29 ELR 10469 | Environmental Law Reporter | copyright © 1999 | All rights reserved

TMDLs IV: The Final Frontier

Editors' Summary: The Clean Water Act is undergoing a dramatic shift toward water quality-based regulation. Leading the charge, and taking their share of opposing fire, are the long-dormant provisions of § 303(d) calling for the development of total maximum daily loads (TMDLs) for impaired waters. Earlier Articles in this series described the legislative and regulatory history of TMDLs, the litigation surrounding them, and the Administration's current efforts to redesign the program. This final Article attempts to step back and assess the potential of the TMDL program. It concludes that, while TMDLs are a highly resource-intensive and indirect way to approach the significant remaining water pollution problems of this country, they hold the promise of progress with sufficient time and money, more active state leadership, and the retention of elements that have proven key to the success of the Act's point source discharge program as well: numerical targets, fixed plans, and the ability of people concerned about clean water to ensure that they are met.

The author is a Professor of Law at Tulane Law School. The research assistance of Scott M. Galante, Adriana Lopez, and Erik Van Hespen, Tulane Law School 2000, is acknowledged with gratitude.

[29 ELR 10469]

The federal Clean Water Act (CWA)¹ could lay claim to being the most successful environmental program in America. Since its enactment in 1972, industrial discharges to the nation's waters are precipitously down²; rates of wetland loss have slowed and in some regions even reversed³; and municipal loadings, the subject of nearly $ 128 billion in public funding for treatment works, have dropped by nearly 50 percent while their populations served have doubled.⁴ Oft-criticized for its "impossible" goals (e.g., zero discharge), "unrealistic" deadlines and "command-and-control" mechanisms, the ineludible fact is that the Act's fixed deadlines, technology standards, permits, and enforcement mechanisms have stimulated measurable compliance, new and improved technologies, source reduction, waste recycling, and a growing number of voluntary, quasivoluntary, and alternative abatement schemes.⁵ By any measure—number of dischargers on permit,⁶ pounds of pollution abated,⁷ stream segments improved,⁸ fisheries restored to waters where they had not been seen for decades⁹—the Act has made its case in court and, by its imitation, to the world.¹⁰

Yet, we do not have clean water. To be sure, we have improved water quality since circa 1972—when rivers and harbors were so contaminated they were actually catching fire¹¹—but, taken as a whole, we have not had clean water in America in the lifetime of anyone living. Moreover, the more we learn about the actual quality of America's waters today, the worse, in the aggregate, the news. We have been spared knowing how polluted our waters are by the simple fact that we have not made a serious effort to find out. Only [29 ELR 10470] 19 percent of the nation's rivers, lakes, and estuaries have been assessed for pollution,¹² and these for, in most cases, only the most rudimentary contaminants. These data have led to the rote conclusion that approximately 30 percent of America's waters do not meet water quality standards.¹³ That number may be high, more likely it is low, but if it is even in the ballpark it is bad news for a country that has poured billions of dollars and countless workyears into programs intended to do no less than eliminate pollution and secure clean water nationwide.

What has gone wrong, of course, is that unregulated sources have blossomed like algae to consume the gains. A regional story might serve as an example. The Gulf of Mexico is one of the richest marine environments on Earth, hosting more than two-fifths of America's coastal wetlands,¹⁴ one-third of its commercial seafood,¹⁵ and one-half of its migratory waterfowl.¹⁶ Gulf fisheries weigh in at nearly two billion pounds per year, stimulating $ 26 billion in commerce.¹⁷ More than 100 communities with unique histories and cultures live on the Gulf and from its resources.¹⁸ In recent decades, in almost direct correlation with the application of commercial fertilizers upstream, the Gulf has slowly but massively begun to die. At the mouth of the Mississippi River and spreading west to Texas, the Gulf currently experiences a "dead zone" of hypoxic water, water with less than 2 percent concentration of oxygen,¹⁹ extending up to 16,000-18,000 square kilometers.²⁰ Sea life is eliminated. Bottom-dwellers die, menhaden and shrimp move out, and with them go the rest of the food chain up to and including humans. The dieoff is from nutrients, loaded into the Mississippi River from distances and with consequences unimaginable at an earlier time and denied by some yet today. Nearly 90 percent of these nutrients originate from farms: fertilizer runoff and animal wastes.²¹ Nearly three-quarters originate from lands above the confluence of the Ohio and Mississippi Rivers,²² more than 975 river miles away.²³

This is not an isolated story. Every state and every major watershed in America is experiencing similar problems from similar sources.²⁴ The waters of northern Wisconsin are polluted by dairy farms,²⁵ in North Carolina by hogs,²⁶ in Maryland by chickens,²⁷ in south Florida by sugar,²⁸ in Wyoming by beef cattle,²⁹ in Oregon by clearcuts,³⁰ in Maine by logging roads,³¹ in California by irrigation return flows,³² and across suburban America by an expanding and irreversible crop of tract housing and subdivisions,³³ all of which have several characteristics in common. Individually small, it is their cumulative impacts that are the problem, and we have not yet found the way to convince people to fix problems for which they are only a contributing factor. Furthermore, although individually small, these sources are supported by industries with a political lock on state legislatures and, in some cases, on the U.S. Congress as well. Most importantly, they are by nature diffuse, not outfalls from pipes, and therefore long considered to be beyond those regulatory requirements of the Clean Water Act that have led to its success.³⁴

[29 ELR 10471]

Which would end the story, but for the remarkable resurrection of a long-dormant provision of the Clean Water Act, § 303(d),³⁵ now taking the field and forcing a showdown on the last water quality frontier, nonpoint source pollution. Earlier Articles in this series describedthe origins of § 303(d),³⁶ its early demise and more recent renaissance through citizen litigation,³⁷ and the current state of its implementation by the U.S. Environmental Protection Agency (EPA) and the states.³⁸ Together, these Articles describe a seismic shift in the nation's approach to water pollution control, the outline for which is now clear but the success of which is very much in doubt.

The task ahead for § 303(d) is to address nonpoint source pollution, and it is doubly daunting because the approach of § 303(d)—ambient-based regulation—has never really worked in pollution control, and because no approach under other sections of the Clean Water Act has been remotely effective in reversing the nonpoint tide. This final essay attempts to put the central lessons of the earlier Articles in order, to assess the difficulties the § 303(d) program faces, and to draw a few conclusions about the contribution it may make to the restoration of water quality in the United States.

Reviewing the Bidding

We are recognizing for the first time that there is not a readily definable linear relationship between given effluent discharges and the quality of the receiving waters.

—Sen. Howard Baker (R-Tenn.), Sponsor, Federal Water Pollution Act Amendments of 1972 (Clean Water Act)³⁹

We have heard that from the Chamber of Commerce from the very beginning. "Don't pass any Federal law; just let us keep it at home in the State." So consequently, we didn't get anything done. We left it to the States, year after year, and we didn't get a single thing but a bunch of nursery rhymes as to the Constitution, and we didn't get any clean water until the Federal Government insisted upon it and made some dollars available to the state for that use.

—Rep. Robert Jones (D-Ala.), Chair, House Public Works Committee⁴⁰

We have been here before. As we return once more to an ambient standards-based program for restoring the nation's water quality, it is useful to remember just how thoroughly our earlier efforts to execute such a program failed, and why. We had problems with science. And we had problems with political will.

The story begins in 1948, when the federal government entered the field of pollution abatement with a water program emphasizing the primary role of the states and reserving to the Surgeon General the authority to, after lengthy administrative proceedings, sue to abate discharges.⁴¹ Seventeen years later, with only a few states having adopted measurable indicators of water quality and little enforcement action,⁴² Congress passed the Water Quality Act of 1965 (WQA).⁴³ The high watermark of ambient-based water pollution control, the WQA required states to adopt water quality standards and to take the lead on their implementation; the federal role remained limited to providing funding (always popular) and technical assistance (sometimes popular) and, where interstate waters were involved, to calling an "abatement conference" of states and responsible parties.⁴⁴ These programs were supplemented by the authorization of several river basin commissions with the mission of managing water resources comprehensively in specific regions of the country.⁴⁵

The WQA and its contemporaries were monuments of faith in the commitment of state and local governments to secure clean water in the face of powerful local interests; in the ability of science to predict aquatic impacts and to trace observed impacts to their sources; and in the practicality of treating water pollution through comprehensive, regional planning. They were enacted in a day when pollution was still viewed as a local affair with regional overtones (many states resisted even the minimal federal role under the WQA)⁴⁶ and when America had yet to meet the intransigence of historically unregulated dischargers, of complex ecosystems, of persistent pollutants, and of impacts too remote, too far downstream, to concern the people responsible for abating them. In this happy world, the attainment of water quality standards was to be a cooperative venture among dischargers and local authorities (which did not even perceive themselves as regulators).⁴⁷ The WQA's water quality standards themselves were viewed as goals and guidance [29 ELR 10472] for the ensuing discussions, not as enforceable or enforcement tools.⁴⁸

Unfortunately, the world, had it ever worked this way, was going in another direction, and virtually nothing in the WQA came to pass. By 1970, only half of the states had adopted even the most rudimentary water quality standards, and the difficulties of compliance had proven to be paralyzing.⁴⁹ For its part, between 1948 and 1970, the federal government had brought only one enforcement action, against one discharger.⁵⁰ The river basin commissions were busy promoting projects of water engineering and lacked the authority to do anything about water pollution even had they cared about it.⁵¹ Water pollution itself, meanwhile, was booming; most municipal waste was still without basic, primary treatment, and more than 300,000 industrial facilities were discharging 22 billion gallons of wastewater per year, less than one-third with any form of treatment at all.⁵² All of which would be ancient history but for the reasons that underlay this failure, and remain with us today.

In actual practice, the scope and rigor of state water quality standards were heavily influenced by local dischargers, creating inequalities within states and sending some states (primarily in the South) into a classic race to the bottom.⁵³ The requirements of monitoring these waters—to determine which were in violation of what standards and when—was beyond the existing capacity of government at any level. The science to predict the results of new or existing discharges, even for specific point sources, was similarly out of reach, and that necessary to attribute specific water quality violations to particular sources was beyond the realm of proof. These conclusions became apparent to commentators, to courts, and, finally, to Congress itself. A few illustrative statements, from many, bear repeating.

On setting water quality standards:

Due to the pressures of powerful economic interests, the States do not establish meaningful quality levels and create water "zones"—some good, mostly bad.

—Rep. Charles Vanik (D-Ohio)⁵⁴

On the consequent race to the bottom:

One of the most critical problems in legislating water pollution controls is that the standards will be so haphazard that … industries [will move] from State to State in search of less strict pollution standards.

—Rep. Michael Harrington (D-Mass.)⁵⁵

On the underlying science:

State and Federal governments will continue to founder on the staggering complexity of this control system, which requires working mathematically back from the permitted pollution levels in a waterway to the effluent limitations at the point source needed to achieve them.

—Reps. Bella Abuzug (D-N.Y.) and Charles Rangel (D-N.Y.)⁵⁶

On the influence of politics:

These [legislators] are all men of good intentions, but they get beat over the head by powerful interests back home. I won't mention any names, but say somebody is from South Carolina or Georgia, and the Georgia Power Co. gets after them …. You can't find any finer men, or men of more integrity. But you can only go so far.

—Rep. John Blatnik (D-Minn.), Chair, House Public Works Committee⁵⁷

[29 ELR 10473]

None of which history restrained in the least the states, local water districts, and industrial dischargers from making the strongest possible plea, during the tumultuous sessions leading to the Federal Water Pollution Control Act Amendments of 1972, for retaining the water quality standards program as the primary engine of national water pollution control.⁵⁸ State and local agencies were said to be in a far better position to know the numerous "local and natural variables" for pollution control (Gov. Nelson Rockefeller (R-N.Y.))⁵⁹; states had, likewise, the necessary "knowledge, experience and expertise" (National Governors' Conference)⁶⁰; states had "predictive mathematical models" for "the development of water quality implementation plans" (Pennsylvania Department of Environmental Protection and Regulation).⁶¹

At bottom, however, this was a turf war. Governor after governor spoke to protest a "federal takeover,"⁶² a "subterfuge to encroach upon the constitutional authority"⁶³ of the states. Although couched in language of "expertise," to the states and their supporters in the House of Representatives (and in the American Petroleum Institute and the U.S. Chamber of Commerce) the issue was not so much clean water as it was retaining the clout to make decisions that affected state and local development. And it has so remained. Virtually every year since 1972, state agencies and their trade organizations have proposed returning the Clean Water Act to a water quality standards-based program as a matter ofstate sovereignty, albeit to a program that would be relaxed at the same time to eliminate "unrealistic" and "rigid" federal numerical standards as well, and afford greater "flexibility" for water quality permitting.⁶⁴ We can do water quality standards-based regulation, the states have maintained; just let us.

The great irony of the Clean Water Act, of course, is that back in 1972, it gave the states exactly the authority they were seeking, through § 303(d). At the insistence of the states, and over the strong (indeed, barely respectful) objections of the Senate, the House of Representatives wrote, advocated, and had inserted into the Senate bill a provision that retained the traditional state water quality standards of the WQA and added those steps for their implementation that we now know as total maximum daily loads (TMDLs). The process did little more than codify what the states represented that they were doing with water quality standards: identifying polluted waters,⁶⁵ targeting them for cleanup,⁶⁶ and developing total maximum pollution loads.⁶⁷ Except in one regard. Section 303(d) made the process mandatory.

Mandatory or not, a second great irony of the Clean Water Act is that, as the Senate might have predicted, the states did even less to implement § 303(d) than they had to implement the WQA.⁶⁸ Nor did EPA do more.⁶⁹ To be sure, EPA's emphasis, and therefore that of the states, was on the implementation of a point source permit program and on massive funding for municipal treatment systems, but the fact remains that the residual authority was there in the law for states to do more—to do exactly what they said they were good at and wanted to do—and they did no such thing.

