Northwest Environmental Advocates--Programs

TMDLs: The Key to Unlocking the Clean Water Act

"TMDL" or "Total Maximum Daily Load" is a scientifically-based, quantitative, clean-up plan to address the unsafe levels of pollution and habitat damage that plague the nation's waters. The program originated in the 1972 Clean Water Act. The U.S. Environmental Protection Agency (EPA) retains ultimate legal responsibility for developing TMDLs, although the law's intent is that states carry out the program. The TMDL program makes tangible use of the millions of dollars-worth of data that are gathered every year on rivers, streams, lakes, and estuaries by matching these data against the law's measuring sticks for pollution and species health: state water quality standards. Waters that violate state standards, termed "water quality limited segments," are placed on a list of impaired waters, known as the "303(d)(1) list." These findings may be based on excess levels of pollution (e.g., temperature, dioxin) or unhealthy levels of natural constituents (e.g., dissolved oxygen, pH). Other types of impairment such as insufficient instream flow, habitat loss, and detrimental impacts to aquatic populations (e.g., depressed reproductivity due to toxic contamination, threatened or endangered species) also may be the basis for a 303(d)(1) listing.

Once a waterbody is on the list, a TMDL must be developed for each of the pollutant violations. What constitutes a TMDL has changed over time and is still being formulated as agencies struggle to make them relevant to land management decisions, federal regulations are being changed, standards are being altered to incorporate biological and physical concerns, models are under development, and legal interpretations change. At a minimum, current regulations describe a TMDL as being the sum of waste load allocations for point sources, load allocations for non-point sources and natural contributions, a margin of safety, and incorporation of any necessary seasonal variations. A better way to describe the process is that for a given seasonal flow in a waterbody the TMDL determines an amount, or loading capacity, that a waterbody can assimilate without causing violations of standards. This total amount is then divided, with each source being given an allocation of the total load.

What takes place after the loads are allocated to sources is the most obscure part of the TMDL process B and also the most critical to the program's success. TMDLs do not implement themselves. Rather, they rely upon a wide variety of regulatory, pseudo-regulatory, and voluntary state, local, and federal programs for implementation. These other mechanisms include, for example, Oregon Senate Bill 1010 (requiring agricultural management plans for areas subject to TMDLs), use of state forest practices acts, enforcement of instream water rights, and increased riparian buffers through state forest practices acts. The presence of a TMDL alters the application of these existing programs by requiring that its scientific analysis -- not political negotiation or guesswork -- dictates the degree to which the status quo must change. However, in order to translate a TMDLs into actual on-the-ground change, it must have an implementation plan that sets out the prescriptions: the necessary regulatory steps, the legal authority, monitoring plans and reassessment tools, interim and final goals, and time lines.

Despite the 27 years that have passed since Congress created the TMDL program, TMDLs remain highly theoretical. Although hundreds have been developed, they are but a minute fraction of those remaining to be done. Existing TMDLs suffer from a variety of defects, ranging from their bearing no resemblance to what the regulations require (e.g., a dilution analysis for a point source discharge with no reference to actual river water quality) to being incomplete, but important, cutting-edge experiments. Although the program's environmental results will be tied directly to the quality and usefulness of TMDLs, the vast majority of litigation to date has been focused on getting the U.S. Environmental Protection Agency (EPA) and the states just to develop the TMDLs. There has been a lot of it. Using a legal theory that a state's inaction could constitute a "constructive submission" requiring EPA to respond, established in Scott v. Hammond, 741 F.2d 992 (7th Cir. 1984), environmental plaintiffs have filed or threatened over 30 cases in their attempt to jumpstart the TMDL program. Whether under court orders or settlements, many states now are operating under a wide range of time frames -- from five to twenty years -- in which to complete their TMDLs. This wave of litigation against EPA for its failure to ensure development of TMDLs began in Oregon.

Oregon's Delay-Plagued TMDL Program

Oregon's mostly unproductive entanglement with the TMDL program began in 1986 when, to settle a lawsuit by the Northwest Environmental Defense Center (NEDC), EPA signed a consent decree promising that all TMDLs would be developed for the state within five years. At the time, Oregon's list of impaired waters was exceedingly small, around 15 waterbodies. After the consent decree, Oregon kept its list artificially short in order to lessen the burden of complying with it. Although the list grew steadily over the years, the Oregon Department of Environmental Quality (DEQ) balked at producing a list reflective of the state's actual poor water quality. Northwest Environmental Advocates filed a lawsuit in 1992, resulting in Oregon's 1994-96 list. By 1998, the list had grown to encompass 13,892 miles of rivers and streams, many of which are listed for more than one type of impairment.

Although DEQ''s recent lists have been significantly better than previous ones, they are still grossly inadequate. For this reason, in 1996 NWEA sued EPA again (13Q) for its failure to ensure a complete list and because the federal agency had failed to develop TMDLs in a timely fashion. The Oregon DEQ intervened in the case, as did a number of industrial representatives, and settlement discussions ensued. Although the case remains unresolved, the negotiations produced a Memorandum of Agreement (MOA) between the EPA and the DEQ. A consent decree has been signed by the parties but court approval is pending Meanwhile, ranchers and farmers have launched an attack on Oregon''s TMDL program in the Baker County case, Hawes v. Oregon.

