Today, Earthjustice Legal Defense Fund filed suit in federal district court on behalf of the Hïhïwai Stream Restoration Coalition and the Center for Biological Diversity to force the United States Environmental Protection Agency ("EPA") to carry out mandatory duties under the federal Clean Water Act needed to clean up Hawai'i's polluted waters.
Despite Hawai'i's image as a tropical paradise, many streams, rivers and coastal areas either do not meet state water quality standards or are likely to slip below minimum standards in the near future. Although the Clean Water Act provides clear directives to combat water pollution, EPA has repeatedly approved grossly inadequate efforts by the State of Hawai'i Department of Health ("DOH") that fail to remedy Hawai'i's pollution problems.
"Our streams, rivers and coastal areas are the lifeblood of this `Äina (land) and are resources that we must preserve. For many local families, especially Hawaiians, our streams and coastal areas are like an icebox, because they are an important source of food. Yet, the Department of Health and EPA have been neglecting Hawai'i's polluted waters. We are suing to make sure that all of the state's waters get the attention that the law requires," said Kaipo Faris, Project Coordinator for the Hïhïwai Stream Restoration Coalition.
The Clean Water Act requires that each state submit -- and EPA approve -- a list of all water bodies within the state that fail to meet or are not expected to meet state water quality standards. Once polluted waters are identified, the state must promulgate Total Maximum Daily Loads ("TMDLs") for each water body on the list. A TMDL is the maximum amount of a given pollutant that may be discharged or "loaded" into the water body from all sources without violating water quality standards.(For more information about TMDLs, see "Answers To Frequently Asked Questions About The Clean Water Act And TMDLs.")
In 1998, EPA approved DOH's list identifying only 18 impaired water bodies, even though EPA and DOH knew of at least 50 other water bodies that either did not meet or were not expected to meet water quality standards. Moreover, EPA has allowed DOH to drag its feet in promulgating TMDLs and has approved TMDLs that fail to comply with the Clean Water Act's stringent requirements.
"TMDLs are important tools to get a handle on water pollution. By setting targets and identifying strategies for pollution reduction, TMDLs help to ensure we take the right steps to address our water pollution problems. Without TMDLs, state and federal agencies – as well as the community at large – are left guessing. It is up to DOH and EPA to create these much needed roadmaps so that we can all pitch in and clean up Hawai'i's polluted waters," explained Peter Galvin, Conservation Biologist for the Center for Biological Diversity.
Under the Clean Water Act, EPA must step into a state's shoes if that state fails to identify all of its impaired waters or submits faulty TMDLs. These requirements have been in place since the 1970's, yet DOH and EPA have failed to follow through with these mandatory duties. Now, EPA must identify Hawai'i's impaired waters and establish an expeditious schedule to develop TMDLs for those waters.
"In Hawai'i, clean water is vital not only to our public health, but to our island lifestyles and culture as well. It is in all of our interests for both EPA and DOH to overhaul Hawai'i's water quality monitoring programs. Until we identify the nature and scope of water pollution problems, we cannot adequately prioritize or take affirmative steps to remedy them. Until EPA and DOH clean up our polluted waters, all of Hawai'i's citizens and visitors will continue to pay the price," said Kapua Sproat, Earthjustice Legal Defense Fund Attorney.
Frequently Asked Questions About The Clean Water Act And TMDLs
What is the Clean Water Act?
- The federal Clean Water Act is the nation's primary legal mechanism for addressing water quality problems. One of its basic goals is to restore and maintain water quality to ensure that the public can swim, fish and otherwise use our waters.
- The Clean Water Act plays a significant role in states like Hawai'i that rely on coastal, freshwater and marine resources to support many different uses, including agriculture, aquaculture, recreation, tourism, sport and commercial fishing and Native Hawaiian traditional and customary practices.
- The Clean Water Act uses a two-tiered approach to protect water quality. First, the Act limits discharges of pollution from "point sources," which include pipes, storm drains and culverts. Second, the Act uses a water quality based approach to regulate all discharges – from both point and nonpoint sources ("nonpoint sources" include runoff from roads, golf courses and agricultural operations) – according to their effect on the receiving water.
What are Water Quality Limited Segments?
- As an essential first step in the water quality based approach, states must identify which of their waters are polluted. Section 303(d) of the Clean Water Act requires each state to compile a list of all "Water Quality Limited Segments" ("WQLSs"), which are water bodies within the state's boundaries that do not currently meet – or are not expected to meet – state water quality standards despite the application of pollution controls on point sources. This list of WQLSs is commonly known as a "303(d) list."
- Although each state is responsible for developing and updating its 303(d) list, EPA must review and approve (or disapprove) each list to ensure that it satisfies the Clean Water Act's requirements.
- Once a state identifies its WQLSs, it must promulgate TMDLs for each water body on the 303(d) list.
What is a TMDL?
- A Total Maximum Daily Load ("TMDL") is the maximum amount of a given pollutant that may be discharged or "loaded" into a WQLS without violating water quality standards.
- Once this maximum load (known as "loading capacity") is determined, the TMDL must allocate it between all the various current and future pollution sources as necessary to achieve the applicable water quality standards.
- Each TMDL must identify both a wasteload allocation (the portion of the loading capacity attributable to existing or future point sources of pollution) and a load allocation (the portion attributable to existing or future nonpoint sources of pollution and natural background pollution).
- For example, if a stream does not meet the water quality standards for nitrogen, a TMDL must be calculated to determine the maximum amount of nitrogen that can be discharged into the stream without violating water quality standards. If one golf course (nonpoint source), one storm drain (point source) and natural runoff (background source) contribute nitrogen to the stream, the TMDL must allocate the total maximum daily load among these sources. Since the stream is not meeting water quality standards, the TMDL will limit the amount of nitrogen that each source can discharge into the stream.
What does a TMDL do?
- TMDLs are important tools to remedy water pollution problems. By identifying the sources of water pollution and the steps necessary to remedy those problems, TMDLs establish a plan of action to achieve state water quality standards.
- TMDLs also serve as valuable measuring sticks regarding the adequacy of current pollution control measures. By establishing numeric targets, TMDLs inform state and federal agencies as well as the public about whether current efforts are sufficient, or if more needs to be done, to enable a water body to meet state water quality standards.
Who is responsible for issuing TMDLs?
- Each state is responsible for calculating TMDLs for all pollutants impairing each WQLS. EPA then must determine whether the TMDLs satisfy the requirements of the law and must approve or disapprove the TMDLs within 30 days. In Hawai'i, the State Department of Health is responsible for calculating TMDLs.
- EPA may approve a TMDL only if it meets specific requirements established by the Clean Water Act and its implementing regulations.
- If EPA disapproves any TMDL, it must step into the state's shoes and, within 30 days, establish a TMDL that implements the applicable water quality standards.
What happens after a TMDL is approved?
- Each state must implement its TMDLs to bring the WQLSs up to water quality standards, ensuring that these waters will, once again, support and protect fish, shellfish and other wildlife.
- After a state establishes a TMDL, it must revise that TMDL as necessary to achieve the goal of restoring and maintaining the chemical, physical and biological integrity of the water body.