Developments in Tmdl Litigation

Abstract

Total Maximum Daily Load (TMDL) litigation is a heavily controversial area within environmental law. This article focuses on the role of the EPA and states in TMDL regulation and implementation, and discusses current developments in TMDL litigation. It lists ten recent developments, including the Ninth Circuit’s conclusion that “impaired waters” include those receiving pollution from point sources, nonpoint sources or a combination of the two (“blended waters”) and how the doctrine of “constructive submission” has become less utilized by the courts, since most courts refuse to apply it unless either a state expressly refuses to regulate total maximum daily load or EPA’s delay in responding to the state’s actions are unreasonable. It concludes that although the onus is generally on states to develop TMDLs, the EPA still retains wide discretion to approve the content or disapprove based on quality assured data. With regards to implementation, EPA retains the freedom to require implementation plans or even to approve or establish them, although there is no duty to enforce them.

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Keywords: Clean Water Act, Environmental Law