It is equally useful to recapitulate what states and EPA were doing all this time, for more than 20 years, beyond the industry and municipal point source worlds. They were "waste treatment planning" under § 201.⁷⁰ They were statewide "water quality management planning" under §§ 106⁷¹ and 303(e).⁷² They were "areawide regional planning" under § 208,⁷³ and "basin planning" under § 209.⁷⁴ They were then "nonpoint source planning" under § 319.⁷⁵ And in more recent years, they were "watershed planning" under all of these authorities,⁷⁶ looking for the magic bullet that would [29 ELR 10474] translate abatement measures from paper to practice, and it never materialized. Not for want of encouraging regulations. Not for want of funding. Basically, for want of a bottom line.⁷⁷

When the storm finally broke in the mid-1990s, it was brought on by citizen suits that penetrated EPA's line of defense that it had no enforceable duty to act under § 303(d).⁷⁸ These suits sent the Agency and the states into a flurry of activity featuring new § 303(d) guidance, a Federal Advisory Committee Act (FACA) committee, new state lists of impaired waters, and the first glimmers of actual TMDLs. In 1998, the Administration proposed a series of funding and technological assistance initiatives in its Clean Water Action Plan and began steps to bring large-scale, lightly regulated pollution sources—primarily municipal stormwater and concentrated animal feeding operations—under tighter controls.⁷⁹ To its credit, the plan forthrightly identified non-point source pollution as the leading cause, by an overwhelming margin, of water quality impairment in this country, and ordered several related federal agencies, most importantly the U.S. Department of Agriculture, to take remedial steps on their own and to work with EPA to address the problem.⁸⁰ The primary engine of the Clean Water Action Plan for nonpoint source pollution, however, beyond the lubricants of funding and interagency cooperation, was the emerging program under § 303(d).⁸¹

As of this writing, EPA was on the verge of proposing new regulations for the implementation of § 303(d).⁸² These regulations promise to be as contentious as any in environmental law and, with others also in the works, will raise many of the unresolved issues that have surrounded water pollution control since 1948. Two issues stand head and shoulders above the crowd, however. The first is whether § 303(d) covers nonpoint source pollution at all,⁸³ and agribusiness interests (supported by the U.S. Forest Service) have already filed litigation asserting the contrary.⁸⁴ The second is whether a TMDL is simply an arithmetic calculation that states are then free to incorporate in subsequent "planning," or whether the TMDL is itself both a calculation and a plan.⁸⁵ The outcome of these issues will be huge, indeed dispositive, on the effect of § 303(d) and its contribution to the Clean Water Act. If nonpoint sources are held to be beyond the mandatory provisions of this section, they will be relegated to the essentially ineffectual planning exercises that have characterized the last 25 years in nonpoint source control. And if TMDLs, even if they include non-point sources, are deferred to the never-never land of state water quality management planning, they will disappear down the same sinkhole with hardly a trace behind.

To its credit, EPA has held the line on including nonpoint sources since its first TMDL regulations more than two decades ago, a fact that bodes well for judicial approval.⁸⁶ Although the Agency has been more equivocal on the exact nature of a TMDL, the experience of the past several years in witnessing what has come out of state agencies under the name of a TMDL⁸⁷ should and, in all likelihood, will persuade the Agency that, out of sheer necessity, a TMDL must include a plan for its own implementation. Whether these proposed regulations survive the always-skeptical Office of Management and Budget remains to be seen. Whether they survive the opposition they are sure to receive from at least some state agencies, their lobbies, and vociferous industries in logging, construction, agriculture, municipal sewer systems, and new housing development also remains to be seen, as well as the ultimate trump cards, a new Administration and Congress.

All of which brings us to the major issue of today. If the Clean Water Act is going to move forward on its last great frontier, nonpoint source pollution, through the vehicle of TMDLs, is there any reason to think that an ambient water quality-based approach will work any better this time than it has in the past? This approach failed in the 1950s and 1960s for basically the same reasons that it went dormant in the 1970s and 1980s and is proving so difficult to effectuate today. We are short on science. And we are very short on political will.

TMDLs and the Limits of Science

The source [a Los Angeles municipal sewer agency] argues that there is "no good linkage" between the use of generally accepted control measures and an impact on water quality improvements. "There's no point in setting limits if you don't know whether they'll achieve the desired result."

—Inside EPA Weekly Report⁸⁸

The problem, says an [agriculture] industry source is that the information used to create state assessments and impaired waters lists is often out of date and speculatory [sic] because states do not have the resources to monitor all water bodies.

—Inside EPA Weekly Report⁸⁹

Pollution control systems based on ambient standards have always relied more on science than science can deliver. They are looking for numbers, thresholds, and fixed limits. [29 ELR 10475] They require proof of causes and effects that, arguably, come from other causes and have other effects, and pinning the tail on the right donkey has plagued air, water, and toxics programs from their inception, just as it has severely limited private causes of action for damages from widespread environmental harm.⁹⁰ Indeed, it was the limitations of this type of proof that gave rise to public environmental regulatory programs in the first place.⁹¹ As in the early versions of the Clean Water Act, however, the science of these programs foundered every step of the way, from accurate assessment of existing conditions, to accurate predication of the effects of particular emissions, to the establishment of limits, to the proof of causation when ambient standards were violated. It was these difficulties, of course, that finally prompted Congress to shift direction in the Federal Water Pollution Control Act Amendments of 1972.

The requirements of science also make ambient-based systems far more resource intensive than their proponents are willing to acknowledge. Working systems require constant and large infusions of money for training, monitoring, modeling, site assessments, surveillance, and enforcement. Precisely because "one size does not fit all"—as states and industry are quick to claim—every size, every water body, is a separate control system and one that is always, further, subject to change. Whatever data it produces, moreover, science is never satisfied. Scientists are not trained to be satisfied, or to project their opinions, or to predict; they are trained to question even the most obvious conclusion until all reasonable hypotheses have been disproved. And if the scientists are not satisfied—if they are not conclusive in their data and results—the regulated community will never be satisfied and will have a ready reason to resist abatement costs. Ambient-based regulation is truly a system that never rests, and that never stops asking for money.

These monies have never been on hand. They were certainly not available in 1972, and whatever models and expertise and monitoring systems were then in place slowly atrophied as the point source requirements of the Clean Water Act required other talents, and as the planning exercises were, sequentially, embraced and rejected as a waste of time. A 1977 study of wastewater treatment concluded that water quality planning was "filled with assumptions, guess work and over simplifications" because "planners don't know nearly enough about water and the way it responds to waste loads."⁹² In 1984, EPA conducted an in-house assessment, State Needs for Technical Assistance in NPDES Permitting, that focused on water quality-based permitting.⁹³ Among its more than 30 separate findings:

States often lack data on the water quality of a given site that they need for water quality impact analysis or modeling.⁹⁴

States often lack data necessary to determine the design discharge of the receiving water, especially for small streams.⁹⁵

In general, states lack knowledge of how to do realistic modeling of a pollutant's concentration and fate in a water body.⁹⁶

States need water quality models for a variety of geographic situations, especially for estuaries.⁹⁷

Three years later, an Office of Technology Assessment study concluded:

Only limited data are available on ambient pollutant concentrations in receiving waters, variability in these concentrations, and the fate of these pollutants and their impacts on indigenous organisms. In addition, our ability to monitor water quality in relation to potential environmental or human impacts is relatively primitive.⁹⁸

Despite occasional EPA assertions, and repeated state assertions, to the contrary,⁹⁹ these conditions have not much changed. In 1993, a U.S. Geological Survey official reported that basic data were lacking on such fundamental questions as, "what are the relative impacts of pollutants discharged from point and nonpoint sources?"¹⁰⁰ Current [29 ELR 10476] water quality monitoring failed to provide "consistent data for tracking trends," he continued, and differences in sampling and reporting methods "prevented data comparisons between states."¹⁰¹ The 1998 FACA committee on TMDLs noted that, even at this late date, only 19 percent of the nation's waters were monitored for pollution,¹⁰² and that the states were in need of every manner of technical assistance from monitoring to assessment to enforcement in order to meet the demands of § 303(d).¹⁰³ A 1999 report issued by current and former EPA and state environmental agency employees concluded that even the monitoring currently undertaken of state waters is highly variable in both water bodies assessed and methods of assessment, virtually unsupervised by EPA, and a "game" of "politics, bureaucratic inertia and bad science" leading to "erroneous and manipulated sets of water quality data."¹⁰⁴ A 1999 U.S. General Accounting Office (GAO) study concluded that even the current EPA watershed models, costing $ 25,000 per study, are insufficient to calculate the effects of pollution loadings and the costs of their control.¹⁰⁵ More adequate but largely untested models of the U.S. Geological Survey are available at $ 750,000.¹⁰⁶ Conservatively estimating 100 watersheds per state, the bill for their assessment alone could reach $ 4 billion.

The states and TMDL-implicated communities, mean-while, are alert to these weaknesses in monitoring and assessment and have already signaled their willingness to exploit them. The first counterattack has come on the required biennial submissions of polluted waters under § 303(d).¹⁰⁷ Opposing listings as based on inadequate science ("drive-by listings,"¹⁰⁸ in the words of one agriculture industry attorney—a characterization that in some cases may not be far from the truth), farm and other nonpoint interests have persuaded states to reduce their submissions on impaired waters to the absolutely proven, with significant results. Incongruous as it may seem in the face of new EPA listing criteria designed to be all-inclusive, to err on the side of listing, and to facilitate the use of "all relevant data,"¹⁰⁹ many states have actually cut their § 303(d) lists in half since 1996, relegating hundreds of waters to such categories as "further study," "insufficient information," and only "moderately impaired."¹¹⁰ The state of Wyoming, for example, reduced its list of over 400 waters to 61 identified as polluted and 315 as needing "further monitoring."¹¹¹ Perhaps coincidentally—but only perhaps—275 of the 315 waters deferred for "further monitoring" were contaminated by nonpoint sources, primarily cattle grazing.¹¹²

EPA, for its part, has tried to be conservative in accepting these new state § 303(d) submissions, rejecting several out of hand¹¹³ and inventing, on its own, a new Clean Air Act-like "partial approval" for several others.¹¹⁴ Industry sources, on the other hand, have bridled at the closeness of EPA's review, characterizing EPA's replacement of Virginia's list as "arbitrary" and "ill-defined"¹¹⁵—the language of litigation. In Wyoming, a jurisdiction not nationally noted for its concern over "sound science," a rather targeted piece of legislation is pending to require the application of "credible data" in determining "a water body's attainment of designated uses."¹¹⁶ At the same time, the Governor of Wyoming was testifying before Congress that the science behind its listings of polluted waters for the past decade or so was never there in the first place, explaining:

We are just finishing a correction of inaccurate classification of streams in Wyoming that resulted from another EPA approach. A few years ago, the authority for states to receive federal money for watershed work required that we declare that a waterbody was functionally impaired—regardless of its actual condition. That misunderstood incentive caused many steams to be mislabeled as impaired. As a result Wyoming was able to draw down 319 money.¹¹⁷

In short, the Devil made them do it. The work of the Devil or not, what is clear is that for years, indeed decades, the states and nonpoint industries were content with submissions that, now that they are likely to trigger compliance requirements, will be put to the bitter proof. The bill for this proof has yet to be presented, much less paid.

[29 ELR 10477]

This said, identifying polluted waters is, from the point of view of the science involved, the easy step. The next is to identify the causes of impairment and to allocate their loads. Here is where lines get drawn deep in the sand, and among the first to draw them are the municipal sewer systems which have the not-unrealistic fear that—given the states' historic reluctance to impose serious abatement measures on nonpoint polluters—municipal systems are likely to take the hit.¹¹⁸ This anxiety has produced a remarkable document from the Association of Metropolitan Sewerage Agencies (AMSA), a self-styled "survival guide" for wastewater agencies entitled Evaluating TMDLs: Protecting the Rights of POTWs.¹¹⁹ It is a guide with a purpose; as the Executive Director of AMSA explains, "We're developing guidelines to lead our members through the TMDL process and to show them when they can challenge the state in court."¹²⁰

After declaring its member agencies to be the "foremost environmental practitioners" in the country,¹²¹ the AMSA survival guide proceeds as a litigator's cookbook to identify, seriatim, methods of limiting or avoiding responsibility altogether under § 303(d). Sewer agencies may begin by challenging listings on the basis of "sufficient reliable scientific data."¹²² Or they may advocate that waters, particularly those that are contaminated from nonpoint sources, be listed under "other," nonmandatory sections of the Clean Water Act.¹²³ Beyond listings, the guide points out opportunities for municipal agencies to lower the applicable water quality standards by "redefining" a designated use (from primary to secondary contact recreation, for example),¹²⁴ by declaring an existing use "unattainable,"¹²⁵ by proposing separate "site-specific criteria" in their discharge zones,¹²⁶ or by proposing to remove the water from listing altogether.¹²⁷ As for incorporating the TMDLs into municipal system permits, the guide offers "several strategies" for protecting POTWs from "unwarranted, unnecessarily stringent" limitations such as variances, exceptions, and appeals.¹²⁸ The document concludes, without even a hint of intended irony, that "AMSA is proud to offer this indispensable TMDL evaluation manual" as a "service to all who are concerned with making genuine progress in improving our environment."¹²⁹

EPA, of course, has seen its problem with the science of water quality management coming for a very long time. It issued an ever lengthening series of technical bulletins on water quality throughout the 1970s and 1980s, and in this decade has stepped up the pace with elaborate training opportunities, most recently a "watershed academy" featuring 23 separate courses beginning with "Watersheds 101"¹³⁰ and a web of assessment systems entitled "BASINS,"¹³¹ featuring national databases, assessment tools (called "TARGET" and "ASSESS"), local data inputs, water quality models (e.g., "QUAL2E") and "post processing output tools for interpreting model results."¹³² The chances are that the very complexity of these models and the predictions will incline reviewing courts to defer to agency conclusions, state or federal, as they have for the most part for similar modeling under the Clean Air Act¹³³ and for similar (and even more expensive) ambient impact-based cleanup decisions under Superfund.¹³⁴ As they should. Public environmental law, unlike private tort law, is precautionary, and that precaution requires taking science beyond the dispositive to the reasonable, farther than it may wish to go.¹³⁵

EPA has seen a more fundamental problem coming as well with water quality management, and one it has been avoiding for decades: the adequacy of the water quality standards regulations themselves. The issue has now been dragged to its door by the TMDL litigation, and by the efforts in every state and EPA region to, at long last, begin to relate water quality impacts to sources in a comprehensive way. Commentators, courts, and others have long known and described problems inherent within the existing water quality standards (WQS) program,¹³⁶ including a high degree [29 ELR 10478] of variability in state water quality criteria (based, inter alia, on assumptions of risk varying by as much as 10,000 times),¹³⁷ equally varying application factors (e.g., flow assumptions),¹³⁸ mixing zones,¹³⁹ site-specific water quality criteria,¹⁴⁰ downgrading uses,¹⁴¹ degrading waters within uses,¹⁴² and the absence of certain critical standards (e.g., sediments and nutrients)¹⁴³—all of which provide considerable leeway for states to tilt their playing fields toward their immediate development interests and to avoid coming to grips with the consequences of polluted waters.¹⁴⁴ EPA has had chronic difficulty over the years leveraging unwilling state programs into more adequate criteria,¹⁴⁵ antidegradation provisions,¹⁴⁶ protections for outstanding natural resource waters,¹⁴⁷ and citizen participation.¹⁴⁸ None of which really mattered before, but the stakes are about to rise.

