AMSA Wins Pivotal Clean Water Act Case States Can List Nonpoint Sources as Cause of Impaired Waters

Clean Water Advocacy - News Releases - June 3, 2002

For Immediate Release: June 3, 2002
Contact: Adam Krantz, 202/833-4651, AMSA

AMSA Wins Pivotal Clean Water Act Case
States Can List Nonpoint Sources as Cause of Impaired Waters

The Association of Metropolitan Sewerage Agencies (AMSA) was victorious in a landmark Clean Water Act (CWA) decision — Pronsolino v. Nastri — that will help ensure the nation’s water quality. On May 31, the U.S. Court of Appeals for the Ninth Circuit upheld a federal district court decision and ruled that waters contaminated exclusively by nonpoint sources of pollution can be included in state lists of impaired waters that are subject to cleanup plans.

AMSA intervened in Pronsolino on the side of the U.S. Environmental Protection Agency (EPA) and citizen plaintiffs to achieve the key ruling that the Agency did not exceed its authority under Section 303(d) of the CWA in identifying the Garcia River in Northern California as impaired by sedimentation from logging activities, after California refused to do so. Guido Pronsolino and several farm bureaus challenged EPA’s authority to impose TMDLs on rivers polluted only by nonpoint sources. The TMDL for the Garcia River required the Pronsolinos to mitigate 90 percent of the "controllable road-related sediment run-off" from their logging activities and to limit harvesting during certain seasons. Sediment runoff is considered a pollutant and total maximum daily loads (TMDLs), which establish pollutant discharge limits that help a water body attain water quality standards, must be developed for waters listed as impaired.

Agreeing with EPA and AMSA unequivocally, the court held, "Looking at the statute as a whole, we conclude that the EPA's interpretation of § 303(d) is not only entirely reasonable but considerably more convincing than the one offered by the plaintiffs in the case." "Nothing in the statutory structure — or purpose — suggests that Congress meant to distinguish . . . between waters with one insignificant point source and substantial nonpoint source pollution and waters with only nonpoint source pollution," held the court.

AMSA’s Executive Director, Ken Kirk, hailed the ruling, saying that the appeals court decision "endorses the point source position that nonpoint sources must be part of the solution to achieve water quality in America.” Kirk also says that “the decision is very timely given EPA’s decision to move to a watershed approach to achieve water quality. The effectiveness of this approach will hinge on the successful control of nonpoint source pollution and this decision moves us closer to this goal.”

Plaintiffs in the case are discussing next steps, including a potential appeal to the U.S. Supreme Court. AMSA believes the U.S. Supreme Court would likely deny such an appeal because there is no contradictory decision in another appeals court and the Supreme Court tends to accept cases when it can resolve differences in interpretations between judicial Circuits.

AMSA is a national trade association representing over 270 of the nation's public wastewater utilities who are, despite a sharp decline in federal funding, dealing with the expensive challenges of an ailing infrastructure comprised of old, worn pipes and treatment facilities in desperate need of upgrades. These wastewater treatment officials are environmental practitioners dedicated to protecting and improving the nation's public health and its water, and collectively treat and reclaim over 18 billion gallons of wastewater every day.

1816 Jefferson Place, Washington, DC 20036-2505 • 202.833.AMSA • 202.833.4657 FAX