Murky waters: Courts should hold that the "any-progress-is-sufficient- progress" approach to TMDL development under section 303(d) of the clean water act is arbitrary and capricious

Washington Law Review

Volumn 82, Issue 3, 2007, Pages 767-794

  Seaburg, Kelly ^a  

^a NONE

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EID: 36749079234     PISSN: 00430617     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (229)

1. Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act) §§ 101-607, 33 U.S.C. §§ 1251-1387 (2000).
2. Id. § 101(a). The earlier versions of the Clean Water Act were considered a failure by Congress, courts, and commentators. See Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1042 (D.C. Cir. 1978) ("The earliest version of the Federal Water Pollution Control Act was passed in 1948 and amended five times before 1972 . . . . At the end of that [twenty-four year] period, Congress realized . . . that its water pollution efforts until then had failed . . . .").
3. See OLIVER A. HOUCK, THE CLEAN WATER ACT TMDL PROGRAM: LAW, POLICY, AND IMPLEMENTATION 3 (2d ed., Environmental Law Institute 2002) (1999) ("[T]he unavoidable fact is that the [1972 Amendments] . . . generated widespread compliance.").
4. See id. A "point source" is "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, [or] container . . . from which pollutants are or may be discharged." Clean Water Act § 502(14). Congress designed the CWA to diminish water pollution stemming from both point and non-point sources, which "are not distinguished by the kind of pollution they create or by the activity causing the pollution, but rather by whether the pollution reaches the water through a confined, discrete conveyance." Trs. for Alaska v. EPA, 749 F.2d 549, 558 (9th Cir. 1984).
5. See Houck, supra note 3, at 4. The CWA requires states to establish water quality standards for all waters within their boundaries. See Clean Water Act § 303(a).
6. Clean Water Act § 303(c)(2)(A).
7. See Houck, supra note 3, at 4. Congress did not define the term "non-point source" in the CWA, but courts have defined it as any non-discrete source of pollution, such as runoff from agriculture, forestry, and construction activity. See Trs., 749 F.2d at 558.
8. See What is Nonpoint Source (NPS) Pollution? Questions and Answers (1994), http://www.epa.gov/OWOW/NPS/qa.html (last visited April 16, 2007).
9. See Development and Implementation of the TMDL, http://www.epa.gov/owow/tmdl/decisions/dec3.html (last visited April 16, 2007).
10. See Clean Water Act § 303(d)(1)(A) ("Each State shall identify those waters within its boundaries for which the effluent limitations required . . . are not stringent enough to implement any water quality standard applicable to such waters.").
11. See id. § 303(d)(1)(C) ("Each State shall establish for the [impaired] waters identified in paragraph (1)(A) . . . the total maximum daily load, for those pollutants . . . at a level necessary to implement the applicable water quality standards.").
12. See Idaho Sportsmen's Coal. v. Browner, 951 F. Supp. 962, 965 (W.D. Wash. 1996) ("TMDLs are the greatest amount of a pollutant the water body can receive daily without violating a state's water quality standard. The TMDL calculations help ensure that the cumulative impacts of multiple point source discharges are accounted for, and are evaluated in conjunction with pollution from other nonpoint sources.").
13. See Houck, supra note 3, at 5. Completed TMDLs must be incorporated into control measures such as the technology-based permits that authorize pollutant discharges. See Idaho Sportsmen's Coal., 951 F. Supp. at 965 ("[Once TMDLs are established], [s]tates are then required to take whatever additional cleanup actions are necessary, which can include further controls on both point and nonpoint pollution sources.").
14. See Clean Water Act § 303(d)(2) ("If the [EPA] disapproves such . . . load, [the EPA] shall . . . establish such loads for such waters as [the EPA] determines necessary to implement the water quality standards . . . .").
