The TMDL Program to Come: Aftershock and Prelude

• Author: Oliver A. Houck
• Pages: 165-255

Chapter 6:

The TMDL Program to

Come: Aftershock and

Prelude

EPAis in the process of redesigning the CWA’s TMDL program.1Sec-

tion 303 of the Act requires states and, if necessary,EPAto: (1) identify

waters that do not meet water quality standards; (2) establish the TMDLs

for pollutants discharged into these waters that will achieve these standards;

and (3) incorporate these loads into state planning.2These are of course the

classic steps of ambient-based water quality management.

Ambient-based management has not worked well in any media—air, wa-

ter, or waste.3It requires enormous amounts of data. It requires analysis that

is rarely definitive and nearly always litigable. It launches a process that

never ends. These same factors plagued the CWA’s predecessors and the

similarly constructed Clean Air Act (CAA). They have prolonged and frus-

trated decisions under federal pesticide, toxic substances, safe drinking wa-

ter, hazardous waste, and Superfund laws as well. EPA’s task with TMDLs

is not an easy one, then, under the best of circumstances.

The circumstances of TMDLs are not ideal. The Agency has a skimpy

statute to work with, and the Clinton Administration’s efforts to flesh it out

met with a firestorm of opposition. EPA now faces states on red alert for

anything that sounds like a federal environmental requirement, and is well

below baseline in their ability to staff, finance, maintain, or enforce a pro-

gram of this complexity.It also faces powerful resistance from major indus-

tries that have, to date, enjoyed virtual immunity from the CWA, and from

their allies in the U.S. Congress and the current Administration.4In January

2002, the Office of Management and Budget, after private meetings with in-

dustry, placed TMDLs on a short list of “outdated or outmoded” rules.5It

165

did not need to. The old rules were already dead, and EPAhad given suffi-

cient notice that the program would be changed.

This Chapter attempts to summarize the events leading to the adoption of

final TMDL rules in the year 2000, and recent studies, agency initiatives,

and litigation that will affect the new program to come. It concludes with an

assessment of the program now forming, and with recommendations that

would assist such a program in reaching the CWA’s clean water goal.

The Showdown

The year 2000 saw a dramatic showdown between Congress and the execu-

tive branch over TMDLs. In retrospect, it was unavoidable. The Agency,

which was trying to build a carrot-and-stick program, ran into constituen-

cies implacable in their opposition to sticks, too powerful to need to com-

promise, and with ready access to Capitol Hill. What ensued was a

high-stakes clash of power in which EPAwon the battle but its opposition,

strongly backed by Congress, won the war.

The showdown concerned EPA’s first ever, comprehensive regulations

for the TMDL program.6The Agency and the states had been operating un-

der skeletal regulations originating in 1978 that repeated requirements of

the statute but provided little additional guidance.7As written earlier, the

stage was set for underperformance, and underperformance happened.8

Shocked into motion by citizen suits in the early 1990s, EPAstruggled to

get ahead of district court mandates with a flurry of TMDL guidance to the

states that fleshed out preliminary requirements for impaired water listings

and for the contents and schedules for TMDLs themselves.9At the same time

EPAconvened a Federal Advisory Committee Act (FACA) committee with

representation from state water agencies, agribusiness, timber, industrial

point sources, municipal sources, environmentalists, Native Americans, aca-

demics, and, ex officio, EPA and the U.S. Department of Agriculture

(USDA). Its mission was to forge a consensus on program regulations.10

Consensus was not in the cards. At bottom, the timber and agriculture in-

dustries were not going to accept that CWA §303(d) covered nonpoint

sources or that, if it did, it required implementation plans. To these indus-

tries, the CWA’s only lawful vehicle to abate their discharges was the volun-

tary, grant-in-aid program under §319. TMDLs smacked of first ever regu-

lation, a causa belli.11 A Farm Bureau Federation representative wrote that

the program had been “hijacked by a vast national bureaucracy of para-

sites.”12 An article in the fall 1999 issue of Range Magazine called TMDLs

and the Administration’s supporting Clean Water Action Plan “perhaps the

most anti-agricultural document ever produced in Washington, DC.”13 Be-

166 The Clean Water Act TMDL Program

fore EPAhad even proposed regulations the hype was reaching best avail-

able technology (BAT) levels for the English language.

EPA, for its part, could not let the issue slide. Environmental lawsuits

were setting its agenda, case by case, state by state, with differing and at

times highly demanding schedules for impaired waters listings and

TMDLs.14 The Agency and the states were making decisions on the basis of

guidance memoranda15 that had never been subjected to notice-and-com-

ment rulemaking under the Administrative Procedure Act (APA)16and that

carried no force of law.

In July 1999, EPA proposed draft, comprehensive regulations for the

TMDL program17 and launched a series of meetings, briefing sessions, and

telethons in an attempt to calm the waters. To no avail. Most states and af-

fected industries remained adamantly opposed. It is likely that in the tenor

of the times—anti-government sentiment at a high fever and anti-Clinton

sentiment in Congress even higher—no regulatory effort would have met a

different reception. At which point EPA’s choices were to drop nonpoint

sources and implementation plans from the program or face the conse-

quences. Drop them it would not do. Instead, the Agency softened other

aspects of its proposal, clarified that TMDL implementation plans could

be satisfied through “voluntary means and education,” lengthened the

deadlines for TMDL submissions, and hoped for the best.18

The rulemaking took a year. More than 34,000 comments were received,

which, even discounting mass-mailings from industry trade associations,

indicated no small controversy.19 At the same time, with little confidence in

the administrative process, states and nonpoint industries turned up the heat

and took their case to Congress.20 They were warmly received. Congressio-

nal committees held field hearings stocked with farmers and small woodlot

owners afraid, in some cases told, that EPAwas going to require permits for

the use of their land.21 Committees held hearings on Capitol Hill in which

their mistrust of EPAwas so marked that one took the unprecedented step of

insisting that Agency witnesses provide their testimony under oath.22 Com-

mittee members accused EPA of “secret meetings” with environmental

-

ists.23 Learning that an Undersecretary of Agriculture had cooperated with

EPAin developing a timetable for nonpoint source TMDLs, a representa-

tive from Arkansas inserted a budget rider in the agriculture appropriations

bill removing the Undersecretary from authority in the matter.24The legisla-

tion passed.25

By April 2000, battered by the House and Senate, EPAbegan adding con-

cessions to its most vocal opponents. It would drop its proposal to include

“threatened waters” in TMDLs, despite its belief that attending to these wa-

ters early would save time and money later on.26 It would drop a require-

ment that gave waters used for human consumption and for endangered spe-

The TMDL Program to Come: Aftershock and Prelude 167