Pronsolino v. Marcus, the new TMDL regulation, and nonpoint source pollution: Will the Clean Water Act's murky TMDL provision ever clear the waters?
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.
II. TRADITIONAL CONTROL MECHANISMS FOR NONPOINT SOURCE POLLUTION
A. 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)
B. 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)
III. 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 nonpoint source pollution controls make more stringent load allocations practicable, then wasteload allocations can be made less stringent. Thus, the TMDL process provides for nonpoint source control tradeoffs. (50)
A. Litigation Leading to Application of TMDLs
Prior to the 1990s, section 303(d) was largely ignored. (51) However, a litigation storm spearheaded by environmental groups dissatisfied with the failure of the CWA brought section 303(d) and TMDLs to the forefront of water pollution regulation. (52) The judicial genesis of the TMDL can be broken into three groups of cases. (53) The first group of cases is illustrated by Scott v. City of Hammond, which established the "constructive submission" concept. (54) In Scott, an Illinois citizen claimed EPA violated the CWA by failing to issue TMDLs for Lake Michigan after the state of Michigan had failed to create its own TMDLs for the lake. (55) EPA claimed its duty to issue TMDLs was discretionary and arose only in light of inadequate performance by the state, not state inaction. (56) The Seventh Circuit held, contrary to EPA's interpretation, that prolonged failure of the state to submit TMDLs was equivalent to a "constructive submission" to EPA of no TMDLs, (57) and a constructive submission triggered EPA's duty to issue its own TMDLs. (58) Scott was seemingly a victory for environmental groups; yet EPA continued to drag its feet for several years and neglected to timely issue TMDLs given state failure to do so. (59)
The next group of cases, which emerged in 1993, defined "state action" and delivered a blow to environmental groups. Sierra Club v. Browne (60) illustrates this group of cases. In Browner, the court held any action by the state was sufficient to eliminate EPA's duty to act and issue TMDLs. (61) Thus Minnesota's submission of an alleged "handful" of TMDLs sufficed to allow EPA to abstain from action, even though the list of submitted TMDLs was concededly short of being complete. (62)
The latest round of litigation challenged the adequacy and quality of a state's TMDL and the competence of EPA's reaction to TMDL submissions. (63) In Sierra Club v. Hankinson, (64) the parties disagreed on the proposed TMDL implementation schedule for the state of Georgia. (65) The court mandated the creation of a TMDL schedule to be administered by EPA, in cooperation with Georgia, and to be completed within five years. (66)
Overall, the TMDL standard has seemingly provided an essential tool for environmentalists and concerned citizens who are frustrated by EPA's complacency to increase the effectiveness of the CWA. As of this writing, many TMDL related lawsuits have been filed against EPA. (67)
B. Regulation of Point Source Pollution
Since the flurry, of litigation, application of section 303(d)(1)(C) shows promise for significant progress toward further reduction of point source pollution. (68) Section 303(d)(1)(C) requires states to identify water bodies in violation of water quality standards and set a TMDL for each pollutant that exceeds water quality standards. (69) Following EPA approval of the TMDL, the maximum discharge established by the TMDL is allocated among the contributing point source dischargers and incorporated into the discharger's national pollutant discharge elimination system (NPDES) permits (70) to allow for a controlled discharge of the pollutant at a combined daily amount not to exceed the TMDL. (71) TMDLs are an effective pollution control mechanism for point source pollution. (72) However, a water body is unlikely to be polluted by point sources alone.
