The Rise and Repose of Assimilation-Based Water Quality, Part Ⅰ: TMDL Litigation

摘要

The purpose of the CWA is to restore the health of dirty waters and keep clean ones healthy. To meet these objectives, impaired waters must be identified and TMDLs set and implemented for them. No such luck. A brief recap of 10 lessons learned about TMDL litigation. There's more bad news than good for CWA enthusiasts, but the good goes first. Relatively benign TMDL rules EPA promulgated in 1992 still govern. Section 303(d) addresses all impaired waters, whether affected by point or nonpoint sources or a combination of the two. A TMDL does not count toward a milestone in a consent decree unless it really is a TMDL. EPA is currently under court order to set TMDLs as needed in 20 states, and in one-half dozen more to improve lists and CPPs and to conduct ES A consultation. Citizen-plaintiffs who monitor compliance with consent decrees and discover transgressions are potentially eligible for attorney fees. Courts have turned asunder all industry appeals of consent decrees. EPA TMDL decisions must include all documents the Agency directly or indirectly considered, including e-mails, and are not subject to the deliberative process and joint defense privilege.