Do You Know What TMDLs Are?

When the federal Clean Water Act (CWA) was passed in 1972, its goal was to protect and improve the quality of America’s water. Part of the Act was a plan to limit the amount of pollution entering already polluted rivers, lakes, and streams. This concept is known as defining total maximum daily loads, or TMDLs.

As originally contemplated by the CWA, TMDLs were to be developed for water bodies that were polluted to the point that they weren’t supporting their designated uses, such as swimming, fishing, or providing domestic water supply. Limits were to be set for the daily amount of pollution entering these water bodies. These limits were to comply with all water quality standards and would ultimately improve the water quality so that the beneficial uses were once again supported.

Every state was to make a list of all the impaired water bodies in need of TMDL definition. The deadline for completion of the TMDLs was 1978. This deadline was not met, and in Montana, as elsewhere, water quality has suffered.

In 1997, 19 years after the deadline, MEIC and four other environmental groups sued the Montana Department of Environmental Quality to force the completion of Montana’s TMDLs. DEQ was allowing pollution discharges into more than 900 waterways that were already impaired. In response to this suit, federal district judge Donald Molloy issued an order in 2000 requiring that all of Montana’s TMDLs be completed by 2007. Furthermore, Judge Molloy ordered that no new discharge permits were to be granted for water bodies awaiting TMDL development.

Montana still has hundreds of stream, rivers, and lakes on the list of polluted water bodies (known as the “303(d) list”). In 1997, DEQ issued a revised list that arbitrarily dropped nearly 500 polluted Montana waterways. This action forced MEIC and the other groups to go back to the court. DEQ is now under order to proceed with TMDL development using the original list.

DEQ is currrently working on the TMDLs, which can be complicated and time-consuming. DEQ is completing TMDLs for approximately eight watersheds each year. At this pace, it will be 2012 before the process is finished. For some reason, however, DEQ blames Judge Molloy for this predicament. At a recent Environmental Quality Council meeting, the head of the DEQ’s TMDL program lamented that if DEQ could just get the judge off its back, it would be able to complete the TMDLs more quickly. This, of course, ignores the fact that the agency is already 25 years behind the CWA schedule, and that most of this time passed without the judge looking over DEQ’s shoulder.

What DEQ has done is move waterways that are likely to see industrial development in the near future to the top of its priority list. This was done so that once the daily loads are established, DEQ can go ahead and permit further discharges into those waterways. At the very top of DEQ’s priority list are Rosebud Creek and the Tongue, Powder, and Little Powder Rivers. Guess why? These watercourses will be the receiving water for any discharges from coal bed methane development. It is good that DEQ wants to establish the TMDLs for these streams before any further pollution occurs. Yet, it is also frustrating because the urgency underlying completion of the TMDLs is driven by the desire to allow more polluted discharges into the rivers.

Since the TMDL program was enacted by Congress 30 years ago, Montana has consistently and effectively procrastinated, stalled, and delayed its complete implementation. The only time DEQ seems eager to fulfill its responsibilities is when another industry or company wants to use Montana’s water for its polluted discharge. Fortunately, Judge Molloy sees things differently. Thanks to his order, Montana’s TMDLs may finally be finished by 2007.

Fish photo by Doug O'Looney