Washington: One Step Forward, Two Back

Litigation by NWEA against EPA for its failure to develop TMDLs in Washington began in 1991. Although the plaintiffs failed in their attempt to make the state a party in the case, Washington has played an active part in the two settlements that have ensued from this long-standing case. Dissolution of the first settlement because the state failed to carry out its terms led to a new settlement signed in January, 1998. Unique in the country, it contains a Memorandum of Agreement (MOA) in which Washington commits to preparing implementation plans for its TMDLs. The agreement also includes commitments regarding the establishment of priorities, legal authorities that would be used to implement TMDLs, and a 15 year schedule.

The Washington Legislature chose not to fund the TMDL settlement in 1998. Instead, the House Committee on Agriculture and Ecology allocated $250,000 to hire a consultant to prepare a report. By the 1999 session, the Committee had drafted a bill that amounted to little more than a transparent attempt to gut every aspect of Washington's TMDL program. The bill, which eventually passed the House, was rejected by the Senate but continues to have a lingering effect on the TMDL program. The House had attached a proviso to its budget, authorizing funds for the TMDL program only if a bill with a certain number passed. In a special session held in May,1999 the Senate passed a bill with the correct number, but stripped of its 20-odd pages of TMDL provisions, putting the funding for the TMDL program in question.

In addition to the legislature's attempts to eviscerate Washington's TMDL program, EPA Region X spearheaded efforts of its own. Allegedly to induce timber industry agreement for improved logging practices, the agency offered to postpone development of TMDLs associated with logging for ten years. The result of this deal is the Forests & Fish Agreement. At the same time, the regional EPA office began developing ways to undermine the role of TMDLs in restoring endangered species. The combined efforts of the state and EPA have placed the current settlement in serious jeopardy, illustrating exactly why so many citizens groups favoring TMDL programs have turned to litigation across the country.

New National Regulations to Clean Up Unsafe Levels of Water Pollution

As a consequence of dozens of lawsuits filed across the country to force EPA and the States to carry out the TMDL program, EPA convened a TMDL Federal Advisory Committee (FACA) to make recommendations on how to improve the program. The 20-person FACA Committee made over 100 recommendations to EPA in June, 1998, on needed changes to regulations, program management, and technical support. As a result, EPA issued a proposed set of new regulations that would significantly strengthen the TMDL program, particularly with regard to controlling the pollution from land uses, such as logging and farming. These rules are under attack by members of Congress who want to protect polluters from having to reduce pollution under the Clean Water Act.

NWEA's Comments to EPA on Draft TMDL Rule, January 2000
Proposed EPA Rules on TMDL Program and Silviculture
NWEA's Testimony before Senate Subcommittee on Proposed TMDL Rules
Statement by Senator Ron Wyden before Senate Subcommittee

TMDL Policy Considerations

As EPA and the Northwest states endeavor to develop TMDLs, the program appears to be driven by two major premises, one that supports making TMDLs a positive force in achieving environmental protection, and the other that views TMDLs as a bureaucratic burden. Thus, the agencies have concluded both that 1) TMDLs must be made useful, focusing on practical considerations that tie their scientific analysis to prescriptions for on-the-ground changes, and 2) too many TMDLs remain to be done. They are torn between another set of dichotomies related to restoration of threatened and endangered species in the region. On one hand, the agencies posit the TMDL program as a powerful "new" tool for restoring salmon and other cold-water species, while on the other hand they find it easier to treat TMDLs as a useless overlay -- a rubberstamp -- to existing programs. The agencies have attempted to reconcile these different perspectives and approaches, resulting in experiments with names such as "landscape TMDLs," "one-stop shopping," and "surrogate measures"

"One-stop shopping" is intended to address simultaneously the requirements of the Clean Water Act and the Endangered Species Act (ESA). After years of promoting the notion that the two statutes together could provide more protection for water quality and species than either could separately, federal and state agencies in the Northwest have begun to take a different tact. Agencies now are trying to capture all of the commitments that a land holder already has negotiated as part of a Habitat Conservation Plan (HCP) under the ESA and regurgitate it as a TMDL. While this may entail new technical analysis about the effects of the proposed changes in land management, it is obviously a post hoc rationalization. In lieu of a TMDL that will ensure changes as sufficient and swift as water quality standards require, the land owner is simply being given guarantees that clean water agencies will allow business as usual for the 50 or 75 year life of the HCP.

"Surrogate measures" represent an approach by the EPA to make the technical discussion of pollutant loads more relevant, translating, for example, British Thermal Units (BTU) into the more readily-applied and measured concepts of percent shade on a stream and erodible stream banks. EPA and the Bureau of Land Management (BLM) experimented with this idea in the development of a TMDL in conjunction with a water quality management plan for the South Steens grazing allotment in Oregon. While this TMDL was put on hold after the public comment period, Oregon pursued the concept of surrogate measures for creeks in the Siskiyou National Forest. Called the Sucker-Grayback Water Quality Management Plan, it was recently approved as a TMDL by EPA Region X.

Conclusion

That TMDLs will result in significant reductions in pollution is without question. Whether the program will be implemented to fundamentally alter the way lands are managed for farming, logging, grazing, and urban development will depend upon EPA's new federal regulations and the states' willingness to do what is necessary to deliver the clean water the public wants. Finally, as illustrated by events in the Northwest, EPA regional offices will also play an important role in supporting or undermining the TMDL program.

133 SW 2^nd Ave., Portland, OR 97204-3526 (503) 295-0490 FAX 295-6634