IV. TMDLs AND NONPOINT SOURCE POLLUTION
Not surprisingly, given the recent "discovery" of section 303(d)(1)(C), and the widespread judicial affirmation of EPA's duties pursuant to the section, EPA has begun to explore the section's potential. Furthermore, in light of "the current political environment ... Congress is unlikely to subject nonpoint source water pollution to enforceable federal controls." (73) Thus, because the TMDL may be "the only game in town" for quite a while, it behooves EPA to attempt to implement the TMDL to its fullest extent. (74) EPA's latest water pollution abatement strategy is to require TMDLs for water bodies polluted solely by nonpoint source pollution. (75) Many authors have speculated and commented on the scope of the TMDL standard, exploring whether TMDLs may be issued for all water bodies currently in violation of water quality standards regardless of the source-type of the pollution, or whether nonpoint source polluted water bodies are excluded from TMDL application. (76) In Pronsolino v. Marcus, a California federal district court rejected a challenge to EPA's authority to mandate TMDLs for water bodies polluted solely by nonpoint sources. (77)
A. Pronsolino v. Marcus
Pronsolino v. Marcus is the first judicial approval of EPA's issuance of TMDLs for water bodies polluted solely by nonpoint source pollution. (78) In Pronsolino, the Pronsolino family and several area farmers' associations sued EPA to invalidate TMDLs established by EPA for the Garcia River. (79) The Pronsolinos obtained a permit from the California Department of Forestry to log timber on a portion of their land alongside the Garcia River. (80) The permit included restrictions designed to reduce soil runoff. (81) The Pronsolinos claimed the restrictions were burdensome and costly and were enacted solely to ensure that the Garcia River complied with the established TMDL. (82) The plaintiffs initiated the lawsuit pursuant to the Administrative Procedure Act,as challenging EPA's authority to issue TMDLs for rivers polluted solely by nonpoint sources. (84) The court found against the Pronsolinos, holding EPA has the authority to issue TMDLs for water bodies polluted solely by nonpoint source pollution. (85)
B. The New TMDL Regulation
EPA promulgated a new regulation in response to the Pronsolino opinion. (86) The regulation seeks to clarify EPA's position as to which factors trigger the listing of a water body as impaired under section 303(d)(1)(A) of the CWA, (87) and thus subject the water body to application of the TMDL standard. (88) The new regulation requires each state to include on its list of impaired water bodies "[w]aterbodies that are impaired by individual pollutants, multiple pollutants, or pollution from any source, including point sources, nonpoint sources, storm water sources for which a[n NPDES] permit is not required, ground water and atmospheric deposition," (89) and "[w]aterbodies that are impaired by point sources only, nonpoint sources only or by a combination of point and nonpoint sources." (90)
V. TWO POSSIBLE PROVISIONS AUTHORIZING THE REVISED TMDL REGULATION
Two sections of the CWA, section 303(d)(1) and section 303(d)(3), arguably provide statutory authority for the new regulation. (91) This Comment tests the validity of the regulation with respect to each provision. Under Chevron, U.S.A., Inc, v. Natural Resources Defense Council (Chevron), (92) the validity of a regulation is evaluated using a two-part test: 1) Is the statute ambiguous, or has congress spoken to the issue at hand? (93) 2) If Congress has not spoken to the issue at hand, then is the agency's interpretation of the statute reasonable, or is it contrary to legislative intent? (94) The practical effect of the Chevron test is deference toward the agency's interpretation of the statute. (95)
A. Is the Regulation a Valid Interpretation of Section 303(d)(1)?
The following analysis demonstrates that, despite the ambiguity of section 303(d)(1) and the concept of deference toward agency interpretations of statutes, the new TMDL regulation is an invalid interpretation of section 303(d)(1) because it is contrary to congressional intent.
1. Section 303(d)(1) Is Ambiguous
The ambiguity within section 303(d)(1) can be summarized in two questions: 1) Which water bodies are eligible for application of the TMDL standard? 2) What is a "pollutant" within the meaning of the TMDL provision?
a. Which Water Bodies Are Eligible for Application of the TMDL Standard?
i. Statutory Construction
Application of the TMDL is mandated in section 303(d)(1)(C) which states:
Each State shall establish for the waters identified in paragraph (1)(A) of this subsection, and in accordance with the priority ranking, the total maximum daily load, for those pollutants which the Administrator identifies under section (a)(2) of this title as suitable for such calculations. Such load shall be established at a level necessary to implement the applicable water quality standards with seasonal variation and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality. (96)
On its face section 303(d)(1)(C) does not indicate whether TMDLs apply to both point and nonpoint source pollution. However, it is clear that only those water bodies identified in section 303(d)(1)(A) are subject to TMDL issuance. Thus the controversy surrounding TMDLs starts with section 303(d)(1)(A)97--specifically, which water bodies are to be listed under this section. Section 303(d)(1)(A) states:
Each State shall identify those waters within its boundaries for which the effluent limitations required by section (b)(1)(A) and section (b)(1)(B) of this title 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. (98)
