June 06, 2022

Earthrise Achieves Interim Victory in Lawsuit to Improve Oregon’s TMDL Program

It doesn’t take a rocket scientist to figure out that polluted waters will never fully be cleaned up without a plan to reduce pollution throughout the watershed. And it turns out that is exactly what the Clean Water Act requires: under Section 303(d) of the Act, states must develop a clean-up plan for every “impaired” waterbody that fails to meet one or more water quality standards for the protection of aquatic life or human health. Those plans are called total maximum daily loads (TMDLs) and they are required to contain pollutant load allocations for point and nonpoint sources that contribute to the impairment. When Congress passed the modern-day Clean Water Act in 1972, it anticipated that all impaired waters nationwide would have a TMDL in place and be well on the way to becoming pollution-free within a decade.

That was the theory, anyway… Here we are, 50 years later, and most states (including Oregon and Washington) have more impaired waters than ever before, while TMDL programs languish in a morass of technical complexity and bureaucratic gridlock. A key reason is that the Clean Water Act lets states take the first crack at writing TMDLs; the U.S. Environmental Protection Agency’s (EPA) duty is only to approve or disapprove TMDLs once they are submitted by the state. But there is no legal hook for clean water advocates to compel states to develop TMDLs faster, and EPA has historically been loath to step in, even in the face of seriously floundering state TMDL programs.

Earthrise currently represents Northwest Environmental Advocates (NWEA) in two separate but related cases against EPA seeking to improve and accelerate the TMDL programs in Oregon and Washington. In the Oregon case, Earthrise recently obtained an important early victory, successfully opposing EPA’s motion to dismiss and establishing some helpful caselaw along the way. In an opinion and order dated April 4, 2022, Judge Marco Hernandez of the District of Oregon made two important rulings, both of which are believed to be the first such holdings in the country: First, he held that EPA’s approval of Oregon’s recently submitted “TMDL Priorities and Schedule” was a stand-alone final agency action subject to judicial review under the Administrative Procedure Act—even where the claim does not attack EPA’s approval of Oregon’s impaired waters list. Second, he held that EPA had a nondiscretionary duty under its own regulation, 40 C.F.R. § 130.7(d)(1), to determine a state’s TMDL schedule, and that EPA’s failure to undertake that duty was subject to review under the Clean Water Act’s citizen suit provision. Judge Hernandez’s opinion clears the way for litigation on the merits of each of NWEA’s claims.

TMDLs often get a bad rap; ask a Clean Water Act lawyer and they may tell you the acronym stands for “Too Much Damn Litigation.” But when based on sound science and implemented with vigor, TMDLs work hand-in-hand with the NPDES permitting program and state nonpoint source programs to provide a holistic tool for watershed-based restoration. We are optimistic that our twin lawsuits will kick the Oregon and the Washington TMDL programs back into gear.

The Oregon lawsuit is Northwest Environmental Advocates vs. U.S. Environmental Protection Agency, D. Or. Case No. 21-cv-01136-HZ. The Court’s order denying EPA’s motion to dismiss is published at 2022 WL 1001777 (April 4, 2022). Earthrise Clinical Professor Jamie Saul represents NWEA in that case.