THE TMDL TAP DANCE – AGENCY RESPONSES TO PUBLIC COMMENTS

Over the past decade we have seen a mad – and all to often, blind – rush by agencies to develop TMDLs. Lots of TMDLs. The hurry has been due to efforts by the agencies to (1) avoid getting sued over a lack of TMDL progress, (2) comply with federal TMDL schedules resulting from citizen suits, and (3) comply with agreements between EPA and the States about how many TMDLs will be developed annually. This has resulted in a widespread phenomenon of “drive-by” or “ready, fire, aim” TMDLs.This reality is deliciously, annoyingly, but undoubtedly best, exposed in agency summaries and responses to public comments on their TMDLs. Because many agencies have found themselves facing a shortage of time, money, and staff to prepare proper TMDLs, they have elected to had to resort to creative responses to hardhitting public comments that point out shortcomings in proposed TMDLs.Where errors are easily corrected, agencies generally fix them. However, in the majority of cases, the shortcomings go to fundamental aspects of the TMDL that will require time and money to address. In the face of comments exposing such shortcomings, some agencies elect to be nonresponsive while others will candidly admit their shortcomings. However, in most cases, the agencies choose or are forced to resort to some version of a tap dance in their responses.After a decade of tapping, some are on par with Richard Gere's courtroom shtick in the movie “Chicago. “This presentation will take an interesting, provocative, funny, and sometimes sad look at a range of agency responses to difficult public comments about the appropriateness of agency TMDLs. This assessment will give TMDL stakeholders a better perspective on the quality of TMDLs being developed nationwide as well as ways to try to address key shortcomings in current agency approaches and TMDL programs.Insights will be shared about how to participate in TMDL selection, development, and implementation to make the end TMDL product more meaningful. Approaches will be suggested for developing and positioning public comments to minimize opportunities for agency tap dancing. Finally, guidance will be offered about how to respond when agencies are tap dancing around important TMDL issues.