In Pronsolino the plaintiffs' argument regarding this section relied on the usage of the phrase "effluent limitations." (99) The plaintiffs claimed not only does the section fail to mention nonpoint source pollution, but it specifically mentions "effluent limitations," which only apply to point source pollution. (100) Thus, the plaintiffs argued, only those waters where point sources are present can be identified under section 303(d)(1)(A) as suitable for application of a TMDL. (101) This would include waters polluted either by point sources only, or by a mixture of both point and nonpoint sources, and excludes waters polluted solely by nonpoint sources. Further, within this subsection of identified waters, the plaintiffs claimed TMDLs only apply to the point source dischargers. (102) Accordingly, the plaintiffs argued TMDLs could only be used to modify point source pollution effluent limitations within NPDES permits. (103)
The Pronsolino court disagreed with the plaintiffs, stating that, while "the focus of the passage was on effluent limitations and their adjustment to meet water-quality standards, [n]othing in this passage ... expressly limited the role of water-quality standards or load calculations to the [single purpose of adjusting effluent limitations]" (104) The court concluded the phrase "those waters within its boundaries" in section 303(d)(1)(A) (105) is inclusive and thus includes all waters whether polluted by point sources or nonpoint sources. (106) Further, the court dismissed as "obvious" the reason nonpoint source pollution was not mentioned in section 303(d)(1)(A). (107) The court reasoned section 303(d)(1)(A) was meant to create a list of water bodies with "unfinished business"--namely, those waters that remained polluted after technology based standards were applied. (108) The court interpreted section 303(d)(1)(A) as an
intersection between the old and new strategies[, calling] 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)[(A)] required the waterway to join a list of unfinished business. That list, once completed, then had to be prioritized by the states. For each listed river and water, Section 303(d)(1)(D) of the Act next required the states to establish TMDLs. (109)
The plaintiffs' argument is more persuasive. The Pronsolino court takes a phrase out of the context of the complete sentence, thereby distorting its meaning. While the phrase "those waters within its boundaries" suggests an inclusive list, the phrase is limited by the end of the sentence "for which effluent limitations required by [sections 301(b)(1)(A) and 301(b)(1)(B) are not stringent enough] to implement any water quality standards." (110) This results in an exclusive list containing only those waters to which effluent limitations apply, and for which applicable effluent limitations are inadequate to bring the water body into compliance with water quality standards.
Furthermore, the statutory canon that "the expression of one thing suggests the exclusion of others" refutes the court's claim that the plaintiffs' reading is too narrow. (111) Section 303(d)(1)(A) states that "waters ... for which the effluent limitations required by section (b)(1)(A) and section (b)(1)(B) are not stringent enough to implement [applicable water quality standards]" trigger the issuance of a TMDL. (112) The Pronsolino court read the above language to assert all waters for which any part of the CWA is not stringent enough to meet applicable water quality standards shall be listed. This reading is too broad because it does not give effect to Congress's express listing of sections 301(b)(1)(A) and 301(b)(1)(B).
Additionally, a strong argument can be made based solely on a close reading of the text. Sections 301(b)(1)(A) and 301(b)(1)(B) require point source dischargers to comply only with the applicable effluent limitations. (113) In severely polluted waters it is possible that dischargers are complying with effluent limitations, yet the water body remains in violation of water quality standards. If sections 301(b) (1) (A) and 301(b) (1) (B) were the only mandates a point source discharger had to follow, then the discharger could violate water quality standards, but remain in compliance with the CWA merely by meeting the applicable effluent limitations. (114) In the above situation the effluent limitations established under 301(b)(1)(A) and 301(b)(1)(B) would be inadequate. This potential loophole is foreclosed through application of section 301(b)(1)(C) (115)--a built-in safety net. (116)
Section 301(b)(1)(C) requires the creation of more stringent effluent limitations in areas that are not in compliance with federal or state "water quality standards, treatment standards, or schedules of compliance," but it does not mandate the method by which more stringent effluent limitations are to be created. (117) This author asserts the TMDL is the designated method. (118)
The explicit references to sections 301(b)(1)(A) and 301(b)(1)(B) within section 303(d)(1)(A) make clear that a reader of the CWA should refer back to these sections when interpreting section 303(d)(1)(A). (119) This author asserts, although not explicitly mentioned in section 303(d)(1)(A), section 301(b)(1)(C) is impliedly incorporated into section 303(d)(1)(A). This premise is supported by the identical purposes of the two provisions--the creation of effluent limitations more stringent than those imposed through application of sections 301(b)(1)(A) and 301(b)(1)(B) in order to attain water quality standards. (120) Following this logic, a close reading of sections 301(b)(1)(C) and 303(d)(1)(C) reveals that section 303(d)(1)(C) reiterates the mandate in section 301(b)(1)(C), (121) but with the addition of an instruction to list for application of the TMDL standard those waters that fall under the jurisdiction of section 301(b)(1)(C). (122) Thus, waters that are eligible for listing under section 303(b)(1)(A), and subsequent application of the TMDL standard, are limited to those waters that fall within the jurisdiction of section 301(b)(1)(C), specifically waters polluted by point sources where more stringent effluent limitations are necessary to meet water quality standards. (123)
This argument lends support to the Pronsolinos' theory. However, to the extent the CWA remains ambiguous as to which waters are to be listed for application of TMDLs, under Chevron it is necessary to look to legislative history to glean the congressional intent behind section 303(d)(1)(A).
