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Water: Total Maximum Daily Loads (303d)

Litigation Status

Summary of Litigation on Pace of TMDL Establishment

March 2009

Litigation History

During the past twenty-five years, EPA has defended numerous cases in which plaintiffs have alleged that EPA has a mandatory duty to "backstop" state establishment of TMDLs under CWA section 303(d), i.e., that EPA has a duty to establish TMDLs in states that fail to do so.

The first of these cases was brought against EPA in the 1980s. In that case (Scott v. City of Hammond), plaintiffs alleged that EPA had a mandatory duty under section 303(d) to establish TMDLs for Lake Michigan because the respective states had failed to do so. The 7th U.S. Circuit Court of Appeals remanded the case to determine whether the states had "refused" to act. The 7th U.S. Circuit Court of Appeals said such state refusal could trigger an EPA duty to establish the TMDLs. On remand, Illinois, Indiana, and Michigan submitted determinations that TMDLs were unnecessary for Lake Michigan; Wisconsin identified four areas for TMDL development. EPA approved the state determinations in 1985. A related case was dismissed in 1991 on the ground that the 1985 submissions which EPA approved precluded a finding of "constructive submission" by the states of no TMDLs.

Following the Lake Michigan TMDL case, plaintiffs filed 39 additional pace-of-TMDL-development lawsuits against EPA in 35 states. Some states like California and Maryland were the target of multiple lawsuits.

TMDL Litigation by State

In 27 cases EPA was placed under court order, or agreed in a consent decree, to establish TMDLs if a state failed to do so within a prescribed schedule. In general, most of these orders/decrees allow EPA to forego establishing a TMDL if it can be demonstrated that the TMDL is not needed. As of March 2009, EPA has outstanding obligations in 16 of these cases and has fulfilled its obligations in 11 cases (in one case, New Mexico, EPA has fulfilled its obligations under the consent decree but continues to work under the terms of the settlement agreement to complete TMDLs).

Cases where EPA has outstanding obligations:

State Start End Summary of EPA’s TMDL obligations
Alaska 1992 Backstop 2 TMDLs a year
Arkansas 2000 2010 Backstop 180 TMDLs for waters on Arkansas 1998 list
CA Los Ang. 1999 2012 Backstop 92 TMDLs
CA N. Coast 1997 2010 Backstop 17 TMDLs for North Coast rivers listed in 1996. EPA met 2008 deadline for Lower Lost TMDL; consent decree deadline extended to 2010 for Klamath Main TMDL.
DC 2000 2010* Backstop 70 TMDLs. *Original decree ended in 2007 but was extended to 2010.
Florida 1999 2012 Backstop TMDLs for waters on 1998 list.
Iowa 2001 2011 Backstop 200 TMDLs for waters on 1998 list.
Louisiana 2002 2012 Backstop 1151 TMDLs for waters on the 1998 list.
Mississippi 1998 2009* Backstop 104 TMDLs for special waters on 1996 lists by December 2003. Backstop all other TMDLS in 5 batches on pace prescribed in decree. *Original decree ended in 2008 but was extended to 2009.
Missouri 2000 2010 Backstop 174 TMDLs for waters on 1998 list.
Montana 2000 2012 Backstop TMDLs for waters on 1996 list. The consent decree was amended in 2004 and the deadline extended to 2012.
Oregon 2000 2010 Backstop 1153 TMDLs (75% of waters on the 1998 list) with interim milestones.
Pennsylvania 1997 2009 Backstop TMDLs for 575 waters on the 1996 list, including 400 waters impaired by acid mine drainage.
Virginia 1999 2011 Backstop waters on 1998 List.
Washington 1998 2013 Backstop 38 TMDLs within 5 yrs and complete all TMDLs on 1996 list by 2013.
W. Virginia 1997 2009 Backstop TMDLs for (a) portions of Ohio river, (b) 44 priority segments, and (c) 500 segments impaired by acid mine drainage.

Cases where EPA has fulfilled its legal obligations:

State Case Summary
Alabama All work completed in 2008. Decree not yet terminated.
Arizona Decree terminated in 2000.
California (Newport Bay) Decree terminated in 2000.
Delaware EPA completed its obligations in 2006. Decree not yet terminated.
Georgia Decree terminated in 2007.
Hawaii Decree terminated in 2000.
Kansas Decree terminated in 2007.
Nevada Decree terminated in 2005.
New Mexico Decree obligations completed; decree not yet terminated. Work continues under settlement agreement.
Ohio Decree terminated in 2007.
Tennessee All work completed in 2008. Decree not yet terminated.

Cases where EPA achieved dismissals (twice for the State of Maryland) without judicial orders that EPA establish TMDLs:

State Case Summary
California Statewide 9th U.S. Circuit Court of Appeals affirmed dismissal in 2002
Colorado Joint motion for Administrative closure filed 1999. Settlement agreement in place.
Idaho Motion to dismiss granted in 1997.
2002 settlement agreement: 10 year time frame for the state to complete TMDLs for waters on 1998 List.
Minnesota Motion to dismiss granted in 1993.
Maryland Motions to dismiss granted in 2001 and 2006.
New Jersey Motion to dismiss granted in 2002.
New York Motion to dismiss granted (except for one claim) in 2000.
North Carolina Motion to dismiss granted in 1998. [EPA agreed to backstop the development of a TMDL for the Neuse River]
Oklahoma 10th U.S. Circuit Court of Appeals upheld dismissal of the case in 2001.
South Dakota Motion to dismiss granted in 1999.
Wyoming Motion to dismiss granted in 2003.

Further Information

Section 303(d) Lists and TMDL Litigation (Challenges to EPA Establishment or Approval) (5 pp, 115K, About PDF), February 2009. This document summarizes pending cases and significant decided or settled cases for the Impaired Waters Listing and TMDL Programs.

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