New TMDL Rulings Give Them Something to Talk About

By Brooks Smith, Hunton & Williams LLP

The raging national dialogue on TMDLs moves into high gear next week in Minneapolis during TMDL 2009: Combining Science and Management to Restore Impaired Waters in Minneapolis. If you’re not a water quality junkie, stop here. If you are, you’ll be thrilled to hear that the comprehensive program includes scientists talking about new research like model development and advancements in water quality monitoring and evolving tools to implement effective TMDLs. Perhaps even better, representatives from source, nonpoint source, regulator, permittee, and environmental interests, and maybe even your next-door neighbor, will be there, and we expect lots of talk about the latest court rulings and what they mean for the nation’s watersheds.

Two new and controversial TMDL rulings, if widely applied, have the potential to turn the world of watershed management upside down. The first is from the Ninth Circuit Court of Appeals in the so-called Pinto Creek case, which deals with what to do with permits for new dischargers after a TMDL is in place. According to the Ninth Circuit, such permits may not be issued, even if they require offsets of equivalent or greater reductions in loading beyond existing conditions, unless and until all other regulated dischargers (and maybe even unregulated ones!) are subject to enforceable schedules of compliance to achieve their own allocations.

Anyone want to opine on what this will do to the pace of new permitting across the country? Egads!

The second is from a Vermont environmental court and deals with older TMDLs that have already been on the books for a few years. According to the court, these TMDLs may not control subsequent permit proceedings and may actually need to be re-evaluated as part of each proceeding to ensure that the original assumptions remain accurate. Let’s see, we have something like 60,000 TMDLs left to do around the country. And now we cannot even rely on the ones already in place! Read: budget, administrative and regulatory nightmare. There has got to be a better way to figure this out, so please go ahead and post some ideas! Meanwhile I hope to see you in Minneapolis.