I t is estimated that more than 20,000 federal mandate due to the - PDF document

E NVIRONMENTAL S UPPLEMENT , A S UPPLEMENT TO T HE L EGAL I NTELLIGENCER , P HILADELPHIA , A PRIL 2002 T HE O LDEST L AW J OURNAL IN THE U NITED S TATES Up a Dirty Creek Without a Paddle Getting Your Pollution Budget to Pass the Bar BY BRENT FEWELL the rule is whether states would be required BRENT FEWELL is an to develop implementation plans for each Special to the Legal and PLW associate with Jones Day TMDL. States have generally opposed this Reavis & Pogue in I t is estimated that more than 20,000 federal mandate due to the significant time Pittsburgh and focuses his bodies of water throughout the country practice on environmental and costs required to prepare implementa- law. He may be or nearly 40 percent of the nation’s tion plans. As well, lingering questions reached by e-mail at waterways are too polluted to meet water remain regarding the very mechanisms bafewel@jonesday.com quality standards. needed to implement this complex pro- That figure compares to nearly 34 percent gram. As well, forestry and agricultural of Pennsylvania’s 83,000 miles of surface interests, which Congress has long exempt- waters that have been surveyed and judged ed from federal water regulations, have to be in poor condition. Water quality While TMDLs have been required since taken strong exception to the EPA’s effort to impairment in Pennsylvania, in particular, the late 1970s, only in recent years has the regulate their activities by requiring states can be attributed to a number of sources, program reached new prominence as a to list all impaired waters, regardless of the such as acid mine drainage, urban storm result of a spate of lawsuits against the EPA source of pollution, and forcing states to water runoff, land development, forestry, and states. Over the past decade, nearly 40 take steps to address the sources of pollu- agriculture and municipal and industrial dis- lawsuits have been filed in 38 states to force tion. chargers. Pollutants, like metals, nutrients, the EPA and the states to move more Other more pointed criticism, highlight- sediments, ammonia, pH and other ubiqui- aggressively to address water quality prob- ed in a recent General Accounting Office tous pollutants such as PCBs and chlor- lems and to develop and implement the report, has been aimed at the EPA and its dane, often are the culprits. In an effort to TMDL program required by the federal highly varied process by which “impaired address water quality concerns, the U.S. Clean Water Act. Because of the controver- waters” are identified. Section 303(d) of the EPA and the Pennsylvania DEP continue to sies surrounding the program, last fall Clean Water Act requires states to submit to move forward with their Total Maximum Congress cutoff all funding to the EPA to the EPA every two years a list of waters that Daily Loading (“TMDL”) initiative, with prevent its implementation. In turn, the are not meeting state standards. The GAO the stated goal of restoring degraded Bush Administration halted implementation report points out that what one state deems waters. of the July 2000 final TMDL rule until impaired, others may not. This is particu- TMDLs are best described as pollution April 2003 to allow Congress and the EPA larly problematic for interstate watersheds. budgets for lakes, rivers, and streams where more time to evaluate the direction of the Case in point, the Missouri River, which control technologies have failed to achieve program. Similarly, the D.C. Circuit Court separates Nebraska and Iowa is deemed designated water quality standards. They of Appeals agreed to stay litigation involv- impaired by Nebraska (for pathogens), but represent an aggregate of all waste loads ing the July 2000 rule, pending further not by Iowa. This type of inconsistency from sources of any kind, including natu- order of court, as long as the EPA moves clearly has hampered the effectiveness of rally occurring sources, plus a margin of diligently to address the litigated issues in the national program. safety to reflect uncertainty of the total new rulemaking. The TMDL program is one of the more loading. Put another way, TMDLs are an Prior to these developments, the July significant and expensive environmental attempt to numerically quantify a water 2000 rule had been sharply criticized by initiatives proposed in recent years and its body’s natural capacity to effectively both industry and environmental groups. In impacts (both positive and negative) will be assimilate a given amount of pollution. particular, the most contentious aspect of long-lasting. In this regard, the Association REPRINTED WITH PERMISSION OF THE LEGAL INTELLIGENCER