ii. Legislative History
The legislative history lends support to the idea that section 303(d)(1)(A) should be read in the narrow sense the plaintiffs advocate. Congress stated:
Water quality standards will be utilized for the purpose of setting effluent limitations in those cases where effluent limitations for point sources would not be consistent with such standards.... Even though all point sources must by January 1, 1976, as a minimum, meet the requirements of subsection (b)(1)(A) and subsection (b)(1)(B) of section 301 all point sources could be required to meet a more stringent effluent limitation consistent with water quality standards of the receiving waters if the effluent limitations set pursuant to subsection (b)(1)(A) and subsection (b)(1)(B) of section 301 are inadequate to meet those water quality standards. In this case a more stringent effluent limitation will be imposed. (124)
The italicized portions of the above section are significant because they indicate that Congress intended the TMDL to apply to point sources of pollution only. Congress recognized that "a more stringent effluent limitation will be imposed." (125) This author asserts the TMDL standard is the implementation mechanism for the "more stringent effluent limitation." This is important because effluent limitations are indisputably applicable to point sources of pollution and inapplicable to nonpoint sources of pollution. (126) Congress further stated:
Any required more stringent effluent limitations will be set on the basis of that reduction in the quantity and quality of the discharge of pollutants which would be required to make the total discharge load in the receiving waters from municipal and industrial sources consistent with water quality standards. This should not be interpreted to mean that such more stringent industrial and municipal effluent limitations will, in themselves, bring about a meeting of water quality standards for receiving waters. The Committee clearly recognizes that non-point sources of poUution are a major contributor to water quality problems. (127)
The Pronsolino court cited the italicized language above, stating it supports the idea that Congress was aware of nonpoint source pollution and the need for it to be mitigated through the use of the TMDL in order to meet water quality standards. (128) This view is unpersuasive.
Congress expressly noted the fact that nonpoint sources may affect the ability of the more stringent effluent limitations to comply with water quality standards. (129) More importantly, despite this recognition, the statute is silent as to nonpoint sources. (130) Congress's express recognition of nonpoint sources makes the fact that they were left out of the statutory language more poignant. It is unlikely that congressional oversight is the reason nonpoint sources were left out of the statute; instead, because Congress recognized the significant contribution of nonpoint sources to the pollution problem, the absence of express inclusion of nonpoint sources in the statute itself looks more akin to a deliberate exclusion.
The Pronsolino court also noted TMDLs must be established at levels that would "implement" the applicable water quality standards. (131) The court reasoned nonpoint source pollution must be considered to meet the applicable water quality standard, and thus, nonpoint sources must be subject to TMDLs. (132) However, it is unnecessary for TMDLs to be applicable to nonpoint source pollution in order to implement water quality standards. (133) To illustrate this point, analyzing the CWA as first enacted in 1972 is helpful. (134)
For waters polluted by both point and nonpoint sources, but not in violation of water quality standards, the 1972 Congress could have contemplated application of two provisions of the CWA: section 301, the effluent limitation standards, (135) and section 208, the nonpoint source pollution controls. (136) In areas where water quality standards are violated, this basic dichotomy between controls for point and nonpoint sources should remain. Under this hypothesis, the first task is to divvy up the amount of total pollution that could be attributed to each source. (137) The state or EPA then must calculate the reduction of the pollution needed from each source to achieve water quality standards. (138) Section 208 would apply to the existing nonpoint sources of pollution, but reassessment of section 208 programs would be necessary to determine whether best management practices were utilized and obtained. (139) If best management practices were not in force, steps to achieve them would be made under section 208. (140) Next, instead of controlling point sources under the inadequate effluent limitations mandated by section 301, the state could reduce that portion of the total pollution attributable to point sources through implementation of a more stringent effluent limitation under section 303(d)(1)(C). (141) Both the estimated achievable reduction in nonpoint source pollution using BMPs (or if necessary, other methods, such as pollution trading (142)), and the reduction that could be achieved through application of the more stringent effluent limitations would need to be taken into consideration. (143) The state would set the TMDL, after calculating the estimated reduction in nonpoint source pollution load, at a level which would ensure compliance with water quality standards through the necessary reduction in point source discharges.
