AMSA Legal Alert (Leg02-8)

Handing AMSA members an unqualified victory, late last week the United States Court of Appeals for the Ninth Circuit upheld the United States District Court for the Northern District of California’s decision that impaired waters should be listed and subject to total maximum daily loads (TMDLs) under Clean Water Act (CWA) § 303(d), whether impaired by point sources, nonpoint sources, or a combination of both. Pronsolino v. Nastri, No. 00-16026 (9th Cir. May 31, 2002) (Pronsolino). The court’s opinion is crystal clear – nonpoint sources are a part of the TMDL program. The decision is particularly timely as the U.S. Environmental Protection Agency (EPA) continues its efforts to revise the July 2000 TMDL regulations for public comment this fall.

Using the Technical Action Fund (TAF), AMSA played a key role as an intervenor in Pronsolino in the district court and on appeal supporting 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 persuasive written briefs in both proceedings significantly contributed to the favorable disposition of this pivotal CWA case. AMSA thanks the Board of Directors and the membership for supporting our active participation in Pronsolino. AMSA also commends our outside counsel on the case, LaJuana Wilcher, Randall Benn, and Paul Freeman of LeBoeuf, Lamb, Greene and MacRae.

The Pronsolinos may appeal the case to the U.S. Supreme Court. It is unlikely that the Court would grant review given the agreement between the District and Circuit court decisions, and the absence of a split of opinion between U.S. judicial circuits on the substantive CWA issues. We will keep the membership apprised if there are further developments in the case.

This Legal Alert summarizes the Ninth Circuit’s opinion. The decision is posted on the Litigation Tracking section of the Member Pipeline at http://www.amsa-cleanwater.org/private/littrack/littrack.cfm.

Factual Background
In 1992, EPA disapproved California’s § 303(d)(1)(A) list of waters because it did not include 17 water segments that did not meet state water quality standards (WQS), 16 of which were impaired only by nonpoint sources. One of the 16 omitted segments was the Garcia River, the water body at issue in Pronsolino. After California failed to amend the list to include the missing segments, EPA stepped in and established a list for the State that included the 17 segments. California kept the segments on subsequent § 303(d)(1)(A) lists, but did not set TMDLs for the waters. Thus, citizen groups sued to have EPA set the TMDLs. A consent decree set a March 1998 deadline for California to complete the Garcia River TMDL. California drafted but did not finish the TMDL by the deadline. Accordingly, EPA established a sediment TMDL for the Garcia River which required a 60 percent reduction from historical loadings. This reduction was contemplated by California’s draft TMDL.

Guido and Betty Pronsolino owned 800 acres of timber land in the Garcia River watershed, and would have had to restrict their harvesting at a cost of $750,000 to comply with the sediment TMDL. Two other landowners in the area faced between $1 and $11 million in costs to meet the TMDL. In 1999, the Pronsolinos and the other landowners sued EPA in the U.S. District Court for the Northern District of California. They challenged EPA’s authority to impose TMDLs on waters impaired only by nonpoint sources, asserting that CWA § 303(d) was “exclusively reserved for point sources.” They argued that this outcome was mandated by CWA § 303(d)(1)(A), which specifically references point source effluent limitations but not nonpoint sources:

“Each state shall identify those waters within its boundaries for which the effluent limitations required by Section 301(b)(1)(A) and 301(b)(1)(B) are not stringent enough to implement any water quality standard applicable to such waters.”

The District Court’s Order
AMSA’s intervenor briefs and oral argument urged the District Court to find EPA’s actions consistent with the CWA. AMSA highlighted that a comprehensive approach to water quality must include point and nonpoint sources. On March 30, 2000, the District Court decided Pronsolino on cross-motions for summary judgment (meaning no material facts were in dispute and the case could be decided by interpreting the CWA). Pronsolino v. Marcus, 91 F. Supp. 2d 1337 (N.D. Cal. 2000).

The District Court rejected the Pronsolino’s argument for three key reasons. First, TMDLs must be set at levels necessary to achieve WQS. If only nonpoint sources are preventing the achievement of WQS, then they must be included in a TMDL. TMDLs also are incorporated into state § 303(e) continuing planning processes, which review both point and nonpoint source controls. This also supports including nonpoint sources in TMDLs. Second, § 303(d)(1)(A) requires states to identify “waters within their boundaries.” This comprehensive language dictates the inclusion of even nonpoint source only impaired waters. The court noted that the only waters clearly exempt from TMDLs are those where the point source effluent limitations will assure attainment of WQS. Third, limiting TMDLs to only point sources would leave states to guess on the allocation of pollutant loadings between point and nonpoint sources. This outcome would violate the CWA’s comprehensive approach to addressing and reducing sources of water pollution.

