The opinion of the court was delivered by: Alsup, District Judge.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT REGARDING AUTHORITY
OF ENVIRONMENTAL PROTECTION AGENCY UNDER THE CLEAN WATER ACT TO
LIST SUBSTANDARD RIVERS AND WATERS AND TO ISSUE TMDLS FOR THEM
In this case of first impression, the issue is 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 to determine "total maximum daily
loads" 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). The issue gathers importance from the fact that
"nonpoint source pollution has become the dominant water quality
problem in the United States, dwarfing all other sources of
volume. . . ."*fn1 According to EPA, 54% of California's
substandard rivers and waters are impaired by nonpoint sources
only and another 45% are impaired by a combination of both point
and nonpoint sources (EPA Tab 23).
Plaintiffs Guido and Betty Pronsolino own forested land along
the Garcia River in the North Coast of California. When they
obtained a permit to harvest timber, the California Department of
Forestry ("CDF") imposed restrictions designed to reduce soil
erosion into the Garcia River. The restrictions include measures
such as leaving certain large conifers standing.*fn2 Plaintiffs
contend that the conditions are onerous and costly. They argue
that CDF imposed these restrictions in order to implement a
criterion known as a "total maximum daily load" ("TMDL") set by
EPA for the Garcia River. Seeking to strike at the root of their
problem, the Pronsolinos brought this action under the
Administrative Procedure Act, 5 U.S.C. § 701 et seq., to
challenge EPA's authority to impose TMDLs on rivers polluted only
by timber-harvesting and agricultural runoff and/or other
nonpoint sources, as is concededly the case for the Garcia River.
Joining them as plaintiffs are the Mendocino County Farm Bureau,
the California Farm Bureau and the American Farm Bureau
Federation, all of whom dispute EPA's authority to set TMDLs for
The Garcia River runs through southwestern Mendocino County
into the Pacific Ocean. The river was 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 region hurt, perhaps severely, the spawning and
reproduction of these fish in the Garcia River (and other North
Coast rivers).*fn3 In 1966, one journal reported that one-half
of "potential coho salmon's habitat in the Garcia River . . . was
reported as moderately to severely damaged by ongoing logging
practices" (quoted in Brown, et al., Historical Decline &
Current Status of Coho Salmon in California, 14 No. Am. J. of
Fisheries Management 237, 251 (May 1994)). By 1998, a staff
report on the Garcia River by the California Regional Water
Control Board stated that "[t]he Garcia River and its tributaries
have experienced a reduction in the quality and amount of
instream habitat that is capable of fully supporting the
beneficial use of cold-water fishery, due to increased
sedimentation" (Exh. C to Pacific Coast Federation Memorandum at
4). Prior to 1992, California established water-quality standards
for the river that include protection of these fish and their
habitat (EPA Tabs 8-9). Recent years have seen improvement in the
Garcia River, but the restrictions imposed by CDF are intended to
further restore the fish habitat.
Although Section 303(d) of the Clean Water Act required the
states and EPA to identify certain substandard waters and to set
TMDLs for them a generation ago, the Garcia River and other North
Coast rivers escaped their gaze until recently. In 1992, EPA
required California to add the Garcia River and sixteen other
North Coast waters to its list of substandard waters. Thereafter,
California retained the same waters on its list in 1994, 1996 and
1998. Meanwhile, a group of fishermen and environmental groups
sued EPA, alleging that the then-recent addition of the Garcia
River and sixteen other water segments to California's list of
substandard waters meant that California and/or the EPA had to
prepare TMDLs for the rivers. That case ended in a consent decree
in March 1997 requiring TMDLs for all the rivers. Consent Decree,
Pacific Coast Federation of Fishermen's Association v. Marcus,
et al., No. 95-4474 MHP (Mar. 6, 1997).
Pursuant to the consent decree, EPA set March 16, 1998, as the
deadline for the establishment of a TMDL for the Garcia River.
California's North Coast Regional Water Quality Control Board
initiated public comment on a draft TMDL but missed the deadline.
