Pronsolino v. Marcus, the new TMDL regulation, and nonpoint source pollution: Will the Clean Water Act's murky TMDL provision ever clear the waters?

• Author: Hale, Mandi M.
• Position: Total maximum daily loads

1. INTRODUCTION

   Touted by the Environmental Protection Agency (EPA) as "the last major impediment to clean water," (1) nonpoint source pollution is currently the foremost cause of the Nation's water pollution problem. (2) The Clean Water Act (CWA) (3) does not define nonpoint source pollution; however, it is generally understood to be pollution that does not originate from a discrete point, such as urban or agricultural runoff. (4) Despite the significant contribution of nonpoint source pollution to the Nation's water pollution problem, the country lacks a successful federal regulatory mechanism. (5) The lack of regulation is due in large part to the difficulties associated with regulating the agricultural industry, (6) Congress's failure to create adequate incentives and funding to facilitate state implementation of nonpoint source pollution management programs, (7) EPA's less than stellar administration of the CWA's nonpoint source pollution provisions. (8) and congressional reluctance to encroach upon the right of states to control land use. (9)

   The states also share the blame for the current nonpoint source pollution control problem. Despite recognition that the federal government is limited by its inability or unwillingness to create an effective federal regulatory program, most states have failed to take the initiative to create effective solutions. (10) Recently, however, pursuant to its administrative authority, EPA attempted to intervene and take control of nonpoint source pollution.

   On March 30, 2000, the District Court for the Northern District of California decided Pronsolino v. Marcus. (11) In Pronsolino, the court recognized for the first time the authority of EPA to establish total maximum daily loads (TMDLs) for water bodies polluted solely by nonpoint source pollution. (12) The TMDL standard, mandated by section 303(d) of the CWA, (13) currently provides slow but successful regulation of point source pollution. (14) However, prior to Pronsolino, the question of whether TMDLs can be properly applied to water bodies polluted solely by nonpoint sources escaped judicial scrutiny.

   On July 13, 2000, on the coattails of apparent judicial approval in Pronsolino, EPA promulgated a regulation authorizing the issuance of TMDLs for waters polluted solely by nonpoint source pollution. (15) The regulation redefined the TMDL standard (16) and offered guidelines for state submittal and EPA approval of TMDLs for water bodies polluted solely by nonpoint sources. (17) This Comment examines the validity of EPA's regulation, specifically whether the CWA authorizes application of TMDLs to waters polluted solely by nonpoint sources. Part II describes traditional federal and state nonpoint source regulatory methods. Part III defines the TMDL standard, outlines the history of TMDLs, and discusses the use of TMDLs to regulate point source pollution. Part IV analyzes the judicial and administrative action condoning the application of the TMDL standard to water bodies polluted solely by nonpoint source pollution. Part V discusses the validity and the efficacy of the TMDL provision with respect to nonpoint sources of pollution. Part VI summarizes the dual purpose of the TMDL under the CWA. Part VII suggests methods to improve the TMDL provision and alternative methods for nonpoint source pollution control. This Comment concludes that the TMDL provision is flawed, and the future effectiveness of the provision will depend upon changes to the CWA and the level of participation of the States.

2. TRADITIONAL CONTROL MECHANISMS FOR NONPOINT SOURCE POLLUTION

   1. Federal Statutory Authority

      1. Section 208

         Section 208 of the CWA, enacted in 1972, is a voluntary provision that allows for limited federal oversight of state nonpoint source pollution control methods, and encourages states to develop institutions designated for the planning and management of nonpoint source pollution control programs. (18) As first enacted, section 208 ultimately failed because many states abandoned section 208 pollution control plans due to lack of adequate incentives. (19) As a result, Congress amended section 208 in 1977. (20) The amended section attempts to target individual landowners, instead of the state as a whole, by providing financial incentives to individuals who, through the use of "best management practices," endeavor to reduce nonpoint source pollution originating on their property. (21) Unfortunately, the amended section 208 fails to provide adequate abatement of nonpoint source pollution because, like the original section 208, it lacks adequate incentives. (22) Congressional underfunding has also contributed to the failure of section 208. (23)

