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To:

Members, Affiliates, & Legal Affairs Committee

From:

National Office

Date:

March 23, 2000

Subject:

Pronsolino v. Marcus (C-99-1828) - Federal Court Hears Summary Judgement Arguments

Reference:

Legal Alert 00-3

This Legal Alert will summarize progress in the case of Pronsolino v. Marcus (C-99-1828) emphasizing the arguments made in the recent exchange of summary judgment motions, responses, and replies on behalf of the Plaintiffs and Defendants. The case involves a challenge to the U.S. Environmental Protection Agency's (EPA's) authority to include nonpoint sources in the total maximum daily load (TMDL) process pursuant to §303(d) of the Clean Water Act. The case pits nonpoint source interests against EPA, AMSA, the State of California, and several environmental groups. The nonpoint source interests are represented by the Mendocino County Farm Bureau, the California Farm Bureau Federation, and the American Farm Bureau Federation (Plaintiffs), and the American Forest & Paper Association (AFPA) and California Forestry Association (CFA) (Plaintiff-Intervenors). Defending are EPA, AMSA (Defendant-Intervenor) and the Pacific Coast Federation of Fisherman's Association, et al. (Defendant-Intervenor). The State of California is participating as an amicus curiae on behalf of the Defendants.

This case hinges largely upon determining Congress' intent in enacting §303(d) in 1972, and whether, in the absence of a clear expression of such intent, EPA's interpretation that §303(d) includes nonpoint sources is reasonable. The parties seek to resolve these issues without a trial through cross-motions for summary judgment. A party is generally entitled to a summary judgment where no material facts are in dispute and the party is entitled to a judgment as a matter of law.

Copies of Pronsolino v Marcus Briefing Papers Available on AMSA Website
Copies of all of the briefing papers filed to date on Pronsolino v. Marcus are available on the website at http://www.amsa-cleanwater.org. To access the briefs, use your user name and password to enter the Member Pipeline. The briefs are included as an attachment to Legal Alert 00-3.

Summary Judgment Hearing
Judge William H. Alsup of the United States District Court for the Northern District of California heard oral arguments on opposing summary judgment motions in the case of Pronsolino v. Marcus on March 23. Over the past six weeks, AMSA counsel has participated in concert with counsel for the Department of Justice in an exchange of summary judgment, response, and reply briefs with the Plaintiffs. The court also permitted AMSA to file two additional supplemental briefs supporting the Defendants' summary judgment motion and reply addressing issues not of common concern with EPA and the environmentalists.

In preparation for the oral arguments, Judge Alsup asked each party to be prepared to respond to a list of specific questions on the TMDL program. AMSA counsel worked with the Department of Justice on a written response. This information will be added to the website as soon as the document is available.

Plaintiffs' Reply Brief and Opposition to Defendants' Cross Motion for Summary Judgment
The Plaintiffs' Reply Brief contains arguments seemingly inconsistent with positions taken in the original complaint and earlier pleadings. In particular, the Plaintiffs concede for the first time that “a waterbody affected by both point and nonpoint sources may be on the §303(d)(1)(A) list ...” This is significant because it is inconsistent with previous positions taken by the Plaintiffs in this litigation and beyond (i.e., hearings before Congressional committees), and creates holes in the logic of other arguments they attempt to make. The arguments made by the Plaintiffs include:

  • The Defendants' contention that the TMDL process does not “regulate” nonpoint sources of pollution belies EPA's conduct in developing and implementing the Garcia River TMDL, and is inconsistent with EPA's regulations and guidance documents.
  • While “blended waters” impaired by both point and nonpoint sources may be properly listed as water quality limited segment under Section 303(d), allocations and reductions assigned as part of the TMDL process may only apply to point sources. Nonpoint sources must do their part to improve the quality of impaired waters pursuant to §319, not §303.
  • The absence of an express exclusion of nonpoint sources in §303(d) does not confer the authority to regulate nonpoint sources upon EPA.

Response of Plaintiff-Intervenors' AFPA and CFA on Motions for Summary Judgment
The brief of Plaintiff-Intervenors AFPA and CFA primarily responded to arguments made in AMSA's “Memorandum in Support of Defendants Motion for Summary Judgment” filed on February 18, 2000. AFPA and CFA refer to the issues raised by AMSA (particularly the impacts of this case on POTWs and other point sources) as a “sideshow.” They contend:

  • Removal of nonpoint sources from the TMDL process will not disproportionately burden POTWs and other point sources, and, in fact, “point source controls were never expected to achieve water quality standards alone.” Rather, such a burden will be eased by “accounting for” nonpoint sources when calculating water quality-based effluent limitations to implement the terms of a TMDL.
  • While nonpoint source contributions to the impairment of waters should be “accounted for” in the development of TMDLs for blended waters, this “assuredly does not mean that nonpoint sources are to be allocated an allowable load as part of the TMDL process.”

