ELR Citation: ELR 21474
No(s). 98-979-A (E.D. Va. Jul 12, 1999)

The court holds that a consent decree between environmental groups and the U.S. Environmental Protection Agency (EPA) regarding the establishment of total maximum daily loads (TMDLs) in Virginia under the Federal Water Pollution Control Act (FWPCA) is fair, adequate, and reasonable, and is not illegal, the product of collusion, or against the public interest. The court first holds that a specific ruling on whether or not the state's failure to submit TMDLs to EPA at any point during the 20-year period following the 1979 deadline was properly characterized as a constructive submission is not necessary before taking the initiative for establishing TMDLs from the state. The court next holds that the state, by virtue of its execution of a Memorandum of Understanding with the Agency, participated in the creation of the TMDL schedule in compliance with the federal-state cooperative process of TMDL development envisioned in the FWPCA. The court also holds that EPA has the authority to construe the state's failure to comply with the consent decree's TMDL schedule as a constructive submission of no TMDLs, to either approve or disapprove the submission, and, if the submission is disapproved, to promulgate its own TMDLs for the state. The court further holds that the consent decree is fair, adequate, and reasonable. It is wholly consistent with the FWPCA, it does not diminish or erode state authority in a manner inconsistent with the FWPCA statutory scheme or impose undue burdens on the state, and it is fair to third parties.

[A decision related to this litigation is published at 29 ELR 20383.]

Counsel for Plaintiff
Dale R. Schmidt
Law Offices of Dale R. Schmidt
708 Pendleton St., Alexandria VA 22314
(703) 836-1406

Counsel for Defendant
Helen Fahey
U.S. Attorney's Office
2100 Jamieson Ave., Alexandria VA 22314
(703) 299-3700