuing process, industry and trade
association s sued to inv alidate ea ch BAT promulgated for over 50 c at-
egories and such categories of dischargers. Houck,
ment them was quite understandable, indeed inevitable.14
In 1975, EPA promulgated a set of skeletal TMDL reg-
ulations and went back to work on BAT.15 Water quality
standards remained, in theory at least, a backup for point
source permitting,16 but the TMDL program—intended to
identify polluted waters, target load reductions, and begin
the process of remediation—went o radar.
One result of EPA’s focus on point source standards
was that nonpoint sources grew out of control and began
eating up the hard-won gains of the national pollutant
discharge elimination system (NPDES) program.17 Some
badly polluted waters made noteworthy recoveries during
this time,18 but overall, the water quality trend was down-
ward. In the mid 1980s, environmental groups in places
where nonpoint sources were a serious problem discovered
the TMDL program and took both EPA and the states to
court for ignoring it.19 A urry of lawsuits forced the action
supra note 12, at 10537 n.144 (providing a partial list
of industr y challenges).
14. e TMDL program was a late-adopted compromise in the CWA, provid-
ing a mechanism to upgrade waters that did not meet state water quality
standards. H, T C W A, supra note 12, at 20-24.
Section 1313(d) of the Act requires states to identify these waters, prioritize
them, and allocate (reduced) pollution loadings that will achieve the stan-
dards. 33 U.S.C. §1313(d). EPA is to approve each step, including the al-
locations “necessary” to meet state standards, and to prepare its own TMDL
if the state proposal is inadequate. Id. States were then to incorporate the
TMDLs into their ongoing water management programs. Id. §1313(e).
15. U.S. EPA, Preparation of the Water Quality Management Plus, 40 Fed.
Reg. 55344 (Nov. 28, 1975), codied at 40 C.F.R. §131(1); Plan Content,
40 Fed. Reg. 55346 (Nov. 28, 1975), codied at 40 C.F.R. §131.11. In fact,
EPA was only propelled to take these modest steps by an environmental law-
suit, , 396 F. Supp. 1386, 1392-93, 5 ELR 20405 (D.D.C.
1975). Despite their advocacy for the primary of water quality-based pro-
grams, the states strongly resisted EPA eorts to implement them. Jerey
M. Gaba,
Water Act, 36 V. L. R. 1167, 1189-90 (1983); W H. R
J., E L: A W 289, n.3 (1986); William F.
Pederson, Turning the Tide in Water Quality, 15 E L.Q. 69, 99, 102
ELR 20931 (5th Cir. 1980).
16. Under the CWA, water quality standards were also to be used as a safety
net to upgrade NPDES permits where BAT limits were insucient to meet
15, at 1189-90; R, supra note 15, n.3.
17. U.S. EPA, “Clean Water Act Plan: Setting the Stage: Successes, Chal-
lenges and New Directions,” http://www.epa.gov/cleanwater/action/cla.
html (“Agriculture is the most extreme source of water pollution, aecting
70 percent of impaired river and streams and 49 percent of impaired lake
areas”) (last visited Feb. 26, 1998) (on le with author). Although published
in 1997, and summarizing data from previous years, were the report written
today, its conclusions would be much the same.
18. Two of the most celebrated turnarounds have been the Hudson River and
Lake Erie, both objects of obvious point source pollution and aggressive,
citywide organized cleanup campaigns. J C R F.
K J., T R (1997) (describing the eorts and results
of the Hudson River Fisherman’s Association and other citizen and legal
assistance groups).
19. e rst TMDL citizen suit cases came out of Illinois: -
mond, 530 F. Supp. 288 (N.D. Ill. 1981), 741
F.2d 992, 14 ELR 20631 (7th Cir. 1984) (“[T]he CWA should be liberally
construed to achieve its objectives—in this case to impose a duty on the
EPA to establish TMDL’s when the states have defaulted by refusal to act
Copyright © 2011 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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