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The Myths and Truths That Threaten the TMDL Program

September 2002

Citation: 32 ELR 11133

Issue: 9

Author: Linda A. Malone

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.

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.

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