The Myths and Truths That Threaten the TMDL Program

Linda A. Malone

Marshall-Wythe Foundation Professor of Law, William and Mary Law School. B.A. 1975, Vassar College; J.D. 1978, Duke Law School; LL.M. 1984, University of Illinois College of Law.

I thank Fred Bosselman and David Callies for first introducing me, as a first-year associate attorney, to the interrelationship between land use and the environment, and Oliver Houck for his input and continuing commitment to a total maximum daily load program that works.

[32 ELR 11133]

Thirty years in the making, the total maximum daily load (TMDL) program of § 303(d) of the Clean Water Act (CWA)¹ has never seemed farther from implementation. As state governments increasingly have flexed their regulatory muscles with respect to the environment, ironically they have shied away—to put it mildly—from their environmental responsibilities under the TMDL program. Their reticence and outright opposition to improving water quality are that much more striking given their adamant insistence in 1972 that this obligation be reserved to and exercised by them.

After reviewing the checkered history of the program since 1972, this Dialogue will examine state criticisms of the program for validity. Below the shallow surface of these criticisms, some unpleasant truths emerge regarding the very purpose of the TMDL program, a purpose necessary to improving the water quality of impaired waters within the United States. In light of these truths, and the Bush Administration's recent withdrawal of the final regulatory program, the dim prospects for the program will be projected. Finally, one inevitable truth emerges—the only insurmountable problem with the TMDL program is the lack of political will, at both the state and federal levels, to implement it.

A Troubled Past

Established in the 1972 CWA, the TMDL program provides a process for identifying waters that fail to satisfy state water quality standards, calculating the TMDLs of a pollutant that a water body can assimilate while maintaining applicable water quality standards, and incorporating TMDLs into the state quality planning process. For many years, however, no real TMDL program existed. Following enactment of the 1972 Amendments, the U.S. Environmental Protection Agency (EPA) was kept busy establishing point source standards and forcing states to set standards for all state waters that adequately protected existing water qualities and uses.² In the struggle to achieve these goals, EPA sidelined the TMDL program, delaying the identification of pollutants appropriately included in the program and trying to loosely achieve its goals through a basin planning initiative.³ Although a court order finally forced EPA to identify the TMDL pollutants,⁴ the Agency continued to allow states to ignore their obligation to submit TMDLs.⁵ Fortunately for the TMDL program, beginning in the 1980s a series of citizen suits began to address this inaction, establishing the doctrine of "constructive submission," through which courts held that the continued nonsubmission of TMDLs by a state eventually becomes the submission of no TMDLs, thus requiring EPA to step in and promulgate acceptable TMDLs on the state's behalf.⁶ Initially, it nevertheless seemed as though any state submission, no matter how minimal, would satisfy this requirement.⁷ Further litigation, however, made it clear that EPA approval of unreasonably minimal state TMDL submissions would not be acceptable; utterly inadequate TMDL submissions still triggered the necessity for EPA to either work with the state to reach a more acceptable solution or to step in with its own TMDL list.⁸

In the light of this litigation, EPA began taking a more aggressive approach toward the program. In November 1996, the Agency began providing further guidance to the states by updating its 1991 guidelines through a draft TMDL Program Implementation Strategy,⁹ which recognized the importance of TMDL allocations in the watershed approach, extended the frequency of reporting obligations, combined report categories, and established many EPA resources for assistance in TMDL development.¹⁰ However, the Strategy did not resolve many problematic issues, including the scope of eligible waters within the TMDL program, the degree of scientific certainty necessary for TMDL development, and the role of nonpoint sources.¹¹ In 1996, EPA convened a committee pursuant to the Federal Advisory Committee [32 ELR 11134] Act (FACA) to bring a diversity of viewpoints to resolving these problems.¹² Despite reaching agreement on a number of difficult issues, FACA failed to achieve a consensus on whether the TMDL process should be used to address nonpoint source pollution.¹³ EPA then proceeded to integrate these recommendations into its revision of the existing TMDL regulations.¹⁴

While EPA was undergoing a notice-and-comment procedure in the process of revising its regulations, the U.S. Congress also began involving itself in the issue. The House Transportation Committee's Subcommittee on Water Resources and the Environment held hearings on the program and the proposed regulatory changes.¹⁵ As a result of these hearings, Congress instructed the U.S. General Accounting Office (GAO) to address certain issues, primarily: (1) whether sufficient data was available to scientifically determine which bodies of water are impaired and what TMDLs would be appropriate; and (2) the economic impact of the new regulations.¹⁶ The GAO expressed substantial concerns on both issues, emphasizing uncertainties both in the available data and in EPA's economic analysis of the proposed regulations.¹⁷ Despite this negative input from Congress, EPA promulgated its revised TMDL rule in July 2000.¹⁸ The final rule included several changes that substantially affect the TMDL process. For example, nonpoint sources of pollution are explicitly included within the TMDL framework.¹⁹ States must schedule the establishment of TMDLs within 10 years of July 10, 2000, or the due date on the first list on which the water body appeared, although this schedule may be extended for five years if the original deadline cannot be met despite expeditious action.²⁰ Moreover, the new regulation requires that all impaired water bodies, even those for which TMDLs are not yet required, be placed on a four-part list and prioritized.²¹ States are further required to provide an implementation plan and a "reasonable assurance" that TMDL wasteloads and load allocations will be met.²²

Some of the changes included in the new rule were controversial, especially the inclusion of nonpoint sources and the revisions to the TMDL schedule, and both legal and political challenges resulted.²³ The American Farm Bureau Federation, concerned about the implications of the inclusion of nonpoint sources in the TMDL program, immediately filed a petition to challenge the new regulation.²⁴ Other special interest groups have followed suit.²⁵ Interested parties have also managed to make themselves felt legislatively, persuading Congress not only to prohibit EPA from using any money from fiscal years 2000 or 2001 to fund the changes,²⁶ but also to insist that the Agency hire the National Academy of Sciences (NAS) to analyze the TMDL program and the new regulation.²⁷ Congress required the NAS to determine: (1) what information is necessary to determine the sources of pollution, the degree to which each source impairs water quality, and how pollutant reductions should be allocated among sources; (2) whether that information can be reliably obtained by the states, and, if the information is not already available; and (3) what methodology should be used to gain the information.²⁸ The NAS committee determined that there is enough scientific information available to enable the TMDL program, finding that any uncertainty could easily be compensated for in the process of fulfilling the program's goals, although it emphasized that uncertainty should not be allowed to form the basis for unreasonable expectations.²⁹ The committee also made a number of recommendations that it felt would improve the TMDL program and expedite the achievement of its goals. It stated, somewhat wryly, that success should be strictly predicated upon whether a water body can support its designated use so as to ensure that states do not lose sight of the ultimate goal.³⁰ The committee also recommended that the TMDL program include not only physical and chemical pollutants, but also all other impacting conditions that either positively or negatively affect water quality.³¹ It made several more specific recommendations, including the designation of appropriate uses before development of the TMDL list, the use of biological as well as physical and chemical criteria in determining water quality, and more periodic assessment of TMDL plans.³²