Under this reasoning the phrase relied upon by the Pronsolino court is satisfied--the state or EPA is establishing more stringent effluent limitations for the point sources and is also taking into account the nonpoint sources to make the more stringent effluent limitation consistent with water quality standards. In addition, contrary to the Pronsolino court's reasoning, this mechanism does not require TMDLs for the nonpoint sources and is consistent with the plaintiffs' argument that the TMDL is a mechanism to ratchet down on the point source dischargers through adjustments in their NPDES permits.
b. What Is a "Pollutant" Within the Meaning of the TMDL Provision?
Section 303(d)(1)(C) states "[e]ach State shall establish for the waters identified in paragraph (1)(A) of this subsection ... the total maximum daily load, for those pollutants which the Administrator identifies under section (a)(2) of this title as suitable for such calculations." (144) The CWA defines pollutants as "rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." (145) The ambiguity in the definition of pollutant arises due to the use of the word "discharge." (146) The Pronsolino court pointed out that under the definitions provision of the CWA the word discharge is "uniquely associated" with point sources. (147) The question thus becomes: Can a nonpoint source produce a "pollutant" within the meaning of section 303(d)(1)(C)? (148)
The CWA's definition of discharge arguably suggests the term should not be limited to point sources. (149) The CWA defines "the term `discharge' when used without qualification [to] include a discharge of a pollutant, and a discharge of pollutants." (150) All other definitions in the CWA define terms by enumerating the term's meaning. For example, the term "person" is defined as follows: "[t]he term `person' means...." (151) Likewise, the term "ocean" is defined as follows: "[t]he terms `ocean' means...." (152) However, the term discharge is the only term that is defined as including a particular meaning: "[t]he term `discharge'... includes...." (153) Thus, because the word "includes" is used, the definition of "discharge" is not limited to only point sources. (154)
The Ninth Circuit, in Oregon Natural Desert Association v. Dombeck (ONDA), (155) opined a different interpretation of the definition of "discharge," holding that the term "discharge" is limited to point sources and the word "includes" means the definition encompasses discharges of "non-pollutants," such as water, but it does not include pollutants from nonpoint sources. (156) The Pronsolino court cited ONDA, but without discussion neglected to follow ONDA's reasoning, instead concluding it is "reasonably clear that pollutants could derive from any source, not merely from point sources." (157) The court pointed out other areas of the CWA used the term "pollutant" in reference to nonpoint sources. (158) The Pronsolino court ultimately held that in light of the ambiguity and the Chevron doctrine, EPA's definition of "pollutant" should be given deference. (159)
Unlike the ambiguity with respect to the listing requirement, the legislative history with respect to the definition of pollutant does not affirmatively lend support, but more importantly, does not refute the court's and EPA's interpretation. (160) Given the unclear language within the CWA and the unenlightening legislative history with respect to the meaning of pollutant, the definition of pollutant is likely to remain safely within the discretion of EPA.
2. Can Other Provisions of the CWA Resolve the Ambiguities in Section 303(d)(1)?
When interpreting a statute, it is necessary to avoid interpreting a specific provision inconsistently with the structure of the entire statute. (161) Therefore, each statutory provision should be read in reference to the whole act. (162) Accordingly, it is sometimes helpful to analyze the interplay between statutory provisions to determine the meaning of a particular provision. The Pronsolino court analyzed four different provisions of the CWA, which it reasoned support the premise that TMDLs apply to nonpoint sources of pollution. Each of the court's arguments are ultimately unpersuasive.