15. See infra, Part I.C
16. For example, section 303(d) requires the states to promulgate TMDLs that account for all pollution present in a given body of water, including both point and non-point source pollution. See Defenders of Wildlife v. EPA, 415 F.3d 1121, 1124 (10th Cir. 2005) ("[T]he EPA lacks the authority to control non-point source discharges through a permitting process; instead, Congress requires states to develop water quality standards [and TMDLs] for intrastate waters."); see also Pronsolino v. Nastri, 291 F.3d 1123, 1139, 1141 (9th Cir. 2002) (holding that the mandates of section 303(d) are applicable to bodies of water impaired only by non-point sources). In contrast to section 303(d), the provisions of the CWA that specifically address non-point source pollution do not mandate action by the states. For example, section 319 "encourages," but does not require, states to accelerate their efforts to combat non-point source pollution with the promise of federal grants. Section 319 only requires that the states prepare assessment reports and management plans. See Appendix A - Relationship to Other Guidance, http://www.epa.gov/owow/tmdl/decisions/decapa.html (last visited June 12, 2007). Similarly, section 208 only provides for federal grants to encourage the states to develop "areawide waste treatment management plans" that include a process for controlling non-point source pollution "to the extent feasible." See Clean Water Act § 208.
17. See Houck, supra note 3, at 5-6.
18. See Houck, supra note 3, at 5. Several courts have acknowledged that the EPA's enforcement of section 303(d) has historically been negligent at best. See Pronsolino v. Marcus, 91 F. Supp. 2d 1337, 1353-54 (N.D. Cal. 2000), aff'd sub nom. Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002); Natural Res. Def. Council, Inc. v. Fox, 93 F. Supp. 2d 531, 539 (S.D.N.Y. 2000).
19. See Houck, supra note 3, at 5.
20. See id.
21. Compare, e.g., Idaho Sportsmen's Coal. v. Browner, 951 F. Supp. 962, 966-67 (W.D. Wash. 1996) (holding that the EPA's approval of Idaho's submission of TMDLs was arbitrary and capricious because in seventeen years, "Idaho has completed only three TMDLs.") with San Francisco Baykeeper Inc. v. Browner, 147 F. Supp. 2d 991, 1000-02 (N.D. Cal. 2001) (upholding the EPA's approval of California's forty-six TMDLs despite the fact that California needed hundreds to achieve water quality standards because California had set "optimistic" deadlines for TMDL development in the future).
22. See Houck, supra note 3, at 190 (observing that while litigation has "continued to push the TMDL agenda forward" in more than twenty states, "an increasing number of courts are beginning to show a weariness in overseeing the process and are accepting an any-progress-is- sufficient-progress attitude toward [TMDL development] . . . . [C]ourts in California, Maryland, and Oklahoma have recently held that the submission of something, anything, sufficed, and that it sufficed under the APA's 'arbitrary or capricious' standard as well.").
23. See, e.g., Sierra Club v. EPA, 162 F. Supp. 2d 406, 417, 419 (D. Md. 2001) (stating that the EPA's approval of Maryland's submission of approximately thirty TMDLs was not arbitrary and capricious);
24. San Francisco Baykeeper, Inc., 147 F. Supp. 2d at 1001-02 (stating that the EPA's approval of California's forty-six TMDLs was not arbitrary and capricious);
25. Sierra Club v. Browner, 843 F. Supp. 1304, 1314 (D. Minn. 1993) (stating that the EPA's approval of Minnesota's forty-three TMDLs was not arbitrary and capricious).
26. See, e.g., San Francisco Baykeeper, Inc., 147 F. Supp 2d at 1000 ("[T]his court must examine the present state of the record regarding California's and the EPA's compliance with the CWA.");
27. see also id. at 1001 ("[P]ast noncompliance is irrelevant to the question of . . . present compliance. . . .") (quoting Natural Res. Def. Council v. Fox, 93 F. Supp. 2d 531, 536 (S.D.N.Y. 2000)) (emphasis in original).
28. See Houck, supra note 3, at 190.
29. 162 F. Supp. 2d 406 (D. Md. 2001).
30. See Houck, supra note 3, at 190, 237 n.256.
31. See, e.g., Sierra Club v. Hankinson, 939 F. Supp. 865, 868, 871 (N.D. Ga. 1996) (emphasizing the fact that Georgia had submitted only two TMDLs "[i]n over sixteen years since Georgia's first TMDL submissions were due," despite the fact that Georgia had at least 340 impaired waters).
32. See, e.g., Idaho Sportsmen's Coal. v. Browner, 951 F. Supp. 962, 967 (W.D. Wash. 1996) ("Congress prescribed early deadlines for the TMDL process [that] . . . at most can mean months and a few years, not decades. Nothing could justify a schedule so slow as to defeat the CWA's goals . . . .").
