The New TMDL Rule: The Maximum Load of Controversy

Life, liberty and the pursuit of clean water. Everybody agrees that access to clean water is a fundamental right of Americans. However, impacted stakeholders often argue over who should have to implement expensive water pollution controls.

In particular, a rule recently proposed to clean up polluted U.S. water bodies has released a flood of controversy. Under the Clean Water Act (CWA) , the total maximum daily loads (TMDL) program directs states to identify water bodies that fail to meet water quality standards even after controls have been put in place to clean them up. A TMDL is a calculation of the maximum amount of a pollutant that a water body can receive and still meet water quality standards.

The U.S. Environmental Protection Agency (EPA) issued a national rule in July 2000 to revise the existing TMDL program. A source of considerable debate, this rule originally was scheduled to go into effect in October 2001. Ironically, the proposed TMDL rule has created some surprising alliances that oppose it.

Agricultural and forestry groups have complained that the proposed rule would require CWA permits for certain nonpoint sources of pollution. The American Farm Bureau Federation President Bob Stallman criticized the rule as being "unwise" and stated that the inclusion of nonpoint sources would cripple farms, ranches and forestry operations at a time when producers could least afford new regulations.

Environmental groups have had differing opinions about the July 2000 rule. Some disliked the rule because they thought it allowed states too much time to complete their TMDLs, while others argued that the schedule was too tight and would not allow the states enough time to do a thorough job. The Sierra Club has been outspoken about the negative impact on water quality of concentrated animal feeding operations (CAFOs), which produce large quantities of manure. The activist group's position is that states should place a moratorium on new and expanding CAFOs until "adequate public health and environmental standards are in place and existing facilities have effective permits."

States have been concerned that the rule would be too costly and not provide reasonable deadlines for completing thousands of TMDLs designed to clean up waters determined to be impaired. Additionally, many municipalities and industrial groups have not been happy about the proposed rule.

At the annual American Bar Association held in August, David Moore, an attorney from Atlanta, pointed out that the costs of compliance for regulated municipal and industrial sources has been disproportionately high, partly because of the disparity in TMDL regulation of point sources versus nonpoint sources. According to Moore, nonpoint sources, such as runoff from animal operations, are difficult to regulate and for the most part are not currently regulated.

Last year, about a dozen interest groups representing farmers, environmental advocates, industry and others sued EPA over various components of the July 2000 TMDL rule in the lawsuit, American Farm Bureau Federation v. Whitman, (D.C. Cir., No. 00-1320 and consolidated cases, 7/18/00).

In response to all the controversy, EPA Administrator Christie Whitman announced on July 16, 2001 that she was proposing to delay the effective date of the July 2000 rule for 18 months. On August 9, 2001, EPA issued a Federal Register notice (Volume 66, Number 154, Pages 41875-41876) in which the agency proposed to reconsider some of the choices made in the July 2000 rule and to strive toward making necessary changes in the spring of 2002.

On June 19, 2001, the National Academy of Sciences (NAS) issued a report related to the TMDL rule, which is available on the National Academy Press Web site at www.nap.edu. The report recommended specific changes to the TMDL program, including a two-tiered approach for listing impaired waters, and called for revisions and upgrades to reflect "relevant scientific knowledge." In fact, the NAS report found that many states lack sufficient data to develop TMDLs for all their impaired waters.

According to a draft cost study EPA released on August 3, implementing the TMDL program could cost between $900 million to $4.3 billion dollars annually. The study estimates that the costs to states of additional data gathering to support the TMDL program at $17 million per year. State costs to develop a cleanup plan for each of these 20,000 water bodies are projected to average about $52,000 per plan. EPA is taking public comments until December 7, 2001. A copy of the report and additional information is available at www.epa.gov/owow/tmdl.

Hopefully, the additional time being taken to reconsider the TMDL rule will lead to an improved regulation that will allow stakeholders to move beyond their differences and work together on the important goal of cleaning up our rivers, streams and lakes.




This article originally appeared in the October 2001 issue of Environmental Protection, Vol. 12, No. 10, p. 6.

This article originally appeared in the 10/01/2001 issue of Environmental Protection.

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