The court started its analysis with section 102(a) (163) and sections 104(n) and (p), (164) pointing out that while these provisions do not specifically mention TMDLs, they establish the goals of the act, which include the creation of "comprehensive" programs and studies to protect fish and wildlife and eliminate agricultural pollution. (165) Although, concededly the CWA as a whole was designed to be a "comprehensive" act in the sense that it was intended to address both point and nonpoint sources of pollution, applying the Act's "comprehensive" approach to each separate provision is too attenuated. The Pronsolino court made the mistake of attributing the comprehensive goal of the entire CWA to the purpose of each provision of the CWA. While each provision is designed to meet the goals of the CWA, it is not necessary for each provision to be applicable to both point and nonpoint sources to attain this goal. In fact, the CWA is structured in such a way that point sources and nonpoint sources are dealt with in expressly separate provisions. (166)
The court next analyzed section 304. (167) Section 304(a)(2)(D) requires the Administrator to develop and publish information for the purposes of section 303 "on ... pollutants suitable for maximum daily load measurement correlated with the achievement of water quality standards." (168) The court pointed out section 304(a)(2)(D) does not distinguish between point and nonpoint source pollutants, but sections 304(b) (169) and 304(f) (170) focus specifically on point source pollution and nonpoint source pollution respectively. (171) Thus, the Pronsolino court reasoned, because subsection (a)(2)(D) of section 304 did not distinguish between point sources and nonpoint sources and subsections (b) and (f) were exclusive to point and nonpoint sources respectively, subpart (a)(2)(D) is comprehensive, "cover[ing] all sources of pollutants and call[ing] for a predicate step for the TMDL process at issue." (172)
The court's reasoning is unpersuasive. The failure of section 304(a)(2)(D) to distinguish between point and nonpoint sources can be explained simply by looking to the purpose of the section. Section 304(a)(2)(D) is a general list of the Administrator's duties. (173) Sections 304(b) and (f) are mechanisms by which to accomplish the specified duties on the list set out in section 304(a). (174) The court's "comprehensive" argument is again too attenuated and borders on the illogical.
Finally, the court addressed section 208. The court reasoned "[s]ection 208 contemplated that nonpoint sources would be remedied through state regulations and required the states to develop programs to do so," (175) seeming to infer it was within the state's discretion to incorporate the TMDL into the Pronsolinos' permit. Granted, the CWA acknowledges that the state has the authority to institute whatever nonpoint source pollution control techniques it sees fit; (176) however, section 208 does not mandate TMDLs are the required implementation mechanism on waters polluted solely by nonpoint sources. (177)
3. Congressional Acquiescence
Until recently, EPA has not actively pursued its duties under the CWA with regard to nonpoint sources of pollution, and therefore an argument for congressional acquiescence is weakened because EPA has not taken an action to which Congress can acquiesce. (178) Under section 208, and prior to the enactment of section 319, EPA held the official position that it did not have a direct role in controlling nonpoint source pollution. (179) This lethargic attitude continued. By 1989, two years after the enactment of section 319, EPA still had not sought or obtained from Congress any federal financing for the States for nonpoint source management programs. (180)
Recently however, with the promulgation of the Revised TMDL Regulation, EPA is taking a more prominent stance against nonpoint sources of pollution. The fact remains that application of a TMDL to water bodies polluted solely by nonpoint sources is a new issue. (181) Until Pronsolino, there was not much of anything for Congress to acquiesce in. The one constant since enactment of the TMDL provision has been the definition of the TMDL. (182) This definition, however, is unclear. It is clear that in calculating the TMDL, nonpoint sources of pollutants are to be taken into account. (183) What is not clear is whether, after the TMDL is established, the point sources or the nonpoint sources are to bear the burden of meeting the TMDL. The definition itself does not provide an adequate description such that Congress could have acquiesced to EPA's current position.
B. Is the Regulation a Valid Interpretation of Section 303(d)(3)?
Solving the ambiguity in section 303(d)(1) will almost certainly require further judicial or congressional intervention. However, section 303(d)(3) of the CWA provides a mechanism for EPA to require creation of TMDLs for waters polluted solely by nonpoint sources while avoiding litigation over section 303(d)(1). Section 303(d)(3) states:
For the specific purpose of developing information, each State shall identify all waters within its boundaries which it has not identified under paragraph (1)(A) and (1)(B) of this subsection and estimate for such waters the total maximum daily load with seasonal variations and margins of safety, for those pollutants which the Administrator identifies under section (a)(2) of this title as suitable for such calculation and for the thermal discharges, at a level that would assure protection and propagation of a balanced indigenous population of fish, shellfish and wildlife. (184)
The plain meaning of this provision makes clear that States are to create "informational" TMDLs for those waters which are not identified under sections 303(d)(1)(A) or 303(d)(1)(B). The provision does not distinguish between nonpoint or point source pollution, but more importantly, it does not specifically mention one or the other, as was the case for section 303(d)(1)(A). (185) Section 303(d)(1)(A) states "[e]ach State shall identify those waters within its boundaries for which effluent limitations" are not adequate to ensure compliance with water quality standards. (186) The phrase "those waters" is arguably exclusive. (187) However, unlike section 303(d)(1)(A), section 303(d)(3) uses the word "all," which is inclusive and mandatory. (188)
The plain meaning of section 303(d)(3) also indicates that Congress intended a much broader reading than in section 303(d)(1)(A); not only are states to create "informational" TMDLs for all water bodies regardless of the source of pollution, but under section 303(d)(3), states are required to create "informational" TMDLs for all water bodies within the jurisdiction of the CWA regardless of whether the water body is in compliance with water quality standards. (189) The Revised TMDL Regulation requirement that TMDLs are to be established for all water bodies is consistent with the plain meaning of section 303(d)(3) and therefore is not invalidated under Chevron.
