Overboard? The Complexity of Traditional TMDL Calculations Under the Clean Water Act

• Date: 01 December 2019

49 ELR 11150 ENVIRONMENTAL LAW REPORTER 12-2019

Overboard?

The Complexity of

Traditional TMDL

Calculations

Under the

Clean Water Act

by Matthew DeGioia

Matthew DeGioia is a 2020 J.D. candidate at the

George Washington University Law School and

Senior Managing Editor of the George Washington

University Journal of Energy and Environmental Law.

Summary

e Clean Water Act (CWA) requires states to cal-

culate total maximum daily loads (TMDLs) of indi-

vidual pollutants that impair their waters. But the

means by which TMDLs are calculated are impre-

cise, because (1) it is dicult to geographically isolate

the eects of a single pollutant; (2) it is dicult to

account for the eect of numerous catalysts that alter

the calculation; (3) it is dicult to isolate the eects of

a single pollutant source on an individual water body;

(4) it can be dicult to categorize a source either as

point or nonpoint; (5) extant methods fail to fully

account for catalytic variables and/or assume current

regulatory programs are working more eciently than

they actually are; and (6) the federal government has

not allocated sucient funds to allow state agencies

to perform proper analyses. To mitigate these eects,

Congress should amend the CWA to permit states to

calculate TMDLs by proxy in areas in which proxies

are found to be strongly correlative with water quality.

is would bring clarity to interpretation of the Act

and exibility in its execution.

American farmers live in a perpetual catch-22. On

the one hand, the U.S. agricultural industry has

been hailed by many as a model of eciency and

innovation, as new techniques of growing and har vesting

crops have been implemented to maximize production

to feed more than 327 million citizens and foreign buy-

ers while mitigating local environmental impacts.1 On the

other hand, the continued release of macronutrients, which

are necessar y for crop and animal growth, into surrounding

water bodies has continued to adversely aect loca l water

bodies to the point where increased regulatory action has

been considered by the U.S. Congress, including passing a

substantial portion of nutrient removal costs to farmers.2

A common eect of excess nutrient release into local water

bodies is eutrophication, a process in which enrichment of

water causes alga l growth that leads to oxygen depletion,

the blocking of sunlight to other organisms, and the con-

tamination of the water supply by toxins.3

While research and tech nological innovation has led to

the development of improved best management practices

(BMPs) to ensure that excess nutrients are not deposited

into local waterways,4 the costs of implementing such

practices are steep.5 Further, since the regu latory scheme

in managing pollution from agriculture is not binding, in

that it is mainly built around “research, education, out-

reach, and voluntary technica l and nancial incentives”

from the federal government, it is unlikely that fa rmers

would be willing to take upon themselves additional costs

that can be prohibitive, depending on the nancial stabil-

ity of the farm.

However, it is important to address whether imple-

menting such practices across the board is even nece s-

sary. Are current pollutant loads being calcu lated in the

most accurate way possible? If not, are water pollutant

loads being overstated to the detriment of local farmers?

is issue is most apparent in the calcu lation of total

maximum daily loads (TMDLs), which the Clean Water

Act (CWA or the Act)6 requires states to perform if cer-

tain water bodies fai l to meet water quality standards.7

TMDLs are to be calcu lated for each individual pollutant

preventing the water body from meeting water quality

1. M S, C R S, R43919, N

 A P: A W Q O 1 (2016).

2. Id. at 23.

3. Id. at Summary.

4. Id.

5. Id. at 23. For example, the cost of removing nitrates from drinking water

supplies is more than $4.8 billion per year. While the bulk of this cost is

borne by large water utilities, it is estimated that if the agricultural industry

were required to pay based on its contribution to nitrate loading, its share

would be about $1.7 billion per year.

6. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.

7. 33 U.S.C. §1313(d)(1)(A); see also Pronsolino v. Nastri, 291 F.3d 1123,

1139, 32 ELR 20689 (9th Cir. 2002).

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