Member Pipeline - Fax Alert SpecialEdition - June 17, 2003
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June 17, 2003
Supreme Court Denies Review of Key Nonpoint Source Case
Setting an important precedent for the wastewater treatment works community, the United States Supreme Court denied the petition for review of the Ninth Circuit Court decision, Pronsolino v. Nastri, making final its decision that impaired waters, whether impaired by point sources, nonpoint sources, or a combination of both, should be listed and subject to total maximum daily loads (TMDLs) under Clean Water Act (CWA) § 303(d), Pronsolino v. Nastri, No. 02-1186 (June 16, 2003). The Association of Metropolitan Sewerage Agencies (AMSA) was a Respondent in the case and filed its brief on May 16 successfully urging the Supreme Court that “petitioners have presented no compelling reason for the petition for certiorari to be granted.”
High Court Ensures Strong Precedent Subjecting Nonpoints to TMDLs
The Supreme Court’s decision not to review the case adds support to the Ninth Circuit’s opinion that nonpoint sources are a part of the TMDL program and is particularly timely as the U.S. Environmental Protection Agency (EPA) continues its efforts to revise the TMDL regulations. Through its Technical Action Fund (TAF), AMSA played a key role as an intervener in Pronsolino in the district court and on appeal to the Ninth Circuit and ultimately to the Supreme Court, in support of EPA. AMSA’s oral argument before the District Court, support of the U.S. Department of Justice (DOJ) in moot court sessions for the Ninth Circuit argument, and written briefs in the various proceedings, contributed to the favorable disposition of this pivotal CWA case.The high court’s decision makes final the Ninth Circuit’s key holdings that:
“Point sources are treated differently from nonpoint sources for many purposes under the statute, but not all. In particular, there is no such distinction with regard to the basic purpose for which the § 303(d) list and TMDLs are compiled, the eventual attainment of state-defined water quality standards. Water quality standards reflect a state’s designated uses for a water body and do not depend in any way upon the source of pollution.”
“Nothing in the statutory structure – or purpose – suggests that Congress meant to distinguish, as to § 303(d)(1) lists and TMDLs, between waters with one insignificant point source and substantial nonpoint source pollution and waters with only nonpoint source pollution. Such a distinction would, for no apparent reason, require the states or the EPA to monitor waters to determine whether a point source had been added or removed, and to adjust the § 303(d)(1) list and establish TMDLs accordingly. There is no statutory basis for concluding that Congress intended such an irrational regime.”
AMSA’s brief in opposition to the petition for Supreme Court review is available on the Association’s web site at http://www.amsa-cleanwater.org/private/littrack/ and the Supreme Court’s denial of certiorari is available at http://www.supremecourtus.gov/docket/02-1186.htm. More information on Pronsolino will also be made available via future Alerts and Updates.