Bush Administration may clean up Total Maximum Daily Load rule

Heather A. McTavish
Government Relations Coordinator
APWA Washington Office

The Total Maximum Daily Load (TMDL), the rule that calculates the maximum amount of a pollutant that a water body can receive and still meet water quality standards, is about to undergo changes under the Bush Administration.

The controversial Clinton Administration rule published July 13, 2000 after 34,000 comments were received becomes effective April 30, 2003. Soon after it was published, Congress added a rider to an appropriations bill that prohibited EPA from spending Fiscal Year (FY) 2000 and FY 2001 money to implement this new rule. The current rule remains in effect until 30 days after Congress permits EPA to implement the new rule.

The Bush Administration is reconstructing the July 2000 Clinton Administration rule that required EPA's approval of states' efforts to restore the impaired water bodies, a designation applying to about 300,000 miles of rivers and shorelines and five million acres of land. EPA Administrator Christie Whitman has not confirmed her decision as to whether she will adopt or possibly even rename the TMDL rule the "watershed rule." Nor has she stated whether she will propose an amended rule, requiring a two-year public process or if she will distribute it internally.

She has confirmed, however, that the new strategy places emphasis on flexibility and environmental results over strict enforcement by EPA. The new strategy gives states the power to implement and enforce water quality standards.

Clinton Administration staff claim the TMDL rule adopted by their Administration was in response to citizens' lawsuits in 34 states where they had decided to increase enforcement of the TMDL program largely ignored by state officials. The states had been charged with implementation and in three decades had not done so.

The Clinton rule directed states to determine the maximum pollution load each water body could handle, then develop broad regulatory plans over 10 to 15 years to meet those targets, upon approval by EPA. Congress strongly disliked the program and attached to a Fiscal Year 2001 unrelated spending bill a rider that prohibited any money going toward the program. The 2000 rule is not currently in effect. The TMDL program operates under 1992 regulations and agreements.

The Bush Administration's current proposal would guarantee states' planning for entire watersheds instead of individual water bodies. The new rule would provide states with greater flexibility to downgrade water quality standards for specific rivers and lakes and would not allow EPA to be involved in such decision making. Accountability under the Bush proposal would be determined by mandated five-year reviews to determine whether states are meeting their performance targets.

States appear to be supportive of the direction that EPA is taking with the rule. States like the portions of the rule that allow them to merge their lists designating impaired waters with the status of all waters within their states. The integration would allow them more flexibility than to choose between "impaired" and "unimpaired."

Democrats and environmentalists continue to remain loyal to the Clinton Administration's rule. They claim the new rule would weaken the provisions addressing nonpoint sources.

The TMDL proposal is scheduled to be published in November 2002 after undergoing a review by the White House Office of Management and Budget.

To reach Heather McTavish, call (202) 408-9541 or send e-mail to hmctavish@apwa.net.