Frost Brown Todd Attorneys at Leading Edge in Battle Over the Clean Water Act's Unfunded TMDL Mandate

February 26, 2014

The acronym "TMDL" may seem innocent, but to wastewater dischargers like local governments and their ratepayers, the term means "total maximum daily load," a federally-mandated reduction in pollutant loadings frequently so severe that it sends ripples of economic fear echoing in the chambers of cash-strapped cities and counties across the country, and in the boardrooms of American businesses.  These so-called pollution "diets" are required by environmental agencies when they deem a stream to be "too fat" with pollutants, and demand that the sources go on a diet to reduce the amount they discharge.  The financial effects are felt not just by local governments and factories, but also by farmers and developers, and can even stunt the economic development of an entire region.  The science, law, policy choices, and assumptions underlying TMDLs and their allocation diets are complex and often seemingly arbitrary.  Whether a stream is overweight, by how much, what caused it, and which sources are going to be required to lose weight at what cost, are just a few of the questions whose answers can trigger millions of dollars of forced capital and operating expenses.  Steve Samuels and Steve Haughey, Members of Frost Brown Todd's Environmental Practice Group, are addressing these and other TMDL issues of national significance for the firm's clients.   For example, they are:

  1. Representing local governments and trade groups in an appeal to the Ohio Supreme Court that will determine whether TMDLs must be promulgated as rules, and how and when the regulated community will get its "day in court" to challenge a TMDL;
  2. Preparing detailed comments on, and negotiating changes to, draft TMDL reports to minimize the potential for costly, unsupported allocations;
  3. Organizing watershed coalitions to be actively involved in the TMDL process, analyzing biological, chemical, and financial data and assumptions, and meeting with state agencies to address these issues and develop an equitable allocation of the pollution diet;
  4. Negotiating agreements for stream and riparian corridor improvements, and for trading between sources, as a means to minimize costly pollutant reductions; and
  5. Successfully appealing and negotiating discharge permits issued with new TMDL-based nutrient limits. 

Mr. Samuels and Mr. Haughey have found that early organization and involvement in the TMDL process is critical to minimize the potential for costly capital expenditures.  Ignoring the process could lead to a different interpretation of the acronym – "Total Maximum Debt Load" – for local governments and businesses that wait until the "diet" is imposed.  If you would like to learn how Frost Brown Todd can assist you with TMDL issues, please contact Mr. Samuels or Mr. Haughey.  Frost Brown Todd is a full service law firm with over 500 lawyers and offices in Ohio, Kentucky, Indiana, Pennsylvania, Texas, Virginia, West Virginia and Tennessee.

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