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Farm Bureau Seeks Supreme Court Decision in TMDL Case
WATER
Greenwire
02/13/2003


Damon Franz, Greenwire staff writer

(This story ran in this morning's Land Letter.)

America's largest farm organization is asking the U.S. Supreme Court to take a case that could invalidate the U.S. EPA's ability to identify rivers and lakes that have become polluted only because of non-point sources of pollution and to set limits on that pollution.

If the Supreme Court decides to take the case and sides with the American Farm Bureau Federation, it could significantly impair EPA's Total Maximum Daily Load program, setting back the agency's efforts to reduce the pollution source in up to 70 percent of all polluted waters. Those efforts, AFBF says, are illegal because Congress intended non-point source pollution to be under state, rather than federal, control.

At issue is EPA's move to develop TMDLs for California's Garcia River in 1998 after the state refused to do so. Betty and Guido Pronsolino -- who estimate restrictions imposed because of TMDL will cost them $750,000 on 800 acres they had planned to log -- argue the Clean Water Act does not give EPA the authority to establish TMDLs for polluted sources that are impaired only because of non-point source pollution.

Backed by AFBF and the California Farm Bureau, the Pronsolinos argued in federal district court that a strict reading of the Clean Water Act exempts waters impaired only by runoff pollution from EPA regulation.

Section 303 of the act requires compiling TMDLs on waters for which point-source effluent limitations "are not stringent enough to implement any water quality standard applicable to such waters." The plaintiffs say the phrase "not stringent enough" means that the waters in question are polluted by point sources, since only those waters would be subject to effluent limitations. EPA, on the other hand, interprets the language as referring to waters that are polluted by point-source pollution, non-point source pollution or a combination of both.

Both the district court and the 9th U.S. Circuit Court of Appeals agreed with EPA's interpretation of the CWA. In its ruling last June, the appeals court gave deference to EPA's interpretation of CWA Section 303 by way of its TMDL regulations, which it found to be reasonable and clear. The court also agreed with the logic behind EPA's interpretation, finding that the TMDL requirements apply to all impaired water bodies, regardless of the source of impairment. And the court rejected Pronsolino's assertion that EPA's decision to establish a TMDL for the Garcia amounts to a usurpation of the state's control over land use, since EPA itself did not prescribe specific remedies for cleaning the river.

"Nothing in the statutory structure -- or purpose -- suggests that Congress meant to distinguish, as to Section 303(d)(1) lists and TMDLs, between waters with one insignificant point source and substantial non-point source pollution and waters with only non-point source pollution," the court said in its decision. "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 Section 303(d)(1) list and establish TMDLs accordingly. There is no statutory basis for concluding that Congress intended such an irrational regime."

In its petition, filed Feb. 6, AFBF asks the court to decide whether the 9th Circuit erred in deferring to EPA's regulations before interpreting the statutes they are based upon. The group also asks the court to make a decision on whether the CWA requires a state to identify all impaired waters, including ones impaired by runoff only, and establish TMDLS. And AFBF asks for a ruling on whether EPA's establishment of TMDLs constitutes an "impermissible federal intrusion into a core state function."

Patrick Parenteau, a law professor at the University of Vermont Law School, said it is unlikely the high court will take the case. "In the absence of a contradictory circuit court decision, in the absence of a legitimate constitutional conflict, and for a question that is purely procedural -- there's no substantive argument -- I can't imagine why the court would want to spend time on it," he said. "It's not very significant."

Still, he added, the court has taken cases in the past for which the justices did not appear to have compelling reasons. "If four people on the bench think there ought to be a review, there will be a review."

Parenteau's skepticism that the court will take the case is shared by the Association of Metropolitan Sewerage Agencies, which says the court tends not to accept cases that lack constitutional or jurisdictional conflicts. AMSA spokesman Adam Kranz said a decision in favor of Pronsolino would put an unfair share of the burden for cleaning up polluted waters on point sources, which have already done most of the work during the first 30 years of the CWA.