33. See, e.g., Friends of the Wild Swan, Inc. v. EPA, 130 F. Supp. 2d 1184, 1190, 1195-96 (D. Mont. 1999) (stating that the EPA's approval of Montana's submission of 130 TMDLs when Montana had approximately 900 impaired waters was arbitrary and capricious);
34. Hankinson, 939 F. Supp. at 871-72 (stating that EPA's approval of Georgia's submission of two TMDLs when Georgia had approximately 340 impaired waters was arbitrary and capricious);
35. Idaho Sportsmen's Coal., 951 F. Supp. at 967 (EPA's approval of Idaho's submission of three TMDLs when Idaho had approximately 962 impaired waters was arbitrary and capricious).
36. See, e.g., Idaho Sportsmen's Coal., 951 F. Supp. at 966-68 (holding that EPA approval of Idaho's submission of three TMDLs in seventeen years when Idaho had approximately 962 impaired waters was arbitrary and capricious and that intervention from the EPA was required because, at the state's current rate, TMDL development "would extend over a quarter-century, [but] would not assure 'all necessary' TMDL development unless hundreds of [impaired waters] were to fall off the list.").
37. 130 F. Supp. 2d 1184 (D. Mont. 1999).
38. See Clean Water Act § 303(d)(1)(A), (d)(1)(C), 33 U.S.C. § 1313(d)(1)(A), (d)(1)(C) (2000).
39. See 40 C.F.R. § 130.7(d)(1) (2006).
40. See Clean Water Act § 303(d)(2).
41. See Idaho Sportsmen's Coal., 951 F. Supp. at 965.
42. See Clean Water Act § 303(a)(3)(A).
43. See Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992).
44. Clean Water Act § 303(c)(2)(A).
45. See id. § 303(d)(1)(A); see also id. § 502(11) ("The term 'effluent limitation' means any restriction established by a State or the [EPA] on quantities, rates, and concentrations of [pollutants] which are discharged from point sources into navigable waters . . . .").
46. See Pronsolino v. Nastri, 291 F.3d 1123, 1126 (2002); see also Clean Water Act § 301(e) ("Effluent limitations established pursuant to this section . . . shall be applied to all point sources of discharge of pollutants . . . .").
47. 40 C.F.R. § 130.7(b)(5) (2006).
48. The federal regulations use the term "water quality limited segments" to describe these impaired waters. See 40 C.F.R. § 130.2(j) (2006).
49. The number of impaired waters included on a state's section 303(d) list can vary depending upon the number of water bodies located within the state, the severity of water pollution in the state, and the state's commitment to pollution control under section 303(d). For example, in 2004 Alabama reported only 179 impaired waters, whereas Washington reported 1714. See 2004 Section 303(d) List Fact Sheet for Alabama (2004), http://iaspub.epa.gov/waters/ state_rept.control?p_state=AL; 2004 Section 303(d) List Fact Sheet for Washington (2004), http://iaspub.epa.gov/waters/state_rept.control?p_state= WA (last visited April 19, 2007).
50. See 40 C.F.R. § 130.7(b)(4) (2006).
51. See id. § 130.7(c)(1)(ii) (2006).
52. See Clean Water Act § 303(d)(1)(C), 33 U.S.C. § 1313(d)(1)(C) (2000); 40 C.F.R. § 130.2(i) (2006).
53. 40 C.F.R. § 130.7(c)(1) (2006).
54. See Clean Water Act § 303(d)(1)(C). See also Idaho Sportsmen's Coal. v. Browner, 951 F. Supp. 962, 966 (W.D. Wash. 1996) ("Although [rapid deadlines may cause] initially established TMDLs [to] be based on less than ideal data, that fact was considered and addressed by Congress . . . . Congress says ignorance is no excuse for inaction. Just add a margin of safety to compensate for the lack of knowledge and keep moving.") (internal citations omitted).
55. See Clean Water Act § 303(d)(2); 40 C.F.R. § 130.7(d)(2) (2006)
56. See Am. Canoe Ass'n v. EPA, 30 F. Supp. 2d 908, 918-19 (E.D. Va. 1998). As a result, the EPA's decision is not reviewable under the citizen suit provision of the Clean Water Act, which only permits a challenge of "any act or duty under this chapter which is not discretionary" with the EPA. See Clean Water Act § 505(a)(2).
