After the TMDLs

Abstract

This article evaluates the effectiveness of total maximum daily loads, or TMDLs. TMDLs are water pollutant budgets, and the Clean Water Act requires their preparation for all impaired waterways. That requirement lay dormant for most of the first two decades of Clean Water Act implementation, but a series of lawsuits in the late 1980s and early 1990s compelled EPA and the states to begin drafting TMDLs. At the time, many water quality advocates saw the TMDL program as one of the most promising frontiers for water quality law.

This article finds little evidence that TMDLs have fulfilled those hopes. Most retrospective studies of TMDLs have found only uneven efforts at implementation, and while huge data gaps remain, there is scant evidence that TMDLs have generated systemic improvements in water quality. The article also considers the lessons environmental lawyers might draw from the TMDL program. Most importantly, it demonstrates the costs of tying agencies too closely to a particular regulatory approach, and it serves as a reminder that winning an environmental lawsuit does not always mean protecting the environment.