Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002).

Kristen M. Fletcher, J.D., LL.M.

The Ninth Circuit Court of Appeals recently determined that, like waterbodies polluted by industrial discharge, rivers polluted by only nonpoint source pollution, such as runoff resulting from agricultural or silvicultural activities, are subject to a federal statutory requirement setting limits for the amount of pollution that may enter the waterbody on a daily basis. A Federal District Court in California decided in 2000 that the Garcia River, which is polluted only by sediment run-off, and rivers like it, require the establishment of “Total Maximum Daily Loads” or TMDLs, as prescribed by the Clean Water Act.1 In affirming the lower court’s decision, the Ninth Circuit sanctioned the Environmental Protection Agency’s (EPA) interpretation of the Clean Water Act to require TMDLs for all impaired waterbodies, whether impaired by direct industrial discharges or solely by agricultural or silvicultural runoff.

Under the Clean Water Act (CWA), Congress recognized two sources of pollution: point source pollution that is discharged from a “discernable, confined and discrete conveyance such as a pipe [or] ditch;”2 and nonpoint source pollution that is runoff from a variety of sources including urban areas and agricultural and forestry sites. The CWA mandates a permitting scheme to limit the pollution that point sources may discharge; however, the CWA “provides no direct mechanism to control nonpoint source pollution” but rather grants authority to states to reduce nonpoint source pollution.3

States were also granted the responsibility under section 303 to set water quality standards for all waters within their boundaries regardless of the sources of the pollution entering the water.4 Once standards are set, the states must then identify and compile a list of waters that fail to meet the standards and set a TMDL for those waterbodies. The EPA defines a TMDL as “the sum of the individual wasteload allocations for point sources and load allocations for nonpoint sources and natural background.”5 Each source of pollution into the river is granted a “share” of the TMDL, which together make up the maximum amount of pollution the waterway can handle. To meet this lower permissible level of pollution, landowners with operations contributing to the river’s pollution must alter their activities.

The Appeal
The appellants, Betty and Guido Pronsolino purchased 800 acres of logged timber land in the Garcia River watershed in 1960. As a result of the increase in sediment in the river from nearby logging operations and other nonpoint sources, the EPA directed California to list the Garcia River as impaired in 1992. The resulting TMDL called for a sixty percent reduction of sediment, allocating portions of the TMDL to nonpoint pollution sources including pollution associated with roads, timber-harvesting activities, and erosion.

In 1998, after regrowth of the forest on their land, the Pronsolinos and other similarly situated landowners applied for a harvesting permit from the California Department of Forestry. In order for the landowners’ activities to comply with the Garcia River TMDL, the Forestry Board required that the Pronsolinos provide mitigation of sediment runoff, a prohibition on removal of certain trees, and restrictions on harvesting. It is estimated that, individually, the restrictions would cost the Pronsolinos $750,000, and collectively, would cost over $10 million for all the landowners in the suit.6

Specifically, the CWA requires a list of waters “for which certain effluent limitations are not stringent enough to implement the applicable water quality standards for such waters.”7 The appellants challenged that the inclusion of the “effluent limitations” language limits the EPA to regulating only those rivers that are affected by point source discharges. They reasoned that because the Garcia River is only affected by nonpoint source discharges, then section 303 does not apply. The EPA countered that the language does not “implicitly [contain] a limitation to waters initially covered by effluent limitations.”8

The Court Finds EPA Authority
The Ninth Circuit found that “[w]hether or not the appellants’ suggested interpretation is entirely implausible, it is at least considerably weaker than the EPA’s competing construction.”9 The court determined that section 303 should be read “with reference to the stated goal of implementing any water quality standard applicable to such waters.”10 Reading section 303 in this way would expand its reach beyond the Pronsolinos’ contention that any waters not meeting water quality standards must be identified only if specified effluent limitations would not achieve those standards.

Finally, the court turned to the overall purpose of the CWA and § 303 and failed to find a reason to distinguish “between waters with one insignificant point source and substantial nonpoint source pollution and waters with only nonpoint source pollution.”11 Stating that such a distinction would lead to an “irrational regime,” the court alleged that “such a distinction would, for no apparent reason, require the states or the EPA to monitor waters to determine whether a point source had been added or removed, and to adjust the § 303 list and establish TMDLs accordingly.”12

The court’s interpretation actually increases the importance of TMDLs for waterbodies only affected by nonpoint source pollution. Because the Garcia River is only polluted by nonpoint source pollution, effluent limitations cannot be assigned to it and the only method of improving the condition of the impaired waterway is by controlling runoff through § 303 and setting TMDLs for the river.

After dispensing with appellant’s arguments claiming federal intrusion into the state’s traditional control over land use and the proper level of review, the court held that TMDL authority does exist for the Garcia River and waterbodies like it that are affected only by nonpoint source pollution.

ENDNOTES
1. Pronsolino v. Marcus, 91 F. Supp. 2d 1337 (N.D. Cal. 2000). For an analysis of the District Court decision, see Peeples, Tim and Kristen Fletcher, TMDL Authority Upheld for Nonpoint Source Pollution, 20:2 Water Log 4 (2000) (available online at http:// www.olemiss. edu/orgs/masglp).
2. 33 U.S.C. § 1362 (14) (2002).
3. Pronsolino v. Nastri, 291 F.3d 1123, at *5, citing Oregon Natural Desert Assoc. v. Dombeck, 172 F.3d 1092, 1096 (9th Cir. 1998).
4. 291 F.3d 1123, at *6.
5. Id., citing 40 C.F.R. § 130.2(i) (2002).
6. The estimated costs to other members of the Appellant Group included $10,602,000 for Landowner Mailliard and $962,000 for Landowner Barr. 2002 U.S. App. LEXIS 10308, at *16.
7. 33 U.S.C. § 1313(d)(1)(A) (2002).
8. 291 F.3d 1123, at *32.
9. Id.
10. Id. at *33.
11. Id. at *45.
12. Id.