Tag Archives: TMDLs

Earlier this month, the 9th Circuit Court of Appeals held that a long-term failure by a state to submit to EPA a TMDL for an impaired water can constitute a “constructive submission” of no TMDL, triggering an obligation on EPA’s part to reject the constructive submission and, in turn, to issue the requisite TMDL itself.

The logic of the decision is straightforward.  The Clean Water Act unambiguously imposes a non-discretionary duty on states to submit TMDLs for waters on the so-called “303(d) list.”  In turn,… More

Earlier this week, Judge Christopher Cooper of the District Court for the District of the Columbia, struck down EPA’s approval of Total Maximum Daily Loads established by the District of Columbia for the Anacostia and Potomac Rivers.  Why?

Because the District’s TMDLs did not conform to the plain meaning of the words “Maximum” or “Daily.”  The decision is lengthy and complicated, because the statutory framework is complicated. … More

Earlier this week, the 4th Circuit Court of Appeals reversed a District Court opinion and held that West Virginia had not “constructively submitted” no TMDLs for waters affected by ionic toxicity.  (And, yes, that sentence is difficult to parse.)

The basic issue is pretty simple.  The responsibility for promulgating TMDLs in the first place belongs to the states.  Once a state submits TMDLs to EPA,… More

Last month, a decision in a case involving the Lake Erie toxic algae blooms demonstrated some “issues” concerning the nature of cooperative federalism.  Such blooms have been a problem for some time and pretty much everyone knows about the 2014 bloom, which left Toledo without water for several days.

Notwithstanding what pretty much everyone who can read or watch the news already knew,… More

Last week, the First Circuit Court of Appeals rejected the Conservation Law Foundation’s argument that EPA’s acceptance of TMDLs in Rhode Island and Massachusetts carried with it a concomitant obligation to require permits of landowners contributing to violations of the TMDLs.  Easy cases make good law.

CLF’s position was simple.  EPA’s approval of the TMDLs meant that EPA had determined that stormwater controls are needed. … More

When EPA approved total maximum daily loads for the Charles River, but failed to require NPDES permits for persons discharging stormwater to the Charles, CLF sued.  CLF alleged that EPA violated a non-discretionary duty when it failed to require the permits.  Last Friday, Judge Richard Stearns dismissed CLF’s suit.

EPA’s regulations provide that it will issue NPDES permits where it:

Determines that the discharge,… More

Acting in response to state legislation, the West Virginia Department of Environmental Protection ceased work on promulgation of total maximum daily loads related to ionic toxicity.  Ionic toxicity is a consequence of mountaintop removal coal mining.  In case you weren’t aware, the coal industry has a certain amount of political clout in the Mountain State (and can they keep the nickname if they chop the tops off of all of their mountains?).… More

On Monday, the Third Circuit Court of Appeals affirmed EPA’s TMDL for the Chesapeake Bay.  This should not be news.  Although Judge Ambro comprehensively disposed of the appellants’ arguments in a thoughtful opinion, I think that the opinion probably could have been six pages rather than sixty.

The crux of the challengers’ arguments was that a TMDL must consist of a single number specifying the amount of a pollutant that a water body can accommodate without adverse impact. … More

In February, we noted that the Conservation Law Foundation and the Charles River Watershed Association had threatened to sue EPA for failing to require that “commercial, industrial, institutional, and high density residential property dischargers of nutrient-polluted stormwater” obtain NPDES permits, and for failing to make a final determination on CLF’s and CRWA’s petition that EPA exercise its residual designation authority with respect to stormwater discharges in the Charles River Watershed.  … More

EPA has been working to craft a general permit for small Municipal Separate Storm Sewer Systems for quite some time.  The most recent draft permit, published last September, has received significant comment, most recently from the Massachusetts Department of Environmental Protection.  While emphasizing cooperation and appreciate for EPA’s efforts at collaboration, it is difficult to read MassDEP’s comments as anything other than as a sign of significant concern about overreach by EPA.… More

In 2008, EPA made a preliminary determination to use its residual designation authority (RDA) under the Clean Water Act to designate stormwater discharges from two or more acres of impervious surfaces in the Lower Charles River Watershed and released a draft general permit to cover such discharges.  However, EPA never finalized that designation.

In 2013, the Conservation Law Foundation and other groups petitioned EPA Regions 1,… More

Last fall, the District Court for the Middle District of Pennsylvania affirmed EPA’s TMDL for the Chesapeake Bay.  As I noted at the time, Judge Rambo pointed to the sometimes “messy and cumbersome” nature of cooperative federalism in affirming the TMDL, stating that:

It is unavoidable that states and the federal government will occasionally disagree. EPA worked with the states to ensure that the proposed allocations were sufficient to achieve water quality standards. … More

On December 13, the District Court for the District of Columbia dismissed plaintiffs’ challenge in Food and Water Watch v. EPA to the Chesapeake Bay TMDL’s discussion of pollution trading and offsets.  As I had previously noted, the TMDL itself already survived judicial challenge.

In this case, plaintiffs alleged that they would be harmed by trading of effluent discharge rights,… More

Last Friday, in American Farm Bureau Federation v. EPA, Judge Sylvia Rambo upheld EPA’s Chesapeake Bay TMDL.  As Judge Rambo noted in her conclusion, while the environmental problems associated with the Chesapeake Bay are massive and the issues complicated, her review was not that difficult.

Notwithstanding the expansive administrative record, and the complexity of the numerous issues implicated herein, the court’s scope of review in this case is relatively narrow.… More

Last week, in Conservation Law Foundation v. EPA, Judge Mark Wolf ruled that CLF did not have standing to challenge EPA’s approval of total maximum daily loads promulgated for certain waters in and around Cape Cod.  Given the increasing number of citizen suits involving TMDL promulgation, the decision is important.

CLF asserted two claims.  First, it alleged that EPA wrongly classified certain sources,… More