Capitol Comment 286 – Total Maximum Daily Loads: EPA’s Sleight of Hand

On July 11, the Environmental Protection Agency (EPA) issued a rule finalizing major revisions to the Total Maximum Daily Load (TMDL) program, a long-dormant section of the Clean Water Act. The new rule applies to an estimated 20,000 water bodies throughout the United States, which, it is claimed, fail to meet water quality standards. The new TMDL rule represents perhaps the largest expansion of EPA’s regulatory authority America has ever seen. Virtually all land use in the United States could fall under the scope of a regulation of which most Americans have never heard.

An afterthought brought to life. A TMDL is essentially a “pollution budget,” which specifies the maximum amount of a pollutant a water body can receive and still comply with water quality standards. For water bodies not meeting the standards, a TMDL allocates pollutant reductions among nearly all sources in a watershed.

TMDLs were almost an afterthought of the 1972 Clean Water Act. The primary focus of the Act was the control of factories, sewage plants, and other “point-sources” of pollution. These were required to have discharge permits issued by EPA or state agencies. In the event that point-source controls alone were unable to bring a water body into compliance with standards, the Act required states to develop a TMDL, or limit for each pollutant in question. This would encompass non-point sources such as agricultural and urban runoff. Despite their inclusion in the Clean Water Act, EPA and the states virtually ignored TMDLs for decades, primarily because it was felt that they were unworkable.1 Lawsuits by environmental groups, however, brought them back to life.

Clinton announces major changes. In August 1999, the Clinton administration proposed major changes to the TMDL program. These set a 15-year schedule for states to develop TMDLs, established strict requirements for what must be included in a TMDL, required a specific implementation plan, gave special interest groups the right to petition EPA to establish a TMDL if a state “substantially failed” to do so, and gave EPA authority to reclassify certain non-point sources as point sources, thus requiring them to have a discharge permit.2 Although the administration claims that the changes will cost states approximately $500 million, the real cost could be closer to $20 billion over 15 years.3

Opposition to the proposal was widespread. The EPA received over 34,000 comments, particularly on the provisions dealing with reclassifying non-point sources.4 A senior Department of Agriculture official even suggested that EPA had no authority to regulate agricultural activities through TMDLs, although this was quickly disavowed by the administration.5

No authority, no science. In this case, the Department of Agriculture was right the first time. The Clean Water Act makes it quite clear that EPA has no authority to require permits from non-point sources. In reality, states are not required to implement TMDLs at all, so long as they are willing to forgo federal dollars.6 Of course, as the courts have pointed out, “once federal environmental grant money begins to flow, state regulatory agencies become dependent on it.”7

Legal issues aside, TMDLs — and the extensive land-use regulations needed to implement them — will be based on little more than guesswork, not actual science. Quite simply, the water quality data needed to develop TMDLs is virtually non-existent. Only three states have enough data to develop TMDLs.8 Given the complete lack of water quality monitoring done by the states, even the 15-year time frame envisioned by EPA is insufficient for most states to catch up. Instead, states will be forced to rely on “evaluated data.” Evaluated data is either data that is more than five years old, anecdotal evidence, or mere conjecture about how land use activities might affect water quality. This can only result in excessive land-use regulations, although there is little doubt that environmental groups had that in mind all along.

EPA outflanks Congress. As part of the FY 2001 military construction bill, Congress approved a provision that blocked funding for completing the new TMDL program. However, by issuing the final rule on July 11th — before President Clinton signed the bill — the TMDL revisions were no longer “new,” giving EPA a loophole to ignore the funding prohibition.

To subdue the anticipated outrage, EPA Administrator Carol Browner claimed that the agency would respect Congress’ intent by delaying the effective date of the changes to October 1, 2001. EPA also exempted forestry, aquaculture, and animal feeding operations from federal interference — at least temporarily. Finally, EPA made TMDLs a “major rule” under the Congressional Review Act, giving Congress 60 days to reject them.

Despite the concessions, members of Congress were furious over the agency’s maneuverings. Senator Larry Craig (R-Idaho) called Browner’s actions “a slap in the face,” and Rep. Marion Berry (D-Ark.) fumed: “All of this is no more than a political power grab by the people who are running the EPA. They have no sound scientific reason for doing any of these things.”9

The next step? There is certainly a case to be made for overturning the TMDL rule. It remains to be seen whether Congress will act to enforce what was obviously its clear intention — blocking the rule — or if the courts will do so first.

1 Dr. Richard Halpern, “TMDLs: The EPA Fishes Something Nasty from the Clean Water Act,” Center for Global Food Issues, 2000.

2 U.S. EPA, “Proposed Revisions to the Total Maximum Daily Load Program,” August 1999.

3 Environment and Energy Daily, February 14, 2000.

4 Testimony of J. Charles Fox, Assistant Administrator for Water, U.S. EPA, May 6, 2000.

5 Associated Press, April 6, 2000.

6 Pronsolino et. al. vs. U.S. EPA, No. C 99-01828 WHA.

7 Ibid.

8 U.S. General Accounting Office, “Water Quality: Identification and Remediation of Polluted Waters Impeded by Data Gaps,” March 23, 2000.

9 The Washington Post, July 12, 2000.

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Citizens for a Sound Economy Capitol Comment 286:
Total Maximum Daily Loads: EPA’s Sleight of Hand
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