Summary of a Recent
Judicial
Development in
Clean Water Act
Ninth Circuit Affirms TMDL Decision
Brian J. OakeyNational AgLaw Center Graduate Assistant
In an action brought by several landowners and three agricultural groups against the Environmental Protection Agency ("EPA") challenging the EPA's authority to determine the total maximum daily load ("TMDL") for a local river, the United States Court of Appeals for the Ninth Circuit has ruled that the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387, authorized the EPA to determine the TMDL for a river that was polluted by logging runoff and other nonpoint sources of pollution after the state of California failed to timely establish the TMDL for the river. Pronsolino v. Nastri, 291 F.3d 1123, 1130 (9th Cir. 2002).
In 1972, Congress enacted "sweeping revisions to the nation's water pollution laws" when it enacted the CWA. Id. at 1126. Previous water pollution laws had proved to be ineffective because they did not provide "concrete direction" regarding how water quality standards, which specified acceptable levels of pollution, would be met. Id. Under the CWA, Congress shifted its focus from the "tolerable effects" to "the preventable causes" of pollution. Id. The CWA "sought to target primarily 'the preventable causes of pollution,' by emphasizing the use of technological controls." Id. (quoting Oregon Natural Res. Council v. United States Forest Serv., 834 F.2d 842, 849 (9th Cir. 1987)).
Congress acknowledged in its enactment of the CWA "that even with the application of the mandated technological controls on point source discharges, water bodies still might not meet state-set water quality standards." Id. (citation omitted). The CWA established regulatory controls, other than direct federal regulation of point sources, directed at "'restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters.'" Id. (citation omitted). The CWA therefore implements "distinctly different methods to control pollution released from point sources and that traceable to nonpoint sources." Id. (citation omitted). Point sources of pollution are generated from "a discrete conveyance, such as a pipe or tunnel." Id. Alternatively, "[n]onpoint sources of pollution are non-discrete sources; sediment run-off from timber harvesting, for example, derives from a nonpoint source." Id.
The CWA "directly mandates technological controls to limit the pollution point sources may discharge into a body of water." Id. (citation omitted). However, the CWA "provides no direct mechanism to control nonpoint source pollution but rather uses the 'threat and promise' of federal grants to the states to accomplish this task." Id. at 1126-27 (citation omitted). This approach was intended to "recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the development and use . . . of land and water resources . . ." as required under the CWA. Id. at 1127 (citation omitted).
The CWA requires each state to establish water quality standards for all waters within its boundaries. See id. Section 303(d)(1)(A) of the CWA "requires each state to identify as 'areas with insufficient controls' 'those waters within its boundaries for which the effluent limitations required by section [301(b)(1)(A)] and section [301(b)(1)(B)] of this title are not stringent enough to implement any water quality standard applicable to such waters.'" Id. (citation omitted). "Effluent limitations" are defined as "restrictions on pollutants 'discharged from point sources.'" Id. (quoting 33 U.S.C. § 1362(11)).
Section 301(b)(1)(A) mandates that "'best practicable control technology'" be used for most point source discharges. See id. (citation omitted). Section 301(b)(1)(B) specifically targets secondary treatment at public water treatment facilities mandating the application of effluent limitations at these facilities. See id. (citation omitted). For waters identified under § 303(d)(1)(A), states must develop a TMDL for pollutants identified by the EPA. See id. (citation omitted).
A TMDL sets forth "'the specified maximum amount of a pollutant which can be discharged or 'loaded' into the waters at issue from all combined sources.'" Id. at 1127-28 (quoting Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517, 1520 (9th Cir. 1995)). A TMDL "'shall be established at a level necessary to implement the applicable water quality standards . . . .'" Id. at 1128.
Each state must submit a § 303(d)(1) list and TMDLs to the EPA for review and approval or disapproval. See id. States are also required to identify waters not placed on the list submitted to the EPA and "'estimate' TMDLs for pollutants in those waters.'" Id. (citation omitted). In addition, each state must have a "continuing planning process." Id.
The EPA may approve a state's continuing planning process if it "'will result in plans for all navigable waters within such State' that include, inter alia, effluent limitations, TMDLs, areawide waste management plans for nonpoint sources of pollution, and plans for 'adequate implementation, including schedules of compliance, for revised or new water quality standards.'" Id. (citation omitted).Pursuant to § 303(d)(1)(A), California submitted to the EPA a list of waters. See id. at 1129. The EPA disapproved of this list "because it omitted seventeen water segments that did not meet the water quality standards set by California for those segments." Id. All but one of the seventeen water segments, "including the Garcia River, were impaired only by nonpoint sources of pollution." Id. The EPA established a new § 303(d)(1) list for California "[a]fter California rejected an opportunity to amend its § 303(d)(1) list to include the seventeen sub-standard agreements." Id.
