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Kristen M. Fletcher, J.D., LL.M.
 

Under the Clean Water Act, states were to establish standards for water quality by 1979 under the Total Maximum Daily Load (TMDL) mandate. Over 20 years later, and after more than 15 years of nationwide litigation over the TMDL process, Mississippi and Alabama join more than 20 other states in establishing schedules for meeting the TMDL mandate for the states' polluted waters.

What is a TMDL?

A TMDL is the total amount of a pollutant that a body of water can handle from all sources. Once a TMDL is calculated, it is used to establish limits on the amount of a pollutant that can be discharged into a waterbody from all sources, while allowing it to meet its designated water quality standard. With the advent of the Clean Water Act (CWA) in 1972, Congress's main aim to reduce and eliminate pollution of water resources was through the reduction and regulation of point source pollution. The TMDL process puts increased attention on other sources of water pollution, such as pollutants from nonpoint sources such as farms, lawns and others unregulated by the act.

Clean Water Act section 303(d) establishes a method for controlling TMDLs. It states, "Each State shall establish . . . the total maximum daily load . . . established at a level necessary to implement the applicable water quality standards."1 States must identify those waters that do not meet water quality standards. These waters are listed according to a particular use (such as recreational or industrial) and prioritized according to the severity of pollution and the importance of the body of water.2

The next step is to determine the quantity of a specific pollutant, the total maximum daily load, that can be discharged into the waterbed without exceeding the water quality standard. The calculation for a TMDL looks like the following:

Waste Load Allocation (point source pollutants)

+ Load Allocation (nonpoint source pollutants)

+ Margin of Safety

+ Room for Growth

Total Maximum Daily Load

Once this loading capacity is determined, the state then allocates the loading among both point and nonpoint sources. Finally, the states must limit pollution to the levels set by the TMDLs, allocating the allowable amount of pollution quantified by a TMDL among the different dischargers and instituting pollution controls to assure that this level is not exceeded.

Litigation & Settlements

Section 303(d) is not new to the CWA - TMDLs have been a part of the statute since 1972 and were due in 1979. However, the mandate was largely ignored while efforts focused on point source pollution. As a result, beginning in the early 1980s, environmental groups began filing lawsuits to force the EPA, in lieu of the states, to establish lists of impaired water bodies (called "303d lists") and promulgate TMDLs. This litigation continues today and has led the EPA to develop a policy requiring its Regional Administrators to set schedules with the states for TMDLs. The EPA also convened a Federal Advisory Committee which recommended regulations on TMDLs to address implementation and other issues.

In December, 1997, the Sierra Club sued seeking an order to compel the EPA to establish TMDLs for all listed waters in Mississippi.3 This litigation has resulted in a consent decree ordering the EPA to set pollution limits within five years for 470 polluted water segments, including pollution limits within three years for 30 water bodies that have significant pollution levels or special environmental values. For the remaining 232 water segments, pollution limits will be set within 10 years.

Similarly, the Alabama Rivers Alliance, Homewood Citizens Association and private citizens sued to compel the EPA to establish TMDLs in Alabama.4 The resulting consent decree gives the state lead responsibility for the establishment of TMDLs within five years after the consent decree (in 1998).
 

The Future of TMDLs

The nationwide litigation surge may not be complete, however, as there is active debate on whether Congress intended for nonpoint pollution sources to be included in the TMDL. Some contend that section 303(d) was designed to include such pollution but others claim that Congress has addressed nonpoint source pollution in other sections of the CWA and that it is impossible to account for all nonpoint sources and accurately assign portions of the TMDL.

Where does this leave us? The EPA has issued a draft proposal on identifying impaired waters and establishing TMDLs5 which has been criticized as too prescriptive and costly for the states. According to the Mississippi Department of Environmental Quality (DEQ), Mississippi is addressing TMDL program needs by creating a state-wide watershed offensive called Basin Planning. According to Barry Royals of the DEQ, Mississippi is divided into five basin groups with one DEQ member serving as Basin Coordinator and in charge of a team comprised of representatives of state and Federal resource agencies. The Basin Team then embarks on the five-part Basin Planning process: 1) Planning; 2) Monitoring and Data collection; 3) Determination of Pollutant Sources; 4) Allocation of Reduction; and 5) Implementation.

Others are calling for the creation of special watchdog committees on each waterway, recognizing that the TMDL process rivals the most ambitious anti-pollution initiatives in the nation's history.

For information on the status of states' TMDL progress and litigation, see the EPA TMDL page at http://www.epa.gov/OWOW/tmdl/ .
 

ENDNOTES

1. 33 U.S.C. § 303(d)(1)(C) (1999).

2. The "importance" of a body of water is determined by its use such as human use, industrial use, etc.

3. Sierra Club v. Hankinson, No. 97-CV-3683-MHS (N.D. Ga. 1998).

4. Mudd, et. al. v. Hankinson, Alabama Rivers Alliance v. Hankinson, No. CV-97-S-2518-M (N.D. Ala. 1998).

5. 40 C.F.R. § 130 (1999).

University of Mississippi