Opportunities to Influence TMDL Development
Through several matters involving regulatory agency efforts to establish and implement total maximum daily loads ("TMDLs") under the Clean Water Act ("CWA"), we have observed that the regulated community benefits from active participation in this process, rather than waiting for requirements to be imposed. TMDLs are pollutant-specific loading allocations developed on the basis of applicable surface water quality standards after a determination is made that the standards are not being attained. TMDLs have been issued for toxic pollutants, metals and nutrients, and additional TMDLs are slated for development in all states over the next few years. TMDLs take into account all pollutant sources, so data must be collected and pollutant reductions must be achieved from a myriad of sources, including point-source discharges, stormwater discharges, contaminated sites, tributary streams, air deposition and sediments. All sources subject to the TMDL must reduce their pollutant contributions to the impaired stream, thereby collectively improving water quality. To this end, regulatory agencies may require more detailed and costly sampling for sources of pollutants subject to TMDLs and may impose more stringent requirements, such as discharge limitations and/or cleanup requirements. The TMDL program reaches beyond the traditional point-source discharger who already tracks water quality compliance developments. Therefore, once the impact of the TMDL program is felt by this broader community, we expect to see significant client interest in participating in the TMDL process—from the initial stream impairment determination, to the assumptions that support the pollutant allocation decisions, and the analysis leading to the terms of the TMDL and its implementation.