Publications: State Government Relations
TMDL Designation–The Next Level of Water Quality Regulation

States are developing a new level of water quality regulations which may create compliance challenges for manufacturing facilities, retail establishments and even owners of large tracts of previously unregulated lands. Under pressure from environmentalists, these water quality regulations, called Total Maximum Daily Loads (TMDLs), are being developed on a fast track and threaten to catch many companies off guard with new and more stringent regulatory requirements.

A TMDL is an estimate of the total load of pollutants (from point, non-point, and background sources) that a segment of water can receive without exceeding water quality criteria. TMDLs are different from most environmental regulatory mechanisms because they focus on water bodies instead of specific point sources of pollutants. This will create numerous compliance issues when state agencies regulate to meet established TMDLs. Existing controls on water pollution sources will have to be tightened, development freezes are possible, and state agencies will be forced to regulate previously unregulated areas and activities such as parking lots and forestry operations.

TMDLs have long been an overlooked requirement of the Clean Water Act. The recent flurry of activity and discussion on the subject is the result of citizen suits against the states and U.S. EPA forcing implementation of TMDL requirements. Citizen suits have already been filed concerning TMDL development in 22 states and the District of Columbia and 10 have resulted in consent decrees. Notices of intent to sue have been filed in several other states. As a result, U.S. EPA required all states to submit a list of water bodies for which TMDLs must [have been] developed by April 1, 1998.

Given the pressure being placed on states to develop TMDLs in a timely manner, and the technical difficulty inherent in setting these levels, there is a real danger that regulatory authorities will implement them in an arbitrary manner. U.S. EPA’s own TMDL program implementation strategy admits that states "may have to choose between speed and technical rigor." With this mandate, it is safe to say that there is the potential that states may not solicit significant input from the regulated community.

In order to stay involved throughout the rulemaking process, it will be important to be able to quickly identify those TMDLs that have the potential to impact your operations. Although this may seem like searching for a needle in a haystack, early intervention is your best strategy to minimize impacts on your company and on your industry.

Excerpted from an article which originally appeared in the April 1998 issue of Environmental Compliance and Litigation Strategies.

- Mark Anderson, Esq., Vice President, Regulatory Services Division and Jack Welsch, Esq., Regulatory Counsel