Clean Water Advocacy - Newsroom - AMSA in the News
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.