In response to these reactions, EPA proposed to delay the effective date of the revised, final regulation for 18 months, [32 ELR 11135] from October 1, 2001, to March 1, 2003.³³ EPA also proposed to extend the deadline for the 2002 submission of states' lists of impaired waters from April 1, 2002, to October 1, 2002,³⁴ with the extension to permit reconsideration of certain aspects of the revisions in light of the reactions to the revised rule and the NAS report.³⁵ Reactions to the proposed delay were decidedly mixed; farm groups and industry generally supported it, while environmental groups were opposed.³⁶ Farm groups in particular objected to the rule's regulation of nonpoint source pollution, contending that it was beyond the scope of EPA's authority, decried the requirement that implementation plans be developed as federal presumption of local land use policy.³⁷ These groups also supported the delay for states to submit their lists of impaired waters.³⁸

In October 2001, EPA went one step further, and withdrew the still unpromulgated rule. EPA estimated that it would take only 18 months to review and revise the rule. Within EPA's Office of Wastewater Management, Agency staff focused on development of a pollutant-trading program to be incorporated into the TMDL program. EPA's assistant administrator for water indicated that watershed trading is more difficult than air pollutant trading because it is more site- and pollutant-specific.³⁹

On the litigation front, the U.S. Court of Appeals for the Ninth Circuit, in Pronsolino v. Nastri,⁴⁰ recently affirmed EPA's authority to establish TMDLs for water bodies impaired by nonpoint source pollution. Landowners challenged EPA's decision to establish TMDLs for waters affected solely by sediment runoff from logging operations.⁴¹ Betty and Guido Pronsolino, having applied for a timber harvesting permit, received a permit from the California Department of Forestry (CDF) with many serious restrictions attached that were designed to reduce soil erosion into the Garcia River. EPA had designated the Garcia River to be a water body that was in violation of state water quality standards due solely to nonpoint source pollution, and thus required the state to establish TMDLs.⁴² The state missed its deadline to submit its own TMDLs, whereupon EPA imposed its own TMDLs on the state.⁴³ The TMDLs established a total maximum amount of sediment loading that equated to a 60% reduction in sediment pollution from all combined sources, including nonpoint sources such as timber harvesting.⁴⁴ The plaintiffs argued that the permit restrictions were directly caused by EPA's TMDL standard, as the CDF would not issue any permit that could violate it for fear of losing funding. They then brought suit under the Administrative Procedure Act, challenging EPA's interpretation that the CWA allows it to establish TMDLs on rivers polluted solely by nonpoint source pollution.

The Ninth Circuit evaluated the statutory language of the CWA and noted that § 303, which requires the states to create EPA-approved water quality standards or to have EPA impose standards upon them, did not draw any distinction among navigable waters or their pollutants.⁴⁵ The court instead found that the mandatory planning process of § 303, in order to ensure the adequate implementation of water quality standards for all navigable waters, required EPA to address nonpoint as well as point sources in approving or determining TMDLs. The court did so, deferring to EPA's interpretation of the 1985 regulations and without relying on the provisions of the delayed final rule.

The Ninth Circuit's reasoning is consistent with the U.S. Court of Appeals for the Tenth Circuit's approach to the issue of TMDL development, when the inability of EPA to directly address nonpoint sources is kept in mind. InDecember 2000, Montana submitted a TMDL plan designed to relieve impairments to water quality caused by reduced flow in water bodies by adjusting water withdrawal. Although EPA officials commended the plan, the Agency refused to set a precedent for approving solely flow-based TMDLs, stating that the CWA only required TMDLs for situations resulting from pollutants.⁴⁶ EPA went on to state that flow alterations are not included in the CWA's definition of pollutant. Montana officials stated that the state would probably attempt to address water flow concerns on a voluntary basis with water users, while focusing resources on TMDLs that were actually required.

[32 ELR 11136]

In American Wildlands v. Browner,⁴⁷ the plaintiff challenged EPA's approval of some of Montana's water quality standards under the CWA. Under the Act, states are required to develop water quality standards for waters within their boundaries.⁴⁸ In promulgating these standards, the states must give each body of water a "designated use," determine and set forth the degree to which various pollutants may be present in the water body without harming the designated use, and provide an "antidegradation review policy" to allow the states to evaluate any activities that might tend to further degrade water quality.⁴⁹ The antidegradation review policy must be consistent with the three-tiered federal antidegradation policy. Furthermore, the states must identify any body of water that does not meet its standard and set forth a TDML establishing the maximum amount of various pollutants that can enter the water body from all sources combined.⁵⁰ EPA regulations, however, permit states to allow water quality requirements to be exceeded in certain areas in which pollutant discharge initially meets a water body, the so-called mixing areas, so long as certain criteria are satisfied.⁵¹ After developing its standards, each state must submit them to EPA for approval. If EPA disapproves of the standards, it must notify the state of any necessary changes, and if those revisions are not made, EPA is required to impose appropriate standards on the state.⁵²

American Wildlands challenged EPA's approval of Montana's antidegradation and mixing zone policies.⁵³ Montana's standards had exempted existing nonpoint sources from Tier II antidegradation review, and had further exempted subsequent nonpoint sources from review when reasonable conservation practices were employed and beneficial uses were protected.⁵⁴ Montana also exempted mixing zones from its antidegradation review policy, so long as the degradation to the water body at the periphery of the mixing zone was not significant, although it did develop a number of other strict requirements regarding mixing areas.⁵⁵ The district court found that the EPA's approval of these standards was proper,⁵⁶ and the Tenth Circuit affirmed.

