Are TMDLs for nonpoint sources the key to controlling the "unregulated" half of water pollution?

• Author: Tobin, Erin
• Position: Total Maximum Daily Loads - 2002 Ninth Circuit Environmental Review - Case Note

1. INTRODUCTION II. BACKGROUND A. Nonpoint Source Pollution B. Total Maximum Daily Loads III. THE NINTH CIRCUIT'S DECISION IN PRONSOLINO: FACTUAL AND LEGAL CONTEXT A. Factual Background B. Chevron Deference and Its Progeny C. Section 303(d)--The Statutory Provision in Controversy D. Stakeholders' Interpretations of Section 303(d) E. The District Court Decision F. The Ninth Circuit Finds EPA's Interpretation Reasonable IV. HOW THE NINTH CIRCUIT MISAPPLIED CHEVRON A. The Chevron Test Applied B. Does Chevron Even Apply to EPA's TMDL Regulations? C. The CWA Unambiguously Requires a TMDL for the Garcia River V. IMPLICATIONS A. Can Citizens Force EPA to Set TMDLs for Nonpoint Source Polluted Waters? B. What if EPA Changes Its Mind in Revised TMDL Regulations? VI. OBSTACLES TO EFFECTIVE TMDLs FOR NONPOINT SOURCE POLLUTED WATERS VII. CONCLUSION I. INTRODUCTION

   Without dispute, nonpoint source pollution is the nation's leading water quality problem, contributing to nearly half of the water quality impairment nationwide. (1) Nonpoint source pollution commonly refers to polluted runoff from diffuse sources such as agricultural activities, timber harvest, urban development, and grazing. (2) Due in large part to the agricultural community's political clout in Congress, (3) the 1972 Amendments to the Clean Water Act (CWA) (4) only provided for direct federal regulation of point sources, (5) leaving nonpoint source regulation primarily to state control. Polluted runoff flourished under this framework, benefiting from a lack of federal regulation, (6) technical difficulties in identifying nonpoint sources, and a deficiency of information about stream conditions. (7) Nonetheless, in light of the CWA's objective to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," (8) a federal role in nonpoint source pollution abatement is inescapable.

   In an attempt to control polluted runoff effectively, citizen groups in the early 1990s used the CWA's Total Maximum Daily Load (TMDL) provision (9) to force state implementation of water quality standards. (10) Reacting to a barrage of citizen suits, (11) in 1992 the Environmental Protection Agency (EPA) asserted its presence in the nonpoint source arena by directing California to list seventeen rivers polluted solely by nonpoint sources as impaired under section 303(d) (12) of the CWA. (13) EPA's actions were surprising considering the agency's historical failure to implement the TMDL program. (14) When California did not meet EPA deadlines for setting TMDLs, fishing groups sued EPA; as a result the agency agreed to establish a TMDL for the Garcia River in northern California, which is polluted solely by nonpoint sources. (15) Threatened timber interests immediately challenged EPA's actions, arguing that an EPA-developed TMDL for the Garcia River required land-use decision making, a task traditionally reserved to states. (16)

   In August 2002, the United States District Court for the Northern District of California ruled in Pronsolino v. Marcus (17) that EPA acted within its delegated authority under the CWA when it set TMDLs for the Garcia River. (18) Further, the court ruled that section 303(d) unambiguously required that states set TMDLs for nonpoint source polluted waters. (19) Focusing on the CWA's "comprehensive" approach to pollution control, (20) the court concluded that excluding nonpoint source polluted waters from section 303(d)'s requirements would create an unnecessary "chasm" in the CWA's pollution control scheme. (21)

   In May 2002, the Ninth Circuit affirmed the district court's decision with Pronsolino v. Nastri" (Pronsolino), (22) ruling that EPA's interpretation of section 303(d) to cover nonpoint source polluted waters was reasonable and entitled to deference. (23) Judge Berzon issued a conservative holding, avoiding the issue of EPA's clear duties under the CWA and ruling only that the statute authorized EPA to set a TMDL for the Garcia River. (24) The Ninth Circuit's decision nevertheless secured a role for TMDLs in nonpoint source pollution abatement when EPA chooses to assert itself, the effect of which (assuming an active EPA) may be felt in many Western states, where nonpoint source pollution far exceeds the national average. (25)

