Clean Water Advocacy - Newsroom - AMSA in the News
Supreme Court Declines to Hear Challenge of
Non-Point Pollution Rule
Damon Franz, Land Letter reporter
The Supreme Court last week declined to hear a challenge of the U.S. EPA's ability to identify rivers and lakes that have become polluted solely because of runoff and to set limits on how much pollution those waters may accept.
The court's refusal to grant certerori to a challenge of
EPA's Total Maximum Daily Load rule by America's largest farm
organization allows EPA to continue its policy of requiring
states to take cleanup action on waters that have been soiled
by runoff from farms, logging operations, roads and
development. The American Farm Bureau Federation and other
groups had challenged the TMDL rule on the basis that
non-point source pollution falls under state, rather than
federal, control.
The case centers on EPA's decision to establish a TMDL for
California's Garcia River in 1998, after the state refused to
do so. Landowners Betty and Guido Pronsolino, who were
subsequently forced to alter a logging plan for their 800
acres on the river, took the agency to court, saying the
Clean Water Act does not give EPA authority to establish
TMDLs for polluted sources that are impaired because of
runoff pollution alone. AFBF and the California Farm Bureau
later backed the case.
Central to the plaintiffs' arguments before the district and
circuit courts is wording in Section 303 of the CWA that
requires establishment of TMDLs on waters for which point
source effluent limitations "are not stringent enough to
implement any water quality standard applicable to such
waters." The phrase "not stringent enough," the say, means
that the waters in question are polluted by point sources,
since only those waters would be subject to effluent limitations.
EPA disagrees, saying the language refers to waters that are
polluted by point source pollution, non-point source
pollution or a combination of both. Siding with the federal
agency was the Association of Metropolitan Sewerage Agencies,
which said weakening the TMDL program would put an unfair
share of the cleanup burden on point sources.
In lower court rulings, both the Northern California District
Court and the 9th U.S. Circuit Court of Appeals agreed with
EPA's broad interpretation of the CWA. In its ruling last
June, the 9th Circuit gave deference to EPA's interpretation
of the statute and said the agency's reading of the law is
reasonable. The appeals court also rejected the argument that
EPA had impinged on California's authority, since the agency
merely set the pollution limit without imposing a remedy.
AFBF petitioned the high court on Feb. 6 to review the
appeals court's ruling.
Although the Supreme Court is not required to give a reason
for its decision not to hear the case, some environmental law
experts said the TMDL case was not one the court was likely
to accept. "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 spent time on it," said Vermont Law
School law professor Patrick Parenteau. "It's not very significant."
Meanwhile, the Bush administration is still considering
relaxing federal oversight of the TMDL program and giving
states more leeway over the listing and cleanup process.
Under the new rule, EPA would retain its authority to step in
and list impaired waters if a state failed to do so, but such
action would not be required. And the rule change would make
it easier for states to change the status of a water that had
previously been listed as impaired.
Environmentalists have called the proposal a rollback of
environmental protections that would lead to less cleanup of
polluted waters. But state and local officials say the change
is necessary to ensure that scarce funds are directed at
waters that truly need the attention.
A report released in January by the General Accounting Office
found that 60 percent of states would like to make changes to
their water quality standards but are unable to do so because
the process of changing the standards is too difficult.
"Without accurate standards, our nation runs the risk of
wasting valuable resources by overprotecting some waters or
facing unacceptable environmental consequences by
underprotecting others," GAO Natural Resources and
Environment Director John Stephenson told a House
subcommittee last week.
According to Stephenson, the program does not function as
well as it could because states often erred when designating
uses for waterways and criteria for measuring pollution, and
in many cases they have been unable to revise those
standards. "Many of the standards were composed decades ago,
when the science wasn't very well developed," Stephenson
said. "The logic behind the process is OK, but the
implementation has lead to some pretty illogical situations."
An example of such an illogical situation, according to
Signal Hill, Calif., City Manager Ken Farfsing, is a concrete
stormwater culvert in Los Angeles that was designated to
achieve water quality that could be considered "swimmable,"
despite the fact that it is kept off-limits to the public for
safety reasons. "Maintaining the swimming usage is
irresponsible as it invites dangerous, life-threatening
activity," he said.