TMDLs:

1
TMDLs

• The Regulatory Transmogrification
• of Nuisance

2
CWA fishable-swimmable goal

• it is the national goal that wherever
  attainable, an interim goal of water quality
  which provides for the protection and propagation
  of fish, shellfish, and wildlife and provides for
  recreation in and on the water be achieved by
  July 1, 198333 USC 1251(a)2)

3
The WQ System as Brought Into the CWA in 1972

• States classify streams for best use
• EPA issues criteria for each pollutant
• States translate criteria into standards
• States submit to EPA lists of WQ-limited stream
  segments
• State permit writers incorporate standards into
  permits and/or NPS controls (ideally, through
  TMDLs)

4
A legacy classification system

• Apotable water supply
• Bbody contact recreation
• Cfish propagation
• Dfish survival
• Ewaste disposal

5
Alternatives to the legacy approach

• Index of Biotic Integrity (Ohio)
• Habitat-based use classifications (Chesapeake
  Bay)
• Great Lakes Water Quality Agreement beneficial
  uses
• New Yorks experimental ecosystem approach

6
Total Maximum Daily LoadsBringing Point and
Nonpoint Sources Together
TMDL WLA LA MOS
Waste Load Alloca-tion (Point Sources)
Load Alloca-tion (Nonpoint Sources)
Margin of Safety (fudge for future
development,poor data)
7
A Gap Analysisof the Water Quality System

• (or, why you cant get there from here, but
  perhaps still ought to try)

8
The trouble with classification

• Based on assimilative capacity rather than
  natural baseline
• Old statutes/regs biased toward status quo,
  economic uses
• Fishable/swimmable limit leaves a lot of
  discretion to states (carp v. trout, bathing
  beaches)
• Process is low visibility, low participation, low
  leverage

9
The trouble with criteria(1980 methodology)

• Trying to quantify assimilative capacity on a
  generic basis (no retention time)
• Sensitive species dont do well in labs
• Multiple-species proof requirements
• Bioconcentration from direct uptake, not food
  chain
• Based on average fish consumption
• Based on 170-lb. male worker
• Ecosystem effects ignored

10
The trouble with state standard-setting

• Slow, cumbersome, lagged
• Industries may have technical and political
  advantage
• Low visibility, costly to participate
• Takes economics into account

11
The trouble with listing impaired waters

• No timetable in 303(d)--from time to
  time--until 1991 when EPA merges with 305(b)
  (even-year reports on the condition of waters)
• A bunch of guys sitting around a table
  data-free analysis, room for game-playing
• No penalty for failing to list, until
  constructive submission doctrine evolves

12
The trouble with TMDL permit writing

• Inadequate monitoring/modeling data
• Nobody knows what a good implementation plan
  looks like
• Cant squeeze significant reductions out of point
  sources
• Cant regulate NPS like point sources, or lynch
  mobs will form
• Southview Farm, CAFOs
• Silviculture in the Northwest

13
A program driven by citizen suits

• Constructive submission
• Revoking state delegations
• Nondiscretionary duty to promulgate TMDLs for WQLS

14
Houcks Assessment of TMDLs

• 50,000 WQLS may be eligible for TMDLs
• 1 million per study
• A 50 billion program before you remove an ounce
  of pollutants
• Technology-based limits were a stroke of genius
• Nevertheless, the TMDL game is important . . .

15
The logic of TMDLs is political rather than legal
or economic.By starting from impacts in the
stream, you can get political buy-in from
interests that cant be regulated directly.
16
Where TMDLs are now

• 40-plus lawsuits pending
• EPA cranking out guidance
• Pronsolino upholds nonpoint-only TMDLs
• Implementation in limbo
• Listing games being played