   This Chapter argues that, based on the text, structure, and purpose of the CWA, the Ninth Circuit should have decided Pronsolino at the first step of the test from Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron) (26) to give clear guidance to EPA that the agency has a mandatory duty under the CWA to require TMDLs for nonpoint source polluted waters in violation of water quality standards. Part II of this Chapter examines the context of the Ninth Circuit's decision in Pronsolino, outlining the scope of nonpoint source pollution nationally and in western states and the status of the CWA's TMDL program. Part III examines the factual and legal background of Pronsolino, explaining the reasoning of both the district court and the Ninth Circuit. Part IV analyzes the Ninth Circuit's decision in Pronsolino in depth, criticizing the court for falling to rule that the CWA clearly required that states set a TMDL for nonpoint source polluted waters, despite the overwhelming evidence supporting that conclusion. This section contrasts the district court and Ninth Circuit's opinions, concluding that the district court, and not the Ninth Circuit, properly analyzed EPA's obligations under section 303(d) of the CWA. Part V discusses the implications of Judge Berzon's decision, showing that the decision may allow EPA, now under a new administration, to change its interpretation of section 303(d) in new regulations. This section demonstrates, however, that a new interpretation of the TMDL requirement to exclude nonpoint source polluted waters likely would not withstand judicial scrutiny. Part VI discusses potential obstacles specific to nonpoint source TMDLs in the decision's aftermath. The Chapter concludes that while there are many uncertainties in the TMDL program, these uncertainties do not foreclose the possibility, suggested by the Ninth Circuit's decision in Pronsolino, that TMDLs can provide a workable framework for control of nonpoint source pollution.

2. BACKGROUND

   1. Nonpoint Source Pollution

      The diffuse nature of nonpoint source pollution is partly to blame for its pervasiveness. (27) Water--often from rain or snowmelt--creates nonpoint source pollution when it travels over land surfaces and picks up pollutants from diffuse sources. (28) Pollutants may collect in rivers or lakes, or may ultimately end up in coastal areas, (29) polluting beaches and estuaries. Polluted runoff from nonpoint sources typically results from activities such as agriculture, timber harvest, grazing, and urban development. (30) For instance, road building--at issue in Pronsolino--contributes to nonpoint source pollution by increasing soil erosion and mass soil movements (or landslides), which in turn increase sedimentation in rivers. (31) Common types of nonpoint source pollutants include sediment, nutrients, pesticides, and bacteria. (32) Unlike point source pollution, nonpoint source pollution does not emanate from "discrete conveyance[s]," (33) thereby complicating efforts to identify its source. In part because regulating nonpoint source pollution inherently calls for regulation of land-use practices, Congress left nonpoint source regulation largely to the states in the 1972 Amendments to the CWA. (34)

      Nonetheless, nonpoint source pollution is the primary obstacle to the achievement of Congress's goal of fishable and swimmable waters, (35) both nationwide and particularly in the West. In 1999, over one-third of waters nationwide failed to meet state water quality standards. (36) States and tribes identified agriculture as the leading source of pollution in forty-eight percent of impaired waters. (37) In 1995, one in every seven acres of classified shellfish beds was not approved for harvest due to water quality impairment. (38) Nonpoint sources caused eighty-five percent of shellfish bed closures (and in eight states, caused one hundred percent of the closures). (39) In the West, runoff from agricultural activities is the leading cause of stream impairment in most states (including Montana, (40) Arizona, (41) California, (42) Nevada, (43) New Mexico, (44) Colorado, (45) Utah, (46) and Wyoming (47)). In Oregon, a staggering seventy-five percent of impaired waters are polluted solely by nonpoint sources. (48)

      Given their primary authority under the CWA to regulate nonpoint sources, states are largely responsible for the nonpoint source pollution problem that exists today. Even so, federal efforts to encourage state action have failed wholeheartedly. (49) In the CWA, Congress addressed nonpoint source pollution through section 208, dealing with area waste treatment management, (50) and section 319, specifically calling for nonpoint source management programs. (51) In both programs, Congress made federal funding available to support the development of state nonpoint source controls (section 319 included additional reporting requirements and significantly more funding) (52) and left enforcement and implementation to the states. (53) As the statistics for nonpoint source contributions to the nation's water quality problems demonstrate, these programs have failed to produce clean water. (54) Given the national scope of polluted runoff, TMDLs present an alternative solution that provides increased federal oversight over nonpoint sources without divesting states of their primary regulatory authority.

   2. Total Maximum Daily Loads

      The TMDL provision at issue in Pronsolino came into existence quietly as part of the 1972 Amendments to the Clean Water Act. (55) The 1972 Amendments worked a major shift in pollution control by imposing federal regulation on individual point source dischargers through...