EPA now finds itself with its TMDL program in the position of a home renovator who, having furbished an elegant new structure, needs to deal with the foundation. The situation is even more dicey because states and their industry supporters have been complaining for years that the existing WQS regulations are, conversely, too rigid and inflexible, insensitive to cost-benefit analysis and insufficiently responsive to local conditions.¹⁴⁹ While this perspective and rhetoric have been around since at least the WQA, they led a strong and nearly successful attack on the federal program in 1982 during the Reagan Administration,¹⁵⁰ another in 1996 with the Contract With America Congress,¹⁵¹ and are now ready to use this opportunity to try again. On July 7, 1998, EPA opened up the whole ball of wax with an advance notice of proposed rulemaking,¹⁵² inviting comment on every aspect of its water quality program, including use designations, attainability, downgrading, aquatic criteria, antidegradation, mixing zones, and application factors.¹⁵³ This rulemaking will be a donnybrook among environmental interests, states, and the discharge industries, reminiscent of the legislative arguments that have marked the CWA over the years, and no more likely to put them to rest.¹⁵⁴

At the same time, EPA is pushing science to new limits for the development of criteria most relevant to nonpoint source pollution. It is on a two-year schedule for the development of "region-specific," "waterbody type" technical guidance on state criteria for nitrogen and phosphorous, the two largest culprits in the nonpoint lineup.¹⁵⁵ It has announced [29 ELR 10479] plans to develop bacterial criteria for water recreation, biocriteria for wildlife, and criteria for excessive sediments and flow alteration¹⁵⁶—each certain to send another set of users and dischargers (e.g., POTWs and irrigators) up the wall.¹⁵⁷

We have now slid back into the maw of a program that Congress all but rejected in 1972 for, among other things, its uncertain science and elaborate indirection. The program was retained because states and industry lobbied to retain it with claims that they had this technology on hand and could do this drill,claims that they have repeated to Congress nearly every year since. In the light of the obvious shortcomings of this technology and the equally obvious shortage of resources devoted to it, these claims must seem odd, until one realizes that they are not made in the abstract but as arguments to reassert state primacy over water pollution control. Pollution control is turf control, and this is where the success of the TMDL program is most in doubt. With enough commitment of resources—and it will take another order of magnitude beyond anything yet committed under the Act—adequate science to deal with the aquatic impacts of nonpoint sources is within the realm of the possible. Adequate political will is a different story.

TMDLs and the Limits of Will

Georgia has failed for over sixteen years to comply with the Clean Water Act's requirement that states identify total maximum daily loads of pollutants in waters that do not attain applicable standards. At its current pace, Georgia will take more than one hundred years to comply with the Clean Water Act.

—Sierra Club v. Hankinson¹⁵⁸

As the curtain opens, a reluctant Data is trying to hide from view behind a wall of cubicles decorated with diplomas and accredited certifications. When finally forced into view by the Environmental Plaintiffs Attorneys Precision Marching Briefcase Brigade (who execute carefully coordinated maneuvers to block the exits while somehow avoiding tripping over the sprawling forms of Agency Staffers), Data reveals his secret: Mother never did abuse the victims … it was Humans. The Agency Staffers, Politicians, Federal and State Land Managers and Private Property Owners all deny that it was them.

—Member, Western Governors' Association TMDL Workshop¹⁵⁹

We may start with an obvious question: Where were the TMDLs? Albeit that states and the federal government were pursuing other CWA agendas for the past 27 years, given the law on the books and the penchant of at least some states for a water quality approach, it may seem even stranger than the states' continuing assertion that they could do this drill that they did not do it, for all that time.

Perhaps some states were defeated by the science and monitoring required, but all states? Certainly every state had adequate data on at least a few of its waterways and, as certainly every state was aware, many of these waterways were highly degraded. Indeed, for years they had been reporting these waters as degraded under the non-action-forcing provisions of § 305(b).¹⁶⁰

Perhaps TMDLs were deflected by the absence of state laws supporting those measures that TMDLs would impose, particularly on forestry and agriculture. Legislation in some states does in fact place these sources on a pedestal beyond the reach of environmental controls—in itself a statement about state commitment to clean water.¹⁶¹ But as a recent Environmental Law Institute study documents, many other states do not, and all states retain the residual authority in their water quality programs to move on some nonpoint sources, and in some states, on all sources.¹⁶²

Perhaps the states were daunted by the apparent lack of ready abatement measures to incorporate into TMDL measures which could have appeared too ill defined, inchoate, or expensive. But the truth of TMDLs is that the remedial [29 ELR 10480] measures are usually obvious. And low-tech. And cheap.¹⁶³ Imagine what it might take to reduce fertilizer runoff from a corn field, and streamside setbacks come to mind. For other crops and animal husbandry we have such options as winter cover, retention ponds, shelterbelts, and caps on fertilizers in amounts that the soil will retain and the crops will use. Many farms practice these measures as a matter of sound economics and conservation. EPA has published an entire book on these measures, quite contemporary and detailed.¹⁶⁴ And they work. In the state of Florida, years of struggle, litigation, legislation, and compromise recently yielded an agreement to reverse the trend of deterioration of water quality in Everglades National Park by, inter alia, restricting the use of fertilizers in the adjacent agricultural areas¹⁶⁵: fertilizers would be applied in specific amounts and in specific ways. Within a year, with the sugar crop still flourishing, nutrient loading from the agricultural areas dropped 40 percent.¹⁶⁶ These remedies are not rocket science. Compared to thetechnology and investments required of point source industries, they are simple, practical, and at hand.

And so, we run out of excuses. TMDLs did not vaporize from the restrictions of science or technology or state law. They vaporized on the will to do a very hard thing, to make demands on large, local industries without the backing of explicit federal standards and permits and the threat of federal enforcement. No state employee in his or her right mind would volunteer to take on the Florida sugar industry. Even the subsidy-eliminating national farm bill of 1996 tried that and failed.¹⁶⁷ No Idaho water quality official rises in the morning eagerly anticipating a confrontation with Boise Cascade over logging roads. The cattle industry is no easier a customer in, say, Catron County, New Mexico, where "custom and culture" ordinances have attempted to outlaw all federal environmental requirements,¹⁶⁸ or in Nevada where federal land management offices are occasionally bombed.¹⁶⁹ We are all human, and the path of least resistance toward nonpoint sources for the life of the Clean Water Act has been the happy land of planning, for which there was a steady (if thin) stream of federal funding and nothing was enforceable: a states-rights dream.

Until the TMDL litigation shattered the dream. The state and industry reactions that followed have shown the classic symptoms of psychological trauma from shock to denial, anger, and grief. It is too soon to know whether we will get to Stage Five, reconciliation, and the point where states will take hold of this exercise, make it their own, and implement it with effective, enforceable plans. The early returns are at best mixed.

On the bright side, the state of Missouri is reported to have put $ 1.8 million into its state budget to fund additional water pollution control staff.¹⁷⁰ New York claims to have put $ 14.2 million over the past five years toward nonpoint source management.¹⁷¹ Additional TMDL funding has been reported in Virginia¹⁷² and—to illustrate just how far this issue travels—even Louisiana.¹⁷³ Oregon has authorized its Department of Agriculture to implement and enforce TMDLs on private agricultural lands.¹⁷⁴ Tennessee is said to be restricting, and even denying, new permits for impaired waters, pending the development of TMDLs.¹⁷⁵ Connecticut, taking a broader tack, is proposing a "statewide TMDL" for total nitrogen, assigning waste load allocations first to watersheds and then to individual sources.¹⁷⁶ A multiplesource, multiple-state TMDL is brewing for Long Island Sound.¹⁷⁷ North Carolina took on its hog farmers, imposed a moratorium and subsequently pollution control requirements, and survived.¹⁷⁸ It can be done.

These bright spots noted, they are not the norm. Some states remain in denial. Faced with the enormity of the Midwest's contribution to the Gulf of Mexico's dead zone, the [29 ELR 10481] President of the Iowa Corn Growers Association, still in Stage Two, contended, "It doesn't jive. Two and two isn't making four…. Agriculture is being hung with the blame and we don't think it can be substantiated."¹⁷⁹ West Virginia has reportedly allocated no monies toward TMDLs and defaulted the process to EPA.¹⁸⁰ Nebraska has stated that it has sufficient resources to complete no more than one TMDL per year.¹⁸¹ Kansas has reportedly backed off monitoring for suspended solids and diluted its water quality criteria for chlorides, in anticipation of having otherwise to develop TMDLs.¹⁸² North California TMDLs, conceptually sound, have apparently languished somewhere between proposal and approval¹⁸³; California, meanwhile, has come up with the concept of "technical TMDLs"—load allocations-minus-implementation plans—that in the words of a state research agency "almost guarantees that it will be many years before California sees TMDLs implemented, especially for nonpoint sources."¹⁸⁴ TMDL-limiting legislation is pending in at least California,¹⁸⁵ Washington,¹⁸⁶ and Wyoming.¹⁸⁷ The California Farm Bureau Federation has filed suit challenging California's TMDL program.¹⁸⁸ The Wyoming Association of Conservation Districts has filed suit to enjoin the entire federal Clean Water Action Plan,¹⁸⁹ for which TMDLs are the operative component.¹⁹⁰ The American Farm Bureau Federation and National Pork Producers Council have fired a preemptive shot against EPA's upcoming national regulations for the TMDL program.¹⁹¹ Beyond the rhetoric, state § 303(d) lists of impaired waters submitted last year reflected a marked tendency to minimize water quality problems and deflect data to the contrary, limiting the scope of work to come.¹⁹² The TMDLs themselves are no better. A study completed last year of 55 TMDLs approved by EPA showed little quantification of pollution loadings, less identification of nonpoint sources, and a near-total avoidance of implementation measures.¹⁹³

The news is not a great deal more encouraging on the political front, where in August 1998 the National Governors' Association proposed a substitute for TMDLs based on state programs that EPA would be compelled to approve unless the Agency found "no reasonable likelihood" of the attainment of water quality standards within the next 15 years.¹⁹⁴ If such a state plan were approved, particularized plans for sources or watersheds would be beyond federal review or approval.¹⁹⁵ The proposals were so bald that they drew a response from EPA's Office of Water to the effect that they would "dramatically weaken" the federal water program,¹⁹⁶ but one suspects that this observation was not news to the governors. Indeed, one could guess it was precisely their intent. In December 1998, the governors met again, this time in Washington, D.C., to discuss TMDL strategy with state water administrators; EPA was not even invited to attend.¹⁹⁷

In February 1999, the governors took their case to Congress, where they met a warm reception as warriors "on the front line of the clean water battlefield."¹⁹⁸ In the coded language of Capitol Hill, the chair of the House Subcommittee on Water Resources and Environment predicted that the CWA's success would depend, inter alia, on identifying "appropriate state and federal roles" and "improving upon the current TMDL … program."¹⁹⁹ Translation: reduced federal oversight and less demanding TMDLs. The Governor of Maryland testified in favor of "holistic community-based watershed plans" designed to meet water quality standards; EPA's role would be limited to approving "overall" state programs.²⁰⁰ The Governor of New York echoed the same and advocated in the same breath "stronger, clearer [29 ELR 10482] agricultural exemption language in the point source permitting language of the Act,"²⁰¹ thereby eliminating any regulatory control over the primary industry and primary source of nonpoint pollution in the country. Wyoming followed suit.²⁰²

The reception has been equally chilly for EPA's regulatory initiatives on concentrated animal feeding operations (CAFOs), which have been the subject of several "listening sessions" around the country.²⁰³ What EPA has heard—be it for hogs, chickens, or cows—are arguments for voluntary controls, educational programs, and funding²⁰⁴—the essence, of course, of the current nonpoint source and watershed planning programs. Even holding the potential hammer of point source regulation over these sources, EPA is not finding it easy to come to grips with entities that have remained outside the operable features of the CWA for such a long time.

EPA's response has been money, and time. The Agency has funded the pork industry to develop consensus over upcoming CAFOcontrols.²⁰⁵ It has similarly funded the Western Governors' Association to provide a forum, indeed several forums, for discussing implementation of § 303(d).²⁰⁶ Anyone familiar with western natural resource policy knows that the western states are a tough act, and any effort co-chaired by the Governor of Wyoming is not going to, bring environmental protection immediately to mind, but EPA and the western states have started a process similar to the TMDL federal advisory committee two years before,²⁰⁷ and the agenda at least, if not the perspective, is focused, like the FACA, on practical issues in implementing TMDLs.²⁰⁸ They may actually find answers short of emasculating the law.²⁰⁹ The FACA committee did. And the more that people talk about actually doing TMDLs instead of how not to do them, the farther along toward reconciliation we proceed.

What remains, of course, is the question whether states will develop actual TMDLs that limit nonpoint source discharges in reasonable but verifiable and enforceable ways. EPA can only go so far before the law ends,²¹⁰ a proposition well known to opposing states and industry, and indeed relied on by them. As one state representative observed this past December, the Agency "can not do more [on nonpoint source pollution] without changing the Clean Water Act" and as a result is "left with a difficult dilemma": it needs to "obtain more authority over nonpoint sources by changing the law," but opening up the law could mean "losses on issues such as wetlands permitting,"²¹¹ long the target of industry and at least some wetlands-rich states. If such were one's objective, one would stonewall the TMDL program to the bitter end. For its part, EPA, supported by a few underused legal decisions characterizing agricultural and other unregulated operations as point sources,²¹² has weapons in reserve as well,²¹³ but its experience in trying to regulate well-identified and highly polluting CAFOs shows how problematical this authority may be. As with many issues of federalism in environmental law, this is a large game of "chicken" in which neither side can afford to lose all.

As we come into the endgame of EPA's new regulatory framework for TMDLs and its many efforts to jawbone, woo, cajole, and near-bribe the states and user groups to-ward getting with the program, it will all come down to the will of a majority of states to do hard things that they have never been willing to do before, that will alienate powerful constituencies, and that will require in some cases changing state laws through legislatures long captured by forest, farm, and construction industries and in no mood to change. Against these odds, TMDLs are not fertile soil for those prophets of a "New Environmentalism" that go "Beyond Regulation" to a happy world of stakeholder consensus and cooperation.²¹⁴ Ambient-based water quality management [29 ELR 10483] has tested this utopia many times before, indeed continuously through one program or another since the 1960s, without measurable cooperation, consensus, or result. The reason TMDLs have emerged as the force they are, bringing poultry and other industries to offers of "voluntary" abatement, jolting the national governors, convening the western governors forums, stimulating honest, on-the-ground review of what condition our waters are actually in, and extracting new revenue measures for nonpoint source abatement from states with no appetite for expenditures and with little more for environmental protection, is that TMDLs are different from voluntary, consensus-based exercises. They require more.

Concluding Thoughts

Those who govern, having much business on their hands, do not generally like to take the trouble of considering and carrying into execution new projects. The best public measures are therefore seldom adopted from previous wisdom, but forced by the occasion.

—Benjamin Franklin²¹⁵

You can get sucked into what the regulators tell you, but they don't live here, they don't love the river, and they're under tremendous pressure.

