Pronsolino v. Marcus, No. C 99-01828-WHA (N.D. Cal. March 30, 2000).

Tim Peeples, J.D.

Kristen Fletcher, J.D., LL.M.

A federal court in California has determined that the EPA and states have the authority to set pollution limits on waters that are affected only by nonpoint source pollution. Landowners along the Garcia River in California claimed that the Clean Water Act (Act) mandated comprehensive limits on pollution, called Total Maximum Daily Loads or TMDLs, for waterbodies that were affected by point source discharges such as industrial effluent.1 The landowners proposed that those waterbodies that were affected only by nonpoint source discharge such as agricultural or forestry runoff, were not covered under the Act's TMDL mandate. Noting that nonpoint source pollution, including pollution from agriculture and forestry operations, has become the "dominant water quality problem in the United States, dwarfing all other sources of volume," the court dismissed the challenge.2

Under the Clean Water Act, Congress acknowledged two different sources of pollution: point source pollution which is pollution discharged from a "discernable, confined and discrete conveyance such as a pipe [or] ditch;"3 and nonpoint source pollution which is runoff from a variety of sources including urban areas and agriculture or forestry sites. Under the Act, point source dischargers had to obtain permits if they discharged waste into any U.S. water, and each state, subject to EPA supervision and approval, was authorized to regulate nonpoint source pollution as deemed necessary.

Section 303 of the Act also requires states to adopt water quality standards for impaired rivers and waters, without distinguishing between point and nonpoint sources, in the form of TMDLs which establishes the maximum levels of various pollutants that can be allowed into specific rivers and waters to maintain certain water quality standards.
 

The Garcia River TMDL

As a result of the increase in sediment in the river from nearby logging operations and other nonpoint sources, the EPA directed California to list the Garcia River as impaired in 1992. The EPA later issued a TMDL calling for a sixty percent reduction of sediment, allocating portions of the TMDL to nonpoint pollution sources including pollution associated with roads, timber-harvesting activities, and erosion. Estimating that compliance with the Garcia River TMDL mandate would cost the plaintiffs over ten million dollars collectively, they filed suit.

The key question before the court was whether the EPA had the authority to list the Garcia and prepare a TMDL when the only pollution came from logging and agricultural runoff and other nonpoint sources. The plaintiffs argued that waters polluted solely by nonpoint sources of pollution should not be listed under the Act, and therefore, no TMDL should have been prepared. Section 303(d) states that "[e]ach state shall identify those waters within its boundaries for which the effluent limitations . . . are not stringent enough to implement any water quality standard applicable to such waters." The plaintiffs argued that because the provision mentioned only "effluent limitations," it applied only to point sources.

The court, however, rejected that narrow interpretation of section 303(d), finding that TMDLs were intended to cover both sources of pollution. If TMDLs failed to consider nonpoint sources of pollution, the mandate, in many cases, would fail to achieve the Act's desired water quality standards. The district court pointed to the U.S. Supreme Court's treatment of the Act as establishing a "comprehensive long-range policy for the elimination of water pollution"4 which includes states' efforts to control nonpoint source pollution. By limiting the TMDL mandate to only point source pollution, it would "frustrate the comprehensive approach of the Act."5

Furthermore, the court found the absence of discussion of nonpoint pollution sources in section 303(d) irrelevant as it did not exempt any rivers or waters or distinguish between types of pollutants: "Any polluted waterway - whether its sources were point, nonpoint, or a combination - had to be listed . . . ."6 For these reasons, the court ruled that the EPA had the authority to prepare TMDLs for substandard rivers polluted only by nonpoint sources.

Definition of Pollutant

Although not raised by the plaintiffs, the court went on to consider whether sediment constituted a "pollutant" under the Clean Water Act, because TMDLs were designed only to cover certain pollutants identified by the EPA. At the outset, the court noted the absence of the word "sediment" in the Act's definition of "pollutant." Section 502 of the Act defines "pollution" as "dredged spoil, solid waste. . . rock, sand, cellar dirt and industrial, municipal and agricultural waste discharged into water."7 The court followed Ninth Circuit precedent that sediment implicitly falls within the meaning of pollutant, relying on the legislative history of the Act which stated that "sediment, often associated with agricultural activities, is by volume our major pollutant."8

Yet, the court delved further into whether the phrase "discharged into water" addresses only point source pollutants. The court acknowledged that "discharge" typically applied only to point source pollution, and if that were true here, then TMDLs would only be required for waters polluted by point sources. Ultimately, because the term "pollutant" was used to cover both point and nonpoint sources in the Act, the court found that pollution includes "sediment" from both point and nonpoint sources.
 

The 1987 Clean Water Act Amendments

The plaintiffs then argued that section 319, added under the 1987 amendments, specifically authorizes states to identify nonpoint sources of pollutants and best management practices. The plaintiffs claimed the amendments would have been unnecessary had section 303(d) been intended to regulate those sources.

While the court admitted section 319 "covered some of the same general ground" covered elsewhere in the Act, the court found no inherent conflict between this section and the TMDL mandate.9 Section 303(d) addresses waters that could not comply with the Act's standards through the use of state-of-the-art technology, whereas section 319 seeks to determine which waters cannot achieve those standards without taking additional steps to control nonpoint source pollution. While a river could certainly be placed on both the 303(d) and 319 lists as substandard due to nonpoint source pollution, the court found no intention to withdraw nonpoint sources from the coverage of section 303(d). Further, while section 319 adopts strong measures in regard to nonpoint source pollution, the Act already contained a number of references to nonpoint source pollution. Thus, the 1987 amendments did not represent Congress' first attempt to regulate that source of pollution.
 

EPA'S Authority to Control State Land-Use

The plaintiffs' final claim was that the EPA did not have the authority to regulate California land-use practices. The court agreed that the EPA lacked such authority but ruled that the EPA, in issuing the TMDL, had not attempted to usurp state power. Rather, the EPA had merely established the load limits for the Garcia River, leaving California free to adopt whatever land management practices it desired so long as those practices achieved the goals of the TMDL. Additionally, California could have altered the TMDL or refused to enforce it although subject to the potential withdrawal of federal grants. While the process may be coercive, the court ruled that this procedure did not constitute direct federal regulation.
 

Future Claims by the Plaintiffs

While the court rejected the plaintiffs' challenge of the EPA's authority to actually impose a TMDL on the state of California when the only source of pollution was a nonpoint source, the court noted that the plaintiffs were not without other avenues of redress. The court suggested that the plaintiffs could appeal California's allocation of the percentages of the total load through state administrative procedures. Additionally, the plaintiffs could challenge the TMDL under the Administrative Procedure Act as being "arbitrary" in future actions.
 

ENDNOTES

1. For analysis of the TMDL mandate, see Mississippi and Alabama Reach TMDL Consent Decrees, 19:4 Water Log 1 (1999).

2. Pronsolino v. Marcus, at 2.

3. 33 U.S.C. § 1362 (14) (2000).

4. Pronsolino at 6.

5. Id. at 15.

6. Id.

7. 33 U.S.C. § 502 (2000).

8. Pronsolino at 22, citing S. Rep. No. 92-414, 92d Cong. 1st Sess. 52 (1971).

9. Pronsolino at 23.

University of Mississippi