The court first determined that Congress had delegated its authority to EPA to apply and interpret the CWA, both in general and in this specific instance, and its interpretation was therefore entitled to Chevron, U.S.A., Inc. v. Natural Resources Defense Council⁵⁷ deference and would not be overturned unless the Agency's decision was arbitrary and capricious.⁵⁸ The court, noting that EPA maintained that it does not have authority to directly regulate nonpoint sources, then agreed that the CWA does not give EPA such authority; instead, the Act merely requires states to address the issue through their standards. Accordingly, the court reasoned, EPA was due Chevron deference for its interpretation that it could not disapprove an antidegradation policy on the sole basis that it addressed the issue of nonpoint source pollution.⁵⁹ The court then turned to EPA's argument that antidegradation review requirements apply to a water body as a whole, rather than to a segment such as a mixing zone. The court found that this interpretation was reasonable, especially given the practical reality regarding mixing zones, and found that EPA was not arbitrary and capricious in approving Montana's exemption of mixing zones form antidegradation review so long as review of the water around such zones indicates that the overall water quality is not being damaged.⁶⁰

The controversy over the TMDL program has to be viewed against the backdrop of the problem of nonpoint source pollution, particularly from large-scale agriculture, and reticence at the federal level to do anything more than fund voluntary controls. EPA has prepared and requested comments on draft technical guidance for managing agricultural nonpoint source pollution.⁶¹ The guidance provides background information on the problem as well as information on up-to-date reduction methods.⁶²

In December 2000, EPA announced a proposed rule that would change the permitting requirements for concentrated animal feeding operations (CAFOs). The Agency asked for comment on two options for defining CAFOs under national pollutant discharge elimination system (NPDES) permitting. The first would establish a two-tiered system, designating all facilities with greater than 500 animal units as CAFOs and granting discretion to the permitting authority to determine whether smaller facilities are CAFOs. The other would create a three-tiered system, identifying all facilities with more than 1,000 animal units as CAFOs, designating all facilities with 300 to 1,000 animal units that meet certain other conditions as CAFOs, and granting discretion to the permitting authority to determine that any facility is a CAFO, no matter what the size.⁶³ Under the proposed rule, the number of facilities classified as CAFOs and subject to permitting would increase to as many as 39,000 from the current level of 2,500. The regulation would also expand permitting to include dry-manure poultry operations and stand-alone immature swine and heifer operations.⁶⁴ EPA officials stated that the new regulations were not intended to cover operations that used concentrated feeding practices during the winter and stressed the need for public comment and input to cover situations not considered.⁶⁵ Environmentalists [32 ELR 11137] were critical of the proposal, in part because it does not address the possibility of phasing out lagoons utilized for the storage of animal waste.⁶⁶ As with the TMDL proposal, the CAFO proposed rule generated a firestorm of sharply divided comments. Agricultural groups contended the proposed requirements for nonpoint pollution were not authorized by the CWA, would be excessively costly, and challenged the co-permitting requirements designed to extend responsibility beyond contract growers to the corporations that own the livestock. State officials asserted that the rules would undermine functionally equivalent state programs. Environmental groups, however, supported the proposal as long-overdue regulation of CAFOs.⁶⁷

Prior to issuing the proposed rules, EPA approved a final project agreement to allow egg producers to develop an environmental management system (EMS) and allow states to issue general CWA permits for these operations.⁶⁸ EPA viewed the project as a way to bring more of the operations into the regulatory regime more quickly, pending a change in the CAFO regime that would include "dry litter" operations.⁶⁹ Environmentalists were critical of the plan, saying that it would "reward some of the most egregious violators of the [CWA]."⁷⁰

In another blow to the much-maligned TMDL program, the GAO issued a report highly critical of the process utilized by states for the identification of impaired waters.⁷¹ The report, Water Quality: Inconsistent State Approaches Complicate Nation's Efforts to Identify Its Most Polluted Waters,⁷² was prepared for the House Transportation Subcommittee on Water Resources and Environment. The first major flaw seized upon by the GAO was the reliance on one method of identification of impaired waters—by biological, chemical, or physical monitoring—rather than upon all three as recommended by the U.S. Geological Survey. A complicating factor was utilization in the state water quality standards, against which impairment is measured, of widely differing definitions of designated uses. For example, Virginia designated all waters as suitable for swimming even though some are not for reasons unrelated to water quality, such as inaccessibility and shallowness. When such inherently unswimmable waters are then affected by bacteria from wildlife use, they are listed as impaired for a designated use for which they are inherently unsuitable. Listings also vary greatly based upon whether states utilize data less than five years old (monitoring data) or older (evaluative data), or use fish advisories to aid in determining whether water quality is impaired. In November 2001, EPA released the 2002 Integrated Water Quality Monitoring and Assessment Report Guidance⁷³ to encourage more uniformity in assessment, but it would appear the impact of the guidance is yet to be demonstrated. EPA tersely deemed the findings of the GAO's report to be "reasonable."

The Myths and the Truths

What can be said with certainty about all of this? Actually, quite a lot. Despite 30 years of technological controls, many water bodies and segments fail to meet basic, reasonable goals for their water quality. The largest single source of contamination by type of discharge is nonpoint source pollution, despite CWA § 201 waste treatment planning, §§ 106 and 303(e) water management planning, areawide management plans under § 208, § 209 basin planning, the nonpoint source pollution planning program under § 319, and general watershed planning. A significant amount of state, federal, and local money has gone into these programs. There has been, to put it mildly, a lot of planning. Yet there are no mandatory controls on nonpoint source pollution. Agricultural pollution, whether from point or nonpoint sources, is largely unregulated.

And one more thing. No regulatory agency or governmental entity wants to do what is clearly necessary to correct the problem.

There is nothing unique about the difficulties of implementing the TMDL program other than the political stakes involved. Every environmental initiative of the past 30 years has had to grapple with scientific uncertainty, allocation of enforcement authority, inconsistencies in monitoring, and variances in state and federal approaches. The irony of the states' resistance to the TMDL program today is that its essential elements are exactly what they fought to preserve in 1972 when the CWA was passed in its current form. The legislation was created to correct the failings of the water quality-based approach of the earlier act—primarily problems in enforcement due to the difficulty of attributing responsibility for degraded water quality to a single source in the context of hit-and-miss enforcement litigation. Instead, the 1972 Act imposed nationally uniform, technology-based standards on dischargers through individual permits whose terms could be more easily monitored and enforced, by both governmental and private plaintiffs.