57. Id.
58. See Chapter I - Introduction and Executive Summary, http://www.epa.gov/owow/tmdl/decisions/dec1.html (last visited June 12, 2007).
59. The EPA has acknowledged that "[if a] State chooses not to develop the needed TMDLs for appropriate pollutants on a timely basis . . . EPA has a role under the Act to develop the TMDLs . . . ." Chapter 4 - EPA and State Responsibilities, http://www.epa.gov/owow/tmdl/decisions/dec4.html (last visited June 12, 2007).
60. However, the EPA's website implies that states may find it advantageous to adopt "long-range schedules" for TMDL development. Id.
61. See Am. Canoe Ass'n, 30 F. Supp. 2d at 919.
62. The APA governs the standard of review applicable to the EPA's actions under section 303(d). See infra Part III.A.
63. See Clean Water Act § 303(d)(2).
64. See Chapter 2 - The Water Quality-Based Approach to Pollution Control, http://www.epa.gov/owow/tmdl/decisions/dec2.html (last visited June 12, 2007).
65. See Chapter 3 - Development and Implementation of the TMDL, http://www.epa.gov/owow/tmdl/decisions/dec3.html (last visited June 12, 2007).
66. See Pronsolino v. Nastri, 291 F.3d 1123, 1140 (9th Cir. 2002).
67. 291 F.3d 1123 (9th Cir. 2002).
68. Id. at 1140.
69. Id; see Clean Water Act §§ 309, 505, 33 U.S.C. §§ 1319, 1365 (2000).
70. See Chapter 3 - Development and Implementation of the TMDL, http://www.epa.gov/owow/tmdl/decisions/dec3.html (last visited June 12, 2007).
71. See Chapter 3 - Development and Implementation of the TMDL, http://www.epa.gov/owow/tmdl/decisions/dec3.html (last visited May 10, 2007).
72. See id.
73. See infra Part II.A.
74. See infra Part II.B.
75. See infra Part II.C.
76. See infra Part II.C.
77. See Clean Water Act § 303, 33 U.S.C. § 1313 (2000); 40 C.F.R. 130.7 (1997).
78. See id. § 304(a)(2).
79. See id. § 303(d)(2).
80. See Total Maximum Daily Loads Under Clean Water Act, 43 Fed. Reg. 60,662, 60,665 (December 28, 1978) (identifying "all pollutants" as suitable for TMDL calculations).
81. See Clean Water Act § 304(a)(2)(D).
82. See Chapter 1 - Introduction and Executive Summary, http://www.epa.gov/owow/tmdl/decisions/decl.html (last visited April 17, 2007).
83. Clean Water Act § 303(d)(2).
84. See 40 C.F.R. § 130.7(d)(1) (2006).
85. See Clean Water Act § 303(d)(2).
86. The EPA could not challenge total inaction by the states under section 303(d) because a state must have submitted something to the EPA in order for the EPA to "disapprove" the submission. See Houck, supra note 3, at 49-51 ("If the states submitted something unacceptably minimal, EPA could correct the problem with its own lists and TMDLs. But if the states submitted nothing at all, there was this unfortunate disconnect: there was nothing the Agency could do.").
87. See id. at 34, 49-51.
88. See id. at 52.
89. See Scott v. City of Hammond, 741 F.2d 992, 996-97 (7th Cir. 1984).
90. See, e.g., Idaho Sportsmen's Coal. v. Browner, 951 F. Supp. 962, 967-68 (W.D. Wash. 1996) (holding that the constructive submission doctrine was not implicated where the EPA had approved Idaho's submission of three TMDLs).
91. Friends of the Wild Swan v. EPA, 130 F. Supp. 2d 1184, 1191 (D. Mont. 1999); see Idaho Sportsmen's Coal., 951 F. Supp. at 968.
92. Clean Water Act § 101(a)(1), 33 U.S.C. § 1251(a)(1) (2000).
93. Id. § 101(a)(2).
94. 118 CONG. REC. 33,747, 33,753 (1972) (statement of Rep. Blatnik);
95. HOUSE CONSIDERATION OF THE REPORT OF THE CONFERENCE COMMITTEE, OCTOBER 4, 1972, LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 241 (1973).