EPA immediately released its own TMDL for the Garcia River (which
was only slightly different from the state draft (Pl. Tab 25)).
The EPA TMDL was sensitive to the fishhabitat problem (EPA Tab 1
at 8, 9 and 12):
Brown et al. (1994) reports that coho salmon
previously occurred in as many as 582 California
streams from the Smith River near the Oregon border
to the San Lorenzo River on the central coast. There
are now probably less than 5,000 native coho salmon
spawning in California each year, many in populations
of less than 100 individuals. Coho populations today
are probably less than 6% of what they were in the
1940s and there has been at least 70% decline since
the 1960s. Brown et al. (1994) conclude that the
reasons for the decline of coho salmon in California
include: stream alterations brought about by poor
land-use practices and by the effects of periodic
floods and drought, the breakdown of genetic
integrity of native stocks, introduced diseases, over
harvest, and climatic change.
Overall, the TMDL for the Garcia River called for a sixty percent
reduction of sediment (Joint Stmt. ¶ 15).*fn4 The TMDL set the
total maximum amount of sediment loading at an average of 552
tons per square mile per year and allocated portions of this
total load to various categories of nonpoint sources in the
Garcia River watershed (Joint Stmt. ¶ 12). The various categories
of nonpoint sources were: (a) mass wasting associated with roads;
(b) mass wasting associated with timber-harvesting activities;
(c) erosion related to road surfaces; and (d) erosion related to
road and skid trail crossings and gullies from diversions on
roads and skid trails (Joint Stmt. at ¶ 16). In order to achieve
these load allocations, the TMDL called for percentage reductions
in sediment loading from these nonpoint sources (Joint Stmt. at
¶¶ 14, 15). There were only "slight differences" between the
regional board's pending TMDL and the EPA's TMDL as issued (Pl.
The regional board concluded that if it did not implement EPA's
TMDL, then EPA could withdraw federal funding to the state
agency. CDF, the state agency charged with approving
timber-harvesting plans, such as those required of plaintiffs
under state law, also believed that failure to implement the TMDL
would imperil federal funding. In this connection, the Clean
Water Act calls upon the states to incorporate whatever TMDLs are
authorized for listed rivers and waters — the question here being
whether a TMDL was authorized at all.
Plaintiffs' forester estimated that TMDL compliance would cost
the Pronsolinos upwards of $750,000. Larry Mailliard and Bill
Barr, members of plaintiff Mendocino County Farm Bureau, are
similarly situated. They estimated their compliance would cost
$10,602,000 and $962,000 respectively. This suit was filed on
April 12, 1999, seeking a determination whether a TMDL for the
Garcia River was authorized by the Clean Water Act.
The general issue presented is the extent to which logging and
agricultural runoff and other nonpoint sources of pollution are
relevant in the listing-and-TMDL process of Section 303(d) of the
Clean Water Act of 1972. 33 U.S.C. § 1313(d). Put more narrowly,
the issue is whether listing and TMDLs are required for rivers
and waters polluted only by logging and agricultural runoff
and/or other nonpoint sources, such as the Garcia River.
The landscape is illuminated by the events leading to the
enactment. Under the Federal Water Pollution Control Act of 1948,
62 Stat. 1155, the primary responsibility for control rested with
the states. In 1965, the Water Quality Act required
each state to develop comprehensive water-quality standards for
interstate waters, taking into account, among other factors,
the "propagation of fish and wildlife." 79 Stat. 903. Such
standards did not identify and directly regulate pollutants.
Rather, they stated a desired condition of the water. Reasonable
discharges were inherently permitted under these standards. See
William H. Rogers, Jr., Environmental Law 252, 259-62 (2d ed.
1994). In 1966, however, the Refuse Act of 1899, 30 Stat. 1152,
was reinvigorated by the Supreme Court. United States v.
Standard Oil Co., 384 U.S. 224, 230, 86 S.Ct. 1427, 16 L.Ed.2d
492 (1966), held that all discharges of all foreign substances
and pollutants (except those flowing from streets and sewers as
liquids) were illegal without a permit from the Army Corps of
Engineers. This set up a clash between the absolute prohibition
of the Refuse Act and the reasonable-discharge approach of the
standards. The Court of Appeals for the Third Circuit resolved
this clash in favor of the Refuse Act in United States v.