The 1972 Act, however, did not displace the preexisting system of state water quality standards. State and local governments lobbied ardently for its preservation, asserting that they were the best stewards for determining localized water quality conditions and ensuring that they were what they should be. In essence, imposition of the point source, technology-based controls of the 1972 Act, which for the next three decades often seemed to be the ultimate goal of the legislation, was instead intended to be the first phase. The legislative intent was to impose nationwide standards, for all their unavoidable localized inefficiency, as the first layer [32 ELR 11138] of regulation, with more stringent regulation to be imposed through state water quality standards where necessary to achieve the fishable and swimmable goals of the Act. This point bears repeating. Preservation of water quality standards served one critical purpose—to impose stricter controls than those mandated in the other provisions of the Act to ensure that the demanding goals for water quality were met when end-of-the-pipe controls were not enough.

State and local governments and regulators were well aware of this purpose and what it would entail; it was for that very reason they fought to reserve the responsibility to themselves rather than to another stage of federal regulation. If progressively demanding technology-based controls on point sources failed to achieve water quality goals, inevitably meaningful controls on nonpoint source pollution would have to be implemented. However they are phrased—as "best management practices," for example—nonpoint source controls implicate standards and controls for land use activities, an area of regulatory authority that state and local governments were reluctant to cede to federal authorities. Rather than do so, they convinced Congress they were not only the appropriate, but also the best, public entities to implement the second and most critical stage of water quality achievement.

What then, if anything, has changed since 1972 to make the states so hesitant—if not outright obstructionist—toward the achievement of their own water quality standards? Is the TMDL program itself to blame? The states' problems with and objections to CWA § 303(d) were not tied to any particular administration's regulatory implementation of the program. EPA itself refrained from identifying the pollutants for which TMDLs had to be set, putting the entire program in limbo, until it was forced to identify them by citizen suits. The language of § 303(d), relatively clear by the standards of environmental statutory drafting, remained unchanged from 1972. When the time came (and passed) for TMDLs to be determined and implemented, were there difficulties that had not been contemplated or foreseen in 1972 that would explain this change in attitude?

In his excellent history and analysis of the TMDL program, Prof. Oliver Houck⁷⁴ debunks the myth that nonpoint source pollution is somehow more difficult to regulate. He convincingly demonstrates that nonpoint source pollution is not more varied, site-specific, or more technologically difficult to control.⁷⁵ Nevertheless, the TMDLs that have been provided to EPA tend to avoid controlling nonpoint source pollution, do not calculate their share of the allocation load, or both. States failed to submit inventories of impaired waters, rank them, promulgate TMDLs, and incorporate them into controls. It took 25 years and a number of citizen suits to compel the states even to begin their part of the process by listing impaired waters within their jurisdiction. The conclusion is inescapable—states were proponents of water quality standards implementation until they actually had to implement them.

The rather scant 1972 legislative history of state support of water quality standards is sufficient to demonstrate that the states feared the prospect of "federal land use" and fought to retain control by maintaining supervision of nonpoint source pollution. The fallacy that nonpoint source pollution is more difficult to control is invoked to perpetuate the axiom that land use cannot or should not be determined at the federal level. Land use is, however, determined at the federal level, in a number of ways through a variety of federal programs.⁷⁶ Acknowledgment of this development by its opponents, however, would remove one of their most potent weapons in the political rhetoric of state versus federal responsibilities. "No federal land use" is more compelling argumentatively than "not much more federal land use."

Unfortunately, these reluctant state stewards have found a new ally in their resistance—the Bush Administration. The withdrawal of the Clinton Administration's regulations, and the Bush Administration's confident assertion that it would take only 180 days to revise and reissue them, hardly bode well for the substance of the program. We have had 30 years of proof that voluntary programs for the control of nonpoint source pollution simply do not work. There is no legal or practical reason why a nationwide program of mandatory controls on nonpoint source pollution could not and should not be implemented. Imposing some degree of mandatory controls, by assessing nonpoint sources' share of the load allocation and requiring some minimal level of control on those sources only for impaired waters, is a reasonable, moderate step in water quality improvement—not a radical, unfounded leap.

It is a fairly safe assumption that two critical aspects of the proposed regulatory program, inclusion of nonpoint sources and deadlines for implementation, will be either substantially weakened or essentially obliterated in the revised regulations. EPA was on solid legal ground when it included nonpoint source pollution in the program's ambit, particularly so if Chevron retains its vigor, and 10 additional years to implement a program that has been on the books for 30 seems fairly reasonable—particularly if it is accepted that the difficulty of controlling nonpoint source pollution is a myth. Noticeably absent from the political rhetoric is the argument that the control of nonpoint source pollution is unnecessary in order to improve impaired water quality. The pivotal nature of nonpoint sources to overall water quality is a truth that is conveniently overlooked. That these sources cannot be adequately controlled through voluntary programs with no deadlines for implementation has been amply demonstrated.

Working Forward From the Truth—The Challenge for Local Governments

Many of the states' criticisms and objections to TMDLs stem from the underlying program for state designation of uses and criteria for water quality standards. As the 2002 GAO report concluded, listing of impaired waters is impeded by the wide variances in state definitions of uses and the data utilized to evaluate impairment. This problem is not an issue of scientific uncertainty but rather a lack of consensus which could be at least partially remedied through utilization of the guidance EPA recently provided. By 1997, all [32 ELR 11139] but three states had submitted some kind of listing to EPA. The states' more vehement objections to listing and claims of overinclusiveness coincided with the prospect that EPA might actually require implementation of TMDLs with respect to these waters, and for nonpoint source pollution, by a specified deadline. Section 303(d) is, regretfully, silent on precisely how and when implementation of TMDLs should occur, but it is certainly not the first time that EPA has filled in a resounding statutory silence within the confines of Chevron.