Although California retained the seventeen segments on its subsequent § 303(d)(1) lists, it did not establish TMDLs for the segments added by the EPA. See id. As a result, several environmental and wildlife groups sued the EPA in 1995 "to require the EPA to establish TMDLs for the seventeen segments, and in a March 1997 consent decree the EPA agreed to do so." Id. (citation omitted). In that consent decree the EPA established March 18, 1998, as the deadline for creating a TMDL for the Garcia River. See id. After California missed this March 18, 1998, deadline, the EPA established a TMDL for the Garcia River. See id.
Betty and Guido Pronsolino, plaintiffs, owned approximately 800 acres of timber land located in the Garcia River watershed. See id. at 1129. They purchased the heavily logged timber land in 1960. See id. In 1998, after the trees on the property had matured, they applied for a harvesting permit from the California Department of Forestry. See id.
The California Department of Forestry and the California Regional Water Quality Control Board required the Pronsolinos' harvesting permit to comply with the TMDL requirements for the Garcia River that had been established by the EPA. See id. The Department of Forestry and the Water Quality Control Board also required that the permit provide for "mitigation of 90% of controllable road-related sediment run-off and . . . prohibitions on removing trees and on harvesting from mid-October until May 1." Id. at 1129-30. A forester hired by the Pronsolinos' estimated that the restriction on tree removal would cost the Pronsolinos $750,000.00. See id. at 1130.
On August 12, 1999, the Pronsolinos, along with the Mendocino County Farm Bureau, the California Farm Bureau, and the American Farm Bureau Federation brought an action against the EPA and two EPA administrators in the United States District Court for the Northern District of California, arguing that the EPA lacked authority to impose TMDLs "on rivers polluted only by nonpoint sources of pollution." Id. The plaintiffs also requested that the district court determine whether the EPA had authority under the CWA to issue a TMDL for the Garcia River. See id. The parties filed cross-motions for summary judgment. See id. On August 6, 2000, the district court entered a final judgment in favor of the EPA and against the Pronsolinos. See id. The Pronsolinos appealed the district court's decision to the Ninth Circuit. See id.
The Ninth Circuit first examined the degree of deference owed to the EPA's interpretation and application of § 303. The EPA asserted that its interpretation of § 303 of the CWA was entitled to Chevron-style deference. See id. at 1131 (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984)). Under Chevron, deference is owed to an agency's interpretation of a statute if "'Congress delegated authority to the agency generally to make rules carrying the force of law, and . . . the agency interpretation claiming deference was promulgated in the exercise of that authority.'" Id. (quoting United States v. Mead, 533 U.S. 218, 226-27 (2001)). If Chevron deference is applied to an agency's interpretation of a statute, a court must defer to the interpretation "as long as it is reasonably consistent with the statute." Id. (citing Mead, 533 U.S. at 229).
The court explained that certain agency interpretations may not qualify for Chevron deference but may qualify for deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944). See id. Under Skidmore, courts "defer to the agency's position according to its persuasiveness." Id. (citing Mead, 533 U.S. at 221). Factors considered in determining persuasiveness include "the agency's expertise, care, consistency, and formality, as well as the logic of the agency's position." Id. (citing Mead, 533 U.S. at 228).
The Pronsolinos argued that the "EPA's interpretation should receive no deference at all because . . . the EPA has inconsistently interpreted § 303(d) and has not included its current interpretation in a regulation that has the force of law." Id. The Pronsolinos did not dispute that the EPA possessed general rule-making authority, but rather they asserted that "no currently-operative EPA regulation expressly precludes the Pronsolinos' position that §§ 303(d)(1)(A) and (C) do not apply to rivers impaired only by nonpoint source pollution." Id. at 1131 (emphasis supplied).
The Ninth Circuit explained that "Congress entrusted to the EPA the responsibility of approving or disapproving § 303(d)(1) lists, bestowing upon it the discretion that comes with such responsibility; the EPA has specialized experience regarding the CWA which this court lacks; and the agency has consistently interpreted the provisions at issue." Id. at 1134. The court determined that substantial deference under Skidmore, at the very least, must be given to the EPA's interpretation of § 303(d)(1). See id. at 1134-35. The court explained, however, that regardless of whether the review of the EPA's position was through Chevron or Skidmore deference, the outcome would be the same. See id. at 1135. The court determined that "[t]he Agency's position is . . . more than sufficiently supported by the statutory materials. Id.