—Housatonic River Initiative²¹⁶

Something large is happening here. The nation is coming to grips with its huge, residual problem of water pollution, as it has with air pollution and, to an extent, with the use of the land itself. In much the same way. As has been observed elsewhere, TMDLs are the equivalent of clean air state implementation plans for water²¹⁷: impact-based, chronically difficult mechanisms to induce states to induce polluting sources to respect baseline standards for human health and environmental quality.²¹⁸ They might also be analogized to endangered species habitat conservation plans²¹⁹: impact-based mechanisms, chronically difficult in their science and their political science, to induce states and private parties to observe a baseline defined by the health, indeed the survival, of other living things.²²⁰ Programs to restore and sustain the three great resources of the country—the air, the land, and the water—are now evolving convergently around the same principles, presenting the same heartaches, and limping toward the same overall goal.

One longs for a more direct approach. Wiggling backwards from water quality impacts to a multiplicity of pollution sources, each of which believes it is already doing more than its share (or has ample excuses not to do its share), through the complexity of modeling, on-site assessments, monitoring, surveillance, proof, counter-proof, never-sufficient-proof, jawboning and appeals, and through the medium of reluctant and at times even co-opted state agencies, is very much like pushing on a rope.²²¹ By contrast, the [29 ELR 10484] Clean Water Act's adoption of strike-to-the-heart, best available technology standards for point source control was a stroke of genius whose effectiveness is proven not only by the stunning drop in point source loadings they produced—category by reluctant industrial category²²²—but by the stunning rate of imitation in other technology-based pollution control programs in the United States and abroad.²²³ Why not for these other sources as well?

Congress could have done the same for nonpoint source pollution, but it deferred to the feeling that nonpoint sources were essentially small, local, not all that damaging, unmanageably diverse, and beyond remedy through simple technological controls.²²⁴ Whatever its additional motives—and one suspects that in 1972 Congress had enough on its hands regulating discharges from industrial pipes without reaching for direct nonpoint controls as well—these reasons have not stood the test of time. It is now apparent that nonpoint source industries are anything but small, and in fact are led by multinational mining companies, timber corporations, agribusinesses the size of Archer Daniels Midland, and prominent members of the Fortune 500. It is also apparent that their contaminants make long journeys to both oceans, the Great Lakes, and the Gulf of Mexico, that they can be serious to the point of life-threatening, that they can wipe out entire fisheries and economies, that they are no more diverse than the several hundred categories and subcategories of point source industries regulated under the CWA,²²⁵ and that they are far easier than most point source industries both technologically and economically to regulate. But not politically, and that is of course the rub.

It is not hard to imagine, were we starting from scratch and with the willingness of the 1972 Congress, measures even beyond national technology standards that could make significant inroads on nonpoint source pollution. Limiting inputs, such as fertilizers, comes to mind, and indeed a few states have begun to do just that,²²⁶ as has the European Union.²²⁷ Alternatively, the taxation of inputs²²⁸ might come to mind for those who espouse letting "market forces" take the lead, but for the fact that the proponents of market forces always seem to disappear when it comes time to impose the volume caps, taxes, or other mechanisms that are necessary to put these forces into play; meanwhile, some of the nation's largest manufacturers of phosphate fertilizers²²⁹ sit profitably along the lower Mississippi River selling their products to farmers upstream and watching the harmful effects of those products wash back down into the Gulf of Mexico dead zone, without paying a cent for their (considerable) environmental costs. Tax rebates for sound farm practices²³⁰ could also help, as would more widespread cross-compliance mechanisms that have proven so successful in the U.S. Department of Agriculture swampbuster and sodbuster programs, tying federal farm subsidies to conservation goals.²³¹ All have been responsibly suggested, and one might dream on. But when one wakes up, it is to the expense and indirection and friction and snail's pace of TMDLs because they are the only game in town that nonpoint sources are required to play.²³²

[29 ELR 10485]

Which leaves us with the ultimate question: Are TMDLs worth it? The jury has gone out on this question, once again. For all the reasons described in this Article and others, ambient-based controls have met with little success in environmental law. All the money and effort spent in calibrating loads and "proving" impacts could be better spent developing explicit technology-based best management practices, sweetening them through financial incentives, and enforcing them through the same permit mechanisms that have proven so successful in the CWA and other laws. Their consumption of resources aside, TMDLs also contain the threat of eroding the significant gains made in CWA point source controls by trading the certainty of point source permit emission limits for the amorphous and unenforceable content of state water quality and nonpoint source plans.²³³ This risk is real, and rising.²³⁴

All of this said, TMDLs retain the upside potential for significant nonpoint source pollution control because they sound logical, they remain flexible, they defer largely to state prerogatives, and, most importantly, they, too, are enforceable. The logic is political. As imperfect as their assessments may be—and all environmental assessments are imperfect—TMDLs provide both a bottom line and their own reason to get there, a reason that everybody can under-stand. The costs and difficulties of ambient standards are the price of political buy-in for parties that neither Congress nor state legislatures are otherwise willing to touch.²³⁵ They are a means for previously unregulated sources to have their say, and for leveraging them to get beyond it. We are not "treating for treatment sake," as advocates of ambient approaches are quick to say; we are treating for something tangible that we all drink, fish, swim in, and simply look at with the pleasure of knowing that it is alive and well.

TMDLs, further, carry their own flexibility, with full potential for pollution trading and more cost-effective abatement, once all parties are firmly and inescapably (if unhappily) at the table. Positive effects from this leverage are beginning to surface in several states, with financial assistance from municipalities—which would otherwise incur significant treatment costs—for less expensive and more proactive land use controls upstream.²³⁶

Moreover, the states are indispensable players in an effort of this magnitude and TMDLs respect state primacy for ambient-based water pollution control.²³⁷ What § 303(d) adds is a numerical goal, a few steps to get there that would be obvious to anyone genuinely trying, and an at times uncomfortable level of public review. These are state water quality standards, and the TMDLs will rely on whatever mix of implementation states and affected sources themselves select, a process virtually identical to the long-accepted process for Clean Air Act plans. Like air plans, they simply must contain reasonable assurance that the standards will be achieved.²³⁸ Which is, of course, the point.

In the end, however, TMDLs are worth the effort because they, and they alone, have brought the same driving force into nonpoint source pollution that drove the CWA point source program toward meeting its own deadlines, promulgating its standards, issuing its permits, enforcing their provisions and reducing pollution discharges: people who care about clean water.²³⁹ There are a great many of them, as Congress in this decade learned.²⁴⁰ There is a watchdog group in nearly every major watershed in the country, and there are many more formed around small streams and tributaries like the Hoosik River of New York and the Tangipahoa River of Louisiana that are not well known to the nation but that are cared for and defended as conscientiously as the borders of the United States.²⁴¹ It was these people whose lawsuits brought the TMDL program out of its 20-year slumber, and these same people are collecting samples on their waterways, reviewing the state [29 ELR 10486] data,²⁴² and commenting on inventories. They are ready and poised to do the same for TMDLs.²⁴³

These people will not be convenient for states, industry, or EPA. Some states, perhaps many states, will twist in several directions to minimize their TMDL responsibilities, reduce their listed waters, propose as few tangible solutions as possible, and defer implementation to the far horizon. Few TMDLs to date do otherwise. No EPA in the most willing of Administrations can bird-dog them all, and a willing Administration is never a given; it has never even been a fact. At the baseline, every day, it is the Hudson Riverkeeper and SAILORS Inc. and volunteer groups like them that, in the best tradition of participatory democracy, advance the goals of law through the use of law, and no better illustration of the need for these groups exists than in the history of TMDLs.

For these reasons, TMDLs hold the best prospect of those now available for coming to grips with the last major, unregulated sources of water pollution in this country. They are not perfect mechanisms. They will require money, significantly more than we have committed to date,²⁴⁴ but if America can't afford these resources while it is running its largest budget surplus of the century—as are many states, as well—then it is hard to imagine when America can. They will require acknowledgement from nonpoint industries that they are the problem, cooperation from the states, staying power from the Administration, patience from Congress, and reinforcement by the courts, but if ever there were a program that fit the year 2000 rhetoric of "stakeholder decisionmaking," this is the one. And if ever there were a stakeholder program likely to produce more results than bologna, it is § 303(d). Because it has numerical targets and prescribed steps to achieve them, and because it empowers people with the energy and the ability in law to see that they take place.

1. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

2. ROBERT ADLER ET AL., THE CLEAN WATER ACT 20 YEARS LATER 16 (1993).

3. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY 1994-95, at 271-73 (1997).

4. Id. at 14.

5. For examples of emerging quasi-voluntary and alternative emission limitations, see Comments Sought by EPA on Alternatives to Proposed Industrial Laundry Standards, 29 Env't Rep. (BNA) 1697 (Jan. 1, 1999) (discussing a nonregulation option for industrial laundries); EPA to Propose Less Stringent Metal Effluent Guidelines, INSIDE EPA WKLY. REP., Apr. 23, 1999, at 6 (discussing the U.S. Environmental Protection Agency's (EPA's) plan to propose optional guidelines for the metal products and machinery industry). In large part stimulated by the increased pressure of technology standards, EPA and industry have been experimenting with "pollution prevention" initiatives for most of this decade. See Blueprint for National Pollution Prevention Study, 56 Fed. Reg. 7549 (Feb. 26, 1991); see also More Than 600 Firms Asked to Reduce Releases of 17 Toxic Chemicals Voluntarily, [21 Current Developments] Env't Rep. (BNA) 1838 (Feb. 15, 1991).

6. ADLER ET AL., supra note 2, at 137.

7. Id. at 16.

8. Id. at 224-45.

9. For a discussion of these and other Clean Water Act successes, see U.S. EPA & U.S. DEP'T OF AGRIC., CLEAN WATER ACTION PLAN: RESTORING AND PROTECTING AMERICA'S WATERS, EPA 840-R-98-001, at 1-2 (Feb. 1998) [hereinafter CWAP] (discussing the Williamette River, where the "mighty salmon perished," which now supports "boating, skiing, swimming, and fishing").

10. The European Union has adopted a water pollution control program modeled on the CWA. See Council Directive 76/464 on Pollution Caused by Certain Dangerous Substances Discharged Into the Aquatic Environment of the Community, 1976 O.J. (L 129) 23 (providing technology-based emission limitations for toxic discharges, supplemented by a water quality standards approach).

11. See Patricia Howard, A Happier Cleveland, HOUS. POST., Oct. 24, 1990, at A2 (describing the 1969 fire on the Cuyahoga River in Cleveland, Ohio).

12. TMDL FEDERAL ADVISORY COMMITTEE ACT COMMITTEE, FINAL REPORT 3 (May 20, 1998) [hereinafter FACA REPORT].

13. See id. The draft National Water Quality Inventory Report to Congress for 1996 indicates that 35 percent of the nation's assessed rivers, streams, and estuaries, and 39 percent of the nation's assessed lakes, ponds, and reservoirs, do not fully support water quality standards. Id. For a troubling critique of these assessments, see PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, MURKY WATERS, OFFICIAL WATER QUALITY REPORTS ARE ALL WET: AN INSIDE LOOK AT EPA's IMPLEMENTATION OF THE CLEAN WATER ACT (1999); infra text accompanying note 104.

14. MISSISSIPPI RIVER COMM'N, U.S. ARMY CORPS OF ENG'RS, MISSISSIPPI RIVER AND TRIBUTARIES PROJECT, CAIRO TO THE GULF (1977).

15. Nancy N. Rabalais & Donald E. Harper Jr., Studies of Benthic Biota in Areas Affected by Severe Hypoxia, in COASTAL OCEAN PROGRAM OFFICE, NATIONAL OCEANIC & ATMOSPHERIC ADMINISTRATION, PROCEEDINGS OF NUTRIENT ENHANCED COASTAL OCEAN PRODUCTIVITY WORKSHOP, LOUISIANA UNIVERSITIES MARINE CONSERVATION 150 (Oct. 1991).

16. Id.

17. Carol Kaesuk Yoon, A "Dead Zone" Grows in the Gulf of Mexico, N.Y. TIMES, Jan. 20, 1998, at F-1.

18. U.S. DEP'T OF COMMERCE & LOUISIANA DEP'T OF NATURAL RESOURCES, LOUISIANA COASTAL RESOURCES PROGRAM FINAL ENVIRONMENTAL IMPACT STATEMENT 22-30 (1980).

19. Nancy N. Rabalais et al., Hypoxia in the Northern Gulf of Mexico: Past, Present and Future 1 (1995) (paper prepared for the U.S. EPA Gulf of Mexico Hypoxia Management Conference, Dec. 5-6, 1995) (citing T.D. Lemuing & W.E. Stuntz, Zones of Coastal Hypoxia Ravelled by Satellite Scanning Have Implications for Strategic Fishing, 310 NATURE 136 (1984), and M. Renaud, Hypoxia in Louisiana Coastal Waters During 1983: Implications for Fisheries, 84 FISHERY BULL. 19 (1986)).

20. Dubravko Justic et al., Riverborne Nutrient, Hypoxia and Coastal Evolution: Biological Responses to Long-Term Changes in Nutrient Loads Carried by the Po and Mississippi Rivers 162 (1994) (paper presented at the Symposium on Changes in Fluxes in Estuaries: Implications From Science to Management, International Symposium Series ECS A22/ERF, Institute of Marine Studies, University of Plymouth, Sept. 13-18, 1992).

21. U.S. EPA, SOURCES AND QUANTITIES OF NUTRIENTS ENTERING THE GULF OF MEXICO FROM SURFACE WATERS OF THE UNITED STATES, EPA 800-4-02-002, at 1 (Sept. 1992). The Mississippi River drains nearly 60 percent of the continental United States; within that expanse lie nearly three-quarters of U.S. farmlands producing, inter alia, 90 percent of U.S. soybeans, 90 percent of U.S. corn, and 70 percent of U.S. wheat—all fertilizer-intensive crops. Id.

22. Id.

23. Telephone Conversation with John Hall, Public Affairs Office, U.S. Army Corps of Engineers, New Orleans, La. (June 3, 1999).

24. Particularly well-documented studies of hypoxia are available for Long Island Sound, see A Total Maximum Daily Load (TMDL) for Long Island Sound: Charting a Course to Clean Water (Apr. 25, 1999) http://www.soundkeeper.org/tmdl/, and the Chesapeake Bay, see Elaine Bueschen, Pfiesteria Piscicida: A Regional Symptom of a National Problem, 28 ELR 10317 (June 1998).

25. CWAP, supra note 9, at 10.

26. John Burns, The Eight Million Little Pigs—A Cautionary Tale: Statutory and Regulatory Responses to Hog Farming, 31 WAKE FOREST L. REV. 851 (1996) (analysis of the North Carolina hog farming industry).

