proof is in the policy: The Bush Administration, nonpoint source pollution, and EPA's final TMDL rule, The

Washington and Lee Law Review, Winter 2002 by McCulley, R Bryant

The Proof Is in the Policy: The Bush Administration, Nonpoint Source Pollution, and EPA's Final TMDL Rule^*

I. Introduction

forty-two states, nonpoint sources are the predominant source of pollution in lakes, and in thirty-three states, NPS pollution is the most significant impairment of streams and rivers.7 Additionally, nonpoint sources account for 43% of the pollution in the nation's estuaries.8

These overwhelming effects on America's water resources have thrust NPS pollution into the environmental policy spotlight. The focus of the NPS pollution debate is the Total Maximum Daily Load (TMDL) program found in 303(d) of the CWA.9 While the team "total maximum daily load" is not expressly defined in the CWA, the EPA's current regulations define a TMDL as the sum of the "wasteload allocations" for point sources (PS), the "load allocations" for NPS, and a margin of safety.10 Thus, a TMDL is an estimate of the maximum amount of a pollutant that a waterbody can assimilate and still meet an applicable WQS.11 It is helpful to think of TMDLs as a recipe for a water segment in which each ingredient represents the maximum amount of a certain pollutant that can be present while allowing the segment to remain healthy. Therefore, for each impaired water segment, states must ascertain exactly which pollutants are present in the water and then work backward to determine the amount of pollutants each source can add to the mix.

standards.14 Through consent decrees and judgments, the majority of these lawsuits have forced the EPA to assume its statutory obligation under (sec) 303(d) to list impaired waters and to create TMDLs for these waters when states fail to undertake this responsibility.15

rule remain in effect until thirty days after Congress permits the EPA to implement the Final TMDL Rule.21 The result is that after more than four years, hundreds of meetings, much debate, and the EPA's review of over 34,000 comments, the Rule must gain Congressional approval prior to implementation.22

industries in the TMDL process is one of economic efficiency.29 A related argument for the inclusion of NPS industries in the TMDL process is one of sheer logic: for waters polluted primarily or solely by NPS pollution, no amount of point source regulation will enable WQS to be met.30

The American Farm Bureau Federation (AFBF) and other industry petitioners argue, however, that the EPA has exceeded its authority in promulgating the Final Rule. Specifically, AFBF and other industry groups believe that the EPA acted unlawfully in requiring that waters be listed as impaired and TMDLs developed if the sources of the impairment are NPS.31 These industry groups also believe that the EPA exceeded its statutory authority by requiring TMDLs to include implementation plans, attainment schedules, and "reasonable assurances" that the TMDLs will in fact achieve applicable WQS.32 Ironically, the future of the CWA may now hinge on the statutory interpretation of (sec) 303(d) - a section that Congress originally included in the CWA as a mere afterthought at the behest of states eager to retain a water quality-based "safety net" should the technological standards of (sec) 402 fail to secure the goals of the Act.33

complexity, the regulation of NPS pollution also is intensely political. The major contributors to NPS pollution are no longer small family farms and ranches, but rather they are the politically powerful agriculture, silviculture, and mining industrieS.34 For almost three decades, these industries have gone largely unregulated under the CWA and are committed to keeping their protected status.35 Citizen groups and the EPA, however, have other plans for the NPS industries: the TMDL program.36 These supporters of TMDLs argue that TMDLs are America's best hope for ensuring that NPS pollution does not erase the significant gains made by point source regulation under the CWA.37

The irony of TMDLs is that although the agricultural and silvicultural industries attack them as another example of the EPA seeking to usurp state regulatory authority, TMDLs are completely consistent with conservative environmental ideology.42 TMDLs are not part of a federal command and control regulatory regime. Instead, the TMDL program is a perfect example of environmental federalism. TMDLs are part of a water quality-based program that provides states with the complete authority to develop their own WQS, list their impaired waters, and regulate the point and nonpoint sources of pollution that impair water resources.43 Also, and perhaps more importantly, the TMDL program is an economically efficient method of achieving water quality standards.44 Thus, the TMDL issue presents a political litmus test of epic proportions to President Bush and his administration: whether to embrace a TMDL program based on environmental federalism and economic efficiency, or whether to protect the agriculture, silviculture, and mining industries from inclusion in the TMDL process.

This Note ultimately concludes that the EPA has the statutory authority to include rivers polluted by NPS pollution in the TMDL process, but that the actual regulation of non-point sources must remain a power of the states.51 This distinction is essential, not only for the survival of the Final TMDL Rule, but for the future of the CWA. However, including waters affected solely by NPS pollution in the TMDL process is not the panacea for our nation's persistent water pollution problems. The success of the TMDL program requires strong financial and political support from President Bush and his administration.52 By supporting the TMDL program, President Bush can affirm his commitment to environmental federalism while truly reaching across political boundaries.53 In so doing, President Bush will return America's water policy to the states, who themselves must make tough political decisions concerning the implementation and allocation of TMDLs. After almost three decades of denial, the time has come for the states to shoulder their statutory responsibility to address NPS pollution and work to realize the goal of restoring and maintaining the chemical, physical, and biological integrity ofthe nation's waters.54