Delaware's TMDL Lawsuit
December 2, 1997
Federal Clean Water Act Requirements
Section 303(d) of the 1972 Federal Clean Water Act (CWA), as amended, requires states to develop a list of waterbodies that need additional pollution reduction beyond that provided by the application of existing conventional controls. These waters are referred to as "Water Quality Limited" and must be periodically identified by the Department of Natural Resources and Environmental Control (DNREC) or the federal Environmental Protection Agency (EPA).
Water Quality Limited waters requiring the application of Total Maximum Daily Loads (TMDL) are identified in a document commonly referred to as the "303(d) list." A TMDL is the level of pollution or pollutant load below which a waterbody will meet water quality standards and thereby allow use goals such as drinking water supply, swimming and fishing, or shellfish harvesting to be achieved. A state's 303(d) list must be reviewed and approved by EPA by April 1st of every even-numbered year.
A full TMDL process determines the pollutants causing water quality impairments, identifies maximum permissible loading capacities for the waterbody in question, and, for each relevant pollutant, assigns load allocations--Total Maximum Daily Loads--to each of the different sources, point and nonpoint, in the watershed.
The full TMDL process is an effective and important tool for achieving water quality standards, but is time-consuming and labor-intensive. For this reason, TMDLs are currently pursued for high priority waters with the most severe water quality problems including the Inland Bays, Nanticoke River, and the Appoquinimink River. These waters are typically impacted by both point sources (e.g., sewage treatment plants, industrial facilities) and nonpoint sources (e.g., stormwater runoff from urban and agricultural lands).
The CWA mandates that EPA perform all of the responsibilities not adequately addressed by a state. To date, scores of Section 303 lawsuits across the county have been filed against EPA. Plaintiffs have prevailed in most of those cases resulting in court-ordered TMDL development schedules as short as five years.
Citizen Groups Sue EPA Over Delaware Water Quality
In August, 1996, James R. May, Esq., Director of the Environmental Law Clinic at Widener University School of Law, on behalf of the American Littoral Society (and its affiliate, Delaware River Keeper Network) and the Sierra Club, filed a federal complaint charging the U.S. EPA with "the failure to perform its mandatory duties to identify and then to improve the water quality of hundreds of miles of rivers, streams, and Atlantic coastline, and thousands of acres of lakes, reservoirs, ponds, bays, estuaries, and wetlands in the State of Delaware which fail to meet the fishable and swimmable water quality standard as required by the Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq. (1988) commonly known as the Clean Water Act American Littoral Society, et al. v. United States Environmental Protection Agency, et al. (Civil Action No. 96-5920)
The Complaint asks the Court to order EPA to:
- Comply with CWA requirements for TMDLs in Delaware on a short time line.
- Commit to updating Delaware's Continuing Planning Process which serves as the overall framework for water resources management in the State.
- Not issue or approve any new or renewed National Pollutant Discharge Elimination System (NPDES) permits discharging into impaired waters for which TMDLs or TMDTLs (Total Maximum Daily Temperature Loads) have not been established.
- Cease any additional grant funding to Delaware to administer the 303(d) program until the State's 303(d) list meets the requirements of the CWA.
- Administer the NPDES program for Delaware until the State has an EPA approved CPP in place.
DNREC agreed to be present during a federally funded mediation process and assist EPA with program and technical issues. Water Resources' Director Gerry Esposito, Deputy Attorney General Kevin Maloney and Division of Water Resources program staff attended mediation sessions in Philadelphia. A settlement was reached and Secretary Tulou and EPA Regional Administrator Mike McCabe signed an interagency Memorandum of Understanding (MOU) dated July 25, 1997.
Delaware's Total Maximum Daily Load Program
Delaware has completed a final TMDL for the Appoquinimink River and draft TMDLs for the Nanticoke River and Inland Bays (Indian River/Bay and Rehoboth Bay).
Delaware's 1996 303(d) list was approved in December, 1996. The 1996 list indicates significant water quality problems throughout the State.
Since the early 1990's, EPA has urged states to adopt a watershed approach to water quality management. EPA issued a new TMDL guidance document in 1991 encouraging the development of TMDLs on a watershed basis. Delaware has implemented a watershed approach that includes the integration of the TMDL monitoring and assessment program for each watershed in accordance with DNREC's Whole Basin Management Program schedule.
Plaintiffs demanded an accelerated schedule to ensure that TMDLs for all 1996-listed waters will be established by 2006. DNREC and EPA agreed to a schedule for completion of the TMDLs on a 10-year schedule.
Included in the settlement with EPA, and in addition to the commitment to a 10-year schedule for TMDL development in Delaware, are commitments to prepare a supplement to Delaware's 1996 List of Impaired Waters to include waters impacted by habitat degradation from agricultural and urban activities, develop guidance documents regarding the use of biological and habitat data for listing waters in 1998, and develop protocols for assessing wetlands in Delaware. The MOU between EPA and DNREC sets forth the duties of EPA and DNREC that will serve as the framework for administering the TMDL program in Delaware.
DNREC and EPA acknowledge that significant financial resources will be required to assist Delaware in timely TMDL development. DNREC's TMDL and CPP activities are funded by a mix of State General Funds and federal (EPA) grants. Federal grant funding levels have remained stable or declined over the last 5 years. However, even the stable resources have been eroded by inflation. Approximately two-thirds of the necessary funding is expected to be available from State and federal sources; the remaining one-third is being requested.
Future Pollution Management Activities
Once a TMDL is promulgated, a Pollution Control Strategy (PCS) will be developed. A PCS will specify the necessary pollutant load reductions that need to occur such that loadings will be less than or equal to the TMDL. Plans are for reductions to be achieved through voluntary (for those activities that are voluntary now) and regulatory (for those activities that are regulated now) actions. However, TMDLs will provide watershed-wide pollution reduction targets which DNREC (and EPA) will be legally obligated to meet. This obligation will require new approaches for addressing point and nonpoint sources of pollution. Concepts such as "pollution trading" between different sources of pollution, geographic targeting, and pollution prevention will all be considered as part of the PCS. Meeting these targets may require regulation under existing law.