Clean Water Advocacy - Newsroom - AMSA in the News
No. 106
Monday, June 3, 2002 Page AA-1
ISSN 1521-9402
Leading the News
Water Pollution
Waters Impaired by Nonpoint Sources Subject to TMDL Requirements, Court Says
Waters contaminated by nonpoint sources of pollution can be included in state
lists of impaired waters that are subject to cleanup plans, a federal appeals
court ruled May 31 (Pronsolino v. Nastri, CA 9, No. 00-16026, 5/31/02)
The ruling by the U.S. Court of Appeals for the Ninth Circuit in San Francisco
mostly upheld a federal district court decision from March 2000.
The Environmental Protection Agency did not exceed its authority under Section
303(d) of the Clean Water Act in identifying the Garcia River in Northern
California as impaired by sedimentation from logging activities, the appeals
court said.
Sediment runoff is considered a nonpoint source of pollution, the appeals court
said. Total maximum daily loads (TMDLs), which establish pollutant loads at
levels that will help bring the water body into attainment with water quality
standards, must be developed for waters listed as impaired.
"Looking at the statute as a whole, we conclude that the EPA's interpretation of
ยง 303(d) is not only entirely reasonable but considerably more convincing than
the one offered by the plaintiffs in the case," the appeals court said.
EPA stepped in and listed several waters as impaired in the early 1990s after
California refused to do so. However, once those waters were listed by EPA, they
were included in California's subsequent lists. The state did not develop TMDLs
for these waters, and citizen groups sued in 1995 to force EPA to do so.
Pronsolino's Challenge
The Pronsolino case arose when Guido Pronsolino and several farm bureaus
challenged the agency's authority to impose TMDLs on rivers polluted only by
nonpoint sources. The TMDL for the Garcia River required the Pronsolinos to
mitigate 90 percent of the "controllable road-related sediment run-off" from
their logging activities and to limit harvesting during certain seasons.
Pronsolino argued that EPA has not interpreted Section 303(d) consistently and
that to conclude that these provisions applied to waters impaired solely by
nonpoint sources was erroneous.
However, the act does require waters to be listed if they are impaired by "a
combination of point sources and nonpoint sources," the court said, referring to
what are known as "blended waters."
"So, at least in blended waters, TMDLs must be calculated with regard to
nonpoint sources of pollution; otherwise, it would be impossible 'to implement
the applicable water quality standards,' which do not differentiate source of
pollution," the appeals court said. "Nothing in the statutory structure--or
purpose--suggests that Congress meant to distinguish ... between waters with one
insignificant point source and substantial nonpoint source pollution and waters
with only nonpoint sources pollution."
No Contradiction, Court Says
Pronsolino also said that nonpoint sources are addressed in other sections of
the act and were not intended to be covered by Section 303(d), which he said was
only intended to address waters contaminated by point source dischargers.
The appeals court said there was no "irreconcilable contradiction" between the
nonpoint source provisions and those establishing the TMDL requirements.
Russell Eggert, an attorney with Mayer, Brown, Rowe & Maw in Chicago, argued for
the plaintiffs. He told BNA that the appeals court decision was not quite as
sweeping as the district court ruling. Eggert interpreted the ruling as leaving
the decision to the states whether to list waters based on nonpoint source
pollution.
He pointed to a specific section of the ruling that said, "California chose both
if and how it would implement the Garcia River TMDL." The court went on to say
there is no statutory requirement that states list waters based on nonpoint
source pollution.
Moreover, even if states do choose to set a TMDL, because it is based on
nonpoint source pollution states will have a great deal of flexibility in what
the nonpoint source controls will look like to satisfy the TMDL, he said.
Ruling Welcomed by AMSA
Alexandra Dunn, general counsel for the Association of Metropolitan Sewerage
Agencies, which filed briefs on behalf of EPA, hailed the ruling. Municipal
treatment plants are significant point source dischargers and have argued that
their efforts to cut discharges of contaminants would be for naught unless
nonpoint source pollution is addressed.
The appeals court decision "endorses the point source position and EPA's
position that you can't take a holistic approach to water quality unless you
look at all sources of pollution contributing to the impairment," Dunn said.
The decision is also important as EPA moves to propose regulations revising the
TMDL program and will most likely take a broader view of sources contributing to
water quality impairment, Dunn said.
Eggert said he will discuss possible next steps with his client.
Dunn said the U.S. Supreme Court probably would not be interested in the case
because there is not a contradictory decision in another branch of the appeals
court.
By Susan Bruninga