27. Margaret Kriz, Pfiesteria Hysteria, 29 NAT'L J. 1783 (1997); Margaret Kriz, Fish and Fowl, 30 NAT'L J. 450 (1998).

28. Everglades Pact Pledges Aid to Threatened Area, TIMES PICAYUNE (NEW ORLEANS), July 11, 1991, at A-20.

29. ADLER ET AL., supra note 2, at 180-81 (discussing grazing effects in Wyoming); see also Debra L. Donahue, The Untapped Power of the Clean Water Act Section 401, 23 ECOLOGY L.Q. 201, 279-80 (1996).

30. ADLER ET AL., supra note 2, at 182-83.

31. Id. at 183.

32. Id.

33. See id. at 193-98 (discussing the growing problem of urban runoff).

34. For a general discussion of difficulties in managing nonpoint source pollution under the CWA, see, e.g., WILLIAM H. RODGERS JR., ENVIRONMENTAL LAW 292-318 (2d ed. 1994); for more specifics, see David Zaring, Agriculture, Nonpoint Source Pollution and Regulatory Control: The Clean Water Act's Bleak Present and Future, 20 HARV. ENVTL. L. REV. 515 (1996).

35. 33 U.S.C. § 1313(d), ELR STAT. FWPCA § 303(d).

36. Oliver A. Houck, TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean Water Act, 27 ELR 10329 (July 1997) [hereinafter TMDLs I].

37. Oliver A. Houck, TMDLs, Are We There Yet?: The Long Road Toward Water Quality-Based Regulation Under the Clean Water Act, 27 ELR 10391 (Aug. 1997) [hereinafter TMDLs II].

38. Oliver A. Houck, TMDLs III: A New Framework for the Clean Water Act's Ambient Standards Program, 28 ELR 10415 (Aug. 1998) [hereinafter TMDLs III].

39. 117 CONG. REC. 38809 (1971).

40. Water Pollution Control Legislation—1971: Hearings on H.R. 11896, H.R. 11895 Before the House Comm. on Public Works, 92d Cong. 273 (1971) [hereinafter 1971 Water Pollution Control Legislation Hearings] (statement of Mr. Jones during testimony by James Krieger, Chairman, Water and Power Committee, Los Angeles Chamber ofCommerce).

41. See generally Water Pollution Control Act of 1948, Pub. L. No. 80-845, 62 Stat. 1155 (codified as amended at 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607). For a description of the Act, see Frank J. Barry, The Evolution of the Enforcement Provisions of the Federal Water Pollution Control Act: A Study in the Difficulty in Developing Effective Legislation, 68 MICH. L. REV. 1103, 1105-07 (1970).

42. William H. Hines, Nor Any Drop to Drink: Public Regulations of Water Quality Part III: The Federal Effort, 52 IOWA L. REV. 799, 800 (1967) ("The history of state control of pollution does not support optimism toward the [state] control agency's development of rigorous standards.").

43. Pub. L. No. 89-234, 79 Stat. 903 (codified as amended at 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607).

44. See Hines, supra note 42.

45. William H. Hines, Nor Any Drop to Drink: Public Regulations of Water Quality Part II: Interstate Arrangements for Pollution Control, 52 IOWA L. REV. 432, 432-33 (1966).

46. Hines, supra note 42, at 800-01.

47. See 2 WILLIAM H. RODGERS JR. ENVIRONMENTAL LAW, AIR AND WATER 247 (1986).

48. See S. REP. No. 89-10, at 9-10 (1965) (accompanying the WQA):

Water quality standards are not designed for use primarily as an enforcement device; they are intended to provide the Secretary and State and local agencies with additional tools for objective and clear public policy statements on the use or uses to which specified segments of interstate waters may be put. Their principal objective is the orderly development and improvement of our water resources without the necessity of adversary proceedings which inevitably develop in enforcement cases.

49. S. REP. No. 92-414 (1972), reprinted in 1972 U.S.C.C.A.N. 3671.

50. Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1042 n.45, 9 ELR 20284, 20297 n.45 (D.C. Cir. 1978) (citing DAVID ZWICK, WATER WASTELAND (1971); Patrick A. Parenteau & Nancy Tauman, The Effluent Limitations Controversy, 6 ECOLOGY L.Q. 1, 8-12 (1976)).

51. Hines, supra note 45, at 433. In the words of one observer: "The river basin plan is good river management, but not logical politically." Id. at 433 n.2 (quoting GRAHAM, DISASTER BY DEFAULT 217 (1966)). The author goes on to describe water basin planning under the 1966 Clean Rivers Restoration Act as "singularly unproductive of regional water pollution control efforts." Id. at 456.

52. William H. Rodgers Jr., Industrial Water Pollution and the Refuge Act: A Second Chance for Water Quality, 119 U. PA. L. REV. 761, 764-65 (1971).

53. These difficulties and those described subsequently are discussed, inter alia, in RODGERS, supra note 34. For a further discussion of the practical difficulties in this approach and the race to the bottom in southern states over standards for dioxins, see also Oliver A. Houck, The Regulation of Toxic Pollutants Under the Clean Water Act, 21 ELR 10528, 10532 (Sept. 1991).

54. H. REP. No. 92-911, at 396 (1972), reprinted in ENVIRONMENTAL POLICY DIV., CONGRESSIONAL RESEARCH SERV., LIBRARY OF CONGRESS, A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 494 (1973); id. at 517.

55. Id. at 517.

56. Id. at 865; see also S. REP. No. 92-414 (1972), reprinted in 1972 U.S.C.C.A.N. 3675 (statement of the Senate conferees):

Water quality standards, in addition to their deficiencies in relying on the assimilative capacity of receiving waters, often cannot be translated into effluent limitations—defendable in court tests, because of the imprecision of models for water quality and the effects of effluents in most waters.

57. HARVEY LIEBERT, FEDERALISM & CLEAN WATERS 59 (1975) (quoting Janice Heard, Environment Report: Water Pollution Proposals to Test Blatnik's Strength as Public Works Chairman, 3 NAT'L J. 1719 (1971)); see also GRAHAM supra note 51, at 24-25; William H. Hines, Nor Any Drop to Drink: Public Regulations of Water Quality Part I: State Pollution Control Programs, 52 IOWA L. REV. 186,205 n.96 (1966) (quoting the Assistant Secretary of the U.S. Department of Health, Education, and Welfare):

Part of your problem, speaking very frankly, is that the polluters in a given state are likely to be your communities and cities which belong to your political party and my political party. It gets a little embarrassing to move against your fellow partisans and embarrass them publicly or force them to float a bond issue or increase taxes.

Secondly, in many instances your big polluters are your big employers, big industries. And at a time when the states are involved, as they have been and will continue to be, in very keen competition for industry, for jobs, it is certainly an extremely difficult job for a state governor or legislature to face up to some of the biggest employers in the state and say "you must do this."

Little changed over the next 30 years. In 1995, the incoming Governor of Louisiana took out an advertisement in the Wall Street Journal depicting a man bent over backwards, and captioned "What has Louisiana done for business lately?" See Suz Redfern, DED Goes Big Time With Tort Reform Ad, GREATER BATON ROUGE BUS. REP., Sept. 17-30, 1996, at 52. The advertisement touts changes in Louisiana law limiting the liability of businesses for environmental, product, and workplace injury.

58. This history is discussed at length in TMDLs I, supra note 36.

59. 1971 Water Pollution Control Legislation Hearings, supra note 40, at 667 (statement of Nelson A. Rockefeller, Governor of New York).

60. Id. at 520.

61. Id. at 995 (statement of Wesley E. Gilbertson, Deputy Secretary for Environmental Protection and Regulation, Pennsylvania Department of Environmental Resources).

62. Id. at 52 (letter of J. James Exon, Governor of Nebraska).

63. Id.

64. See TMDLs I, supra note 36, at 10338-39 (citing Eidsness Says Administration Favors Water Quality-Based Pollutant Controls, [13 Current Developments] Env't Rep. (BNA) 805 (Oct. 15, 1982), and Hernandez Says EPA Seeks to Return Management of Water Programs to States, [13 Current Developments] Env't Rep. (BNA) 850 (Oct. 22, 1982)).

65. "Each State shall identify those waters within its boundaries for which the effluent limitations required by section 1311(b)(1)(A) and section 1313(b)(1)(B) of this title are not stringent enough to implement any water quality standard applicable to such waters." 33 U.S.C. § 1313(d)(1)(A), ELR STAT. FWPCA § 303(d)(1)(A).

66. "The State shall establish a priority ranking for such waters, taking into account the severity of the pollution and the use to be made of such waters." Id.

67. "Each State shall establish for the waters identified in paragraph (1)(A) of this subsection, and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator identifies under Section 1314(a)(2) of this title as suitable for such calculation." Id. § 1313(d)(1)(C), ELR STAT. FWPCA § 303(d)(1)(C).

68. For a discussion of state and federal implementation of § 303(d), see TMDLs II, supra note 37.

69. Id.

70. 33 U.S.C. § 1281(c), ELR STAT. FWPCA § 201(c). Section 201(c) provides for "waste treatment management plans" on an "area-wide basis" providing "control or treatment for all point and non-point sources of pollution." For a general discussion of CWA planning programs, see RODGERS, supra note 34, at 23-27.

71. 33 U.S.C. § 1256(a), ELR STAT. FWPCA § 106(a). Section 106(a) provides for "grants to States and to interstate agencies to assist them in administering programs for the prevention, reduction, and climination of pollution, including enforcement directly or through appropriate state law enforcement officers or agencies."

72. Id. § 1313(e), ELR STAT. FWPCA § 303(e). Section 303(e) provides that "each State shall have a continuing planning process." The section further provides that "the Administrator shall from time to time review each State's approved planning process for the purpose of insuring that such planning process is at all times consistent with [the Clean Water Act]."

73. Id. § 1288, ELR STAT. FWPCA § 208. Section 208 provides for the "development and implementation of areawide waste treatment management plans."

74. Id. § 1289, ELR STAT. FWPCA § 209. Section 209 supports planning for "all basins in the United States."

75. Id. § 1329, ELR STAT. FWPCA § 319. Section 319 provides funding for state nonpoint source management programs.

76. The current EPA watershed approach framework is outlined at the EPA website http://www.epa.gov/OWOW/watershed/framework.html (visited May 20, 1999). For a discussion of the current resurgence of the watershed approach, see Robert W. Adler, Addressing Barriers to Watershed Protection, 25 ENVTL. L. 973, 977-79 (1995).

77. In the words of one commentator, "planning has become less the strategy for cleanup it was intended to be, and more an institutional truce between the cleaners." 2 RODGERS, supra note at 47, at 318.

78. See TMDLs II, supra note 37, at 10395-96.

79. See CWAP, supra note 9, at 54-65.

80. See TMDLs III, supra note 38, at 10424.

81. TMDLs would "form the core" of the clean water strategy. CWAP, supra note 9, at 79.

82. See Resources, Fair Allocation of Loadings in TMDLs Concern Waste Water Officials, 30 Env't Rep. (BNA) 171 (May 28, 1999).

83. See TMDLs III, supra note 38, at 10421-22.

84. See Letter from Arthur Bryant, Director, Watershed and Air Management, U.S. Forest Service, to Geoffrey H. Grubbs (Apr. 29, 1997) (described in TMDLs II, supra note 37, at 10400) (Forest Service challenge to nonpoint coverage); Litigation May Resolve Federal Dispute Over Runoff Controls, INSIDE EPA WKLY. REP., Jan. 29, 1999, at 18 (discussing recently filed lawsuit by the Missouri Soybean Association).

85. See TMDLs III, supra note 38, at 10422. This issue, in turn, has two facets. The first is whether a TMDL must include source controls; to date, EPA has resolved this question by requiring "reasonable assurance" that TMDL measures will be implemented and effective. Id. The second is whether outside parties (i.e., citizen groups) will be able to review both the approval of the plan and its implementation under § 303(d), and it is this prospect that has been so anathema to nonpoint industry. Id. at 10421 & n.93.

86. See TMDLs II, supra note 37, at 10400.

87. Id.

88. Sewerage Officials Protest EPA Settlement, INSIDE EPA WKLY. REP., Feb. 5, 1999, at 8.

89. Feedlot Strategy Could Boost Permitting Over Voluntary Action, INSIDE EPA WKLY. REP., Nov. 20, 1998, at 9.

90. For a discussion of the difficulties in proof arising from private damage actions, see Brock v. Merrell Dow Pharmaceuticals, Inc., 874 F.2d 307 (5th Cir. 1989) (epidemiological evidence insufficient to show causation); Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F.2d 1394 (6th Cir. 1992) (animal studies evidence insufficient proof); Sorensen v. Shaklee Corp., 31 F.3d 638 (8th Cir. 1994) (ingestion of chemically treated substances insufficient evidence of causation); see also JONATHAN HARR, A CIVIL ACTION (1995) (difficulties in proving causation from toxic release).

91. See ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION LAW, SCIENCE AND POLICY, ch. 2.A (2d ed. 1996) (inadequacies of the common law are crucial to understanding the rapid growth of public law).

92. JEROME HOROWITZ & LAWRENCE BAZEL, AN ANALYSIS OF PLANNING FOR ADVANCED WASTEWATER TREATMENT 23 (1977) (cited in Lawrence Bazel, Water Quality Standards Maximum Loads and the Clean Water Act: The Need for Judicial Enforcement, 34 HASTINGS L.J. 1245 (1983).

93. U.S. EPA, PROGRAM EVALUATION, OFFICE OF WATER QUALITY, ASSESSMENT OF STATE NEEDS FOR TECHNICAL ASSISTANCE IN NPDES PERMITTING (Apr. 25, 1984).

94. Id. at III-12.

95. Id.

96. Id. at III-9.

97. Id. at III-11.

98. OFFICE OF TECHNOLOGY ASSESSMENT, WASTES IN MARINE ENVIRONMENT 206 (Apr. 1987). The report also noted:

First, it is questionable whether EPA has sufficient resources to continue to develop and update the Federal water quality criteria, or to evaluate water quality standards that are developed by States. Moreover, a large increase in compliance monitoring and enforcement burdens would also be anticipated.

Id.

99. For a statement more based on hope than reality, the EPA Assistant Administrator for Water testified in 1986 that:

Before the 1972 law, you'd get into these long, long debates with dischargers who would say "No, let me prove to you that this isn't a problem." So I guess my feeling is that having established a very strong nationwide enforcement structure, we have got a tool that will allow us not to get lost in endless scientific debates.

Secondly, we've learned something in the last 20 years. Our monitoring technology is much better than it was 20 years ago …. So we've got a lot of information we didn't have 20 years ago. So the combination of the much better information and much better permitting and enforcement base means that I think we have a chance we didn't have then.

Id. at 4 (quoting Rebecca Hanmer). For repeated state assertions of their technological capacity to conduct water quality-based permitting, see TMDLs I, supra note 36, at 10332-33.