However effective state opposition to meaningful implementation and enforcement of the TMDL program might be in the short term (which may be in fact 10 years or more at the current pace), their resistance seems very short-sighted. Allowing states to maintain the initiative in achieving water quality standards is appearing more and more to be a faulty proposition. Having touted themselves as not only the best but the only governmental authorities to determine water use and ultimately achieve it, states' inability or unwillingness to carry through on actual implementation has broader, negative implications for the states' cooperative authority to regulate the environment and for their purportedly exclusive authority to regulate land use. The legal challenges to EPA's authority to regulate nonpoint sources under the TMDL program beg the question of why state and local governments have not redressed impaired water quality. There has never been any question that states have the legal authority to regulate the environment unless preempted by federal regulation. Local governments have, indeed, increasingly engaged in environmental regulation through land use measures.⁷⁷ With state authority specifically preserved in the 1972 Act and local authority receiving increased recognition, challenges to EPA's regulatory authority over nonpoint sources ultimately place the responsibility for impaired water quality squarely on state and local governments. It is a responsibility they once welcomed, and now, more than ever, cannot deny.

Additionally, delays in implementation of § 303(d) have highlighted the failings of "water zoning." It may be that the underlying problem is not the TMDL program, or even how the uses and criteria are set, but the water quality approach itself. Water quality standards were overshadowed by technological standards and benignly neglected. Now in that they are in the spotlight, the opportunity should be seized to assess what is not working in the approach itself. With citizen suits looming—and waters still impaired—a system determined to be ineffective could be replaced, rather than repaired, by Congress. Whatever would take its place—another layer of technological controls, expanded definitions of point sources, market-based allowances, incentives—states will have relinquished control over water quality to federal authorities, regardless of whether EPA chooses to regulate nonpoint source pollution with mandatory controls. The likelihood of expanded federal authority at the expense of state authority increases in relation to a public perception that the states cannot be trusted with environmental responsibilities⁷⁸ because they are more directly and less transparently susceptible to political pressure from powerful lobbies such as agriculture, mining, logging, and construction.

The More Things Change . . .

In the intensity of their criticisms of the TMDL program, industry and the states fail to recognize that they stand to lose more than they gain through eviscerating the program. If nonpoint source pollution is responsible for water quality impairment, some level of government must be responsible for effectively controlling it. The myths opponents seek to perpetuate regarding the difficulty of controlling these sources and the unacceptability of federal land use do not get either group "off the hook" of improving water quality—quite the contrary. Industry may find itself to be a house divided between point source dischargers tired of bearing the brunt of regulation and nonpoint source dischargers seeking to evade regulation altogether. Demands for more federal funding, a familiar refrain, are far less compelling after 30 years of the "carrot" approach and at a time when there is no budget surplus.

The most recent testament to the agricultural lobby's influence at the federal level is the 2002 Farm Bill. Despite a Republican administration that is a proclaimed opponent to big government and liberal federal spending, and an attempt in the prior farm legislation to begin eliminating massive federal subsidies, the newest farm bill is a six-year, $ 73.5 billion funding frenzy. In addition to farming and livestock subsidies, the bill quadrupled the prior budget for conservation programs.⁷⁹ The "conservation" characterization of some of these conservation programs is, at best, questionable.⁸⁰ For example, conservation measures may include the construction of waste lagoons by large livestock producers, a transparent opportunity to finance whatever CAFO requirements may have to be met.

There are signs, however, that agriculture's political grip, at least at the state level, may be slipping as other constituencies exercise their political muscles. In California, two environmental groups have filed suit to compel the Central Valley Regional Water Quality Control Board to repeal a 20-year-old exemption for farmers from pollution discharge permit requirements. The exemption allows nonpoint source runoff from agricultural drainage return flows and stormwater discharges to go unmonitored.⁸¹ And increasingly agriculture regulators are finding themselves compelled to respond with new measures of control. For example, health concerns prompted the Oklahoma Agriculture Board to approve emerging rules defining where poultry houses may be located and where refuse may be applied to the land. Poultry operators are also required to register with the board prior to large-scale expansions. The rules were requested by the Republican state governor.⁸² Likewise, citizen suit plaintiffs are becoming even more inventive in compelling action. Recently, a Maryland district court held [32 ELR 11140] that EPA had violated the Endangered Species Act (ESA)⁸³ by failing to consult other federal agencies before taking action on water quality standard revisions and impaired water body beds.⁸⁴

There is even one small ray of light from the otherwise bleak perspective of EPA's willingness to compel the states to exercise more effective controls on nonpoint pollution. Robert Wyland, director of EPA's Office of Wetlands, Oceans, and Watersheds, warned the Association of State and Interstate Water Pollution Control Administrators that the Office of Management and Budget (OMB) is moving toward "performance-based budgeting." Although this is not a new approach at the OMB, it is nothing less than a revolutionary notion in the context of nonpoint source programs. He said that CWA § 319 had been given a "yellow light" (out of a possible green, yellow, or red) by budget officials and that he wanted to "issue a word of caution for all of us to make sure the effectiveness of the program is maintained and enhanced."⁸⁵ A recent EPA draft report indicated that the CWA's state revolving loan fund is increasingly being dedicated to the control of nonpoint source pollution (as opposed to, in the past, wastewater treatment plants), as well as best management practices for stormwater control and runoff from construction and agriculture; wetland, habitat, and riparian corridor protection and restoration efforts; brown-fields remediation; and source water protection.⁸⁶ With nonpoint source pollution, everyone but the polluter pays.

Despite the word of caution concerning OMB, EPA seems determined to persist in the same approach that has been so ineffective in the past, but with a new name. The Agency wants to "revitalize" the continuing planning process (CPP) of CWA § 303(e). The CPP does little more than consolidate into one plan CWA water quality requirements found in other sections. The TMDL program would be integrated into this planning process, with its own new name—the watershed rule. The CPP would be reviewed every five years to calculate the performance of states in implementing its contents. The Agency is considering a structure for the "watershed" program which would not require that allocations be made to individual sources. The only good news with respect to nonpoint pollution is that pollutant allocations would include nonpoint sources, that basic issue itself having been at the least reconsidered by the Agency. States would not have to have implementation plans—instead, they would merely be required to provide "reasonable assurance" that their plans would bring waters into attainment at some unspecified time. Even state responses to this announcement were muted, noting that states had already been doing "a lot of planning and measuring."⁸⁷

On May 15, 2002, EPA issued for comment its proposed trading policy for impaired and unimpaired waters using water quality standards as a baseline.⁸⁸ The policy was devised as a tool in implementation of the forthcoming TMDL rule. Under it, if a source reduces its pollutant loading below the amount allocated in its permit, it would have a credit that could be traded to another source on that water body. One example given is that a farmer could create credits by changing cropping practices, which a wastewater treatment plant could then acquire to meet water quality limits. The policy, as with any trading scheme, raises questions about the clarity of permit requirements and the extent to which trading within a water body ignores the more localized impact of pollutant discharges.⁸⁹ Ironically, the policy is focused on trading regarding nutrients (generally phosphorous and nitrogen) and sediments. In other words, it is focused on giving point source dischargers the dubious pleasure of paying nonpoint source polluters to comply with water quality standards. Point source dischargers may certainly prefer trading to the rigidity of further restrictions on their own discharges, but how long will it be before point source dischargers, particularly publicly owned treatment works, insist that large, profitable, nonpoint source industry dischargers pay for their own pollution?

