October 24, 2019

Earthrise Files Two Lawsuits to Accelerate Washington’s Lagging TMDL Program

Earthrise filed a pair of related lawsuits in September against the U.S. Environmental Protection Agency (EPA) intended to vastly improve the way EPA and, by extension, the Washington Department of Ecology identifies, and then cleans up, those waters in the State that fail to meet water quality standards. The suits were filed on behalf of our long-time client Northwest Environmental Advocates, and Earthrise attorney Jamie Saul is co-counseling the cases with Lewis & Clark Law School alum Andrew Hawley of the Western Environmental Law Center

The first suit is actually the re-opening of a suit filed in 1991 and partially settled in 1998; that settlement required Washington to prioritize, and EPA to ensure, that over 1,500 watershed pollution diets called “total maximum daily loads” (TMDLs) were completed by the end of the 15-year period ending in 2013. But the State and EPA missed that deadline by a wide margin, and now there are over 500 surface waters in Washington that remain impaired even though they were identified as needing a TMDL in 1996 or even earlier.

The second suit challenges EPA’s approval of Washington’s 2012 list of impaired waters developed under Section 303(d) of the Clean Water Act, as well as EPA’s inaction in the face of the State’s failure to submit subsequent lists in 2014, 2016, and 2018 as the Act requires. It relates to the first case because it also includes a claim that EPA unlawfully approved Washington’s 2012 TMDL “Prioritization Schedule”, which is nothing more than a plan to make a plan to complete TMDLs in the future.

Impaired waters lists and TMDLs are key components of the Clean Water Act’s regulatory structure; new pollutant discharges into rivers and streams on the impaired waters list are generally prohibited, unless there is an EPA-approved TMDL in place that allows for the new discharge. These two new cases will improve the State’s process for identifying impaired waters; accelerate the State’s largely defunct TMDL program; and get Washington’s rivers and streams back on track towards becoming fishable and swimmable once again.

The first case is Northwest Environmental Advocates v. Wheeler, W.D. Wash. No. C91-427R (Mot. To Reactivate filed Sept. 9, 2019). The second case is Northwest Environmental Advocates v. U.S. Environmental Protection Agency, W.D. Wash. No. 19-cv-01537 (filed Sept. 26, 2019).