Total Maximum Daily Loads:  Sink or Swim? (11/00)

The following column by GAP Intern Nathan Morris is reprinted from the November 2000 issue of The Professional Geologist, a publication of the American Institute of Professional Geologists . It is reprinted with permission.

Over 40% of our nation’s assessed waters are too polluted for fishing or swimming. The Clean Water Act of 1972 called for states to provide a comprehensive list of polluted waters and develop pollution budgets, or Total Maximum Daily Loads (TMDL), for waters impaired by point and nonpoint sources of pollution.  Why has the TMDL program remained dormant for over 25 years?  Many argue that states simply do not have adequate funding and need additional analytical methods and technical assistance to effectively assess and implement TMDLs, especially for nonpoint sources.  But even with adequate state resources, there is dispute that the science has not been and is still not adequate enough to pinpoint and assess a pollutant’s origin and quantity.

In 1972, the Federal Water Pollution Act of 1948 (commonly referred to as the Clean Water Act) was drastically changed in response to widespread concern that water quality standards were flawed, that pollution cleanup efforts were slow, and that control technologies were being developed but not adequately applied.  The 1972 amendments provided a number of tools to achieve cleaner water.  States and the Environmental Protection Agency (EPA) over the past 25 years focused mainly on the more easily monitored and measured point source pollution, with progressively more stringent technology requirements administered by the EPA and implemented by state and local governments to control and regulate the discharge of pollutants at the point source.  Despite the stringent point source pollution standards, the National Water Quality Inventory lists sediments, nutrients, and pathogens as the top three sources of impairment, reflecting that much of the inability for states to reach water quality standards is due to nonpoint source pollution. Although not explicitly stated in the Clean Water Act (CWA), Pronsolino v. Marcus (ND.Cal. C-99-01828, March 30, 2000) has determined that nonpoint sources fall under the jurisdiction of regulation by the EPA under the TMDL program and are to be incorporated into the continuing planning process of the states.

Revising the Rules
Several citizen groups, starting in 1995, have filed more than 45 lawsuits in 34 states against the EPA and states, claiming they failed to fulfill TMDL requirements.  In most of these cases, courts agreed that the EPA has a nondiscretionary duty to act if a state fails to list an impaired water or establish a TMDL.  In response to court action and increased public attention to the issue, the EPA in 1996 formed a federal advisory committee to make recommendations for improving and unifying the TMDL program.  Those recommendations were incorporated into EPA’s proposed rule to change regulations relating to TMDLs, released last summer.  The proposed rule has become highly controversial and has been the focus of several congressional hearings on issues such as burdens on states to implement the TMDL program and potential impacts on agriculture and forestry sources.  Other issues of controversy that have come to light have been the lack of sufficient water quality data in many states to develop TMDLs, the adequacy of economic analysis in the proposed rule, the impacts of regulations on small entities – including small farms and forestry operations – and the proposed limits on growth and redevelopment before TMDLs are developed.

In response to concerns with the proposed TMDL rules, Department of Agriculture Under Secretary Jim Lyons and EPA Assistant Administrator Chuck Fox decided to form an interagency workgroup to review key issues in regard to states, agriculture, and forestry.  The EPA and USDA concluded that state governments and local citizens should take the lead in developing pollution budgets for impaired waterways.  According to a General Accounting Office survey, states overwhelmingly cited shortages in funding and staff as the major limitation to carrying out their responsibilities, including developing TMDLs.  Hence, flexibility is needed for states to better overcome the significant financial and technical resources that they will face.  As a result, several revisions were made in the final TMDL rule to enhance flexibility in state programs.

Dodging A Congressional Bullet
In July 2000, EPA Administrator Carol Browner signed the final rule to revise the TMDL program.  This occurred two days prior to President Clinton’s signature of H.R. 4425, the Military Construction Appropriations Act for fiscal year (FY) 2001, which contained language that would have blocked promulgation of “new” TMDL rules.  Signing the final rule before the President’s signature of the bill meant the new rule was no longer “new,” thus negating the amendment. Needless to say, its congressional sponsors were not amused.

In response to significant concerns expressed regarding the proposed implementation of the final TMDL regulation, many stakeholders and members of Congress have demanded that EPA withdraw the proposed rule and develop a new proposal after further public inquiry.  Some members of Congress have also introduced legislation to require additional review and study or to prohibit EPA from regulating certain sources of pollution.  Senator Tim Hutchinson (R-AR) may push for restrictive language to be added to the FY 2001 VA-HUD appropriations bill, H.R. 4635.  On July 26th, similar TMDL moratorium language was removed from S. 2417, Clean Water Act reform legislation introduced by Senators Bob Smith (R-NH) and Mike Crapo (R-ID) in April.  The bill substantially increases the authorization of funds for nonpoint pollution programs under the Clean Water Act – up to $750 million annually for FY 2001 through FY 2007.  It also authorizes a National Academy of Sciences study to evaluate the science behind the TMDL rule, its implementation cost, and the availability of alternative nonpoint pollution programs; and a National Academy of Public Administration study on the breadth and success of state and other nonpoint pollution control programs.  Another bill, H.R. 4922, the TMDL Regulatory Accountability Act of 2000, sponsored by Rep. Charles Stenholm (D-TX), was introduced on July 24th to ensure that changes to the TMDL rule are subject to congressional and public review.

What Next?
It is anticipated that once TMDLs become established and enforced, another round of litigation will take place that will challenge individual TMDLs based on the adequacy of the data and science used to develop them and the individual allocations of pollutant reductions.  It is up to scientists to determine how much of a pollutant can be added to a waterbody on a daily basis without exceeding a water quality standard and to help determine how much pollution reduction a specific landowner must legally achieve.  In so doing, mass balance studies of sediment and chemical runoff based on field studies of soil type, slope, and hydrology are essential.   Such studies are important in order to adequately quantify the links between land use and water quality.  Current assessments by states are identifying large numbers of stream segments that still require additional monitoring and analysis before water quality measures are attained.  Full implementation of the TMDL process is likely to inform policymakers more completely about water quality conditions nationwide.  It is also likely to show that the remaining challenges to achieving the goals of the CWA are more numerous and difficult than many policymakers had expected.

Nathan Morris is pursuing a master's degree at Indiana University's School of Public and Environmental Affairs. He holds a bachelor's degree in natural resources from the University of Nebraska.

This article is reprinted with permission from The Professional Geologist, published by the American Institute of Professional Geologists. AGI gratefully acknowledges that permission.

Please send any comments or requests for information to the AGI Government Affairs Program.

Posted December 4, 2000

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