The downward devolution of environmental protection in general and more specifically in the area of watershed protection has been thoughtfully demonstrated by Dan Tarlock.⁹⁰ At the federal level, the problem of implementing controls on nonpoint sources goes beyond the usual, relatively benign neglect of political gridlock. It can best be described as involving a virtual strangle-hold on implementation by agriculture, mining, and logging political interests.

Unfortunately, the U.S. Supreme Court is sending mixed messages to local governments with respect to environmental protection. While the Lopez v. United States⁹¹ and United States v. Morrison⁹² U.S. Commerce Clause approach reaffirms that land use restrictions are the province of local governments, its Takings Clause jurisprudence⁹³ at the very least discourages all but the most financially advantaged local governments from engaging in innovation or nontraditional controls. Local governments, by their very nature, have limited jurisdiction; how does a locality protect its water supply when it is situated in another jurisdiction or is threatened by water appropriation outside its regulatory reach?

The TMDL "buck" has been passed back and forth for years between the state and federal level, but it has now stopped at the local level. Whatever the precise formulation of the Bush Administration's TMDL program, committed control of nonpoint source pollution for the foreseeable future will have to come from the local level despite the ever-present threat of takings clause litigation. Preemption problems also loom, if state laws and regulations protecting agriculture are broadly interpreted.⁹⁴ Localities do have the [32 ELR 11141] incentive that they and their constituencies suffer directly from impairment of water quality, particularly in rural areas. Hopefully, they will be less susceptible to the political influence of large-scale dischargers, or more receptive to citizens' complaints about water quality. They may find support for their efforts in the renewed initiative for watershed planning, federal court decisions and litigation demanding more controls on nonpoint source pollution, and perhaps from a newly emerging political coalition of municipalities, industrial point source dischargers, and taxpayers tired of paying for the pollution of nonpoint source dischargers. Inter-local coalitions also hold some promise of coordinated political energy and power in watershed planning—particularly in ensuring that the money Congress keeps throwing at the problem reaches the local level.

Responsibility for water quality entails accountability for past failures and future improvement. If the states and nonpoint source dischargers want to maintain control over land use practices that contribute most significantly to nonpoint source pollution, at some point they owe the public some answers as to why they have failed so far in that responsibility, where the money has gone, and how that will change. Until then, local governments will be the stewards of our water quality. If they do not or cannot step up to this task, there is one more certain truth—the quality of our impaired waters will not improve.

1. 33 U.S.C. § 1313(d), ELR STAT. FWPCA § 303(d).

2. OLIVER A. HOUCK, THE CLEAN WATER ACT TMDL PROGRAM: LAW, POLICY, AND IMPLEMENTATION 49 (Envtl. L. Inst. 1999).

3. Id. at 50.

4. Board of County Comm'rs v. Costle, No. 78-0572, slip op. (D.D.C. June 20, 1978).

5. HOUCK,supra note 2, at 51.

6. See Scott v. City of Hammond, 530 F. Supp. 288 (N.D. Ill. 1981), aff'd in part, rev'd in part, 741 F.2d 992, 14 ELR 20631 (7th Cir. 1984); Northwest Envtl. Defense Ctr. v. Thomas, No. 86-1578PA (D. Or. complaint filed Dec. 12, 1986); Alaska Ctr. for the Env't v. Reilly, 762 F. Supp. 1422, 21 ELR 21305 (W.D. Wash. 1991), injunctive relief granted, 796 F. Supp. 1374, 22 ELR 21204 (W.D. Wash. 1992), aff'd sub nom. Alaska Ctr. for the Env't v. Browner, 20 F.3d 981, 24 ELR 20702 (9th Cir. 1994).

7. See, e.g., National Wildlife Fed'n v. Adamkus, No. 87 C 4196, 1991 WL 47374 (N.D. Ill. Mar. 28, 1991); Sierra Club v. Browner, 843 F. Supp. 1304, 24 ELR 21006 (D. Minn. 1993); see also Diane K. Conway, TMDL Litigation: So Now What?, 17 VA. ENVTL. L.J. 83, 95 (1997); Michael M. Wenig, How "Total" Are Total Maximum Daily Loads?—Legal Issues Regarding the Scope of Watershed-Based Pollution Control Under the Clean Water Act, 12 TUL. ENVTL. L.J. 87, 110 n.103 (1998).

8. See Idaho Sportsmen's Coalition v. Browner, 951 F. Supp. 962, 27 ELR 20771 (W.D. Wash. 1996); Sierra Club v. Hankinson, 939 F. Supp. 865, 27 ELR 20280 (N.D. Ga. 1996).

9. U.S. EPA, DRAFT TMDL PROGRAM IMPLEMENTATION STRATEGY (1996).

10. HOUCK, supra note 2, at 57.

11. Id.

12. Oliver A. Houck, TMDLs Ill: A New Framework for the Clean Water Act's Ambient Standards Program, 28 ELR 10415, 10422 (Aug. 1998).

13. Id.

14. Barclay Rogers & Anne Hazlett, TMDLs: Are They Dead Letters?, AGRIC. L. UPDATE (Am. Agric. L. Ass'n), Aug. 2001, at 4.

