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Summer 2002Bulletin
Red River TMDL: value beyond the paperwork?
We knew that producing TMDLs for the Red River watershed was not going to be an easy task. (A TMDL is actually written for each pollutant that is causing a water quality impairment – in this case for aluminum in the mainstem Red River, and sediment plus aluminum in several of the tributaries. Given the history and many destructive impacts of metals pollution in the middle and lower Red, the aluminum TMDL there is the one that concerns us most.) Determining the overall aluminum loading in a highly variable system is hard enough; attributing that to precise sources and then appropriately allocating reductions is even harder, as illustrated by the continuing controversy over how much of the pollution is natural and how much anthropogenic. The draft TMDL for aluminum in the mainstem Red River bases its assessment of the daily load on the ‘worst-case scenario’: the period of maximum aluminum loading, which is the spring runoff when both flows and aluminum concentrations are highest. (Load, measured in pounds discharged over a period of time, is the product of flow multiplied by concentration.) The consultants call this worst-case estimate of existing aluminum loading “conservative”. They then estimate the ceiling needed to prevent impairment of the river’s designated use as a coldwater fishery. In the middle and lower Red, the reduction required from the ‘conservative’ existing load estimate to the ‘necessary’ ceiling is vast. It is at least twelve times as great as the average daily reduction that will be achieved through the new NPDES permits for the Molycorp mine (see previous Bulletins for details). And it is far from obvious where these reductions can come from. Two possible conclusions flow from this: either the reductions cannot be achieved, in which case the TMDL looks like a somewhat futile paperwork exercise; or the fact that the reductions are unlikely to be achieved indicates that the standard is too stringent, in which case the designated use should be downgraded. In plain English, the implication is that this section of the Red River could never have been a coldwater fishery, given the very high aluminum loadings. The TMDL report, in the penultimate paragraph of a 54-page document, states that downgrading the designated use is a legitimate possibility. This, we believe, is flawed logic – especially given that all the evidence A second flaw in the analysis is that it is completely agnostic about the relative contributions of ‘natural’ and ‘man-made’ pollution. The ‘worst-case’ estimate (above) leads to the conclusion that, because permitted point sources are contributing only a very small proportion of the high estimated load, non-point sources must be contributing the vast majority. These are presumed to be largely non-Molycorp sources: “Extreme caution is required so that the restoration of the Red River watershed is not incorrectly focused on... Molycorp.” But the majority of the aluminum loading inputs, as the report shows, occur adjacent to and below the mine site. To the extent that the report suggests that aluminum reductions should be achieved largely through voluntary ‘best management practices’ (BMPs) upstream of Molycorp, it is unhelpfully distracting attention away from the mine’s continuing non-point source contributions (including those from seepage from the tailings ponds), and offering a counsel of despair by focusing on poorly-resourced measures to reduce spuriously high pollution estimates upstream of the mine. So much for the flawed logic of TMDL determinism under the pervasive uncertainty of the Red River watershed. A more positive view of TMDLs, aside from the sometimes spurious math, is that they can offer a valuable planning blueprint for comprehensive watershed restoration. In particular, if TMDLs of this kind - where non-point sources have a dominant influence - are to be of any great value, they should include an Implementation Plan with a strong assurance of success. This is where Amigos Bravos’ work elsewhere may be of help. Through our partners at the Western Environmental Law Center, we are presently pursuing a lawsuit against the EPA for its failure to require ‘reasonable assurances’ that the TMDL completed for Cordova Creek (a Rio Costilla tributary) will be adequately implemented to actually remove the water quality impairment (in that case, excessive sediment loads). The Cordova TMDL calls only for voluntary BMPs to address the contributing non-point sources. Some resources for this are being provided by a Clean Water Act section 319 grant - but we believe that this funding source does not bring with it sufficient accountability. The Coastal Zone Management Act, by contrast, requires that states develop legal contracts guaranteeing non-point source cleanup before the federal government releases the funds. We argue that the TMDL process was intended by Congress to be a last-ditch effort to resolve intractable pollution problems, and as such should have the teeth to guarantee enforcement and make cleanup a genuine probability. In the Red River TMDL Implementation Plan, we would wish to see several elements which demonstrate serious intent. There should be a clear identification of aluminum inputs, and their origins, even if that again points to a large extent to the Molycorp mine; pollutant treatment should be prioritized according to engineering feasibility and maximum impact on the bottom-line issue (here, aluminum precipitation); funding sources and other resources should be actively identified; tough responsibilities for cleanup should be assigned as appropriate; and cleanup progress should then be monitored and adapted accordingly. There may still be room, we hope, in the Red River TMDL - which is an ‘evolving management plan’ - to incorporate these elements of a serious planning effort.
Although it is generally agreed that the 1972 Clean Water Act is one of the strongest and most effective federal environmental laws, it has its problems. One is that in devising detailed provisions that work for government regulators – one of the Act’s strengths – it sometimes leaves the public in the dark, even though citizens are vital in making the statute fully effective.
One particularly opaque (though important) provision is the ‘TMDL’ requirement. That means ‘Total Maximum Daily Load’ – which leaves most of us not much the wiser. To explain a bit: the Clean Water Act requires that the acknowledged uses to which a river is put are protected against pollution. It also establishes ‘criteria’ – threshold levels of pollutants above which these uses (such as recreational fishing, or irrigation or swimming) will become impaired. If the criteria to protect a stream’s uses are continually being exceeded, then the waterway should be placed on the state’s Clean Water Act section 303(d) list of impaired waters. States (which administer the Act with EPA supervision) are required to develop TMDLs for all impaired waters, starting with the severest cases. TMDLs, in turn, are ‘pollution budgets’ which supposedly quantify all pollutant contributions within a watershed, calculate how far the combined load must be reduced in order to protect the river’s uses, and then ‘allocate’ the needed reductions appropriately among sources.
TMDLs are reserved for the most egregious pollution situations – watersheds that are failing to respond to other anti-pollution measures, often where the public is expressing a high degree of concern. In New Mexico, they are still relatively untried and unproven (it took a lawsuit from Forest Guardians to get the state to fully implement the TMDL program in the late ‘nineties.) And it was thanks to citizen concern, especially from Amigos Bravos, that the Red River TMDL study was brought forward from 2017 to 1999. We have been awaiting the result for over two years, and now a draft produced by consultants Daniel B. Stephens is out for public review (with comments due to the NM Environment Department by June 10, 2002).
suggests there was a coldwater (trout) fishery in the middle Red before the 1980s when the streambed ‘went blue’ due to aluminum precipitation; and given that a high quality coldwater fishery presently exists in the lower Red. The flaw seems to be in using the worst-case scenario to estimate present aluminum loads, based on high spring flows and concentrations. The real problem affecting the fishery is the precipitation of aluminum, and this may not occur during the scouring flows of spring, despite the high loading. Amigos Bravos suggests that a separate TMDL may need to be drawn up, to calculate loadings under lower-flow conditions when the main precipitation may actually occur. The aluminum reductions required may then prove much less extreme, and more likely to be achieved. No fallacious use-downgrading would be required.
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