96. Id. at 246 (statement of Rep. Harsha).
97. But see JAMES SALZMAN & BARTON H. THOMPSON, JR., ENVIRONMENTAL LAW & POLICY 144 (2003) ("Congress . . . encouraged [the] neglect [of section 303(d)]. According to Senator Edmund Muskie, who was the principal Senate sponsor of the 1972 CWA, EPA should assign 'secondary importance' to the water quality standards . . . . Congress wanted EPA to focus on the provisions of the CWA that appeared to have the greatest chance of success - the technology-based effluent limitations . . . .").
98. See Clean Water Act § 301(b), (e).
99. The permit system is called the National Pollutant Discharge Elimination System ("NPDES"). See id. § 402.
100. See id. § 319.
101. See 40 C.F.R. § 130.7(c)(1)(ii) (2006) ("TMDLs shall be established for all pollutants [in a body of water] preventing or expecting to prevent attainment of water quality standards . . . .").
102. See Houck, supra note 3, at 22-23 ("The House committee report described § 303(d) with care . . . . [Congress acknowledged] the need for implementation, through plans that include . . . schedules of compliance at least as stringent as any required to meet any applicable water quality standard, including the total maximum daily load for pollutants in accordance with section 303(d).") (internal citations omitted).
103. Compare Clean Water Act § 301(b)(1)(A) ("[T]here shall be achieved . . . not later than July 1, 1977, effluent limitations for point sources . . . which shall require the application of the best practicable control technology . . . .") with id. § 303(d)(2) ("Each State shall submit . . . not later than one hundred and eighty days after the date of publication of the first identification of pollutants [due in 1973] the [total maximum daily] loads established . . . .").
104. See id. § 301(b)(1)(A), (b)(2)(A).
105. See id. § 301(b).
106. See id. § 304(a)(2).
107. See id. § 303(d)(2).
108. Id.
109. See Idaho Sportsmen's Coal. v. Browner, 951 F. Supp. 962, 965 (W.D. Wash. 1996) ("The TMDL calculations help ensure that the cumulative impacts of multiple point source discharges are accounted for, and are evaluated in conjunction with pollution from other nonpoint sources.").
110. Houck, supra note 3, at 22.
111. See H.R. REP. NO. 92-911, at 106, reprinted in LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 793 (1973).
112. Clean Water Act § 303(d)(1)(A).
113. See id. § 303(d)(1)(C).
114. See Friends of the Wild Swan, Inc. v. EPA, 130 F. Supp. 2d 1184, 1188 (D. Mont. 1999).
115. See Idaho Sportsmen's Coal. v. Browner, 951 F. Supp. 962, 967 (W.D. Wash. 1996) ("The role of TMDLs in the CWA strategy for improving water quality confirms that they were to be developed quickly . . . . [T]o serve their intended purpose, they must be available early in the development of a state's program.").
116. See Houck, supra note 3, at 190.
117. See, e.g., San Francisco Baykeeper, Inc. v. Browner, 147 F. Supp. 2d 991, 1001-04 (N.D. Cal. 2001) (holding that EPA approval of California's forty-six TMDLs was not arbitrary and capricious);
118. see also Sierra Club v. Browner, 843 F. Supp. 1304, 1313-14 (D. Minn. 1993) (holding that EPA approval of Minnesota's forty-three TMDLs was not arbitrary and capricious). According to the EPA's website, California reported 686 impaired waters in 2002.
119. See 2002 Section 303(d) List Fact Sheet for California, http://iaspub.epa.gov/waters/state_rept.control?p_state=CA (last visited July 21, 2007). In 1993, Minnesota had approximately 1116 impaired waters.
120. See Browner, 843 F. Supp. at 1308.
121. See, e.g., San Francisco Baykeeper, Inc., 147 F. Supp. 2d at 1000 ("[T]his court must examine the present state of the record regarding California's and the EPA's compliance with the CWA.");
122. see also id. at 1001 ("[P]ast noncompliance is irrelevant to the question of . . . present compliance. . . .") (quoting Natural Res. Def. Council v. Fox, 93 F. Supp. 2d 531, 536 (S.D.N.Y. 2000)) (emphasis in original).
123. 162 F. Supp. 2d 406 (D. Md. 2001).
124. See, e.g., Sierra Club v. Hankinson, 939 F. Supp. 865, 871 (N.D. Ga. 1996) (emphasizing the fact that Georgia had submitted only two TMDLs "[in the] over sixteen years since Georgia's first TMDL submissions were due . . . .").
