by Karl Coplan

Section 303 of the Clean Water Act directs states to adopt water quality standards for waters located within the state.  “Water quality standards” consist of two parts: a designated use for each water body, and water quality criteria establishing the water quality parameters necessary to support the designated use.  These water quality standards were due by April, 1973 – 180 days after adoption of the 1972 Amendments to the Federal Water Pollution Control Act.  States are then supposed to survey their waters for compliance with the water quality standards, make lists of “impaired waters” that fail to meet these standards, and come up with total maximum daily loads and load allocations designed to bring the impaired waters up to standard.

Adoption and implementation of these water quality based controls has always been the bugaboo of full implementation of the Clean Water Act.  There have been volumes of litigation over states’ failures to submit TMDLs for their impaired water bodies, and EPA’s responsibility to adopt appropriate TMDLs where states fail to do so.

Incredibly, nearly 40 years after the deadline, some states have still neglected even to designate uses for their waters, the very first step in the water quality protection program of the Clean Water Act.  The Missouri Coalition for the Environment has just sued EPA for its failure to require Missouri to designate uses and establish water quality standards for over 150,000 linear miles of its rivers and streams. These “unclassified” water bodies essentially have no water quality based protections, leading to water quality violations and beach closings in downstream water bodies.

Section 303 contains no direct enforcement mechanism against states, and the Clean Water Act citizen suit provision does not contemplate direct suits by citzens groups to enforce state Clean Water Act obligations.  EPA is supposed to step in and adopt water quality standards for intrastate waters where the state adopts inadequate standards.  Missourri Coaliation for the Environment’s lawsuit follows the successful example of the TMDL lawsuits, back to the Scott v. City of Hammond case – they are based on the theory that the State’s failure to submit classifications is the constructive submission of legally inadequate classifications, which EPA has a mandatory duty to approve or disapprove, enforceable in a section 505 citzen suit.  Forty years of foot-dragging deserves a remedy.