More on TMDLs, or Too Much Darn Litigation

Sometimes, the headline writes the story. EPA’s TMDL program under the Clean Water Act has been the subject of so much litigation since its inception that EPA has a web page devoted to the status of litigation on the establishment of TMDLs.

Bringing things close to home, the Conservation Law Foundation and the Coalition for Buzzards Bay filed suit late last month, challenging implementation by MassDEP and EPA of the TMDL program for certain embayments on Cape Cod and Nantucket. (Full disclosure time – this firm represents the CBB on unrelated matters.)

The law suit claims that MassDEP erred in determining the waste load allocation, or WLA, in establishing the TMDLs for the embayments, because it failed to identify septic systems, stormwater systems, and wastewater treatment systems as point sources. (Since we also represent wastewater treatment system operators – though none that are the subject of these TMDLs – I think that, like Joe Friday, this is going to be a “Just the facts, ma’am,” post.)

With respect to stormwater systems, MassDEP determined that systems located less than 200 feet from the embayments were point sources, but that those farther away were not. The basis for this determination, according to the complaint, was that the more proximate systems in fact discharge to surface waters, whereas the more distant ones discharge to groundwater, so that there is no point source discharge to surface water. 

The complaint does not identify the basis for MassDEP’s conclusion that septic systems are not point sources, but presumably it is also based on a conclusion that the systems discharge to groundwater and thus are not point sources of surface water pollution.  

Without commenting on the merits – just the facts, ma’am – I will note that a determination that septic systems and stormwater drainage systems that discharge initially to groundwater are point sources under the CWA would have dramatic consequences for the regulation of nutrient pollution under the CWA. In situations where there are industrial sources of these pollutants, those industrial sources might be quite pleased to have someone else bear share of the burden of reductions necessary to meet the TMDL. Given the brouhaha over how state agencies would cope with permitting hundreds or thousands of new stationary sources under EPA’s Clean Air Act PSD program for GHGs, however, I cannot imagine that MassDEP – or other state environmental agencies – would eagerly assume the responsibility for permitting septic systems.

Why do I foresee more litigation in the TMDL program’s future?

One thought on “More on TMDLs, or Too Much Darn Litigation

  1. Seth:
    Calling regulating “septic systems” as point sources “dramatic” may be the understatement of the century in environmental law. The effect of a decision in the CLFs favor would have every homeowner with a septic system either applying for an NPDES permit for their house or EPA creating a general permit system wherein homeowners who meet certain specified criteria would be deemed to have a permit. Given that the lawsuit targets discharges in nitrogen to embayments, teh general permit would probably required expensive upgrades ($20,000 or more) to all but the most advanced systems which compose less than one half of one percent of existing septic systems.
    In my opinion, the lawsuit is frivolous and the court ought to consider sanctioning CLF for bringing it. To argue that Congress intended to regulate single family septic systems under the Clean Water Act without any express reference to such systems in the CWA is ludicrous. Furthermore, any decision to not regulate such systems by EPA falls within the Chevron decisions standards of deference to the agency’s decisions absent clear guidance from Congress.
    Finally, all groundwater discharges eventually reach surface water. A question needs to be asked — Why Cape Cod, but not Nantucket and Martha’s Vineyard? Geologically they are virtually identical. Also, why not the Southshore or the Northshore?

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