15. Id.

16. Id.

17. See U.S. GENERAL ACCOUNTING OFFICE (GAO), WATER QUALITY, KEY EPA AND STATE DECISIONS LIMITED BY INCONSISTENT AND INCOMPLETE DATA (2000) (GAO/RCED-00-54); U.S. GAO, REVIEW OF TWO EPA PROPOSED REGULATIONS REGARDING WATER QUALITY MANAGEMENT (2000) (GAO/RCED-00206R). In March 2000, GAO issued its first report highlighting a substantial lack of data available to determine which water bodies were impaired and to set appropriate TMDLs. U.S. GAO, WATER QUALITY, KEY EPA AND STATE DECISIONS, supra id. GAO published a second report in June 2000, which questioned the reasonableness of EPA's economic analysis of the proposed regulations. U.S. GAO, REVIEW OF TWO EPA PROPOSED REGULATIONS, supra id.

18. Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation, 65 Fed. Reg. 43586 (July 13, 2000).

19. Id. at 43588.

20. Id. at 43591.

21. Id. at 43590.

22. Id. at 43591.

23. Rogers & Hazlett, supra note 14, at 5.

24. American Farm Bureau Fed'n v. Browner, No. 00-1320 (D.C. Cir. July 18, 2000).

25. See Susan Bruninga, Nine Petitions Filed in Major Fight Over Final Rule Revising TMDL Program, 31 Env't Rep. (BNA) 2618 (Dec. 15, 2000).

26. Military Construction Appropriations Act, Pub. L. No. 106-246, 114 Stat. 511 (2000).

27. Department of Veteran Affairs, Housing and Urban Development, and Independent Agencies Act, Pub. L. No. 106-377, 114 Stat. 1441, 1441A-3 (2000).

28. COMMITTEE TO ASSESS THE SCIENTIFIC BASIS OF THE TOTAL MAXIMUM DAILY LOAD APPROACH TO WATER POLLUTION REDUCTION, NATIONAL RESEARCH COUNCIL, NAS, ASSESSING THE TMDL APPROACH TO WATER QUALITY MANAGEMENT (2001).

29. Id.

30. Id.

31. Id.

32. Id.

33. Delay of Effective Date of Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulations; and Revision of the Date for State Submission of the 2002 List of Impaired Waters, 66 Fed. Reg. 41817-22 (Aug. 9, 2001).

34. Id.

35. Id.

36. Susan Bruninga, Environmental Advocates Oppose Delay in TMDL Rule; Industry, Ag Groups Supportive, 32 Env't Rep. (BNA) 1829 (Sept. 21, 2001) [hereinafter Environmental Advocates Oppose Delay]. The Federal Water Quality Coalition filed one of about a dozen petitions for review of the July 2000 rule. American Farm Bureau Fed'n v. Browner, No. 00-1320 (D.C. Cir. July 18, 2000).

37. Environmental Advocates Oppose Delay, supra note 36, at 1829.

38. Id. EPA subsequently circulated a draft report on the total estimated costs of the TMDL program, which reported that the costs to industry to implement the TMDL program could range from under $ 1 billion to $ 4.3 billion annually. U.S. EPA, THE NATIONAL COSTS OF THE TOTAL MAXIMUM DAILY LOAD PROGRAM (draft Aug. 2001) (EPA 841-D-01-003).

39. 33 Env't Rep. (BNA) S-19 (Jan. 25, 2002). On May 15, 2002, EPA proposed the water quality trading policy for comment. 67 Fed. Reg. 34709 (May 15, 2002).

Various federal agencies, including EPA, the U.S. Department of the Interior, the U.S. Department of Agriculture, and the U.S. Department of Commerce have agreed upon a final comprehensive science-based approach to watershed delineation and assessment on federal lands. See Notice of Final Policy—Unified Federal Policy for a Watershed Approach to Federal Land and Resource Management, 65 Fed. Reg. 62566 (Oct. 18, 2000), available at http://cleanwater.gov/ufp/ (last visited June 10, 2002). Factors affecting wetlands will be considered when determining the best management practices and priorities for both land and water uses. The agencies' watershed goals will involve minimizing adverse water quality impacts from management programs, minimizing the impairment of current and future uses, and restoring watersheds that do not reach water quality standards.

40. Nos. 00-16026, -16027, 2002 U.S. App. LEXIS 10308 (9th Cir. May 31, 2002).

41. See id.; Pronsolino v. Marcus, 91 F. Supp. 2d 1337, 30 ELR 20460 (N.D. Cal. 2000); David K. Bowles, Case Summary: Pronsolino v. Marcus EPA May Impose TMDLs for Substandard Rivers Impaired Solely by Nonpoint Sources, ABA SPECIAL COMM'N ON AGRIC. MGMT. NEWSL., June 2000, at 15; Susan Bruninga, Court Rules TMDL Program Can Apply to River Polluted by Nonpoint Sources, 31 Env't Rep. (BNA) 639 (Apr. 7, 2000).

42. 91 F. Supp. 2d. at 1339-40.

43. Id. at 1339.

44. Id. at 1340.

45. Id. at 1344-45.

46. See Plan Addressing Flow in Montana Creek Not Covered by TMDL Program, EPA Says, 32 Env't Rep. (BNA) 1635 (Aug. 17, 2001).

47. 260 F.3d 1192, 31 ELR 20860 (10th Cir. 2001).

48. Id. at 1194, 31 ELR at 20860 (citing 33 U.S.C. § 1313, ELR STAT. FWPCA § 303) (Clean Water Act).

49. Id. (citing 33 U.S.C. § 1313(c)(2)(A), ELR STAT. FWPCA § 303(c)(2)(A); 40 C.F.R. §§ 130.3, 130.10(d)(4), 131.6, 131.10, 131.11).

50. Id. (citing 33 U.S.C. §§ 1313(d), ELR STAT. FWPCA § 303(d)).

51. Id. at 1195, 31 ELR at 20861 (citing U.S. EPA, WATER QUALITY STANDARDS HANDBOOK §§ 5.1.1, at 5-5 (2d ed. 1994)).

52. Id. at 1194, 31 ELR at 20860 (citing 33 U.S.C. §§ 1313(c)(3)-(4)(A)).

53. Id. at 1196, 31 ELR at 20861.

54. Id. at 1195, 31 ELR at 20861 (citing MONT. CODE ANN. § 75-5-317(2)(a)(b)).

55. Id. (citing MONT. ADMIN. R. §§ 17.30.715(1)(c), 17.30.505(1)(b); id. § 75-5-301(4); id. § 17.30.505(1)(c); id. § 17.30.506(1)).

