Cape Cod TMDL Litigation; CLF Is Still In There Swinging

by Foley Hoag LLP - Environmental Law
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In September, I noted that Judge Mark Wolf had dismissed CLF’s law suit challenging EPA’s approval of the TMDLs for the Cape Cod embayments, ruling that CLF did not have standing.  CLF, as is its wont, is not going gentle into that good night.  It is still raging, raging, at EPA’s decision.  More to the point, it has refiled its complaint.

Presumably, this time around, CLF will be prepared with expert affidavits to address the shortcomings that Judge Wolf identified the last time around.  I’m still skeptical.  The first problem that Judge Wolf identified was that CLF had not demonstrated that shifting sources between point and non-point sources does not affect the actual TMDL, so CLF will have a hard time demonstrating that it has been harmed by EPA’s determination whether a source is a point source or not.  That seems to me to remain a problem for CLF.

The second problem relates to CLF’s allegations that EPA should take climate change into account in setting the TMDL.  However, while TMDLs don’t expire, this is not like a one-time permit to construct a long-lived facility.  States may have no obligation to revisit TMDLs, but I see no reason why they cannot do so, particularly since section 303(d)(1)(C) of the Clean Water Act provides that States shall submit lists of waters and associated TMDLs to EPA “from time to time.”  Thus, I think that CLF must demonstrate the need to include climate change in the TMDLs now.

I will note that the climate change implementation plan recently issued by EPA’s Office of Water states that one strategic action it will pursue will be to:

Encourage water quality authorities to consider climate change impacts when developing wasteload and load allocations in TMDLs where appropriate.

Given the nitrogen problems on Cape Cod, and given the shallow nature of the embayments there, I’m sure CLF is going to suggest that the Court ask EPA when considering climate change in setting TMDLs would ever be appropriate, if it is not appropriate on Cape Cod.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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