TMDL — Too Many Damn Lawyers?


The Clean Water Act requires states (or EPA if a state refuses to play ball) to set water quality standards for each stream sufficient to protect the purposes, e.g., fish, drinking, and swimming, for which the water is used. The Act also bans dumping pollutants from a pipe into a stream without a permit. Permits set limits on the amount of each pollutant that can be dumped. The pollution allowance must ensure that the water quality standards are met throughout the stream.

But, many pollutants, like turbidity, come from other sources than pipes, such as run-off from farms and forests. Congress has been unable to agree upon a regulatory tactic for dealing comprehensively with these so-called non-point pollution sources. Instead, the Clean Water Act requires states to do planning.

The “Total Maximum Daily Load” planning process has three steps. First, states identify streams where water quality standards are not being met. Second, for these “water quality limited” streams, the state calculates a ceiling on the amount of each problem pollutant that can enter the stream. Third, the state gives each source, both point and non-point, a pollution allocation, the sum of which must be less than the ceiling. Fourth, the state writes up a “TMDL report” for EPA’s approval. The report must explain the activities the state will carry out to reasonably ensure that the TMDL allocations are not exceeded. These actions can include clamping down on point-source discharges, imposing “best management practices” on non-point source activities, land use restrictions, or the writing of more plans.

The TMDL planning process is rife with fascinating politics and backroom dealings. Point-source polluters, such as factories and sewage treatment plants, know that their pollution is measured and the limits enforceable in federal court by the state (or private citizens if the state or EPA fails to do so). But most non-point source polluters face no such regulatory hammers because most states have few, if any, mechanisms to enforce best management practices, and EPA has none.

This imbalance in regulatory enforcement means that point-source polluters take the hindmost. For example, if a stream is already at its maximum load for temperature, it will be almost impossible for a new power plant, such as a biomass boiler, to be built if it discharges hot water to the stream. If a stream is at its limit for E. coli bacteria, it will be very tough for an animal feed lot to renew its permit to discharge manure-laden waste water, which will force the feedlot to find other disposal strategies such as spraying its cow crap on cropland (note that the non-point source run-off from cropland is not as tightly regulated and not subject to Clean Water Act citizen suits).

The TMDL process goes on unnoticed by the general public and is of interest to only a handful of citizen-based organizations. But the process is tightly scrutinized by point-source polluters who lobby for better BMPs so that more pollution load can be allocated to new factories, while non-point polluters (primarily farmers, ranchers and timberland owners) seek to keep BMPs lax.

16 thoughts on “TMDL — Too Many Damn Lawyers?”

  1. Yeah, Bob, John’s post was underappreciated.
    But back to Andy here, while he does a good job with the cost-shifting behavior of the warring point-no-point factions, the real issue is degradation of the water resource in terms of volume, temp and TMDL. Is none acceptable, or is there some level of imperfection allowed?

    • Dave: I think you need to ask a lawyer, lobbyist, or legislator that question. I tried to avoid acronym-based regulations like the plague, because they are.

  2. Andy

    A) Re: “non-point polluters (primarily farmers, ranchers and timberland owners) seek to keep BMPs lax”

    Are you implying that all non-point sources including a forest floor are, by definition, non-point polluters?

    If forestry BMPs are constantly improving and are primarily the product of the state forestry association in conjunction with the state forestry association (timberlands owners) and the latest knowledge, how can you say timberland owners “seek to keep BMPs lax” (See the link below)? The major timberland owners that I have worked for allow the public full access to their lands. Seeking “to keep BMPs lax” would be foolish for two reasons:

    1) The public would easily see inappropriate practices, make an issue of it and the timberland owners would have to cope with even more regulation. Forestry BMPs were voluntarily instituted by the timberlands enterprises to self police so that they could earn the public’s trust and reduce inappropriate “one size fits all” regulations. Any timberland enterprise (i.e. my former employers and many others) that has submitted to independent third party audits has committed to comply with BMPs and is audited accordingly. Otherwise, forestry BMPs are voluntary but, as the article here points out, compliance is high and continues to improve. See

    2) Inappropriate practices are foolish. The “cut out and get out days” are gone. The future of any timberlands enterprise depends on taking care of its soils. A forestry enterprise that is a consistent or significant non-point polluter is suicidal because it is reducing the productivity of its timberlands. Not protecting endangered species would be breaking the law. Not going above and beyond the law would be to invite more laws and encourage environmentalist groups to make surreptitious inspections on the open properties of the timberland owners.

    B) Re: “point-source polluters take the hindmost”. And why shouldn’t they considering the following:

    1) Point Sources concentrate known pollutants from a manufacturing/concentration site where pollutants accumulate from internal processing which either uses imported pollutants or creates/accumulates pollutants which are regularly discharged from the site.

