The total maximum daily load (TMDL) program, besieged by criticism and lawsuits since the current rule was published just a little more than two years ago, might be undergoing yet another shift. As with so many good intentions, the distance between the idea and its execution has gotten broader as time goes on, and a new proposal in the works by the Bush Administration seeks to change the program before it has truly gotten underway. Those in favor of the change say it will make the process more workable; those against say it undermines the Clean Water Act itself.

The program's basic intention, of course, is to make a list of water bodies that are too polluted or "impaired," based on their intended use; to determine which pollutants are causing the problem; and–acknowledging that we can't eliminate everything and that most waters are not going to return to a pristine, predevelopment state–to figure out how much we must limit those pollutants to meet water-quality standards consistent with intended use: in other words, figuring out the acceptable TMDL for each pollutant.

The administration and EPA seem to be attempting two things with this latest change. One is to strengthen the criteria by which water bodies are listed. States are supposed to decide which waters to list using "all existing and readily available water quality—related information," and this is where things get murky. About 40% of the water bodies in the US are classified as impaired under the current rule, and some were listed to meet a deadline despite incomplete data. Both sides recognize the need for better information; neither those who think the program is unfeasibly expensive nor those who desire the swiftest possible progress toward cleanup want to see states misspend their resources, and state agencies maintain it's not feasible to tackle all 40%. The proposal would allow states to remove a water body from the list if it's not certain, based on current information, that it should be there.

Part of the justification for the proposed change is last year's review of the TMDL program by the National Academy of Sciences's National Research Council (available on-line at www.nap.edu/books/0309075793/html). NAS acknowledged that some data are incomplete and recommended states be allowed two lists in place of the current 303(d) impaired list: an "action list" of water bodies for which TMDL development would proceed right away and a preliminary list for those on which more data will be gathered. This is not, however, exactly the same thing as completely removing a water body from the list simply for lack of data.

The second thing the change is attempting is to make cleanup efforts largely voluntary and to limit EPA's oversight and authority. States would have more flexibility in deciding what needs to be cleaned up and how to do it. Vociferous critics point out that since the states haven't managed to do it in the last 30 years, there's no reason to think they'll do so now. The tradeoff is between centralized control, with all the excess baggage and redundancy it can involve, and accountability, without which many things simply don't get done. One concern is the ease with which states would be able to simply reclassify a water body–essentially opting out and declaring polluted waters to be "clean enough" by changing the intended uses.

The NAS report also strongly encouraged both EPA and the states to proceed without waiting for "the science" to be perfected, which, it notes, it might never be–adjustments will always need to be made midcourse, but that's not a reason not to begin. The final form this proposal might take, and public reaction to it, are still to be seen, and the changes might in fact be reasonable midcourse adjustments. To use the NAS report as justification for weakening the program, however, would be a huge backward step.

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EC - September-October 2002