125. See, e.g., Hankinson, 939 F. Supp. at 871-72 (holding that EPA approval of Georgia's submission of two TMDLs was arbitrary and capricious, despite the state's goals for rapid TMDL development in the future, because at its current pace it would take Georgia more than 100 years to complete the TMDLs for the 340 impaired waters identified); Idaho Sportsmen's Coal. v. Browner, 951 F. Supp. 962, 966-67 (W.D. Wash. 1996) (holding that EPA approval of Idaho's submission of three TMDL was arbitrary and capricious because the state's proposed schedule for TMDL development would extend the deadline for another twenty-five years).
126. 130F. Supp. 2d 1184, 1195-96 (D. Mont. 1999).
127. See 5 U.S.C. §§ 704, 706 (2000).
128. See Nance v. EPA, 645 F.2d 701, 705 (9th Cir. 1981).
129. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).
130. See Am. Canoe Ass'n v. EPA, 30 F. Supp. 2d 908, 918 (E.D. Va. 1998).
131. See Executive Bus. Media, Inc. v. U.S. Dep't of Def., 3 F.3d 759, 762 (4th Cir. 1993) ("In general, even where action is committed to absolute agency discretion by law, courts have assumed the power to review allegations that an agency . . . failed to follow its own regulations.") (quoting Garcia v. Neagle, 660 F.2d 983, 988 (4th Cir. 1981). See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (announcing the doctrine that rules promulgated by a federal agency are controlling upon the agency).
132. See 5 U.S.C. § 706(2)(A) (2000) ("The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be. . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .").
133. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
134. Citizens to Preserve Overton Park, Inc., 401 U.S. at 415.
135. Petroleum Commc'ns, Inc. v. FCC, 22 F.3d 1164, 1172 (D.C. Cir. 1994).
136. See 5 U.S.C. § 706(2)(A) (2000).
137. See Houck, supra note 3, at 190.
138. See, e.g., Natural Res. Def. Council, Inc. v. Fox, 93 F. Supp. 2d 531, 536 (S.D.N.Y. 2000) ("EPA's past noncompliance is irrelevant to the question of agency's present compliance . . . .").
139. See, e.g., Sierra Club v. Browner, 843 F. Supp. 1304, 1314 (D. Minn. 1993) (although the plaintiffs challenging the EPA's approval of Minnesota's forty-three TMDLs failed to sue under the PA, the court's opinion indicated that the EPA would have prevailed under the arbitrary and capricious standard. "Minnesota and the EPA may not be implementing TMDLs as quickly as plaintiffs would like, [but] the Act does not set deadlines for the development of a certain number of TMDLs . . . [The Act] instead requires the development of TMDLs in accordance with the priority ranking of the WQLS list.") (internal citations omitted).
140. See, e.g., San Francisco Baykeeper, Inc. v. Browner, 147 F. Supp. 2d 991, 1002 (N.D. Cal. 2001) (holding that the EPA's approval was not arbitrary and capricious because California and the EPA "have both been doing something about TMDLs, albeit not as rapidly as contemplated by the passage of the CWA . . . . ") (emphasis added);
141. Fox, 93 F. Supp. 2d at 540 (holding that the EPA's approval was not arbitrary and capricious because "while New York has not promulgated TMDLs for every water body on its most recent § 303(d) list, it has unquestionably formulated and submitted some TMDLs, and has . . . demonstrated its good-faith interest in collaborating with EPA to bring the State's TMDL program to completion.").
142. See Houck, supra note 3, at 190.
143. Sierra Club v. EPA, 162 F. Supp. 2d 406 (D. Md. 2001).
144. Id. at 413.
145. Id. at 412.
146. Id.
147. Id. at 417.
148. Id.
149. An estimate of the requisite TMDLs may not have been provided in the opinion because it was contested by the parties. For example, the plaintiffs were challenging Maryland's omission of numerous water bodies from its most recent list of impaired waters. See Sierra Club, 162 F. Supp. 2d at 413. However, according to the EPA's website, by 2004, Maryland had listed at least 473 impaired waters requiring TMDLs.
150. See National Section 303(d) List Fact Sheet, http://oaspub.epa. gov/waters/national_rept.control (last visited April 18, 2007).