56. See American Wildlands v. Browner, 94 F. Supp. 2d 1150 (D. Colo. 2000).

57. 467 U.S. 837, 14 ELR 20507 (1984).

58. American Wildlands, 260 F.3d at 1197, 31 ELR at 20861.

59. Id. at 1198, 31 ELR at 20862.

60. Id.

61. See Notice of Availability of Guidance for Controlling Nonpoint Source Pollution From Agriculture and Request for Comments, 65 Fed. Reg. 61325 (Oct. 17, 2000).

62. See id. at 61325-36.

63. 66 Fed. Reg. 2960 (Jan. 12, 2001).

64. See Terence J. Centner, The EPA's Proposed Regulations for Animal Feeding Operations, AGRIC. L. UPDATE, Jan. 2001 at 1; Scott Fancher, EPA Announces Proposed Rule Changes for Animal Feeding Operations, AGRIC. L. UPDATE, Sept. 2000 at 1.

65. See Tripp Waltz, Concentrated Winter Feeding Not Covered by EPA Proposal on Feedlot Runoff Control, 32 Env't Rep. (BNA) 605 (Mar. 30, 2001).

66. See Susan Bruninga, EPA Proposal Could Require Thousands More Feedlots to Get Permits, 31 Env't Rep. (BNA) 2659 (Dec. 22, 2000). See also Susan Bruninga, Draft CAFO Proposal Would Require Co-Permitting, Revise Threshold Limits, 31 Env't Rep. (BNA) 2316 (Nov. 3, 2000); Susan Bruninga, Most Feedlots Would Have to Apply for NDPES Permits Under EPA Guidance, 31 Env't Rep. (BNA) 1724 (Aug. 18, 2000). For industry criticism of the proposed regulation, see Carolyn Whetzel, Proposal to Curb Runoff From Feedlots an "Administrative Nightmare," Farmers Say, 32 Env't Rep. (BNA) 495 (Mar. 16, 2001).

67. Susan Bruninga, Legality, Strictness of Proposal to Tighten Rules on CAFOs Questioned in Comments, 32 Env't Rep. (BNA) 1722 (Aug. 21, 2001).

68. See Susan Bruninga, Environmental Group Vows Fight Over XL Project for Egg Producers, 31 Env't Rep. (BNA) 2325 (Nov. 3, 2000).

69. See id. at 2326.

70. See id. at 2325. On local regulation of CAFO's, see generally Thomas R. Head III, Local Regulation of Animal Feeding Operations: Concerns, Limits, and Options for Southeastern States, 6 ENVTL. LAW. 503 (2000).

71. GAO Report Finds Varying State Approaches to Water Quality Assessment Affect TMDLs, 33 Env't Rep. (BNA) 358 (Feb. 15, 2001).

72. See supra note 17.

73. See Susan Bruninga, Water Quality Standards: Draft Guidance Draws Support From Interested Parties; Categories Backed, 32 Env't Rep. (BNA) 2309 (Nov. 30, 2001).

74. HOUCK, supra note 2.

75. Id. at 87. For an ambitious article demonstrating how the TMDL program could remedy nonpoint source pollution, see Paula J. Leibowitz, Land Use, Land Abuse, and Land Re-Use: A Framework for the Implementation of TMDL's for Non-Point Source Polluted Waterbodies, 19 PACE ENVTL. L. REV. 97 (2001); see also Oliver A. Houck, The Clean Water Act TMDL Program V: Aftershock and Prelude, 32 ELR 10385 (Apr. 2002).

76. See generally LINDA A. MALONE, ENVIRONMENTAL REGULATION OF LAND USE (2002).

77. See JOHN R. NOLON, WELL GROUNDED: USING LOCAL LAND USE AUTHORITY TO ACHIEVE SMART GROWTH (Envtl. L. Inst. 2001).

78. See CLIFFORD RECHTSCHAFFEN & DAVID MARKELL, REINVENTING THE STATE/FEDERAL RELATIONSHIP IN ENVIRONMENTAL ENFORCEMENT (Envtl. L. Inst. forthcoming 2002).

79. Susan Bruninga, Farm Bill Accord Would Boost Funding for Wetlands, Environmental Quality Projects, 33 Env't Rep. (BNA) 991 (May 3, 2002).

80. See John H. Davidson, Sustainable Development and Agriculture in the United States, 32 ELR 10543 (May 2002).

81. Linda Mahoney, Lawsuit Calls for Repeal of Exemption From State Nonpoint Source Standards, 33 Env't Rep. (BNA) 499 (Mar. 1, 2002).

82. Id. at 502-03.

83. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

84. Sierra Club v. EPA, 162 F. Supp. 2d 406 (D. Md. 2001).

85. States, EPA Need to Ensure Effectiveness of Nonpoint Source Program, Official Says, 33 Env't Rep. (BNA) 590 (Mar. 15, 2002).

86. Money From Revolving Loan Fund Going More to Nonpoint Sources, Draft Report Says, 33 Env't Rep. (BNA) 1107 (May 17, 2002).

87. Susan Bruninga, Little-Used Planning Provision in Law Eyed as Tool for TMDL's, Official Says, 33 Env't Rep. (BNA) 591-92 (Mar. 15, 2002).

88. 67 Fed. Reg. 34709 (May 15, 2002).

89. See Houck, supra note 75, at 10399-400.

90. A. Dan Tarlock, The Potential Role of Local Government in Watershed Management, (forthcoming ELR Nov. 2002).

91. 514 U.S. 549 (1995).

92. 529 U.S. 598 (2000).

93. See John D. Echeverria, A Preliminary Assessment of Palazzolo v. Rhode Island, 31 ELR 11112 (Oct. 2001); Michael Allen Wolf, Pondering Palazzolo: Why Do We Continue to Ask the Wrong Questions?, 32 ELR 10367 (Mar. 2002).

94. Compare Goodell v. Humboldt County, 575 N.W.2d 486 (Iowa 1998) (preemption) with Borron v. Farrenkoff, 5 S.W.3d 618 (Mo. Ct. App. 1999) (no preemption); see generally MALONE, supra note 76, §§ 6.06-.07; Township of Franklin v. Hollander, 338 N.J. Super. 373, 769 A.2d 427 (2001), aff'd, 172 N.J. 147, 796 A.2d 874 (2002).