Defendants' Reply Brief
The joint brief submitted on behalf of EPA, AMSA and the Pacific Coast Federation of Fisherman's Association et. al., asserted that the strength of the Defendants' arguments “has forced Plaintiffs to abandon their initial position that §303(d) has nothing to do with nonpoint sources.” As stated in the joint brief, Plaintiffs “now vigorously backpedal from the untenable positions” they took in their complaint and previous pleadings. The Defendants argued further:

  • Plaintiffs have failed to establish that EPA's interpretation of §(d) is unreasonable and contrary to law. Plaintiffs merely present a competing interpretation of §303(d).
  • Plaintiffs have changed positions in the face of the Defendants' arguments. While Plaintiffs' complaint alleged that “§303(d) does not apply to nonpoint sources,” their reply brief stated “[w]e agree that the TMDL process must 'account' for nonpoint sources.”
  • It is reasonable for EPA to work with States to ensure that TMDLs are implemented and, if necessary, to condition EPA's granting of funds to the State to achieve that goal.
  • EPA cannot compel a nonpoint source to reduce its pollution. The decision to do so was California's, not EPA's. Thus, if the Plaintiffs do not like how California is implementing TMDLs or administering State permitting programs (e.g., timber management plans), they should pursue that issue with the State.
  • EPA's interpretation of §303(d) does not override §319. Rather, §303(d) provides States with analytic tools that complement and enhance the chances for success of §319 nonpoint source management programs.

Defendant-Intervenor AMSA Reply Brief
The supplemental reply brief submitted on AMSA's behalf seizes upon the Plaintiffs' confusion regarding the distinction between Federal and State regulation, as well as Plaintiffs' seemingly shifting positions on the central issues of this case. In particular, AMSA counsel argued:

  • Plaintiffs confuse Federal regulation with State regulation, and fail to grasp the complex regulatory and nonregulatory roles and relationships among EPA and the States.
  • EPA is not regulating nonpoint sources, but establishing TMDLs, which the Clean Water Act requires. The State of California, not EPA, chose to regulate nonpoint sources in impplementing the TMDL.
  • Plaintiff-Intervenors' contention that the impacts on AMSA's members are “largely beside the point” represents a futile attempt to escape the implications of the relief sought. The relief sought would force point source dischargers across the country (not just in the Garcia River watershed) to bear disproportionate burdens in improving the quality of impaired waters.

Reply Brief of Amicus Curiae State of California
In early March, the State of California submitted an amicus curiae brief on behalf of the Defendants after Judge Alsup approved the State's February 17, 2000 application to the Court. In its amicus curiae reply brief, the State of California targets Plaintiffs' preoccupation with the supposed regulatory decisions made by EPA. The State contends:

  • Despite Plaintiffs' assertions to the contrary, EPA has not directly imposed any regulatory requirements on any nonpoint source in the Garcia River watershed. Although TMDLs developed by EPA are not regulatory tools, they are very important pieces of the regulatory structure designed to improve the quality of water. “TMDLs provide the basis for State agencies making sound, defensible, reasoned decisions on regulatory controls to be imposed on both point and nonpoint sources.” Furthermore, “load allocations are simply guideposts for regulatory decisions made under our authority.”
  • While “Plaintiffs make much noise about supposed threats made by Federal officials and State agencies,” the Federal government has as much right as anyone to attempt to influence State regulatory decision. If the government attempts to wield too much power, it is for the State of California to object, not the Farm Bureau or anyone else.
  • This lawsuit is not the appropriate vehicle for the Plaintiffs' arguments. California's regulatory actions have affected the Plaintiffs, not EPA's listing and TMDL development decisions. As a result, Plaintiffs should have pursued an administrative appeal of their timber management plans, and, if necessary, appealed a decision there in California's State court.

For Further Information ...
For further information on the status of Pronsolino v. Marcus, please contact Greg Schaner at 202/296-9836. A decision on the summary judgment motions is expected in June 2000.

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