Washington Law Review


Kelly Seaburg


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.

First Page