Pennsylvania Industrial Chemical Corp., 461 F.2d 468 (3d Cir.
1972). These developments led to the legislation in 1972 now
known, together with subsequent amendments, as the Clean Water
Act. The 1972 Act was provoked by a groundswell of sustained
popular support for genuine water restoration and environmental
legislation. The Act became law over a presidential veto.
The Supreme Court, although it has never faced the issue now
presented, has consistently referred to the 1972 Act as intended
"to establish an all-compassing program of water pollution
regulation" and "to establish a comprehensive long-range policy
for the elimination of water pollution." Repeatedly, the Supreme
Court has used the word "comprehensive" to describe the Act.
E.g., Milwaukee v. Illinois, 451 U.S. 304, 318-19, 101 S.Ct.
1784, 68 L.Ed.2d 114 (1981); Arkansas v. Oklahoma, 503 U.S. 91,
99, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). The Act anticipated
"a partnership" between the states and the federal government,
"animated by a shared objective: `to restore and maintain the
chemical, physical, and biological integrity of the Nation's
waters.'" Id. at 101, 112 S.Ct. 1046. Achievement of "water
quality which provides for the protection and propagation of
fish, shellfish and wildlife" was an express statutory objective.
86 Stat. 816.
The 1972 Act represented a major shift in enforcement policy —
away from primary reliance on water-quality standards and toward
primary reliance on specific effluent limits on all point
sources, the latter being any discernible, confined and discrete
conveyance such as a pipe or ditch. 33 U.S.C. § 1362(14). The Act
established the National Pollution Discharge Elimination System
("NPDES") and required an NPDES permit for any discharge by any
point source into any navigable water of the United States,
interstate or intrastate. The new strategy sought to force the
best technology practicable or achievable on dischargers. By
1977, industry was required to meet effluent limitations
achievable through "best practicable control technology currently
available." By 1983, it was to achieve control levels based on
the "best available technology economically available."
33 U.S.C. § 1311. Instead of solely working backwards from the
water-quality standards to develop acceptable levels of effluent
from point sources, the new lead strategy was to require point
sources to employ state-of-the-art treatment, even if it led, as
a happy circumstance, to even cleaner water than called for by
the standards. EPA was to issue NPDES permits except to the
extent states adopted EPA-approved NPDES programs.
The Structure of the 1972 Act
In analyzing this issue, it is important to bear in mind the
comprehensive way in which all sources of pollution were
addressed by the 1972 Act, albeit in different ways. It is
important also to focus on the language actually adopted in 1972
(rather than in later amendments) because the issue here turns on
the meaning of the 1972 language. The NPDES program has already
been described. The following review of the structure of the 1972
Act focuses on those provisions arguably relevant to TMDLs and/or
Under Section 102(a) of the 1972 Act, EPA was to cooperate with
other state and federal agencies, municipalities and industry to
"prepare or develop comprehensive programs for preventing,
reducing or climinating the pollution of the navigable waters,"
giving "due regard" to "the protection and propagation of fish
and aquatic life and wildlife," among other purposes. 86 Stat.
817. Under Section 104(n) and (p), EPA was to promote "continuing
comprehensive studies of the effects of pollution, including
sedimentation in the estuaries and estuarine zones of the United
States on fish and wildlife, on sport and commercial fishing . .
." (86 Stat. 823) and to "carry out a comprehensive study and
research program to determine new and improved methods and the
better application of existing methods of preventing, reducing,
and eliminating pollution from agriculture. . . ." 86 Stat. 824.
In sum, while these provisions did not reference TMDLs, they
called for "comprehensive" programs and studies, including
protection of fish and wildlife.
