Cape Cod TMDL Litigation; CLF Is Still In There Swinging

In September, I noted that Judge Mark Wolf had dismissed CLF’s law suit challenging EPA’s approval of the TMDLs for the Cape Cod embayments, ruling that CLF did not have standing.  CLF, as is its wont, is not going gentle into that good night.  It is still raging, raging, at EPA’s decision.  More to the point, it has refiled its complaint.

Presumably, this time around, CLF will be prepared with expert affidavits to address the shortcomings that Judge Wolf identified the last time around.  I’m still skeptical.  The first problem that Judge Wolf identified was that CLF had not demonstrated that shifting sources between point and non-point sources does not affect the actual TMDL, so CLF will have a hard time demonstrating that it has been harmed by EPA’s determination whether a source is a point source or not.  That seems to me to remain a problem for CLF.

The second problem relates to CLF’s allegations that EPA should take climate change into account in setting the TMDL.  However, while TMDLs don’t expire, this is not like a one-time permit to construct a long-lived facility.  States may have no obligation to revisit TMDLs, but I see no reason why they cannot do so, particularly since section 303(d)(1)(C) of the Clean Water Act provides that States shall submit lists of waters and associated TMDLs to EPA “from time to time.”  Thus, I think that CLF must demonstrate the need to include climate change in the TMDLs now.

I will note that the climate change implementation plan recently issued by EPA’s Office of Water states that one strategic action it will pursue will be to:

Encourage water quality authorities to consider climate change impacts when developing wasteload and load allocations in TMDLs where appropriate.

Given the nitrogen problems on Cape Cod, and given the shallow nature of the embayments there, I’m sure CLF is going to suggest that the Court ask EPA when considering climate change in setting TMDLs would ever be appropriate, if it is not appropriate on Cape Cod.

One thought on “Cape Cod TMDL Litigation; CLF Is Still In There Swinging

  1. “Considering” climate change in this TMDL would be the tip of one immense iceberg, because there are so many scientific considerations that could break in different directions. Firstly, it’s not at all clear how often water temperature would be the “limiting factor” in a given algal bloom history for each given water body–most of the time the temperatures in spring/summer/fall are within the range that could support a bloom. In addition, sea level rise would alter water exchange/residence times/flushing and depth of embayments, all affecting bloom development and persistence. So would frequency of occurrence of major storm events. None of this is to say that climate change shouldn’t be considered in the TMDL, but rather that doing so is likely to produce more questions than answers.

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