To:
Members, Affiliates, & Legal Affairs Committee
From:
National Office
Date:
August 19, 1999
Subject:
AMSA Intervenes in Federal TMDL Case
Reference:
Legal Alert 99-3
On August 3, 1999, AMSA filed a Motion for Leave to Intervene in the case of Pronsolino, et al. v. Marcus, et al., C-99-1828 FMS before the U.S. District Court for the Northern District of California. This case involves a challenge of the U.S. Environmental Protection Agency's (EPA's) authority to regulate nonpoint sources through the Clean Water Act's Total Maximum Daily Load (TMDL) Program. The issues in this case go to the heart of AMSA's long-held philosophy of fair share responsibility for nonpoint sources, and its outcome has the potential to affect all POTWs impacted by TMDLs.
It is the opinion of AMSA that Pronsolino threatens one of the few avenues that the Clean Water Act establishes to include nonpoint sources in the national water quality program. The TMDL process only highlights the sources of water quality problems and leaves to the States and local governments the job of establishing effective nonpoint source programs, should that be necessary to meet water quality standards. If nonpoint sources, which cause or contribute to a majority of the water quality impairment in U.S. waters, are not addressed by the TMDL program, point sources will bear increased burdens and more stringent permit requirements as regulators march toward the CWA's goals of eliminating the discharge of pollutants, the protection and propagation of fish, shellfish, and wildlife, and water quality that provides for recreation in and on the waters of the U.S.
At its July meeting, the Board of Directors voted to support AMSA's involvement in this case. If the Court grants AMSA's motion, the Association will join EPA and several environmental groups (i.e., Pacific Coast Federation of Fisherman's Associations et al.) as full participants in the case.
Background
On April 12, 1999, Guido and Betty Pronsolino, the Mendocino County Farm Bureau, the California Farm Bureau and the American Farm Bureau Federation sued the EPA in the U.S. District Court for the Northern District of California, seeking, among other things, to set aside, enjoin and declare unlawful EPA's listing of the Garcia River under Section 303(d) of the Federal Water Pollution Control Act (“CWA”), 33 U.S.C. §1313(d). In 1992, EPA had disapproved California's Section 303(d) list because it failed to identify the Garcia River as a water quality limited segment. EPA then identified the Garcia River, under the provisions of Section 303(d)(2), as a water for which water quality standards would not be met after effluent limitations required by the technology based guidelines and requirements of Sections 301(b)(1)(A) and Section 301(b)(1)(B) were imposed. California included the Garcia River on its 1994, 1996 and 1998 Section 303(d)(1) lists.The source of the impairment on the listed portion of the Garcia River has been identified as nonpoint sources and background deposits of sediments. The sediments are believed to be deposited, in part, as a result of timbering activities in the Garcia River Watershed, where the Pronsolinos own approximately 800 acres of timberland. In 1998, the Pronsolinos obtained a California Timber Management Plan, which serves as a permit to harvest timber in the State, from the California Division of Forestry. The Timber Management Plan requires the Pronsolinos to comply with EPA's March, 1998 TMDL for the Garcia River. This TMDL restricts the timing of timber harvests to certain months and requires the Pronsolinos to take steps to identify and mitigate certain “controllable” sediment sources in runoff associated with their timber harvests. This the Pronsolinos do not wish to do.
For Further Information Contact ...
For further information on AMSA's intervention in the Pronsolino case, contact Greg Schaner, Manager of Government Affairs at 202/296-9836 or by email at gschaner@amsa-cleanwater.org.Attachment:
AMSA's August 3, 1999 Motion for Leave to Intervene in the case of Pronsolino, et al. v. Marcus, et al., C-99-1828 FMS (Please contact Greg Schaner, AMSA, at 202/296-9836 for a copy of this document).