TMDL: "Too Many Debates Left"?

Larry Nadeau
Director of Public Works
City of Saco, Maine

As we continue to interpret the Total Maximum Daily Load acronym-"TMDL"-the question of many is, where and how did this regulation come to being? We look at the overall program's intent and we must applaud the Environmental Protection Agency's effort to put forth measures to assisting in the overall national effort, regaining cleaner waters for all. Public works professionals have worked long and hard for several years towards this goal and have accomplished remarkable progress by utilizing common sense approaches, without regulatory persuasion and within budgetary appropriation. Were we losing the battle?

As we prepare to embark the TMDL roller coaster ride, one must become familiar with the regulation's intent and where it all began. Let's back up a few years and visit the historical perspective to TMDLs.

It is recommended that one visit the web page below. This is probably the best short and detailed overview one could find readily, highlighting the evolution of the Clean Water Act. It is easy to digest and offers a systematic approach for comparison. The web page is http://www.epa.gov/owow/cwa/index.html.

During its deliberations, EPA was flooded with TMDL comments. The approximately 34,000 comments received caused EPA to consider revisions to the earlier proposed TMDL program. With such an overwhelming public interest to the TMDL, final call for comment and action was delayed on a few occasions to allow EPA satisfactory time to respond.

In an unprecedented move, EPA took center stage and pushed through its TMDL regulation on July 13, 2000. Meeting a barrage of controversial comments because of such action, the House of Representatives Transportation and Infrastructure Committee issued a Congressional rider in a FY 2000 military construction/supplemental appropriations bill, which prohibits EPA from implementing this rule until October 1, 2001. This action will require that the program continue to operate under the "old" rule, 1992 TMDL regulations revised.

It is expected that the regulation will have far-reaching impacts to both public and private dischargers. So, what is a TMDL?

Total Maximum Daily Load is a calculation of the maximum amount of a pollutant that a water body can receive and still meet water quality standards, and an allocation of that amount to the pollutant's sources. It is the sum of the allowable loads of a single pollutant from all contributing point and non-point sources. The calculation must include a margin of safety to ensure that the water body can be used for the purposes the State has designated. The calculation must also account for seasonable variation in water quality.

States, Territories, and Tribes set water quality standards. They identify the uses for each water body-for example, drinking water supply, contact recreation (swimming) and aquatic life support (fishing), and the scientific criteria to support that use.

Bringing the new 2000 regulation forward, EPA agreed to a number of changes in the program in response to the comments received after its initial proposal, including those from members of Congress. The major changes include:

  • Providing states with significant new flexibility in implementing the program;
  • Dropping provisions that could have required new permits for forestry, livestock, and aquaculture operations, significantly enhancing state flexibility;
  • Giving states four years instead of two years to update their polluted waters inventories;
  • Allowing states to establish their own schedules for when polluted waters will achieve health standards, not to exceed 15 years.
It is without a doubt that we will bear financial impacts from the new regulations. As to the cost and need, we see a need to incrementally follow in the footsteps of the regulations development as the implementation becomes easier and clearer.

With that being said, on December 4, 2000 or thereabout, EPA sent out a notice seeking comments on state resources required for development and implementation of Total Maximum Daily Loads' estimated annual costs to the regulated community, and estimated costs to small businesses resulting from regulatory changes to the TMDL program. EPA was accepting comments submitted by January 3, 2001.

The implementation program that was recently put into high gear, because of the several lawsuits filed by environmental groups against EPA and other agencies, is gaining momentum. The political process has also influenced recent regulatory actions. From the lawsuit point of view, industry has countered in an effort to gain respective consideration in an effort to have affordable and reasonable regulations.

So, what will be the cost of clean? It is estimated that costs will be in the billions of dollars. What justification did EPA use for their cost-benefit analysis? During September 1999, the General Accounting Office prepared a report to congressional requesters. The report was to address concerns that the EPA brought forth only limited attempts to assess actual impacts of federal regulations. The review discusses the benefit of retrospective studies versus conventional prospective analyses-those that provide information for decisions on proposed regulations.

Historically, EPA has done very limited retrospective studies because of cost, claiming that this effort would limit their abilities to developing new regulations based on limited discretionary funds and resources. The document's conclusion states, "Retrospective studies are difficult to do, but they are a potentially valuable tool for such reassessments. We believe that EPA's current ad hoc approach gives no assurance that economically significant regulations will be subjected to review. A systematic, planned approach would help EPA to foster retrospective studies in the future," the GAO reported.

In closing, it may be evident that our pace towards water quality issues was not sufficient. Lending to this delay and sometimes limited successes, most agencies have had to compete vigorously for very limited funding. The competition for water quality programs versus other municipal programs has not seen the flavor of importance as is present today. Regulations will require municipally owned and operated facilities to increase maintenance activities along with other associated residual disposal costs. Therefore, possibly we did need the regulations to further our cause towards water quality issues. How will we accomplish the daunting task of meaningful results, and at what cost?

Demonstrated cost-benefit analyses must support new regulations along with common sense approaches and, when possible, are a preferred option when speaking to municipal representatives. It is also suggested that regulations should from time to time undergo reassessments in keeping with the established goals. Such practices would be instrumental in keeping the public trust.

Reasonable financial support addressing known water quality problems with incremental gains over an extended period of time seems to be the "want" of many professionals, without the seeming unachievable "drop dead hour of midnight." EPA would seem to have hinted support towards financial assistance. During a Congressional Testimony by J. Charles Fox on June 22, 1999 to the OCIR about Clean Water State Revolving Funds, he stated the following:

"We at EPA look forward to working with you and State and local governments in shepherding a range of important financial assistance programs and initiatives-including the Clean Water State Revolving Funds (SRFs)-into the twenty-first century."

To this end, it is understood that the EPA objectives for the 2000 Rule will:

  • Establish effective and flexible framework to move the country toward the goal of clean water for all Americans;
  • Establish a process for making decisions in a common sense, cost-effective way on how best to restore polluted water bodies.
From here, we must start taking steps to prepare our communities for the unavoidable compliance. Attending and participating in training sessions about water quality issues is truly necessary. APWA has successfully hosted training sessions over the years in furthering its commitment to its members. Public works professionals will also have to be educators to many in furthering our water quality program commitment along with funding requirements to making it happen. Consult with your chapter and/or national association to receive information to the next training opportunity you may desire. The Water Resources Management Committee is always seeking funding support through APWA's budgetary process and outside agencies, such as EPA. Support us with your request for such training programs. Together we can win the TMDL debate with great results for all Americans.

In addition, you may wish to visit the following web pages for more information:

Expected Changes to the New TMDL Regulations Compared to the Current Regulations, www.epa.gov/owow/tmdl/fact12pts.html.

June 8, 2000 Letter from Charles Fox to Senator Smith Chairman-Committee on Environment and Public Works, www.epa.gov/owow/tmdl/smithforestry.html.

Larry Nadeau can be contacted at 207-284-6641 or by e-mail at lnadeau@maine.rr.com.