151. See Potomac Riverkeeper, Inc. v. EPA, No. 04-3885, 2006 WL 890755, at *14 (D. Md. March 31, 2006) (Maryland's "proposed TMDL completion date is projected to arrive in 2038."). Potomac Riverkeeper Inc. involved substantially the same facts and issues as Sierra Club, and the opinion quoted Sierra Club at length and with approval.
152. See id. at *2.
153. Maryland's submissions, though due on April 1 of every even-numbered year, were made on December 23, 1994, November 13, 1996, and August 7, 1998. Sierra Club, 162 F. Supp. 2d at 412.
154. Id.
155. For example, according to the EPA's website, Maryland promulgated only ten approved TMDLs in 2000, twenty-six in 2002, nineteen in 2004, and thirty-two in 2006. See 2004 Section 303(d) List Fact Sheet for Maryland (2004), http://oaspub.epa.gov/waters/state_rept.control?p_state=MD#APRTMDLS (last visited April 19, 2007).
156. Sierra Club, 162 F. Supp. 2d at 412.
157. Id. at 418.
158. See id. at 419 ('"[T]he Act does not set deadlines for the development of a certain number of TMDLs.'") (quoting Sierra Club v. Browner, 843 F. Supp. 1304, 1314 (D. Minn. 1993)). The court also stated that a fast-paced schedule for TMDL development, such as five years, would be undesirable. Id.
159. See id. at 418 ("[P]ast compliance [with Section 303(d)] is irrelevant to the question of an agency's present compliance.") (quoting Natural Res. Def. Council, Inc. v. Fox, 93 F. Supp. 2d 531, 536 (S.D.N.Y. 2000)).
160. Id. at 418, n. 18.
161. Id.
162. Id. at 419.
163. Id. at 419.
164. The court asserted that if Maryland did not comply with the deadlines in the state's agreement with the EPA, citizens could sue for enforcement. Id. at 417, n.15. However, in a subsequent case involving essentially the same facts, the court revoked this assertion, calling it "dicta." See Potomac Riverkeeper v. EPA, No. 04-3885, 2006 WL 890755, at *8 (D. Md. March 31, 2006).
165. Sierra Club, 162 F. Supp. 2d at 417-18.
166. See Potomac Riverkeeper, Inc., 2006 WL 890755, at *14.
167. See, e.g., Idaho Sportsmen's Coal. v. Browner, 951 F. Supp. 962, 965 (W.D. Wash. 1996) (noting that the "tight deadlines" for TMDL development in the text of the CWA indicate that states should develop TMDLs quickly to comply with the CWA's mandates)
168. (quoting Natural Res. Def. Council, Inc. v. Fox, 909 F. Supp. 153, 157-58 (S.D.N.Y. 1995).
169. See, e.g., Friends of the Wild Swan, Inc. v. EPA, 130 F. Supp. 2d 1184, 1195-96 (D. Mont. 1999) (holding that the EPA's approval of Montana's submission of 130 TMDLs when Montana had approximately 900 impaired waters was arbitrary and capricious);
170. Sierra Club v. Hankinson, 939 F. Supp. 865, 871-72 (N.D. Ga. 1996) (holding that the EPA's approval of Georgia's submission of two TMDLs when Georgia had approximately 340 impaired waters was arbitrary and capricious);
171. Idaho Sportsmen's Coal., 951 F. Supp. at 967 (holding that the EPA's approval of Idaho's submission of three TMDLs when Idaho had approximately 962 impaired waters was arbitrary and capricious).
172. See Friends of the Wild Swan, Inc. v. EPA, 130 F. Supp. 2d 1184 (D. Mont. 1999).
173. See id. at 1195-96.
174. See id. at 1195.
175. Id.
176. Id.
177. See id. at 1195-96.
178. Id. at 1196.
179. Id.
180. See id.
181. Id.
182. See id. at 1191.
183. Id. at 1190, n.7.
184. Id. at 1196.
185. Id.
186. Id. at 1196, n.9.
187. Id. at 1196. In its opinion, the court also separately considered the plaintiffs' claims that the EPA's approval of 129 point source TMDLs promulgated by Montana between 1986 and 1996 in connection with the state's issuance of point source discharge permits was arbitrary and capricious under the APA because the impaired waters were low on the state's priority list. However, the court determined that EPA approval of these point source TMDLs was not arbitrary and capricious because they were promulgated in accordance with the federal regulations.