The court next examined the Pronsolinos' argument that the term "'not stringent enough to implement . . . water quality standard[s]' as used in § 303(d)(1)(A) must be interpreted to mean both that application of effluent limitations will not achieve water quality standards and that the waters at issue are subject to effluent limitations." Id. (emphasis supplied). The court explained that § 303(d)(1)(A) "requires listing and calculation of TMDLs for 'those waters within [the state's] boundaries for which the effluent limitations required by section [301(b)(1)(A)] and section [301(b)(1)(B)] of this title are not stringent enough to implement any water quality standard applicable to such waters.'" Id. (quoting § 303(d) (emphasis supplied)). The Pronsolinos' asserted that waters impaired only by point sources of pollution are subject to effluent limitations under the Clean Water Act. See id. The court noted that such a reading "would exclude from § 303(d)(1) listing and TMDL requirements waters impaired only by nonpoint sources of pollution." Id.
The EPA interpreted "'not stringent enough to implement . . . water quality standard[s]' to mean 'not adequate' or 'not sufficient . . . to implement any water quality standard,' and [did] not read the statute as implicitly containing a limitation to waters initially covered by effluent limitations." Id. The EPA asserted that "if the use of effluent limitations will not implement applicable water quality standards, the water falls within § 303(d)(1)(A) regardless of whether it is point or nonpoint sources, or a combination of the two, that continue to pollute the water." Id.
The court agreed with EPA's construction of the statute, reasoning that "the reference to effluent limitations reflects Congress' intent that the EPA focus initially on implementing effluent limitations and only later avert its attention to water quality standards." Id. at 1136. In rejecting the Pronsolino's interpretation of "not stringent enough" contained in § 303(d)(1)(A), the court relied on its previous decision in Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517 (9th Cir. 1995). See id. at 1137.
In Dioxin/Organochlorine, the Ninth Circuit "read § 303(d)(1)(A) as applying to all waters in the state, not only to the subset covered by certain kinds of effluent controls, and it understood 'not stringent enough' to mean 'not adequate for' or 'inapplicable to.'" Id. In that case, it applied Chevron deference and agreed with the EPA's interpretation of § 303(d) "'as requiring TMDLs where existing pollution controls will not lead to attainment of water standards,'a holding that directly encompasses waters polluted only by nonpoint sources.'" Id. (quoting Dioxin/Organochlorine, 57 F.3d at 1527) (citing 40 C.F.R. § 130.7(b)).
Finally, the court examined the Pronsolinos' argument that the EPA violated the balance between federal and state control established by the CWA when it required TMDLs for waters impaired only by nonpoint sources of pollution. See id. at 1140 (citing Solid Waste Agency of Northern Cook County v. United States Army Corps of Eng'rs, 531 U.S. 159, 172-73 (2001)). The Pronsolinos asserted that this interpretation "intrude[s] into the states' traditional control over land use." Id.
The court rejected this argument, stating that "California chose both if and how it would implement the Garcia River TMDL." Id. (emphasis supplied). The CWA does not require the implementation of § 303 plans or provide for enforcement, rather the statute gives an incentive for states to do so or risk losing federal grant money. See id. The court ruled that the implementation and monitoring of the Garcia River TMDL was solely a state responsibility and the EPA intentionally omitted this in its TMDL for that reason. See id. (see also EPA, Garcia River Sediment Total Maximum Daily Load 43 (Mar. 16, 1998)).
The Ninth Circuit concluded that
[F]or all the reasons we have surveyed, the CWA is best read to include in the § 303(d)(1) listing and TMDLs requirements waters impaired only by nonpoint sources of pollution. Moreover, to the extent the statute is ambiguous-which is not very much-the substantial deference we owe the EPA's interpretation, under either Chevron or Skidmore, requires that we uphold the agency's more than reasonable interpretation. We therefore hold that the EPA did not exceed its statutory authority in identifying the Garcia River pursuant to § 303(d)(1)(A) and establishing the Garcia River TMDL, even though the river is polluted only by nonpoint sources of pollution.
Id. at 1140-41.
The case was decided on May 31, 2002; this summary was posted April, 2003