    2) Non-point Sources in Forestry are intermittent and do not concentrate. Normal forests do not contain pollutants, they are pure nature. When it rains on a forest, the same intermittent runoff goes into the stream whether it travels in natural channels to the stream or whether some small portion of it is channeled through a road culvert. The road culvert adds no pollutants. Even a wilderness adds intermittent turbidity to a stream. Any turbidity added by a properly constructed road or properly managed log job is temporal and insignificant in the total long term scheme of things providing BMPs are followed. If not, then either compliance, BMPs or both need to be improved.

    So, which should take hindmost? If we are environmentalists, the concentrating point source of a known pollutant would certainly be a higher priority than the non-point source we know as the forest floor.

    • Gil: “Are you implying that all non-point sources including a forest floor are, by definition, non-point polluters?” Yes. An attribute of our system of property ownership is that every forest floor has an owner who is, by definition under the Clean Water Act, a non-point polluter.

  3. Andy

    I’d like to see something in the law that supports your statement that “An attribute of our system of property ownership is that every forest floor has an owner who is, by definition under the Clean Water Act, a non-point polluter”.
    –> How can someone be defined as polluter without even visiting their property and ascertaining as to whether or not pollutants are even there? That sounds like being accused and found guilty without any evidence and without a trial.
    –> Are you saying that everything is pollution?
    –> Are you saying that a pristine wilderness owned by Uncle Sam is a pollution source and under the clean air act must have its pollutants subject to control?
    So, in this pristine wilderness with no roads, what is the pollutant that runs off of the forest floor?
    —- Is it the tannins in the leaves and bark?
    —- Is it the rain?

    What is natural and “just is” – as opposed to – what has to be controlled by human intervention?

    Please respond the rest of my replies above to the charges that you made in the opening post, specifically:
    —- timberland owners “seek to keep BMPs lax”
    —- “point-source polluters take the hindmost” suggesting that you may perceive an injustice.

    • Gil, TMDL plans add up all sources, including God-given “natural” ones, that deposit pollutants into a water-quality limited stream. That makes sense as the water’s quality doesn’t depend upon the source of the pollution. For example, some streams exceed quality standards exclusively as a result of “natural” run-off. Of course, those TMDL plans are short as there’s little the state can to do to meet the standard (that’s up to the water treatment system operator if the naturally-polluted water is used for domestic consumption).

      There are many TMDL plans on-line, such as this one for Oregon’s John Day River (chosen because temperature is one of the river’s water quality limitations).

      My concluding observations regarding the incentives and politics of TMDL planning are just that — observations.

  4. Andy

    Thank you for your link. After reading the summary, all that I can say is – Heaven help us!

    In all of my years of experience in the south, I have never run into any situation where TMDLs had any impact on forest silviculture. That is why I bulldogged you so hard up to this point. I have had people try to smoke me too many times so it takes a document like you provided in order for me to get to where I can accept someone at their word. You are the TMDL man but, I’m not sure whether or not that is a compliment.

  5. Andy

    I’d like to take one more shot at this if you have the time and patience.

    A) Let’s assume that we are not in Oregon and the state does not require any control over TMDLs as is their option per the following link and quote.
    See page 6 at
    –> “… CWA … the act does not provide EPA with regulatory authority over non-point sources.

    B) Next, let’s assume that we have a watershed in that state that exceeds TMDL planning thresholds.

    C) Finally, let’s assume that the watershed has no point sources in it.

    In this scenario, I contend that nothing has to be done to correct the TMDL levels in this watershed.

    Do you agree?

    • EPA would disagree that nothing has to be done. In EPA’s view, the state’s TMDL plan must show how the state intends to restore the impaired water’s quality to meet the standard. So, EPA likely would not approve a state plan that doesn’t make such promises. But, are the plan’s implementation promises enforceable by EPA or anyone else? A qualified “yes,” at least for point sources whose NPDES permits cannot allow pollutant discharges that violate water quality standards. Not so much for most non-point sources.

      A caveat: Nothing in the Clean Water Act prevents a state from adopting enforceable limits on non-point source pollution as a part of its TMDL implementation plan. And another. Even though TMDL planning has been the law for over 30 years, it’s been largely ignored until litigation forced EPA and states to start complying. So it’s early days yet to see how the process will shake out.

  6. Andy

    You seem to be softening your stance but, you still don’t want to admit that, as quoted from above, the “… CWA … does not provide EPA with regulatory authority over non-point sources” and therefore only a state can impose TMDLs on non-point sources from any component of the CWA. This is very explicit language which leaves no room for convoluted interpretations to the contrary.

    As for the impact of future litigation and your statement: “So it’s early days yet to see how the process will shake out”, doesn’t it seem very obvious that the Supreme Court has closed the door on all litigation options when they said that the EPA is the appropriate authority to decide what is point source and what is non-point source? Litigation against EPA classifications is preempted by the latest ruling by SCOTUS on this subject.

    As I see it, SCOTUS and the CWA leaves environmentalists with but two options:

    1) Exert political pressure on the EPA to reclassify non-point sources into point sources.

    2) Exert political pressure on Congress to amend the CWA so as to give the EPA authority over non-point sources.

    What am I missing?


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