188. See id. at 1195.
189. See supra Parts II.A-C.
190. See supra Part III.B.
191. See Houck, supra note 3, at 190.
192. See supra Part II.B.
193. See Friends of the Wild Swan, Inc. v. EPA, 130 F. Supp. 2d 1199, 1202 (D. Mont. 2000), amended, 130 F. Supp. 2d 1204 (D. Mont. 2000), stay denied, 130 F. Supp. 2d 1207 (D. Mont. 2000) aff'd in part, rev'd in part, 74 F. App'x 718 (9th Cir. 2003) ("[A slow rate of TMDL development would] create an escape hatch in the heart of the Act whereby both the State and the federal agency could frustrate Congressional imperatives simply by refraining from action.")
194. See Scott v. City of Hammond, 741 F.2d 992, 996-97 (7th Cir. 1984).
195. See Clean Water Act § 303(d)(1)(A), 33 U.S.C. § 1313(d)(1)(A) (2000).
196. Sierra Club v. EPA, 162 F. Supp. 2d 406, 418-19 (D. Md. 2001).
197. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971).
198. Id. at 416.
199. See Potomac Riverkeeper, Inc. v. EPA, No. 04-3885, 2006 WL 890755, at *9, *14 (D. Md. March 31, 2006) (discussing the court's previous holding in Sierra Club with approval).
200. See Sierra Club, 162 F. Supp. 2d at 417-18.
201. See Citizens to Preserve Overton Park, Inc., 401 U.S. at 416.
202. See Sierra Club, 162 F.Supp.2d at 418.
203. Id. at 418-19.
204. Section 303(d) requires the EPA to review each state's submission of TMDLs and not merely the state's "goals" for the future. See Clean Water Act § 303(d)(2), 33 U.S.C. § 1313(d)(2) (2000).
205. See, e.g., id. § 303(d)(1)(C) ("Each State shall establish for the [impaired] waters ... the total maximum daily load . . . . to implement the applicable water quality standards . . . ."); 40 C.F.R. 130.7(c)(1)(ii) (2006) ("TMDLs shall be established for all pollutants preventing or expected to prevent attainment of water quality standards . . . .") (emphasis added).
206. See Clean Water Act § 303(d)(2); 40 C.F.R. § 130.7(d)(1).
207. See also Idaho Sportsmen's Coal. v. Browner, 951 F. Supp. 962, 966 (W.D. Wash. 1996) ("Although [rapid deadlines may cause] initially established TMDLs [to] be based on less than ideal data, that fact was considered and addressed by Congress . . . . Congress says ignorance is no excuse for inaction. Just add a margin of safety to compensate for the lack of knowledge and keep moving.") (internal citations omitted).
208. See supra Part II.C.
209. See, e.g., Friends of the Wild Swan, Inc. v. EPA, 130 F. Supp. 2d 1184 (D. Mont. 1999).
210. See supra Part II.A.
211. See Clean Water Act § 303(d)(2).
212. See id. § 304(a)(2).
213. See Chapter 1 - Introduction and Executive Summary, supra note 75.
214. See 40 C.F.R. § 130.7(d)(1).
215. See Clean Water Act § 101(a)(2).
216. Id.
217. See supra Part II.B.
218. See Houck, supra note 3, at 4-5.
219. See Sierra Club v. Hankinson, 939 F. Supp. 865, 871-72 (N.D. Ga. 1996).
220. See supra Part II.C.
221. See Houck, supra note 3, at 22.
222. See Clean Water Act § 301(b)(1)(A)-(2)(B), 33 U.S.C. § 1311(b)(1)(A)-(2)(B) (2000).
223. Id. § 303(d)(1)(A).
224. See supra Part II.C; Idaho Sportsmen's Coal. v. Browner, 951 F. Supp. 962, 967 (W.D. Wa. 1996) ("The role of TMDLs in the CWA strategy for improving water quality confirms that they were to be developed quickly . . . . To serve their intended purpose, they must be available early in the development of a state's program.").
225. Friends of the Wild Swan, Inc. v. EPA, 130 F. Supp. 2d 1184, 1195-96 (D. Mont. 1999).
226. See id.
227. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
228. Wild Swan, 130 F. Supp. 2d at 1196, n.9.
229. Id. at 1196.