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Lawsuits
Beginning in the 1980's, environmental groups around the country began suing the EPA for shortcomings they saw in the TMDL program. To date there are over twenty-five such lawsuits nationwide . Since 1990, there have been five lawsuits filed against Region III.
The lawsuits allege that the Agency has not ensured that states meet a number of TMDL-related requirements found in the Clean Water Act. The most common allegations include:
- Not properly identifying all waters that do not meet water quality standards,
- Not developing TMDLs for those waters,
- Not approving or disapproving states = Continuing Planning Processes (CPP).
Here's a quick status of TMDL lawsuits in the six Region III states:
- Delaware...Settled August 1997
- District of Columbia...Ongoing
- Maryland...Ongoing
- Pennsylvania...Settled April 1997
- Virginia...Settled June 1999
- West Virginia...Settled July 1997
American Littoral Society, et al. v. EPA, et al., No. 96-330 (D. Del.)
In this case (filed June 1996), plaintiffs and EPA signed a consent decree which the court entered on August 4, 1997. The decree sets out a 10-year schedule for establishment of TMDLs for waters on Delaware's 1996 303(d) list. The decree provides that EPA will ensure that the TMDLs are established if Delaware does not establish the TMDLs. The decree also includes commitments regarding EPA's evaluation of Delaware's 1998 303(d) list, EPA development of a report evaluating and making recommendations regarding Delaware's monitoring and assessment program, EPA review of Delaware's Continuing Planning Process (CPP), and EPA provision of lists and TMDLs to the Fish and Wildlife Service and the National Marine Fisheries Service.
The parties also signed a settlement agreement that includes details regarding EPA's report evaluating Delaware's monitoring and assessment program and development of other water quality related information.
Kingman Park Civic Association, et al. v. U.S. Environmental Protection Agency, et al, No. 1:98CV00758 (D.D.C.)
In this case (filed on March 25, 1998), plaintiffs seek an order vacating EPA's approval of the District of Columbia's 1996 list and compelling EPA to identify and establish priority rankings for all water quality limited segments (WQLS) in the District. They also seek an order requiring EPA to monitor all unmonitored waters in the District, to establish TMDLs for all waters listed by EPA for all pollutants of concern, and to provide notice and comment on such agency actions. Plaintiffs also seek an order requiring that EPA ensure that TMDLs are implemented and that EPA report its progress to plaintiffs and the Court. In terms of timing, plaintiffs seek an order directing EPA to perform the listing, monitoring and TMDL development activities "in accordance with an expeditious timetable established by the Court."
Sierra Club, et al. v. EPA, No. H97-3838 (D. Md.)
In this case (filed November 13, 1997) plaintiffs seek an order vacating EPA's approval of
Maryland's 1996 303(d) list, requiring EPA to identify all WQLSs in Maryland and establish TMDLs for all such waters, and to implement such TMDLs through the national pollutant discharge elimination system (NPDES) permitting program. EPA filed its answer on January 26, 1998. Pending before the court is a motion to intervene by the association representing Maryland's publicly owned treatment works (POTWs).
American Littoral Society, et al. v. EPA, No. 96-489 (E.D. Pa.)
In this case (filed January 1996), plaintiffs and EPA signed a consent decree which the district court entered on April 9, 1997. The consent decree sets out a 12-year schedule for establishment of TMDLs for all WQLS on Pennsylvania's 1996 list -- this includes TMDLs for approximately 575 listed waters (including approximately 400 waters listed as impaired by abandoned mine drainage).
The decree provides that EPA will establish TMDLs if Pennsylvania does not. The decree also requires EPA to develop regional guidance on 303(d) listing, to review Pennsylvania's continuing planning process under section 303(e) of the Clean Water Act, and to provide future lists and TMDLs to the Fish and Wildlife Service and the National Marine Fisheries Service.
The parties also signed a settlement agreement that includes additional commitments by EPA Region III related to listing guidance and assistance to Pennsylvania in implementing the TMDL program.
American Canoe Association, Inc. and the American Littoral Society v. EPA and EPA - Region III, No. 98-979-A.
In this case (filed July 9, 1998), plaintiffs and EPA signed a consent decree which the district court entered on June 11, 1999. The consent decree sets out a 11-year schedule for establishment of TMDLs for all water quality limited segments (WQLS) on Virginia's 1998 Section 303(d) list as amended by EPA on May 10, 1999, including certain waters which may be included on Virginia's next Section 303(d) list. The decree provides that EPA will ensure the TMDLs are established if Virginia does not establish the TMDLs. The decree also requires EPA to review Virginia's continuing planning process under Section 303(e), provide future lists and TMDLs to the Fish and Wildlife Service and the National Marine Fisheries Service, and to evaluate Virginia's monitoring program.
The parties also signed a settlement agreement that includes additional commitments by EPA Region III related to Section 303(d) listing, monitoring issues, and developing technical guidance regarding the establishment of TMDLs for impaired Virginia shellfish waters.
Ohio Valley Environmental Coalition, Inc., et al. v Carol Browner, et al., No. 2:95-0529 (S.D.W.VA.)
In this case (filed July 1995), plaintiffs and EPA signed a consent decree which the district court entered on July 9, 1997. The consent decree sets out a ten-year schedule for establishment of TMDLs for (1) certain portions of the Ohio River, including a TMDL for dioxin; (2) 44 other "priority" WQLSs; and (3) almost 500 WQLSs impaired by abandoned mine drainage. The decree provides that EPA will ensure the TMDLs are established if West Virginia does not establish the TMDLs. The decree also includes provisions related to EPA's review of West Virginia's subsequent 303(d) lists and development of an annual report on the status of West Virginia's TMDL program.
The parties also signed a settlement agreement that includes additional commitments regarding EPA Region III guidance on listing, EPA technical assistance for the state, and EPA training to support state development of a watershed approach.