Section 201 authorized grants for "waste treatment management"
on an "areawide" basis to "provide control or treatment of all
point and nonpoint sources of pollution. . . ." § 201(c). In
turn, Section 208 called for "areawide waste treatment
management" planning by the states, expressly including plans for
"nonpoint source" pollution. To that end, EPA was required to
publish regulations guiding the identification of areas with
"substantial water quality control problems." § 208(a)(1). The
states were then to identify such areas. § 208(a)(2). Within one
year thereof, responsible state organizations were called upon to
"have in operation a continuing areawide waste treatment
management planning process" with initial plans certified to EPA
within two years. § 208(b)(1). Such plans were to include a
number of components, the most germane of which was explicitly
directed at "nonpoint source" pollution. Under Section
208(b)(2)(F), for example, the plans had to include:
a process to (i) identify, if appropriate,
agriculturally and silviculturally related nonpoint
sources of pollution, including runoff from manure
disposal areas, and from land used for livestock and
crop production, and (ii) set forth procedures and
methods (including land use requirements) to control
to the extent feasible such sources [emphasis added];
The Section 208 process was summarized succinctly by a 1981
textbook on nonpoint-source pollution as follows:
Specifically, Section 208 of the act calls for
area-wide water pollution planning in areas designed
by the governor of each state that would include both
point and nonpoint sources and pollution abatement
programs. The plans should include: (a)
identification of the treatment works necessary to
meet the anticipated municipal and industrial waste
treatment needs of the area with associated
construction priorities, time schedules,
and the establishment of regulatory programs for such
treatment works, including urban runoff and storm
water; (b) identification of the sources of nonpoint
pollution — agriculture (including runoff from
irrigated fields), silviculture, runoff from land
used for livestock and crop production or land that
has had manure applied to it, mining, saltwater
intrusion, waste disposal on lands, disposition of
all residual waste generated in the designated area,
and land and subsurface excavations; (c) setting
forth of a procedure and methods (including land-use
requirements) that feasibly will control such
Novotny & Chesters, Handbook of Nonpoint Pollution 19 (1981).
In short, Section 208 contemplated that nonpoint sources would be
remedied through state regulation and required the states to
develop programs to do so.
Turning to Section 303, at the core of this controversy, its
title was "Water Quality Standards and Implementation Plans."
Subsection (a) required the states to adopt water-quality
standards promptly, to the extent not previously done, and to
carry forward those already adopted (subject to further EPA
approval). Standards were to be set, as stated, for both
interstate and intrastate waters. Subsection (c) imposed periodic
updating of the standards and submission to EPA for review and
approval. Standards were to take into account the unique needs of
each waterway, including "propagation of fish and wildlife" as
well as "agricultural . . . and other purposes." 86 Stat. 848.
Subsection (b) instructed EPA to impose its own standards on any
state failing to set standards. 86 Stat. 847. These standards,
the Supreme Court has said (once again), were meant by Congress
to be "comprehensive." PUD No. 1 of Jefferson County v.
Washington Dep't of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900,
128 L.Ed.2d 716 (1994).
Significantly, in the process of setting standards, Section 303
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 between point sources and nonpoint sources.
The goal was to set standards for all navigable waterways in
America, balanced and tailored to accommodate the various needs
of each, including, explicitly, the need for the protection of
fish and wildlife. 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. All parties
agree on this conclusion.
It was onto this comprehensive standards regime that Congress
imposed the requirement at issue, a requirement subdivided into a
listing and a TMDL. As to the first, Section 303(d)(1)(A)
Each state shall identify those waters within its
boundaries for which the effluent limitations
required by Section 301(b)(1)(A) and 301(b)(1)(B) are
not stringent enough to implement any water quality
standard applicable to such waters. The State shall
establish a priority ranking for such waters, taking
into account the severity of the pollution and the
uses to be made of such waters.
Section 303(d) thus became an intersection between the old and
new strategies. It called for an assessment of the expected
beneficial impact of the main innovation of the Act — imposition
of the best effluent reduction technology could supply. If those
reductions alone would bring a waterway into compliance with
standards, well and good. If not, then Section 303(d)(1) required
the waterway to join a list of unfinished business.*fn5 That
list, once completed, then had to be prioritized ...