May 21, 2001

Tennessee's Dirtiest Waters to be Cleaned up

Conservation groups today announced the settlement of a lawsuit against the U.S. Environmental Protection Agency that will lead to the cleanup and restoration of the worst polluted waters in the state. In particular, EPA and the plaintiffs have agreed to a 10-year schedule for the development of almost 800 clean-up plans for those segments of rivers, streams, lakes and reservoirs on the state's current list of impaired waters.

The lawsuit, Tennessee Environmental Council et al. v. U.S. Environmental Protection Agency and Christine Todd Whitman, was filed in federal district court in Nashville on January 10, 2001. Environmental groups challenged EPA's failure to require the Tennessee Department of Environment and Conservation (TDEC) to develop and implement an effective program for restoring water quality in the state's dirtiest waters, as required by the Clean Water Act.

"Everyone has worked hard to come up with this settlement, and we are optimistic that it will speed up the process to finally clean up Tennessee's most polluted waters," said Rick Parrish of the Southern Environmental Law Center. Parrish, Nashville attorney Joe McCaleb, and Knoxville attorney Danielle Droitsch, the executive director of the Tennessee Clean Water Network, represented the plaintiffs in the lawsuit: the Tennessee Environmental Council, the Foundation for Global Sustainability, the Lumsden Bend Community Group, Tennessee Scenic Rivers Association and the Tennessee RiverKeeper.

"The 25th anniversary of the Clean Water Act passed in 1997 with key provisions of the act still dormant and thousands of miles of rivers and streams in Tennessee still posing threats to human health and aquatic ecosystems," explained Wolf Naegeli, Treasurer of the Foundation for Global Sustainability (FGS). "We decided it was high time for citizens to stand up! FGS approved a proposal by Danielle Droitsch, who then was its vice president, to seek the cooperation of other environmental groups in suing EPA over its failure to enforce the law and to form a statewide coalition, called the Tennessee Clean Water Network, to coordinate organizations and citizen activists working to restore water quality in the state."

The plaintiffs filed a 'Notice of Intent to Sue' with EPA on May 28, 1998, and immediately entered into negotiations to work out an amicable settlement that would establish a firm schedule for the development of cleanup plans, a settlement sanctioned and--if necessary -- enforced by the court. After the successful completion of negotiations, the actual law suit was filed in January to secure the backing of the judicial system for the consent decree.

"This has been a long process just to get to this point. And it will take even longer to get the river restoration plans written and implemented. It's going to take all of these groups and more, especially other concerned citizens, to make sure that the job gets done and done right," said Brenda Hart, with the Tennessee Scenic Rivers Association.

Danielle Droitsch, Knoxville attorney and Executive Director of the Tennessee Clean Water Network, echoed that sentiment. "Ensuring that Tennessee develops river clean up plans is only the first step. Citizen involvement in developing and implementing those plans will make the real difference."

"Of particular importance," observed attorney Joe McCaleb, "is the EPA confirmation that new or additional discharges of pollutants causing these problems will be restricted until the clean up plans are developed. In the Harpeth River, for example, it is critical that we stop adding more pollutants to a river that is already impaired. This may mean that we cannot accommodate more development without taking additional steps to restore water quality. That is part of what the TMDL process is intended to determine."

Section 303(d) of the Clean Water Act requires states to identify rivers, streams and lakes that violate water quality standards or are otherwise too polluted for designated uses such as fishing, swimming, drinking and aquatic habitat. States are then required to develop clean-up plans for those waters based on the calculation of a "total maximum daily load" (TMDL) of pollution that each waterbody can accommodate and still be considered healthy or fit for its intended use.

In 1998, TDEC placed 352 segments of surface water on its list of impaired waters, and identified 792 pollutants contributing to the impairments, each one requiring a TMDL-based clean-up plan. At virtually the same time plaintiffs sent their 60-day notice of intent to sue, TDEC entered into a Memorandum of Agreement with EPA in which TDEC promised to develop clean-up plans for all listed waters within 10 years. But TDEC was only able to develop two out of the 25-30 promised clean-up plans for 14 listed waters by the end of December 2000.

A new, enforceable 10-year schedule was adopted as part of the consent decree which was entered in federal district court in Nashville on May 10, 2001. In addition, EPA agreed to oversee the development of a TMDL-based water quality restoration plan for the Harpeth River from its headwaters to below the confluence with the West Harpeth. Along with other pollutants, the Harpeth is choked with excessive nutrients that lead to depleted oxygen in the water, killing fish and other aquatic life. EPA has committed to collect additional data on problems in the Harpeth, identify the sources of pollutants and develop a clean-up plan with proposed reductions by mid-2003. This will be one of the first clean-up plans in the country to take into consideration the variations of dissolved oxygen over a 24-hour period.

Through the Tennessee Clean Water Network, the plaintiffs will support TDEC and EPA in the Tennessee TMDL planning and implementation work. TCWN has grown to 31 member organizations and will be operated as an independent non-profit organization starting July 1, 2001. TCWN (POB 1521, Knoxville TN 37901; www.tcwn.org ) offers assistance to citizens who want to form a watershed association or actively pursue water issues in other ways. It needs the support of everyone who is interested in effective cleanup plans and their successful implementation.

Additional background

The TMDL program was an essential component of the 1972 Clean Water Act, but virtually all states ignored it for many years as they focused attention and resources on reducing point source discharges of water pollution to the nation's waters. This watershed restoration program was the primary vehicle under the Clean Water Act for dealing with water pollution on a comprehensive basis, rather than site by site.

TMDL cases like this have been filed in about half the states in the country. Environmentalists have won most of them. As a result of the litigation and the Clinton Administration's renewed emphasis on water quality, EPA moved to overhaul the TMDL program with stronger, more detailed regulations proposed in August 1999 and adopted in July 2000. They were characterized by then-EPA Administrator Carol Browner as the strongest water quality regulations ever adopted by EPA. But the new regulations were vehemently opposed by virtually all industries and development interests, and most states. Opponents in the last Congress passed a last-minute rider that prevents the new rules from being implemented until October 2001.

Meanwhile, more than ten separate lawsuits have been filed challenging the new rules. Those cases have been consolidated and remain pending in the D.C. Circuit Court of Appeals at this time. The Bush Administration has not yet announced its intentions with regard to the new TMDL rules.

According to the latest statewide water quality report (The Status of Water Quality in Tennessee -- Year 2000 305(b) Report), TDEC has determined that over 6,500 miles of surveyed rivers and streams do not meet water quality standards. In addition, 118,000 acres of surveyed lakes do not fully comply with water quality standards. According to the report, only 40 percent of the states' waters are currently assessed. Thus, almost 36,000 out of the 60,000 total river and stream miles in the state have not been recently assessed.

  

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