December marked the last of USEPA's series of public meetings seeking stakeholders' views on the TMDL and NPDES programs, another delicate step along the fine line the agency has been treading. Criticism has come primarily from two fronts: from environmental groups that complain EPA isn't moving ahead fast enough with a national clean-water agenda and from those charged with developing TMDLs who say that incomplete water-quality data, incorrect designated uses, and unrealistic deadlines make the program unwieldy and prohibitively expensive.

When the TMDL rule was first published in July 2000, it unleashed a flurry of lawsuits; a year later, EPA delayed the original rule by 18 months, to April 30, 2002. In doing so, EPA also asked for a stay of litigation to allow time to review and revise the rule. The public meetings were part of this process. "Instead of expending resources in lengthy litigation," the agency stated, "EPA believes it can speed up the process of putting in place a more workable program, while building a foundation of trust among shareholders."

Congress, which held back funding to proceed with the rule as originally written, had asked for clarification on the how's and why's of the TMDL program. One result was an evaluation of its scientific merits, conducted by a National Research Council committee and released in June 2001, just weeks before EPA requested the delay. Assessing the TMDL Approach to Water Quality Management is available on-line at www.nap.edu/books/0309075793/html and also through the National Academy Press.

Of NRC's several major recommendations, three stand out. The report calls for refining the whole designated-use concept because the Clean Water Act's "fishable and swimmable" standards are too broad to be practically useful. Recommending that states set more-specific designated uses–which some already do–the report also realistically acknowledges that the water quality achieved for a particular designated use might not be the same as that which existed in the "predisturbance condition" of a water body.

The report also recommends that, rather than compile a single 303(d) list, each state should have the option of reducing its TMDL backlog by preparing both a preliminary list and an action list. This division would allow water bodies for which adequate data simply haven't been collected to be temporarily placed on a preliminary list–moved out of the way, essentially, until more complete information is available–so that more critical cases can be handled faster.

A third recommendation, more philosophical in scope, also has potentially the greatest impact on the way the program will be carried out. Even while making allowances for additional time to gather and refine data, the NRC acknowledges that a body of knowledge or an understanding of cause and effect is rarely complete and therefore advocates "adaptive implementation"–regular reassessment of a TMDL plan to see if it's doing what it's supposed to do and a means of revising it if it isn't. "Calls to make policy decisions based on ‘the science,' or calls to wait until ‘the science is complete,' reflect a misunderstanding of science," the committee wrote, urging EPA and the states to "move forward … in the face of this uncertainty while making substantial efforts to reduce uncertainty."

This sounds, on one hand, almost like an evasion, but in fact it's the only way to deal realistically with the many constantly changing variables: pollution sources, best management practices, improved modeling and assessment techniques. Without the ability to make course corrections when needed, EPA can't hope to hold the trust of the shareholders. Worse, given the complexity and cost of the program, without ensuring a built-in reality check, EPA will find it difficult even to begin.

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