Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

PRONSOLINO v. MARCUS

March 30, 2000

GUIDO A. PRONSOLINO AND BETTY J. PRONSOLINO AS TRUSTEES FOR THE GUIDO A. PRONSOLINO AND BETTY J. PRONSOLINO TRUST, THE MENDOCINO COUNTY FARM BUREAU, THE CALIFORNIA FARM BUREAU FEDERATION, AND THE AMERICAN FARM BUREAU FEDERATION, PLAINTIFFS,
V.
FELICIA MARCUS, REGIONAL ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 9, CAROL M. BROWNER, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AND THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS.



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

INTRODUCTION

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).

STATEMENT

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 such rivers.

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. Tab 25).

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.

ANALYSIS

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 nonpoint-source pollution.

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 sources.

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) provided:

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.