Finally, the District Court applied the two step analysis to assess the appropriateness of EPA’s actions created by the Supreme Court in the legendary Chevron case. Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). The court found the CWA’s language clear – that nonpoint only impaired waters are to be included on TMDL lists (Step 1). Because it found the statute unambiguous, the court did not need to evaluate whether EPA’s interpretation of the CWA was reasonable, within its power, and thereby entitled to deference from the court (Step 2).

The Ninth Circuit Appeal
The Pronsolinos appealed the case to the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) on June 7, 2000. They argued EPA had inconsistently interpreted the CWA for 30 years. AMSA’s briefs urged the court to defer to EPA’s longstanding approach of including all impaired waters on TMDL lists, regardless of pollutant source. The Ninth Circuit heard oral arguments on July 9, 2001. AMSA counsel assisted EPA with its preparation in several moot court sessions.

On May 31, 2002, the Ninth Circuit upheld the District Court without reservation. Like the District Court, the court found little ambiguity in the CWA’s language on these issues (Chevron Step 1). Pronsolino at 7935. Even if there were ambiguity, the court adds that EPA’s inclusive approach to TMDLs is a reasonable interpretation of the CWA entitled to deference (Chevron Step 2). Id. at 7921.

The Pronsolinos cited EPA’s failure to enforce state activities under § 303(d)(1) as evidence of the Agency’s inconsistent approach to nonpoint sources. The Ninth Circuit disagreed, finding a “more general regulatory failure to enforce the § 303(d) requirements, not a failure with regard only to waters impaired by nonpoint sources.” Id. at 7923. The court found no “statement by the EPA – either in regulations or otherwise – that is inconsistent with the interpretation” that impaired waters should be listed without regard to the source of impairment. Id. at 7924.

The Pronsolinos argued that § 303(d)(1)(A)’s reference to point source effluent limitations means “both that the application of effluent limitations will not achieve water quality standards and that the waters at issue are subject to effluent limitations.” Id. at 7925 (emphasis in original). The court found this interpretation “considerably weaker” than EPA’s approach because it is premised on a subset, rather than all, of the waters within a state’s boundaries. Id. at 7925-26.

The court also rejected the Pronsolino’s assertion that “the CWA as a whole distinguishes between the regulatory schemes applicable to point and nonpoint sources,” noting:

“[p]oint 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.” Id. at 7929 (emphasis in original).

The Ninth Circuit found that “§ 303(d) is structurally part of a set of provisions governing an interrelated goal-setting, information-gathering, and planning process that, unlike many other aspects of the CWA, applies without regard to the source of pollution.” Id. at 7930. The court also added that “[t]he CWA is replete with multiple listing and planning requirements applicable to the same waterways (quite confusingly so, indeed), so no inference can be drawn from [statutory] overlap alone.” Id. at 7931.

The Ninth Circuit rounded out its analysis by touching on blended waters – those impaired by a combination of point and nonpoint sources. EPA and states regularly list blended waters for TMDL purposes. The court noted:

“[n]othing 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.” Id. at 7932-33.

The court concludes by rebutting the Pronsolino’s contention that EPA’s establishment of TMDLs for nonpoint only impaired waters intrudes on state control over land use in violation of the Supreme Court’s opinion in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 172-73 (2001). Id. at 7933. The Ninth Circuit points out that a TMDL identifies a maximum load that can enter the water from broad categories of nonpoint sources – not from individual land parcels. The TMDL does not dictate the measures states should take to implement the TMDL. TMDL implementation – or the choice not to implement at the risk of losing federal funds – remains in the state’s hands. Id. at 7933-35.

Future Activities
AMSA dramatically shapes national clean water policy by bringing the voice of publicly owned treatment works to important cases like Pronsolino. This case will be valuable precedent for years to come. AMSA again thanks the membership for supporting this litigation with the TAF. The Association will continue to seek future opportunities to participate in cutting-edge legal activities like Pronsolino.

As always, please feel free to contact AMSA’s General Counsel Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org with any questions on this case or on AMSA’s other legal activities.