TMDLs: The Regulatory Transmogrification of Nuisance
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, 1983”—33 USC 1251(a)2)
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)
A legacy classification system • A—potable water supply • B—body contact recreation • C—fish propagation • D—fish survival • [E—waste disposal]
Alternatives to the legacy approach • Index of Biotic Integrity (Ohio) • Habitat-based use classifications (Chesapeake Bay) • Great Lakes Water Quality Agreement “beneficial uses” • New York’s experimental “ecosystem approach”
Total Maximum Daily Loads:Bringing 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)
A “Gap Analysis”of the Water Quality System (or, why you can’t get there from here, but perhaps still ought to try)
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
The trouble with criteria(1980 methodology): • Trying to quantify assimilative capacity on a generic basis (no retention time) • Sensitive species don’t 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
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
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
The trouble with TMDL permit writing • Inadequate monitoring/modeling data • Nobody knows what a good implementation plan looks like • Can’t squeeze significant reductions out of point sources • Can’t regulate NPS like point sources, or lynch mobs will form • Southview Farm, CAFOs • Silviculture in the Northwest
A program “driven by citizen suits” • “Constructive submission” • Revoking state delegations • Nondiscretionary duty to promulgate TMDLs for WQLS
Houck’s 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 . . .
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 can’t be regulated directly.
Where TMDLs are now • 40-plus lawsuits pending • EPA cranking out guidance • Pronsolino upholds nonpoint-only TMDLs • Implementation in limbo • Listing games being played