100. Congress Lacks Conclusive Data Needed to Assess Water Act, Hydrologist Says, [23 Current Developments] Env't Rep. (BNA) 3235 (Apr. 30, 1993).

101. Id.

102. See FACA REPORT, supra note 12, at 3.

103. See id. at 70-72.

104. PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, supra note 13, at 2, 3. To be noted, however, this report treats § 305(b) assessments of all state waters, and not the more particular assessments supporting § 303(d) TMDLs; indeed, one complaint of the report is that the TMDL program was eclipsing reporting under § 305(b). Id. at 47.

105. U.S. GAO, Water Quality: Federal Role in Addressing and Contributing to Nonpoint Source Pollution, GAO/RCED-99-45, ch. 0:3 (Feb. 26, 1999) http://www.frwebgate.access.gpo.gov.cg [hereinafter GAO Report].

106. Id. ch. 0:4.2.

107. Under 40 C.F.R. § 130.8(a)(1997), states are to submit § 303(d) lists to EPA every two years, along with other reporting under § 315(b).

108. See Susan Bruninga, Time Allowed for States to Do TMDLs Too Little for Adequate Job, Group Told, Daily Env't Rep. (BNA), Mar. 10, 1998, at A-8.

109. EPA issued two guidance documents on the TMDL program. See National Clarifying Guidance for 1998 State and Territory Section 303(d) Listing Decisions, Memorandum from Robert H. Wayland III, Director of Office of Wetlands, Oceans and Watershed, U.S. EPA 2 (Aug. 17, 1997) http://www.epa.gov/owow/tmdl/lisgid.html. These criteria are described in TMDLs III, supra note 38, at 10418.

110. E.g., MISSOURI DEPARTMENT OF NATURAL RESOURCES, RECOMMENDED 303(D) WATERS (Sept. 23, 1998) (on file with author) (describing three categories of impaired waters, including a category for "runoff" for which "data is older or of lesser quality than those formally listed").

111. E-mail Communication from Raymond V. Corning, Member of the Wyoming Department of Environmental Quality TMDL Work Group, to Wyoming, Department of Environmental Quality TMDL Work Group (Aug. 15, 1998) [hereinafter Corning E-mail] (on file with author).

112. Id.

113. See, e.g., U.S. EPA Proposes Additions to Virginia's 1998 Impaired-Waters List, WATER ENV'T FED'N REP., Dec. 30, 1998; U.S. EPA Challenges Latest Iowa TMDL List (Apr. 30, 1999) http://www.wef.org/docs/wefreporter/archive/1999/wefreporter.html; for a discussion of partial approvals under the Clean Air Act, see, e.g., RODGERS, supra note 34, at 200-02.

114. See Office of Water, U.S. EPA, Total Maximum Daily Load (TMDL) Program (visited Mar. 30, 1999) http://www.epa.gov/owow/tmdl/tmdlmap.htm (indicating five state programs as partially approved).

115. Industry Argues Lawsuits Are Preventing Cleanup of "Impaired Waters," INSIDE EPA WKLY. REP., Nov. 27, 1998, at 10.

116. S.B. 27, 55th Wyo. Leg. (1999).

117. Hearing on Governors' Perspectives on the Clean Water Act Before the Subcomm. on Water Resources and Env't of the House Comm. on Transp. and Infrastructure, 106 Cong. 4 (1999) [hereinafter Hearing on Governors' Perspectives] (statement of Jim Geringer, Governor of Wyoming).

118. Treatment Works Urged to Sue States to Force Pollution Control, [29 Current Developments] Env't Rep. (BNA) 1552 (Dec. 4, 1998) ("The fear among many regulated entities, such as [publicly owned treatment works (POTWs)], is that the TMDL program still will not contain enforceable mechanisms for nonpoint sources. They worry that the burden to achieve the next level of improved water quality will fall on them rather than on the nonpoint sources.").

119. See AMSA, Evaluating TMDLs … Protecting the Rights of POTWs (visited May 20, 1999) http://www.amsa-cleanwater.org/tmdl/tmdl.htm.

120. Id.

121. Id.

122. Id.

123. As stated in its introduction, "it will advocate the strongest legal, scientific and policy arguments available to POTWs to protect their rights under these programs." Id. at Introduction.

124. Id.

125. Id. at Executive Summary: POTW's Stake in the TMDL Process.

126. Id. at Executive Summary: Evaluating TMDLs.

127. Id.

128. Id.

129. Id. at Executive Summary: Conclusion. In January 1999, southern California municipal sewer districts brought suit to overturn a TMDL settlement for ocean waters and more than 130 streams' watersheds in Los Angeles and Ventura counties; the gauntlets are going down. See Betty Streisand, A New Day at the Beach: A Landmark Deal May Finally Force a Cleanup of Southern California's Dirty Waterways, U.S. NEWS & WORLD REP. (Feb. 1, 1999) http://www.usnews.com/usnews/issue//990201/1cali.htm.

130. See Office of Water, U.S. EPA, Watershed Training Opportunities (Feb. 1998) http://www.epa.gov/owow/watershed/wacadamywtopps.html.

131. See Office of Water, U.S. EPA, Basins 2.0: A Powerful Tool for Managing Watersheds (visited Mar. 30, 1999) http://www.epa.gov/ost/basins/basinsv2.html.

132. Id.

133. See FREDERICK R. ANDERSON ET AL., ENVIRONMENTAL PROTECTION LAW AND POLICY 248 (2d ed. 1990) (courts have generally deferred to EPA's selection of modeling techniques).

134. See United States v. Northeastern Pharm. & Chem. Co., 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986); see also U.S. EPA v. TMG Enter., 979 F. Supp. 110 (W.D. Ky. 1997).

135. For judicial approval of this precautionary approach, see Ethyl Corp. v. U.S. EPA, 541 F.2d 1, 6 ELR 20267 (D.C. Cir. 1976) (lead levels in gasoline); Environmental Defense Fund v. U.S. EPA, 598 F.2d 62, 8 ELR 20765 (D.C. Cir. 1978) (polychlorinated biphenyl standards); Hercules, Inc. v. U.S. EPA, 598 F.2d 91, 8 ELR 20811 (D.C. Cir. 1978) (water quality standards); for a description of a recent decision upholding a TMDL based on less-than-dispositive science, see Rick Steelhammer, Appeals Board Upholds Blackwater Waste Limit, CHARLESTON GAZETTE (W. VA.), Mar. 31, 1999, available in 1999 WL 6719305.

136. See 2 RODGERS, supra note 47, at 288-89; see also generally Houck, supra note 53, at 10531-32. One recent commentator on an EPA water quality standards rulemaking has observed:

We believe that there is already too much flexibility in the WQS program. For example, state mixing zonesviolate federal guidelines (like Montana's 6-mile long mixing zone), and allow the elimination of uses and the lowering of water quality in direct contradiction of antidegradation policies; state antidegradation policies in New Hampshire and elsewhere consider "insignificant" the elimination of as much as 25% of the assimilative capacity of high quality waters; some states use site specific water quality criteria to justify the dumping of metals (in places like Baltimore Harbor) that exceed state and federal standards; [polychlorinated biphenyls] are allowed to be discharged into Massachusetts Bay despite sediments that already violate state standards; the poultry industry is allowed to degrade high quality waters and fisheries in Oklahoma and elsewhere; and variances are granted to authorize "temporary" activities (such as the construction of ski areas in Vermont) that permanently alter streams and impair water quality.

Comments of Center for Maine Conservation on Advance Notice of Proposed Rulemaking (Jan. 4, 1999); see infra note 143.

137. See Houck, supra note 53, at 10551 (comparing dioxin standards for Minnesota with standards in Alabama, Georgia, Maryland, and Virginia).

138. Id. at 10546 (comparing critical low flow calculations in Louisiana, based on lowest flow recorded, with those in Virginia, based on average lows over time).

139. U.S. EPA, TECHNICAL SUPPORT DOCUMENT FOR WATER QUALITY-BASED TOXICS CONTROL (Sept. 1985) (with table of "state-by-state mixing zone dimensions" showing calculations varying from one-fourth to three-fourths of the cross-sections of the receiving waters, and from 10 to 33 percent of this volume); Houck, supra note 53, at 10545.

140. See Andrea Foster, Prodding EPA to Step Over States, CHEMICAL WK., Oct. 14, 1998, at 74 ("Industry is hoping that EPA will provide flexibility for states to set water quality standards for watersheds on a case-by-case basis, using cost-benefit analysis to choose appropriate remedies."). Industry's expectations for weaker standards from such a process could not be more apparent.

141. Under these regulations, a state may lower its water quality standard (e.g., from primary to secondary contact recreation) when a state can demonstrate six limited circumstances, for example, when natural concentrations prevent attaining the original standard. 40 C.F.R. § 131.10(g)(1) (1998).

142. Under these regulations, a state may permit a reduction of water quality within its water quality standard (e.g., from 6 micrograms per liter ( [mu] g/l) to 5 [mu] g/l of dissolved oxygen) when "necessary to accommodate important economic or social development." Id. § 131.12(a)(2).

143. Office of Water, U.S. EPA, Water Quality Criteria and Standards Plan—Priorities for the Future (Apr. 1998) http://www.epa.gov/OSTg/standards/plansfs.html [hereinafter Priorities for the Future] (identifying the development of nutrient and sediment criteria as "priority areas"). As one EPA official has observed, "if you don't have a standard out there how do you know how much is enough?" Tripp Baltz, Numeric Target Ranges Important Part of Agency's Natural Nutrient Strategy, [29 Current Developments] Env't Rep. (BNA) 610 (July 17, 1998).

144. An example from Virginia: Setting a dioxin standard 100 times less protective than recommended by EPA (and 10,000 times less protective than that of Minnesota), the Executive Director of the Virginia Water Board instructed his colleagues: "It is your responsibility to find the answer of what is environmentally safe and to set a standard to regulate what is environmentally safe; yet at the same time, you have a responsibility not to go beyond what is achievable and responsible from a socio-economic standpoint." Comments of Richard N. Burton to the Virginia State Water Control Board Re: Dioxin Water Quality Standards (May 14, 1990), Attachment to Environmental Defense Fund v. Virginia State Water Control Bd., No. HA-731-3 (Va. Cir. Ct. Richmond). It was, of course, the fact and the continuing prospect of just such "tilting" that induced Congress to impose national standards in the 1972 CWA.

145. E.g., Mississippi Comm'n on Natural Resources v. Costle 625 F.2d 1269, 10 ELR 20931 (5th Cir. 1980) (dissolved oxygen); see also IG Calls for Region III to Step Up Oversight of State Water Quality Programs, INSIDE EPA WKLY. REP., Apr. 9, 1999, at 111 ("States are supposed to conduct triennial reviews of their programs and make updates to their standards. But as of 1998, Mary land, Delaware, [the] District of Columbia, Pennsylvania and Virginia were all between 1-5 years late in their triennial review"). Extrapolating from Region III to all 10 EPA regions, there appears to be a considerable oversight problem here.

146. See, e.g., Fowl River Protection Ass'n v. Board of Water & Sewer Comm'r, 572 So. 2d 446 (Ala. 1990); Rivers Unltd. V. Schregardus, 685 N.E.2d 603 (Ohio Ct. C.P. 1997).

147. See Erin P. Billings, EPA Tells Montana to Clean Up Water Laws, BILLINGS GAZETTE, Jan. 7, 1999, available in 1999 WL 11717496 (describing EPA's rejection of Montana water quality standards for, among other shortcomings, failure to protect high quality waters).

148. See 60 Fed. Reg. 14588 (Mar. 17, 1995) (citing cases from Virginia).

149. See TMDLs I, supra note 36, at 10344.

150. Id. at 10339.

151. Id. at 10343.

152. Advance Notice of Proposed Rulemaking on Water Quality Standards Regulations, 63 Fed. Reg. 36742-806 (July 7, 1998).

153. Id.

154. See State Officials Urge EPA Not to Undertake Comprehensive Revision of Water Regulation, [27 Current Developments] Env't Rep. (BNA) 2073 (Feb. 14, 1997) (quoting the President of the Association of State and Interstate Water Pollution Control Administrators as "vehemently" disagreeing with national standards for mixing zones and antidegradation of water bodies); id. at 2074.

155. Development of Nutrient Criteria Guidance for All Regions to Be Accelerated, EPA Says, [29 Current Developments] Env't Rep. (BNA) 609 (July 17, 1998) ("The strategy calls for nutrient criteria guidance that is region specific; waterbody-type technical guidance that includes sections on over enrichment indicators, sampling and analytical techniques, and management methods; state and tribal adoption of nutrient criteria and standards; establishment of nutrient teams composed of state and federal officials to manage nutrient criteria projects; and a system to manage and evaluate the program.").

156. See Priorities for the Future, supra note 143.

157. Reacting to EPA's proposal to address phosphorous in its nutrient management strategy, the American Farm Bureau Federation responds:

"Too little is known about phosphorus and how it affects water quality," Watkins said. "Other variables that figure into the equation," she said, "include soil type, the amount of phosphorus already in the soil, the amount of phosphorus taken in by plants and crops as food, and current management practices. You can't just jump into a phosphorus standard without knowing how it works," she said.

USDA Proposal to Include Phosphorus in Nutrient Plans Concerns Farm Group, 29 Env't Rep. (BNA) 610 (July 17, 1998) (quoting Rosemarie Watkins, Director of Governmental Relations for the American Farm Bureau Federation).

158. 939 F. Supp. 865, 866, 867, 27 ELR 20280, 20280-81 (N.D. Ga. Mar. 25, 1996); see also Alaska Ctr. for the Env't v. Reilly, 762 F. Supp. 1422, 1425, 21 ELR 21305, 21306 (W.D. Wash. 1991). ("The state's 1990 305(b) Report notes that TMDLs have 'not been attempted' and makes no promise to 'attempt' them.").

159. Mark Solomon, The Four Steps of Clean Water Act Denial, A Play in Four Acts (Jan. 25, 1999), attached to E-mail Communication from Kathy Nemsick, Natural Resources Defense Council, to Oliver Houck (Jan. 25, 1999) (on file with author). Mr. Solomon, formerly of the Lands Council, has been a participant in the Western Governors' Association workshop on TMDLs. See infra text accompanying notes 206-09. The play ends with "Act Four. Pay Me!," described as:

The final Act opens with a chorus of the Agency Staffers, Politicians, Federal and State Land Managers and Private Property Owners singing a rousing rendition of "Pay Me!" in which the lead voice of the Private Property Owners tearfully claims that if only he had enough money he would be able to stop beating his Mother. In a second verse performed in a round by the Agency Staffers, Politicians, and Federal and State Lands Managers, Nation's Waters is assured that if they had enough money to find a new Data, they could show Nation's Waters that despite her flowing wounds she really had nothing to complain about.

