MURKY WATERS: COURTS SHOULD HOLD THAT THE "ANY-PROGRESS-IS-SUFFICIENT-PROGRESS" APPROACH TO TMDL DEVELOPMENT UNDER SECTION 303(d) OF THE CLEAN WATER ACT IS ARBITRARY AND CAPRICIOUS

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Abstract: Congress enacted the 1972 Amendments to the Clean Water Act (CWA) to combat water pollution stemming from both discrete and diffuse sources. Section 303(d) of the CWA reduces both types of pollution by requiring each state to promulgate "total maximum daily loads" (TMDLs) of pollutants for all waters that are unable to meet water quality standards. A TMDL is the maximum amount of a pollutant that can be discharged from all combined sources into a given body of water if that water is going to comply with water quality standards. Although section 303(d) required states to promulgate TMDLs by 1979, they universally ignored the mandates of section 303(d) for decades. However, in recent years, lawsuits initiated by environmental organizations seeking to enforce section 303(d) have spurred TMDL development. Courts adjudicating these lawsuits have adopted different approaches when reviewing a decision of the Environmental Protection Agency (EPA) to approve state submissions of TMDLs, and these approaches have fallen into two groups. One set of courts has adopted what one commentator has dubbed the "any-progress-is-sufficient-progress" approach to TMDL development and has upheld EPA approval as long as a state has promulgated "some TMDLs" and has set deadlines for TMDL development. In contrast, a second set of courts has adopted a more holistic approach to reviewing EPA approval to effectuate Congress's intent. This set of courts considers factors such as a state's actual rate of TMDL development and history of noncompliance with section 303(d) as relevant to its determination and has declined to uphold the EPA's approval of only "some TMDLs" when a state needs many TMDLs to achieve water quality standards. This Comment argues that courts should decline to adopt the "any-progress-is-sufficient-progress" approach to TMDL development and should adopt the approach of the second set of courts to effectuate the text, legislative intent, and proper function of section 303(d) of the CWA.

By 1972, Congress believed that water pollution in the United States was so severe that it amended the Water Quality Act of 1965(1) in an attempt "to restore . . . the chemical, physical and biological integrity of the Nation's waters."2 The 1972 Amendments, known as the Clean Water Act (CWA), substantially improved water quality.3 The CWA dramatically reduced water pollution originating from discrete and identifiable sources, called point sources.4 Despite such improvements, most waters in the United States do not meet water quality standards.5 Water quality standards specify each body of water's "designated uses" and "water quality criteria," taking into account its "use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes . . . ."6 The 1972 Amendments failed to dimmish pollution from non-point sources, such as run-off from agriculture, forestry, and housing subdivisions,7 and this pollution remains the leading cause of states' water quality problems.8

Congress designed section 303(d) to combat both point and non-point sources of pollution by providing a mechanism for regulating water discharges according to their impact on the receiving body of water.9 States must identify those bodies of water that would remain polluted after point sources of pollution have been regulated under the CWA10 and then determine the "total maximum daily loads" (TMDLs)11 of pollutants that may be present in each body of water while still meeting applicable water quality standards.12 Once states have established TMDLs for a given body of water, the loads of pollutants are allocated among the various discharge sources through discharge permits and state water quality plans.13 If a state fails to establish sufficient TMDLs, the CWA requires the Environmental Protection Agency (EPA) to promulgate TMDLs for the state.14 Once states have implemented TMDLs, the TMDLs can help improve the water quality of states' impaired waters. …