Total Maximum Daily Load Program Likely to Expand

January 8, 2009
Client Alert Newsletter Forecast 2009

We have written in the past about the Total Maximum Daily Load ("TMDL") Program, which allocates among two broad sources of pollutants—point source dischargers permitted under the Clean Water Act and non-point sources (e.g., certain stormwater discharges, groundwater infiltration, contaminated sites, air deposition and sediment)—maximum discharge rates calculated to meet established surface water quality standards. TMDLs are developed by the states, the U.S. Environmental Protection Agency ("EPA") or interstate agencies (such as the Delaware River Basin Commission) for streams listed as impaired because they do not meet applicable water quality standards for one or more pollutants. The requirements that evolve from a TMDL can include additional treatment, more stringent site cleanup criteria, dredging and site specific pollutant minimization plans. The program is nationwide and the process is heavily dependent on sampling, statistics and modeling.

Based on our experience in representing dischargers in a variety of TMDLs across the country, the process requires early participation as the regulatory agencies choose from an array of options for both allocating the necessary pollutant reductions among categories of sources, and defining the specific regulatory actions that will bring about the necessary reductions. The TMDL program has gained significant momentum over the past few years and we expect an even more aggressive initiative under the Obama administration as water quality improvements remain an important focus. In this area, the Delaware and Schuylkill Rivers and the Chesapeake Bay are likely to be the focal points for TMDLs for a variety of pollutants, including legacy pollutants like PCBs, as well as nutrients. All states and EPA regions, however, have a significant TMDL workload as the program will undoubtedly expand.