160. See TMDLs III, supra note 38, at 10418.

161. For a discussion of state-law limitations on nonpoint source controls, see TMDLs II, supra note 37, at 10400.

162. ENVIRONMENTAL LAW INST., ENFORCEABLE STATE MECHANISMS FOR THE CONTROL OF NONPOINT SOURCE WATER POLLUTION (1997); for an additional discussion of these authorities, see MARC RIBAUDO & DANETTE WOO, U.S. DEP'T OF AGRIC., SUMMARY OF STATE WATER QUALITY LAWS AFFECTING AGRICULTURE (undated). Pennsylvania, for example, has required nutrient management programs for virtually all agricultural operations. See Pamela S. Clarke & Stacey M. Cronk, The Pennsylvania Nutrient Management Act: Pennsylvania Helps to "Save the Bay" Through Nonpoint Source Pollution Management, 6 VILL. ENVTL. L.J. 319 (1995).

163. The major expenses in nonpoint source pollution arise from compensating farmers and other nonpoint sources for land use practices that will reduce runoff and protect downstream uses. Although these costs can be considerable, see Andrew Revkin, U.S. to Pay Farmers to Shoo Cows Off City's Watershed, N.Y. TIMES, Aug. 26, 1998, at B-3 (describing a "$ 10.4 million program to pay farms to stop growing crops and grazing cattle along streams feeding the city's upstate reservoirs …"; farms will receive a yearly fee of $ 100 to $ 150 per acre), they are far less expensive than additional technological controls on point sources. (New York City has reportedly spent $ 600 million to date on technology to protect its own water supply. Id.) These payments are also anomalous in the Clean Water Act and other pollution control programs in compensating dischargers for abating pollution. At some point, they become ridiculous. See Defenders of Wildlife, Grazing Losses Mount in Idaho (May 5, 1999) http://www.defenders.org/gline872.html (describing federal expenditure of $ 100,000 to protect streams on three grazing allotments priced at $ 10,000 per year).

164. OFFICE OF WATER, U.S. EPA, GUIDANCE SPECIFYING MANAGEMENT MEASURES FOR SOURCES OF NONPOINT POLLUTION IN COASTAL WATERS (Jan. 1993) (available from the ELR Document Service, ELR Order No. AD-78).

165. See Everglades Forever Act, Fla. S. 373.4592(d)-(e) (1999).

166. Telephone Conversation with Tom Ankersen, Director, Conservation Law Clinic, University of Florida College of Law (May 23, 1999); for a discussion of the Nutrient Removal Project, see Thomas Ankersen, Ecosystem Management and the Everglades: A Legal and Institutional Analysis, 2 FLA. ST. U. J. LAND USE & ENVTL. L. 496 (1996).

167. See Curt Anderson, House Rejects Pleas to End Aid to Agriculture, TIMES PICAYUNE (NEW ORLEANS), July 25, 1997, at A3; see also House Republicans Question Increase in Interior Spending, Everglades Sugar Tax, 27 Env't Rep. (BNA) 2209 (Mar. 7, 1997) (rejecting a state tax on sugar intended to support restoration of the Everglades); for a description of the sugar subsidy, the equivalent of $ 1.4 billion annually, see U.S. GAO, SUGAR PROGRAM UNDER CHANGING CONDITIONS 4, 5 (Apr. 16, 1993).

168. Anna P. Miller, The Western Front Revisited, 26 URB. LAW. 845 (1999).

169. See Associated Press, Bomb Rips Building in Nevada, TIMES PICAYUNE (NEW ORLEANS), Nov. 1, 1993, at A5.

170. E-mail Communication from Ken Midkiff, Sierra Club, to Oliver Houck (Mar. 31, 1999) (on file with author).

171. Hearing on Governors' Perspectives, supra note 117, at 3 (statement of George E. Pataki, Governor of New York) (on file with author).

172. E-mail Communication from Rick Parrish, Southern Environmental Law Center, to Oliver Houck (Apr. 8, 1999) (on file with author).

173. See LA. REV. STAT. ANN. § 30:2089 (West 1997). The Louisiana bill enacted fees on discharges to provide for further development of TMDLs.

174. See OR. REV. STAT. § 568.909 (1998).

175. See supra note 164; for a discussion of this seldom-used authority—indeed, requirement—see TMDLs III, supra note 38, at 10420.

176. E-mail Communication from Dave Gault, LI Soundkeeper Fund, to Jodi Theut (Apr. 2, 1999) (on file with author).

177. See A Total Maximum Daily Load (TMDL) for Long Island Sound: Charting a Course to Clean Water (visited June 18, 1999) http://www.soundkeeper.org/tmdl/.

178. For a description of the impacts of hog farming and a chronology of regulatory measures taken by North Carolina, see Environmental Defense Fund, Hog Factories And Government Regulation: The Strait Poop (visited June 4, 1999) http://www.hogwatch.org/getthefacts/factsheets/regs.html.

179. Iowa Farms Hear About Gulf Hypoxia, GULFWATCH, May/June 1996, at 1.

180. E-mail Communication from Margaret James West, Virginia Rivers Coalition, to Rick Parrish, Southern Environmental Law Center (Apr. 1, 1999) (on file with author).

181. E-mail Communication from Duane Hovorka, Nebraska Wildlife Federation, to Oliver Houck (Mar. 31, 1999) (on file with author).

182. E-mail Communication from Charles Benjamin, Legislative Coordinator, Kansas Natural Resource Council, to Oliver Houck (Mar. 30, 1999) (on file with author).

183. E-mail Communication from Joseph Brecher to Oliver Houck (Mar. 31, 1999) (on file with author). Mr. Brecher is currently representing California environmental organizations in TMDL litigation.

184. JENNIFER RUFFOLO, CALIFORNIA RESEARCH BUREAU, TMDLs: THE REVOLUTION IN WATER QUALITY REGULATION 25 (Apr. 1999).

185. See California Clean Waters Program Draft TMDL Bill—Version I (Mar. 4, 1999) (on file with author).

186. See HB 2171 (1998) (on file with author); see also Hearingon HB 2171 Before the House Comm. on Agric. and Ecology (Feb. 25, 1999) (statement of Nina Bell, Executive Director, Northwest Environmental Advocates).

187. See supra note 116; see also E-mail Communication from Dan Helig, Wyoming Outdoor Council, to Oliver Houck (Mar. 31, 1999) (on file with author).

188. E-mail Communication from Alan Levine, Coast Action Group, to Kathy Nemsick (July 26, 1999) (on file with author). Co-plaintiffs in the suit are the Mendocino County Farm Bureau and the American Farm Bureau Federation. See also Vicki Monks, Farm Bureau vs. Nature, DEFENDERS, Fall 1998, at 16.

The American Farm Bureau Federation (AFBF) boasts 4.7 million members in all 50 states. However, the bulk of these members are not farmers, as only about 1 million full-time farmers reside in the United States. Most members join to get cheap insurance from AFBF-affiliated companies. Dues from these members, as well as income from a wide array of AFBF businesses, such as co-ops, garner millions of dollars yearly for tax-exempt AFBF's 2,800 state and county affiliates.

189. E-mail Communication from Dan Helig, Wyoming Outdoor Council, to Oliver Houck (Mar. 31, 1999) (on file with author). The Clean Water Action Plan is described in TMDLs III, supra note 38, at 10426.

190. See TMDLs III, supra note 38, at 10423.

191. American Farm Bureau Fed'n & National Pork Producers Council, Advance Comments on TMDL Rulemaking (Aug. 25, 1998) (on file with author). The comments challenge, inter alia, the application of TMDLs to nonpoint sources and the requirement for an implementing plan.

192. See TMDLs III, supra note 38, at 10422.

193. See id. at 10436-37, 10439-43 (appendix individually examining 55 TMDLs from 22 states).

194. See Susan Bruninga, Governors' Resolutions Seek Stronger Role in Water Programs, [29 Current Developments] Env't Rep. (BNA) 739-40 (Aug. 7, 1998).

195. Id. at 740.

196. See Letter from Office of Water, U.S. EPA, to Thomas Curtis, Director, Natural Resources Group, National Governors' Association Hall of States (July 23, 1998).

197. See Nonpoint Sources: Faulting EPA-USDA Livestock Strategy, States Say Their Programs Already Work, 29 Env't Rep. (BNA) 1757, 1758 (Jan. 8, 1999).

198. See Hearing on Governors' Perspectives, supra note 117, at 1 (statement of Sherwood L. Boehlert, Chairman, Subcommittee on Water Resources and Environment) (on file with author).

199. See id.

200. Hearing on Governors' Perspectives, supra note 117, at 5 (statement of Parris Glendening, Governor of Maryland) (on file with author).

201. See id. (statement of George E. Pataki, Governor of New York) (on file with author).

202. See Corning E-mail, supra note 111, at 3.

203. Tripp Baltz, Ranchers and Farmers in the West Sound Off on Pollution Control Strategy, [29 Current Developments] Env't Rep. (BNA) 1646 (Dec. 18, 1998).

204. Baltz, supra note 203, at 1646 ("Rice [Executive Vice President of the Colorado Farm Bureau] and others urged representations of EPA not to change to 'voluntary' nature of the draft strategy."); see also Farmers Seek USDA, EPA Funds for Proposed Animal Feeding Strategy, [29 Current Developments] Env't Rep. (BNA) 1553, 1557 (Dec. 4, 1998 ("Agricultural interests applauded the voluntary aspects of the program but expressed some concerns about the scope of the regulatory side of the plan.").

205. See Susan Bruninga, Clean Water Group Gets Federal Grant for Technical Assistance to Pork Producers, [29 Current Developments] Env't Rep. (BNA) 1396 (Nov. 13, 1998) ("Most of the grant will go to a project to provide technical assistance to large-scale pork producers who have been targeted as sources of treatment pollution in areas such as Eastern North Carolina.").

206. See Western Governors' Ass'n, Workshop Summary: Western Watershed/TMDL Nonpoint Issues (Mar. 1999) http://www.westgov.org/wga/publicat/vegasdoc.htm.

207. For a discussion of the FACA committee process and report, see TMDLs III, supra note 38, at 10421-23.

208. Panel topics for the January meeting in Las Vegas included Sound Science in State Watershed/TMDL Planning (Federal Perspectives), Sound Science in State Watershed/TMDL Planning (State Perspectives), and Managing the TMDL Listing Process. The Western Governors' Association met again in March in Portland, Oregon, for a panel discussion entitled Intra-state Coordination of TMDL Development and Implementation: A Case Study http://www.westgov.org/wga/publicat/vegasdoc.htm.

209. They may, on the other hand, simply emphasize and confirm the inadequacies in existing state water quality programs that will make TMDLs all the more time-consuming, data-consuming, expensive, and limited in scope and effect; a review of the panel outlines is not reassuring in this regard. See id.

210. See TMDLs III, supra note 38, at 10424.

211. Industry Says EPA Will Need CWA Reauthorization to Address Runoff, INSIDE EPA WKLY. REP., Dec. 11, 1998, at 1, 2.

212. See Concerned Area Residents for the Env't v. Southview Farms, 34 F.3d 114, 24 ELR 21480 (2d Cir. 1994) (dairy farm operations as point sources); see also Community Ass'n for Restoration of the Env't v. Henry Bostona Dairy, No. CY98-3011.EFS, slip op. (E.D. Wash. May 17, 1999) (land application of CAFO wastes subject to CWA permits).

213. See TMDLs III, supra note 38, at 10425-26; see also Court Upholds TRI Listing of Nitrates, Defers to EPA on Chronic Health Effects, 29 Env't Rep. (BNA) 1397 (Nov. 13, 1998). But see Fertilizer Inst. v. Browner, No. 98-1067 (GK), slip op. (D.D.C. Apr. 15, 1999) (rejecting Toxics Release Inventory listing of phosphoric acid).

214. See Dan Esty, Revitalizing Environmental Federalism, 95 MICH. L. REV. 570 (1996); J.B. Ruhl, Thinking of Environmental Law as a Complex Adaptive System: How to Clean Up the Environment by Making a Mess of Environmental Law, 34 HOUS. L. REV. 933 (1997); Karl Hausker, Reinventing Environmental Regulation: The Only Path to a Sustainable Future, 29 ELR 10148 (Mar. 1999); for a critique of this same enthusiasm for "post regulatory" programs, see Rena Steinzor, Reinventing Environmental Regulation Through the Government Performance and Results Act: Are the States Ready for Devolution?, 29 ELR 10074 (Feb. 1999). Of course, the interest in new wave environmentalism has been with us for decades under different labels, among them "New Federalism." For a dated but still valid analysis of this wave and the serious questions of state commitment to pollution control and the inability to do so at the local level, see COMMITTEE ON ENV'T & PUBLIC WORKS, U.S. SENATE, FEDERAL-STATE RELATIONS IN TRANSITION: IMPLICATIONS FOR ENVIRONMENTAL POLICY, S. REP. NO. 97-7 (1982).

215. BENJAMIN FRANKLIN, AUTOBIOGRAPHY 212 (Yale University Press 1964).

216. U.S. EPA, Watershed Events—Fall 1998, at 11 (visited May 20, 1999) http://www.epa.gov/owow/info/WaterEventsNews/eventf98.html (describing efforts of Housatonic River Initiative in cleanup of the Housatonic watershed).

217. For discussion of similarities to Clean Air Act and possible implications for TMDLs, see Robert W. Adler, Integrated Approaches to Water Pollution: Lessons From the Clean Air Act, 23 HARV. ENVTL. L. REV. 203, 230 (1999).

218. For a discussion of difficulties in the Clean Air Act ambient-based state implementation plan (SIP) process, see Howard Latin, Regulatory Failure, Administrative Incentives, and the New Clean Air Act, 21 ENVTL. LAW. 1647, 1689, 1692-94 (1991):

I believe there is a consensus among environmental analysts that the SIP process failed when the 1970 [Clean Air Act (CAA)] was enacted, failed after the 1977 CAA Amendments, and was still failing to achieve attainment when the 1990 Amendments were enacted …. Fundamental characteristics of the SIP revision process—ambiguous institutional responsibilities, indefinite and inconsistent control requirements, uncertainty about the future effectiveness of diverse control measures, high decision making costs, bureaucratic vulnerability to interest-group criticisms and other political pressure—contributed directly to previous failures of this regulatory strategy and are still present in the new program.

See also Steve Novik & Bill Westerfield, Whose SIP Is It Anyway? State-Federal Conflict in Clean Air Act Enforcement, 18 WM. & MARY J. ENVTL. L. 245, 270-73 (1994):

"From direct personal experience I can tell you it is extremely difficult for a state to adopt and implement control measures which have not been specifically required by U.S. EPA" [quoting the Director of Air Management of the Wisconsin Department of Natural Resources] … State workshop participants … suggested that many state regulators face legislative prohibitions or political pressure not to adopt particular control measures unless they are clearly forced to by EPA …. State participants suggested that a second problem with models was that delegation of responsibility for applying models to the States provided them with ample opportunities to cheat in developing their implementation plans, a practice known as "gaming." States were able to choose favorable model assumptions and inputs to arrive at the least stringent predictions of emission reduction requirements [quoting from a study of the Congressional Office of Technology Assessment].