VI. THE CWA MANDATES CREATION OF A TMDL, BUT WILL IT DO US ANY GOOD?
Hashing through the convoluted wording of the CWA leads to the conclusion that the TMDL serves a different purpose depending upon the provision creating the TMDL requirement. For water bodies listed under section 303(d)(1)(A)--those in violation of water quality standards and polluted by point sources--the TMDL works as a more stringent effluent limitation incorporated into an NPDES permit; for all other waters, the TMDL created under section 303(d)(3) serves as an "informational" TMDL.
Unfortunately, the fact that the TMDL applies to all water bodies under section 303(d)(3) is still not enough to make the TMDL the ultimate mechanism for nonpoint source pollution abatement. Two remaining problems exist with respect to enforcement of TMDLs for nonpoint sources of pollution. First, under section 303(d)(3) the TMDLs created are for informational purposes only and, unlike TMDLs issued pursuant to section 303(d)(1)(A), are not required to be incorporated into a state's continuing planning process under section 303(e). (190) Second, the CWA does not contain an enforcement mechanism for TMDLs with respect to nonpoint sources. (191)
Unfortunately, the lack of enforcement with respect to "informational" TMDLs relegates section 303(d)(3) to virtually the same status as that of sections 319 and 208--a toothless provision. Therefore, the "informational" TMDL is likely to share the same fate as sections 319 and 208 and become just another ineffective mechanism for nonpoint source pollution abatement.
From a less cynical perspective, "informational" TMDLs may be implemented by the states. With the promulgation of the Revised TMDL Regulation, EPA is requiring, as a prerequisite to approval of a TMDL, inclusion of an implementation plan in the state's TMDL submission. (192) These requirements will apply to section 303(d)(3) "informational" TMDLs. (193) The creation of a TMDL is a long, highly technical, and costly process. (194) After approval a state probably will not think lightly about abandoning its TMDL. Hopefully, the momentum of the process will carry the implementation of the "informational" TMDL to fruition. However, a recalcitrant state, whether spurred by political pressure or other considerations can, with impunity, decline to implement "informational" TMDLs. For this reason the "informational" TMDL is not well equipped to combat nonpoint source pollution.
VII. FORTIFYING THE TMDL: GIVING TEETH TO THE TMDL STANDARD
Although criticism of the TMDL is abundant, a viable remedy for the short-comings of the TMDL is much more elusive. Nonpoint source pollution is a highly politicized problem, constraining the states, EPA, and Congress, such that the most environmentally beneficial alternative is not always the implemented alternative. (195) Initially, it is important to note whatever solution is created for nonpoint source pollution, it must include a cooperative effort between the state and the federal government. (196) The federal government's role must be one of support, encouragement, persuasion, prodding, and coaxing a state into achieving the goals of the CWA. The following subsections suggest improvements to the TMDL and offer alternative mechanisms to help control nonpoint source pollution.
A. Suggested Changes on the Federal Level
On the federal level, the means to a solution include amendment of the CWA and increased funding. The CWA's nonpoint source pollution mechanisms have failed in large part because of lack of funding. (197) To make the TMDL an effective provision Congress needs to institute funding that is limited to carrying to fruition the "informational" TMDL. In doing so, states will have a greater incentive to implement the "informational" TMDL. In addition, an amendment to the CWA deleting the "informational" status of section 303(d)(3) TMDLs will at least facilitate the inclusion of the section 303(d)(3) TMDLs into the continuing planning process of section 303(e). (198) Also necessary is an amendment providing for an enforcement mechanism for TMDLs with respect to nonpoint sources of pollution.
Although the amendment process is far from instantaneous, trivial, or easy, in the past Congress has exhibited a willingness to amend the CWA to address its short-comings. Most importantly, Congress passed the 1987 Amendments, which specifically recognized the need for more effective controls for nonpoint sources. (199)
While an amendment may be a long time in coming, there are other federal mechanisms that may prove to be effective and less time consuming. With respect to agriculturally related nonpoint sources of pollution, the federal government should condition issuance of federal crop insurance on the mandatory use of environmentally friendly farming practices. (200) By authorizing decreased premiums for increased environmentally sound practices, the federal government can address one source of nonpoint source pollution at the root of the problem.
