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Farmers, foresters challenge feds' authority to regulate
non-point sources
CLEAN WATER
Greenwire
07/23/2002
Damon Franz, Greenwire staff writer
In part of a continuing struggle over the future of water pollution
regulation, farmers and foresters filed an appeal last week of a landmark court
decision that gave the federal government the authority to regulate non-point
sources -- the polluted runoff from farms, logging operations, roads and
residential areas.
Such non-point sources are much more problematic to regulate than the discharge
from a factory or treatment plant pipe and are credited with soiling about 70
percent of the waters listed by the U.S. EPA as impaired. Although the Clean
Water Act directed states to address non-point sources through the Total Maximum
Daily Load program -- a backstop measure requiring them to identify polluted
waters and come up with a pollution "budget" for those waters -- the states have
been slow to do so.
In 2000, the Clinton administration took matters into its own hands, adopting a
rule requiring the states to develop TMDLs over 8 to 13 years. The rule
immediately drew the ire of Congress, which adopted a moratorium on implementing
the rule, and the Bush administration is currently considering changes to the
rule that would make it much more flexible.
But the Clinton rule is also under attack in the courts. Farmers and foresters,
led by the American Farm Bureau Federation and American Forest and Paper
Association, say the TMDL program will be much too expensive, and they've sued
to overturn it based on one of the first water bodies for which a TMDL has been
established -- the Garcia River in Northern California.
In that case, Guido and Betty Pronsolino say the management plan required to
meet the TMDL will cost them millions of dollars in revenue from their 800-acre
tree farm. The Pronsolinos, along with the national farm and forestry
associations and the California Farm Bureau, sued to overturn the TMDL for
Garcia, saying the CWA does not give EPA the right regulate non-point sources.
EPA, backed by the Pacific Coast Federation of Fisherman's Associations and
Association of Metropolitan Sewerage Agencies, has won victories in both the
district court and 9th Circuit Court of Appeals. "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 source pollution," the appeals
court said.
Still, the Pronsolinos and their allies are not giving up. On July 15, they
filed a petition for a rehearing of the decision, which was made by a
three-judge panel. "Unlike [point-source] pollution, neither rainfall nor runoff
occurs with the predictability and precision contemplated by strict quantitative
effluent limitations and TMDL controls," the petition says. "Accordingly,
Congress chose to manage [nonpoint sources] with more flexible standards."
Dave Kranz of CFB said that if the petition is accepted, the case could be
reheard by another three-judge panel or by the broader nine-judge appeals court.
If the petition is not accepted, the plaintiffs will have to decide whether to
take the case to the Supreme Court, a decision they are not prepared to make
yet, Kranz said.
Meanwhile, environmentalists in Washington, D.C., gathered to criticize the Bush
administration yesterday for considering changes to the rule that could give
states much more flexibility in coming up with TMDLs. EPA is expected to decide
soon whether it will move ahead with the Clinton rule or implement changes that
would relax TMDL requirements and schedules. "According to EPA materials, their
plan is to 'trust the states,'" said Daniel Rosenberg of the Natural Resources
Defense Council. "We passed the Clean Water Act because trusting the states
doesn't cut it as environmental policy."