ELR Citation: ELR 21006
No(s). 4-92-970 (D. Minn. Dec 13, 1993)

The court holds that Minnesota's submission under the Federal Water Pollution Control Act (FWPCA) of total maximum daily loads (TMDLs) for water quality limited segments (WQLSs) in the state is adequate, and thus, the U.S. Environmental Protection Agency (EPA) need not promulgate its own TMDLs for Minnesota. The court first holds that plaintiff environmental groups have standing to challenge EPA's failure to establish TMDLs. The groups produced affidavits indicating that their members use a large number of Minnesota's waters and have been injured by poor water quality throughout the state. Their injuries are fairly traceable to the lack of TMDLs for most waters and would be redressed if EPA developed and integrated TMDLs into the state water quality program. The court next holds that the case is ripe for review, because the environmental group members' injuries are concrete and judicial review will not disrupt EPA's ongoing administrative process. Turning to the merits, the court holds that EPA's duty to promulgate TMDLs and a list of WQLSs following prolonged state inaction is mandatory, because EPA has a mandatory duty to act if a state submission is inadequate. The court holds, however, that a finding that the state made a constructive submission of a WQLS list requiring EPA's action is not warranted because EPA already promulgated its own list. The court also holds that Minnesota's submission of TMDLs is not so inadequate as to require EPA to promulgate its own TMDLs. Although the state submissions are very late, the state is working on a comprehensive TMDL for the Minnesota River that includes both point and nonpoint sources of pollution as required by FWPCA implementing regulations, and has submitted a list of 43 other TMDLs, which EPA has approved. The 43 TMDLs that do not address nonpoint sources of pollution are nonetheless valid because they may be based on low-flow conditions, when nonpoint and background sources have relatively little impact on water quality. Thus, the court holds that a finding of a constructive state submission of no TMDLs would be inappropriate.

Counsel for Plaintiffs
Richard A. Duncan, Brian B. O'Neill
Faegre & Benson
2200 Norwest Ctr., 90 S. 7th St., Minneapolis MN 55402
(612) 336-3000

Counsel for Defendant
Robin L. Juni
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000