Clean Water Act Developments: The Aftermath of TMDL Litigation - Consent Decrees and Settlement Agreements

Abstract

This article provides the latest developments about TMDL lawsuits nationally. It concludes that the results of TMDL settlements are mixed, least so where it matters most. The glory is that EPA has reviewed anew, or had the states review, readily existing and available water quality related data and information for 40,000 waters, finding 20,000 more ones impaired, bringing the national total to 60,000. EPA has agreed to backstop TMDL development for about 20,000 of these, and set or approved TMDLs for 10,000 impaired waters. EPA has for the first time reviewed and evaluated CPPs in six states. It has conducted dozens of associated ESA consultations. EPA's Office of Watersheds and Wetlands now incorporates TMDL planning into all facets of its operations. Every EPA Region, state and territory now boasts at least one FTE TMDL coordinator and program. Congress and state legislators have dedicated millions of dollars to TMDLs. The legal, policy and scientific academies know the language of TMDLs. The glum is that TMDLs have had little or no impact where they matter most: restoring over-polluted waters. The program is both administratively mature and practically irrelevant. Thirty years plus into the program and the CWA's hope of an ambient-based response to the nation's overly polluted waters is at best ossified and at worst over.