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April 4, 2000

U.S. District Court Says Clean Water Act Includes Authority to Develop TMDLs for Waters Impaired by Nonpoint Sources
On March 30, 2000, the U.S. District Court for the Northern District of California in the case of Pronsolino v. Marcus upheld the U.S. Environmental Protection Agency's (EPA's) authority under the Clean Water Act (CWA) to develop total maximum daily loads (TMDLs) for waters impaired by nonpoint sources. This is landmark decision and a major victory for AMSA and its membership which risked being held solely accountable for cleaning up impaired waters if nonpoint sources were excluded. AMSA intervened in the lawsuit on the side of EPA to protect the interests of POTWs in the TMDL process.

Calls to Congress Critical to Offset Likely Nonpoint Source Backlash to Pronsolino
As a result of the Pronsolino decision, the National Office fully expects an even greater effort by nonpoint source interests to limit the application of the TMDL program to farms, forestry, mining and other nonpoint sources. AMSA is already working on a letter to all Members of Congress announcing the outcome of the Pronsolino case and stressing the need to support EPA's inclusion of nonpoint sources in the TMDL process.

We need your help today. Please make every effort to contact your Members of Congress immediately to explain the importance of the Pronsolino ruling to water quality, and to support the inclusion of nonpoint sources in the TMDL process. The National Office will be issuing a Legislative Alert later this week asking for your calls and letters. If you have any questions, please call Greg Schaner at 202/296-9836.

Pronsolino Ruling Leaves EPA Authority Intact to Address Nonpoint Sources
The critical issue to be decided in the case was “whether listing and TMDLs are required for rivers and waters polluted only by logging and agricultural runoff and/or other nonpoint sources.” The plaintiffs objected to a specific TMDL developed by EPA for the Garcia River in northern California which capped the nonpoint source sediment loads from timber harvest operations within the watershed, but also challenged EPA's underlying authority under the CWA to even develop such a TMDL. Represented by an array of nonpoint source interests, including the Mendocino County Farm Bureau, the California Farm Bureau Federation, the American Farm Bureau Federation (Plaintiffs), the American Forest & Paper Association (AFPA) and California Forestry Association (CFA) (Plaintiff-Intervenors), the plaintiffs argued that “a water polluted only by nonpoint sources of pollution, like the Garcia River, ... should not be listed and no TMDL should be prepared.” Defending were EPA, AMSA (Defendant-Intervenor), the Pacific Coast Federation of Fisherman's Association, et al. (Defendant-Intervenor), and the State of California (amicus curiae) which argued that the 1972 CWA statute was clearly intended to address all sources of water impairment under the TMDL program.

The court flatly rejected Plaintiffs' arguments, and employing traditional rules of statutory construction, determined that Congress had spoken directly to the precise issue at hand. Judge Alsup held that under the CWA's “comprehensive scheme” enacted in 1972, “[n]o substandard river or water was immune [from the requirements of Section 303(d)] by reason of its sources of pollution.” The Judge reiterated that “as to whether TMDLs were authorized in the first place for all substandard rivers and waters, there is no doubt. They plainly were and remain so today — without regard to the sources of pollution.” He also stated:

  • Under the 1972 Act, “TMDLs had to be set at levels that would 'implement' the applicable water-quality standards. It would have been impossible to do so without taking any nonpoint sources into account as well as any point sources.” The Judge stated further that “to have limited TMDLs only to point-source loadings, as argued by plaintiffs, would have left state agencies guessing at how to allocate the burden of cleanup between point and nonpoint contributions of the same pollutant.”
  • Although this case presented an issue of “first impression,” in several previous cases “the Ninth Circuit went on record that the TMDL process covered nonpoint-source pollution.” Judge Alsup concluded that:“[i]n the face of these statements, it would be difficult for a district court within the Ninth Circuit to hold that TMDLs were not required for listed rivers and waters harmed only by nonpoint pollution.”
  • To confine the statutory definition of “pollutants” and, in so doing, the applicability of Section 303(d) to point sources “would impair the 'comprehensive' fabric of the Act.”
  • Section 303(d) serves as “an intersection” between the technology-based and water quality-based approaches of the CWA. In Section 303(d)(1)(A), “Congress called for a list of the unfinished business expected to remain even after application of the new [technology-based] cleanup strategy ... Any polluted waterway — whether its sources were point, nonpoint or a combination — had to be listed if it would not be cleansed by the new approach. To have excluded the large number of rivers and waters polluted solely by agricultural and logging runoff would have left a chasm in the otherwise 'comprehensive' statutory scheme.”

AMSA fully expects the Plaintiffs to appeal this decision. The court allows 30 days for the losing party to file a notice of an appeal. If you have any questions about the case, please call Greg Schaner at 202/296-9836.

Copies of the decision are available: To download a complete copy of the Pronsolino v. Marcus decision, visit the AMSA website at www.amsa-cleanwater.org/private/faxalerts/pron1.pdf for pages 1-16 and www.amsa-cleanwater.org/private/faxalerts/pron2.pdf for pages 17-29. The ruling is available as a PDF file in the Member Pipeline. Simply use your user name and password to enter the Member Pipeline. The decision is posted as an attachment to this Special FaxAlert in the What's New section. In addition, a complete briefing record of the case can be found in the Member Pipeline under the March 23, 2000 Legal Alert on the Pronsolino case.