EPA Is Authorized To Issue TMDLs For Rivers And Waters Polluted By Nonpoint Sources
October 11, 2000
In the recently reported case Pronsolino v. Marcus, the Federal District Court for the Northern District of California, examined an issue of first impression: whether Section 303(d) of the Federal Water Pollution Control Act Amendments of 1972, later renamed the Clean Water Act, authorized the Environmental Protection Agency (EPA) to determine “total maximum daily loads” (TMDL) for rivers and waters polluted only by logging and agricultural runoff and/or other nonpoint sources, rather than by any municipal sewer and/or industrial point sources. 33 U.S.C. 1313(d). This issue has become one of great significance, inasmuch as nonpoint source pollution is now the dominant water quality problem in the United States, far exceeding by volume all other sources of water and riverway pollution.
The plaintiffs in the action, Guido and Betty Pronsolino, own forested land along the Garcia River in the coastal area of northern California. When they obtained a permit to harvest timber on their land, the California Department of Forestry (CDF) imposed restrictions on them designed to reduce soil erosion into the Garcia River. The restrictions included measures such as leaving certain large conifers standing. The Pronsolinos estimated that TMDL compliance would cost them upward of $750,000.
The Pronsolinos subsequently brought suit on April 12, 1999, seeking a determination that, under the Clean Water Act, the EPA had no power to impose TMDLs on rivers such as the Garcia, which had been polluted only by timber-harvesting and agricultural runoff and/or other nonpoint sources. In their suit, the Pronsolinos contended that the conditions imposed on them by the CDF were onerous and costly, and that the CDF had imposed the restrictions in order to implement a TMDL that had been set by EPA for the Garcia River. Joining the Pronsolinos as plaintiffs were the Mendocino County Farm Bureau, the California Farm Bureau and the American Farm Bureau Federation, all of whom disputed the EPA’s authority to set TMDLs for such nonpoint source-polluted rivers.
The Garcia River runs through southwestern Mendocino County into the Pacific Ocean. The river had once flourished as a spawning ground for cold-water fish such as coho salmon and steelhead trout. Excess sediment from logging operations over many years in the area, however, had severely impacted the spawning and reproduction of these fish in the Garcia River. The restrictions imposed by CDF on the Pronsolinos and other abutters to the river were intended to further restore the fish habitat in the Garcia River.
The court held that under the Clean Water Act, the EPA did in fact have the power and authority to impose TMDLs on rivers such as the Garcia, which had been polluted only by timber-harvesting and agricultural runoff and/or other nonpoint sources. The court noted in reaching its conclusion, that in the process of setting standards, Section 303 of the Clean Water Act did not exempt any rivers or waters — all were covered to the full extent of federal authority over navigable waters. Nor was any distinction drawn, the court stated, between point sources and nonpoint sources.
The Pronsolinos had argued that nonpoint sources of pollution were not intended to be to counted in assembling the substandard-waters list required by Section 303(d) of the Clean Water Act, and in preparing the corresponding TMDLs: they maintained that the listing and TMDL requirements of Section 303(d) were exclusively reserved for point sources and that Section 303(d) focused solely on point sources. As such, a waterway polluted only by logging runoff or other nonpoint sources of pollution, like the Garcia River, the Pronsolinos argued, should not be listed and no TMDL should be prepared. The court rejected these arguments.
The court noted that under the Clean Water Act, the sole import of placing a river or water on a Section 303(d) list was that it would trigger the TMDL requirement. And, the court stated, it seemed evident that TMDLs were intended, in part, to be used to help states evaluate and develop land-management practices to mitigate nonpoint-source pollution. Otherwise, the court stated, citing the opinion from National Resources Defense Council, Inc., v. Fox, 909 F. Supp. 153, 156 (S.D.N.Y. 1995), it would frustrate the “comprehensive approach” adopted in the Clean Water Act.
The court also stated that the Pronsolinos’ argument was inconsistent with the logic expressed in Section 303(d) of the act. In Section 303, water-quality standards are required for all navigable waters, intrastate or interstate. Since all rivers and waters regardless of pollution source were included in the universe for which water-quality standards were required, all of them — again regardless of source of pollution — were included in the universe for which listing and TMDLs were required.
In its holding, the court stated that the Clean Water Act’s goal was to set standards for all navigable waterways in America, standards that were balanced and tailored to accommodate the various needs of each, including, explicitly, the need for the protection of fish and wildlife. As such, the court held, the standards-setting process of Section 303 plainly applied to waters polluted by point sources as well as nonpoint sources, either alone or in combination, and the Garcia River was just such a waterway that was meant to come within these standards.
In conclusion, the court stated that whether faced with a wild but ruined river or an urban-blighted waterway, in either case, the process established by Section 303 of the Clean Water Act was equally applicable, and no substandard river was immune from the act’s reach merely because of the source of its pollution.
As the first decision on this issue to appear, the court’s rulings likely will have a significant impact on other courts in different jurisdictions now considering whether the EPA has the authority to impose TMDLs on rivers and waters that have been polluted only by nonpoint sources. The well-reasoned opinion of the California Federal District Court is likely to be highly persuasive.
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