      2. Section 319

         In 1987, Congress enacted section 319 of the CWA (24) in response to the failure of section 208. (25) Section 319 requires states to identify areas of nonpoint source pollution, develop programs to control it using "best management practices," and submit the programs to EPA for approval. (26) Section 319 also allows states to apply for federal grants to assist with implementation of state programs. (27) Unfortunately, Congress's reluctance to provide adequate funding for section 319 grants, and the insignificant consequences to the states for failure to adhere to it, have resulted in a failure of section 319 to markedly reduce nonpoint source pollution. (28)

   2. State Nonpoint Source Pollution Controls

      Although, ideally, federal and state nonpoint source regulatory programs are not mutually exclusive, the delicate balance between the federal and state governments necessary to implement successful nonpoint source pollution is elusive. (29) To date, regulation of nonpoint source pollution remains largely under state authority. (30)

      State control of nonpoint source pollution is predominant for two main reasons. First, states have virtually ignored sections 208 and 319, (31) which are arguably the only federal means of controlling nonpoint source pollution. (32) Second, the diffuse origins of nonpoint source pollution dictate that an effective remedy necessarily requires regulation of land use and zoning, which are traditionally areas of state control. (33)

      Although nonpoint source pollution by definition cannot be attributed to a single source, most types of nonpoint source pollution can be attributed to certain source activities. (34) For example, in an agricultural community pollution caused by a chemical commonly contained in pesticides is most likely the result of farm runoff. (35) Thus, the most logical way to attempt abatement of nonpoint source pollution is to regulate the possible sources of the pollution--in the example above, the farmers. (36)

      For each possible source of nonpoint source pollution a different regulatory mechanism or combination of regulatory mechanisms may be necessary. (37) At the state government level, control of agricultural sources can be attained through: 1) "[s]ource ordinances that prohibit certain land-use activities on hazardous land; (38) 2) [e]rosion control practices that prevent loss of valuable topsoil; 3) [i]nfiltration enhancement and surface water storage of land that reduce the quantity of runoff and erosion; [and] 4) [r]eduction of contaminant levels in soils and on impervious surfaces." (39) Similarly, with respect to silviculturally related pollution, effective management should focus on the location of timber harvests, the intensity and timing of harvests, road building and other related operations, and the prohibition of harvests in areas where harvesting would result in violations of water quality standards. (40)

      Each of the above methods requires action by state or local governments, or voluntary action on the part of the source producers. (41) Unfortunately, voluntary compliance places costs upon, and results in little benefit for, nonpoint source producers. (42) Sometimes the costs are prohibitive and accordingly are not an incentive to participate. (43) In addition, because the source producers constitute a fraction of society, the cost for cleaner water is borne by only that fraction. (44) Thus, the relative benefit to the source producer of voluntarily complying with pollution abatement techniques is much smaller when compared to the benefit realized by those who do not contribute significantly to the pollution problem, such as the rest of the surrounding community. (45) Ideally, the source producer should bear the burden of cleaner water. However, the economic livelihood of the source producer is generally his first priority, and as a result, a voluntary cost incurrence is unlikely to be a popular or effective nonpoint source pollution abatement mechanism. (46)

      Another alternative is state-imposed mandatory controls. However, state governments have been slow to require mandatory nonpoint source pollution control mechanisms. (47) There are several reasons for the delay, including the lack of knowledge of the necessary controls needed to target the pollution, the fact that controls are costly and time consuming, and the common predicament that because local economies are dependent upon the activities that produce nonpoint source pollution, state-imposed mandatory controls are politically disfavored. (48)

3. WHAT ARE TOTAL MAXIMUM DALLY LOADS (TMDLS)?

   The TMDL standard is mentioned in section 303(d) of the CWA, but it is not defined in the statute. (49) Prior to the new TMDL Regulation, EPA defined a TMDL as:

   The sum of the individual [waste load allocations (WLAs)] for point sources and [load allocations (LAs)] for nonpoint sources and natural background. If a receiving water has only one point source discharger, the TMDL is the sum of that point source WLA plus the LAs for any nonpoint sources of pollution and natural background sources, tributaries, or adjacent segments. TMDLs can be expressed in terms of either mass per time, toxicity, or other appropriate measures. If Best Management Practices (BMPs) or other...