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

14 Pages Posted: 29 Jan 2009

See all articles by James May

James May

Widener University Delaware Law School

Date Written: March 1, 2004


The article chronicles the aftermath of three decades of agency forcing litigation aiming to jump start a central program of the federal Clean Water Act: assigning and implementing "total maximum daily loads" for the nation's most heavily polluted waters, waters that are not fit to support "designated uses and meet water quality standards. TMDL litigation has produced more bad news than good for CWA enthusiasts. The good news includes that EPA is currently under court order to set TMDLs as needed in 20 states, and in one-half dozen more to improve lists and "continuing planning process" and to conduct associated consultation under the Endangered Species Act. Moreover, 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; Courts have turned asunder all industry appeals of consent decrees; and 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. The bad news is that regardless of legal theory, courts have all but refused to order EPA or states to set and implement real TMDLs. The standard for ordering EPA to comply is nearly insurmountable, requiring both: (1) an explicit refusal by a state to take any TMDL action; and (2) unreasonable EPA delay in declaring such refusal a "constructive submission" of no TMDLs. In addition, courts have found that impaired waters need not be so identified or can be "delisted" for dubious reasons, including when a state merely "considers" but elects not to list the water. Thus, given the overall lack of TMDL implementation, the hope for the TMDL program returns from whence it started: policing consent decrees. Thirty years on, and despite years of fits and starts in regulation, litigation and judicial opprobrium, no water yet has been documented to meet standards because of the TMDL program. Without change of course, the TMDL program will continue on its road to perdition.

Keywords: clean water act, water pollution, environmental law

JEL Classification: K32

Suggested Citation

May, James, The Rise and Repose of Assimilation-Based Water Quality, Part I: TMDL Litigation (March 1, 2004). Environmental Law Reporter, Vol. 34, 2004. Available at SSRN:

James May (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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