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As Clean Water Act Changes Course, New Guide to TMDL Program Provides Chart

January 2000

The U.S. Environmental Protection Agency and the states are changing to a new method to achieve water quality goals. Until recently, regulators have concentrated on reducing pollution from large “point” sources, requiring plants to install specific technology control devices. But polluted runoff from agriculture and urban areas — so called “non-point source pollution” — continues to threaten our nation’s waters. As a result, two years ago, EPA decided to activate a long-dormant legal mechanism in the Clean Water Act that gives it and the states authority to begin regulating pollution on a watershed basis.

The Clean Water Act TMDL Program: Law, Policy, and Implementation provides the first comprehensive guide to a program destined to have a huge impact on industry, agriculture, the commercial sector, and urban development. Under the program, states will have to identify impaired waterbodies and set “total maximum daily loads” — TMDLs — of specific pollutants they can receive. Regulators will then have to ensure that both point and non-point sources reduce the amount of pollution they discharge into the affected waterbodies. Implementation of the program is destined to prove difficult and controversial.

“TMDLs are highly resource-intensive, but they hold the promise of progress in addressing our significant remaining water pollution problems,” said J. William Futrell, President of the Environmental Law Institute. “As The Clean Water Act TMDL Program shows, achieving progress will depend on sufficient time and money, more active state leadership, and retention of elements that have proven key to the success of the act’s point-source discharge program.”

The guide is written by Oliver A. Houck, Professor of Law at Tulane University and director of its Environmental Law Program. Professor Houck provides an in-depth discussion of how the program is being implemented. He starts with an examination of the federal role, including the TMDL guidance issued by EPA and the Federal Advisory Committee Act report on the program, plus the Agency’s forthcoming regulations for the program. Professor Houck then analyzes how the individual states are implementing their own programs, including evaluations of 45 state TMDL programs. He also identifies two important obstacles to success: the limits of science (in setting TMDLs) and the limits of political will (in implementing and enforcing state programs).

“The TMDL program provides a huge challenge to environmental regulation,” said Futrell. “Professor Houck’s guide is likely to prove indispensable to Clean Water Act practitioners, scholars, and concerned citizens as states implement their programs.”

Copies of The Clean Water Act TMDL Program: Law, Policy, and Implementation can be ordered from the Island Press Web site. For more information about ELI please visit out Web site at http://www.eli.org.