Beset by political conflict and lawsuits from practically every side, the total maximum daily load (TMDL) program is ready to make a comeback. Challenges to the 2000 TMDL rule, doubts about the soundness of the scientific principles behind it, and lack of sufficient data for many states to move ahead in dealing with their 303(d)-listed waters have bogged down the TMDL process. Many have questioned its vitality or lost sight of it altogether, even as state-level agencies continue to struggle with the overwhelming number of TMDLs they are on the hook to develop.At last November’s second National TMDL Science and Policy Conference in Phoenix, Chuck Sutfin, the director of USEPA Office of Water’s Assessment and Watershed Protection Division, announced that a new watershed rule is being drafted and will be proposed in February 2003. The final rule is expected to be issued in 2004. This new version will replace the beleaguered 2000 TMDL rule, which was approved by the Clinton Administration but later blocked by Congress.Despite the setbacks, there has been some progress: Since the late 1990s, spurred on largely by lawsuits from environmental and citizen groups, more than 6,500 TMDLs have been developed nationwide. That’s about a fifth of the 42,000 or so that are now on the list to be developed. Sediment, both contaminated and not, is still by far the biggest pollutant, accounting for almost 14% of the impairments the states have reported. As the program moves ahead and more TMDLs are implemented, the implications for the erosion control industry are significant. The 40,000-plus total is under question, though, as many conference participants pointed out. States sometimes listed water bodies to meet a deadline, even with inadequate data, and the issue of “delisting” is now getting a lot of attention. For example, Edward Graham, representing the Metropolitan Washington Council of Governments, noted that in the mid-1990s, Maryland listed not only the nutrient-impaired Chesapeake Bay, but also hundreds of tributaries whose uses are not necessarily impaired. Perhaps hoping to draw public attention to the problem, or perhaps because it seemed logical then that if the bay itself was listed the tributaries must also be, Maryland is now faced with trying to delist some of them. However, as states continue to report on water quality, the problem of “just in case” listings isn’t likely to recur. A new, more realistic five-part form allows states to be more specific and, when necessary, to document their uncertainty. Rather than simply putting it “on” or “off” the impaired list, states can decide how best to categorize each water body and admit the limits of their current knowledge: (1) it’s attaining water-quality standards for its designated uses; (2) it’s attaining the standards for some of its uses, but we’re not sure about other uses; (3) we have too few data to know whether it’s attaining standards for any uses; (4) the water is impaired, but no TMDL is required (because one has already been developed, or because other requirements will result in attainment, or because the impairment isn’t caused by a pollutant); or (5) it’s impaired and we must develop a TMDL. This system allows states to keep track of waters for which more data need to be gathered without dropping them from the screen altogether. The concept of adaptive implementation is getting a lot of play, both in EPA’s new rule and from many of the people who are working to improve water quality in the field. As Sutfin pointed out, the 1972 Clean Water Act itself was based on the idea of adaptive implementation, and he stressed, “It has to be inherent in how we implement the TMDL policy.” Simply put, adaptive implementation involves planning, implementing the plan, monitoring for water-quality response, and then, if necessary, going back to revise or replace the plan. This is consistent with the 2001 National Research Council’s recommendations for the program. Once the deadline passes for NPDES Phase II – and after the inevitable backlog of permits is cleared up – the TMDL program will once again come to the forefront of water quality. As Kari Dolan, a panelist at the conference opening session, noted, the nation has spent billions of dollars over the last 30 years to address point-source pollution, in the form of state revolving fund loans, construction of wastewater treatment plants, and other means. We need the same commitment to fixing nonpoint-source pollution problems, and the TMDL program can at least provide the discipline for us to do that.
Hamilton Water
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Andrea Weissenbuehler