The implications of these conclusions for state implementation of TMDLs are (or should be) daunting.

219. 15 U.S.C. § 1539, ELR STAT. ESA § 10.

220. For a discussion of habitat conservation plans and their difficulties, see MICHAEL J. BEAN, THE EVOLUTION OF NATIONAL WILDLIFE LAW 364-65 (2d ed. 1983); Robert D. Thornton, Searching for Consensus and Predictability: Habitat Conservation Planning Under the Endangered Species Act of 1973, 21 ENVTL. L. 605, 606 (1991); J.B. Ruhl, How to Kill Endangered Species Logically: The Nuts and Bolts of Endangered Species Act "HCP" Permits for Real Estate Development, 5 ENVTL. LAW, 345 (1999).

221. Emerging from the similar morass of ambient-based regulation under the Clean Air Act, one former Clean Air Act litigator and current scholar has observed:

The Act's process is extremely complex, creating high transaction costs for governments and businesses. The Act's enforcement also requires more data about pollution effects and controls than science can provide, thereby allowing manipulation that undercuts achievement of the Act's ultimate goals, wastes resources and creates inequities …. It would be better for Congress to forego the theoretical benefits of finetuned pollution controls and instead prescribe emission limits for major industries.

David Schoenbrod, Goals Statutes or Rules Statutes: The Case of the Clean Air Act, 3 UCLA L. REV. 740, 743 (1983); see also Davis Clark, What Went Right, ENVTL. F., Mar./Apr. 1998, at 41:

For anyone who doubts that goal-setting debates can be interminable, look how long the "how clean is clean" debate has been going. In contrast, look at how successfully California's Proposition 65 toxics law—with its legal hammers—has spurred business to seek action, demanding conclusive risk numbers so they can act to reduce their emissions to legally unassailable levels. For all its faults, the fragmented command-and-control regulatory system moves forward like a steamroller, motivating those in the way to hustle just to stay ahead and avoid being crushed.

222. EPA found an immediate 29 percent improvement in receiving water quality compliance when best available technology (BAT) regulations were imposed, as compared to pre-BAT conditions. U.S. EPA, REPORT TO CONGRESS: WATER QUALITY IMPROVEMENT STUDY 17 (1989).

223. This imitation, found in technology standards for Clean Air Act toxic emissions, 42 U.S.C. § 7412, ELR STAT. CAA § 112, Resource Conservation and Recovery Act "land ban" requirements, 42 U.S.C. § 6924, ELR STAT. RCRA § 3004, and other U.S. environmental programs, is discussed in Oliver Houck, Of Birds, Bats and BAT: The Convergent Evolution of Environmental Law, 63 MISS. L.J. 403 (1994); for the adoption of the CWA's technology standards in the European Union, see supra note 10.

224. See TMDLs III, supra note 38, at 10424; supra text accompanying note 136 and sources cited therein.

225. See Effluent Guidelines and Standards, 40 C.F.R. ch. I, subch. N. (identifying technology standards for 65 major point source categories, each category containing several, and often many, subcategories).

226. See RIBAUDO & WOO, supra note 162, at 53. One would think that the costs of fertilizers alone—estimated at $ 320 million a year simply to offset fertilizer loss to runoff—would reduce the amounts applied, but for the fact that fertilizers do increase yields and until the costs of their application exceed the yields few farmers will unilaterally move to reduce them. See Garret Hardin, The Tragedy of the Commons, 83 SCIENCE 1234 (1968); see also Less Fertilizer, TIMES PICAYUNE (NEW ORLEANS), Apr. 3, 1998, at C-1 ("the use of less fertilizer at precisely the right times can cut costs up to 17 percent for farmers in developing countries and reduce damage to the environment, according to a study of Mexican wheat"); Editorial, Helping Clean the River, TIMES PICAYUNE (NEW ORLEANS), Apr. 24, 1999, at B-6 (describing reductions in fertilizer as necessary to restore the water quality of the Mississippi River).

227. The failure of member countries of the European Union (EU) to come to grips both with nonpoint source pollution and with ambient-based regulation of water quality more generally, see Turner T. Smith Jr. & Roszell D. Hunter, The European Community Environmental Legal System, in ENVIRONMENTAL LAW INST., EUROPEAN COMMUNITY DESKBOOK 22 (1992) (stating that the European Commission had initiated enforcement proceedings against all (then) 12 member states for failure to implement a water quality standards-based program), has driven both the EU and individual countries to require "nitrate accounts," impose nitrate caps, and setambient nitrate concentration limits. See Government Tells Commission It Will Hasten Efforts to Curb Nitrates to Meet EU Directive, [21 Current Developments] Env't Rep. (BNA) 1234 (Dec. 9, 1998). Individual member countries have taken even more stringent measures to control agricultural nitrate sources. See Andrew P. Manale, European Community Programs to Control Nitrate Emissions From Agriculture, 14 Int'l Envtl. Rep. (BNA) 345 (June 19, 1991).

228. See RIBAUDO & WOO, supra note 162, at 54 (identifying fertilizer taxes in California, Iowa, South Dakota, and Wisconsin).

229. For a discussion of phosphate fertilizer manufacturing in Louisiana, see Alan Dean Weinberg & Dominic J. Gianna, Whither Gypsum: The Mississippi River and the Threat of Toxic Pollution, 3 TUL. ENVTL. L.J. 41 (1990).

230. See RIBAUDO & WOO, supra note 162.

231. The swampbuster provision of the 1990 Farm Bill dictates that federal farm subsidies cannot be used to fund wetland destruction. Linda A. Malone, Reflections on the Jeffersonian Ideal of an Agrarian Democracy and the Emergence of an Agricultural and Environmental Ethic in the 1990 Farm Bill, 12 STAN. ENVTL. L.J. 3 (1993). Under the sodbuster provision, all highly erodible land must be farmed according to an approved conservation plan to continue to receive federal farm benefits. Karen R. Hansen, Agricultural Nonpoint Source Pollution: The Need for an American Farm Policy Based on an Integrated Systems Approach Recoupled to Ecology Stewardship, 15 HAMLINE J. PUB. L. & POLICY 303 (1994). "The program has reduced soil erosion on these acres from an average of 17 tons per year to six tons per year." Will Conservation Survive the 1995 Farm Bill?, LAND LETTER, Dec. 31, 1994, at 5.

232. It is the fact of a requirement, of course, that is at issue. In the words of the California Research Bureau:

Most nonpoint source representatives strongly oppose any program, whether it is a [waste discharge requirement], watershed management, TMDL, or other approach, that would set numeric limits on polluted runoff. They resist the imposition of specific management measures on individual landowners to comply with state or federal water quality guidelines. They fear that any such measures will lead to permits and actual enforcement of the numeric limits by water quality regulators.

RUFFOLO, supra note 184, at 50.

233. See RODGERS, supra note 34, at 282 (stating that pollution sources long "for the day when the no discharge objective is abandoned in favor of basin level allocations of assimilative capacity").

234. E-mail Communication from Nora Chorover, Attorney, San Francisco Baykeeper, to Kathy Nemsick, Natural Resources Defense Council (Apr. 14, 1999) (on file with author) (describing regulators and regulatees in the San Francisco Bay/Delta area as viewing the TMDL process as "a vehicle for relaxing water quality based effluent limits on point source discharges,"); see also EPA to Launch Water Credit Trading Pullouts for Specific Watersheds, INSIDE EPA WKLY. REP., Apr. 23, 1999, at 9 (the new system will enable a company to reduce discharges from another source and increase its own discharges of the same or even different pollutants).

235. For a broader discussion of these tradeoffs in environmental law, see Richard Stewart, Pyramids of Sacrifice, 86 YALE L.J. 1196 (1977).

236. For example, see Revkin, supra note 163; see also WASHINGTON DEP'T OF ECOLOGY & REGION X, U.S. EPA, CLEAN WATER ACT SECTION 303 ASSURANCES FOR FORESTRY MODULE (undated) (on file with author) (deferring TMDLs for the adoption of state forestry practices); see also Chelsea H. Congdon et al., Economic Incentives and Nonpoint Source Pollution: A Case Study of California's Grasslands Region, 2 HASTINGS W.-NW. J. ENVTL. L. & POL'Y 185 (1995) (discussing the potential for nonpoint source pollutant emission caps and trading).

237. The CWA is ambiguous on the issue of primacy. Compare 33 U.S.C. § 1251(b), ELR STAT. FWPCA § 101(b) ("It is the policy of the Congress to recognize, preserve and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution") with id. § 1251(a), ELR STAT. FWPCA § 101(a)(1) ("It is the national goal that the discharge of pollutants into the navigable waters be climinated by 1985" (emphasis added)), and id. § 1251(a), ELR STAT. FWPCA § 101(a)(3) ("It is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited" (emphasis added)). In practice, the national pollutant discharge elimination system program has been driven by federal technology standards while the ambient standards program, under federal supervision to be sure, has been a state responsibility, in most states as we have seen a responsibility only lightly exercised, if that.

238. TMDLs III, supra note 38; for the requirement of reasonable assurances under the Clean Air Act, see 42 U.S.C. § 7410, ELR STAT. CAA § 110.

239. This phenomenon and the role of citizen suits in producing it is discussed in TMDLs II, supra note 37, at 10395. The momentum continues. See Natural Resources Defense Council v. Fox, No. 94 Civ. 8424 (S.D.N.Y. filed Nov. 1994) (ongoing litigation); Hayes v. Browner, No. 97CV1090BU(J) (N.D. Okla. filed Nov. 1997) (ongoing litigation); Defenders of Wildlife v. Browner, No. 93-234 TUC ACM (D. Ariz. Apr. 22, 1997) (consent decree entered); Ohio Valley Envtl. Coalition, Inc. v. Browner, No. 2:95-0529 (S.D. W. Va. filed July 1995) (settled). As of March 30, 1999, EPA had listed 13 states with consent orders to establish TMDLs, 16 more states with TMDL cases pending, 5 more states with notices of intent to sue to establish TMDLs, and 6 more states with notices of intent to sue to establish 1998 lists of impaired waters. U.S. EPA, Total Maximum Daily Load (TMDL) program TMDL Litigation by State (visited Mar. 30, 1999) http://www.epa.gov/owow/tmdl/lawsuit1.html.

240. Legislation of the 104th Congress designed to relax CWA requirements met with strong public opposition and was widely perceived as a political mistake by parties on all sides of the issue. See TMDLs I, supra note 36, at 10343-44.

241. One such recently formed organization is SAILORS Inc., short for Save All Iowa Lakes, Oxbows, Rivers and Streams Inc; any group with this level of imagination in its name holds the promise for follow through. In November 1998, SAILORS filed suit over the adequacy of Iowa's TMDL program. E-mail Communication from Regina Thiry, SAILORS Inc., to Oliver Houck (Apr. 15, 1999) (on file with author).

242. See Comments of Alliance for Wild Rockies and the Lands Council, on the 1998 Idaho 303(d) List (Feb. 15, 1999) (on file with author) (a detailed critique of Idaho's most recent submission of impaired waters). While the critique is doubtless subject to criticism in its own right, the fact of this and similar critiques feeding into state and federal decisions is as important—indeed vital—to the success of the CWA as it is to the success of the National Environmental Policy Act and to all American environmental law.

243. The judicial review and enforceability of TMDLs by citizen groups remain an open question. EPA approval of a state TMDL is judicially reviewable in federal court and, if the TMDL includes an implementation plan, the plan will be reviewable as well. This review is, of course, the reason for industry resistance to § 303(d) generally and to inclusion of such a plan in TMDLs. Once a state TMDL-cum-plan is approved, however, the enforcement of its conditions will depend in the first instance on review by state courts and state law. The difference between the enforcement of TMDLs and existing state "water management plans" in state court, of course, is that TMDLs hold the promise of containing objective (i.e., reviewable) requirements. EPA's continuing leverage and, indirectly that of citizen groups, will be through the more general review of state-delegated programs and through other funding and permitting authority. See TMDLs III, supra note 38, at 10420-21. Exercising this authority under the Clean Water Act, which lacks the sanction found in the Clean Air Act, for example, of reducing state transportation funding for inadequate state plans, 42 U.S.C. § 7509, ELR STAT. CAA § 179 (sanctions and consequences of failure to attain), will be a continuing challenge to the Agency and will likely result in even more "negotiated" TMDLs than similarly negotiated Clean Air Act implementation plans.

244. EPA has recently estimated expenditures of $ 9.4 billion in annual nonpoint pollution control costs. See Congress to Investigate Nonpoint Pollution Activities, Cost Estimates, INSIDE EPA WKLY. REP., Mar. 19, 1999, at 11. Another report places the sum at $ 100 billion over the next 20 years. EPA Seeks Nonpoint Source Authority, INSIDE EPA WKLY. REP., May 7, 1999, at 4. These costs appear to be both low and high. Both the U.S. GAO and a prominent House committee chair have criticized EPA's estimates as under inclusive. Id; see also GAO Report, supra note 105, ch. 0:3; Rep. Sherwood L. Boehlert, Statement Before the Water Resources and Environmental Subcommittee Hearing on Governors' Perspectives on the Clean Water Act (Feb. 23, 1999) ("I believe that EPA will be the first to admit that its estimates of nonpoint are unrealistically low."). On the other hand, the great majority of expenditures EPA claims for non-point source pollution controls are the expenses of other federal programs, the majority being those of the U.S. Department of Agriculture, with other primary (e.g., soil conservation) objectives. GAO Report, supra note 105, ch. 0:4.1. Meanwhile, the National Oceanic and Atmospheric Administrator has announced a budget of $ 22 million in fiscal year 2000 (an increase of $ 5.8 million) for nonpoint pollution abatement. See OFFICE OF PUBLIC AND CONSTITUENT AFFAIRS, NATIONAL OCEANIC & ATMOSPHERIC ADMINISTRATION, NOAA'S CLEAN WATER INITIATIVE (undated) (on file with author); see also Susan Bruninga, Browner Defends Proposed SRF Cuts, Seeks New Clean Water Law, Funding Plan, [29 Current Developments] Env't Rep. (BNA) 2480 (Apr. 19, 1999) (describing a proposed $ 550 million reduction in the clean water state revolving fund, monies traditionally used for sewage treatment construction but more recently made available for nonpoint source controls as well). Obviously, the supply side of the clean water equation has yet to meet the demand side.

29 ELR 10469 | Environmental Law Reporter | copyright © 1999 | All rights reserved