Cooperative agreements between EPA and the manufacturers of pesticides, herbicides, and insecticides aspiring to phase-out chemicals that have slow degradation periods may also be an effective means of controlling nonpoint source pollution.
B. Suggested Changes on the State Level
On the state level, cooperation is also an important element to successful nonpoint source pollution control. (201) State and local governments need to encourage public participation during the creation of the TMDL implementation plan. An effective TMDL must include regulation of land use practices and farming and harvesting techniques. (202) Ideally, these changes would be voluntary, although realistically compliance solely through voluntary means is unlikely. (203) However, including those regulated in the regulatory decision-making process will likely encourage a more voluntary give-and-take approach, which in turn will generate a more feasible implementation plan.
Lastly, states need to take the lead in addressing nonpoint source pollution. States have succeeded in shielding themselves from federal intrusion; however, states can no longer afford to remain inactive. Nonpoint source pollution is prevalent and will not likely subside without serious restructuring of the cooperative attitudes among the state and federal governments.
Nonpoint source pollution may be the Nation's next environmental crisis. In light of this, a new solution to the problem is imperative. It is too early to predict how states and the judiciary will react to the application of TMDLs to water bodies polluted solely by nonpoint sources, but what is clear is the TMDL provision is fundamentally flawed. Unfortunately, the only hope for an enforceable remedy to nonpoint source pollution lies in the hands of Congress--a Congress that to date has slowly and ineffectively attempted to abate nonpoint source pollution--and states that have continually balked on the issue. The road to the TMDL has been long and winding, but it will soon reach a dead end. While the Revised TMDL Regulation is likely to spur state creation of TMDLs, without enforcement power the TMDL is a toothless provision. Revitalization of the TMDL is not possible merely through reliance on agency deference or clever manipulation of the statutory language. The effectiveness of the TMDL depends upon changes to both the CWA and the attitude of states toward achieving clean water.
(1) Scientific and Technical Hurdles Will Slow Progress From EPA's Total Maximum Daily Load (TMDL) Proposal, PESTICIDE & TOXIC CHEMICAL NEWS (Food Chemical News, Inc.), Mar. 16, 2000, at 1.
(2) Oliver A. Houck, TMDLs, Are We There Yet?: The Long Road Toward Water Quality-Based Regulation Under the Clean Water Act, 27 Envtl. L. Rep. (Envtl. L. Inst.) 10,391, 10,399 (1997). See generally PAUL THOMPSON, POISON RUNOFF: A GUIDE TO STATE AND LOCAL CONTROL OF NONPOINT SOURCE WATER POLLUTION (1989) (discussing the effect of nonpoint source pollution on water quality); Elaine Bueschen, Pfiesteria Piscicida: A Regional Symptom of a National Problem, 28 Envtl. L. Rep. (Envtl. L. Inst.) 10,317, 10,320 (1998) (stating that "[a]gricultural runoff is the greatest contributor of pollution in America's impaired rivers, streams and lakes").
(3) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (1994 & Supp. III 1997).
(4) EPA defines nonpoint source pollution as pollution "caused by diffuse sources that are not regulated as point sources and normally [are] associated with agricultural, silvicultural and urban runoff." Peter M. Lacy, Comment, Addressing Water Pollution from Livestock Grazing after ONDA v. Dombeck: Legal Strategies under the Clean Water Act, 30 ENVTL. L. 617, 620 n.6 (2000) (quoting EPA, NONPOINT SOURCE GUIDANCE (1987), reprinted in ENVIRONMENTAL LAW INSTITUTE, CLEAN WATER DESKBOOK 177 (2d ed. 1991)); see also George A. Gould, Agriculture, Nonpoint Source Pollution, and Federal Law, 23 U.C. DAVIS L. REV. 461, 461 (1990) (addressing agriculturally related sources of pollution); Alia S. Miles, Searching for the Definition of "Discharge": Section 401 of the Clean Water Act, 28 ENVTL. L. 191, 196-98 (1998) (discussing the definitions of nonpoint and point source pollution).
(5) See David Zaring, Agriculture, Nonpoint Source Pollution, and Regulatory Control: The Clean Water Act's Bleak Present and Future, 20 HARV. ENVTL. L. REV. 515, 522-28 (1996) (discussing the inability of sections 208 and 319 of the CWA to abate nonpoint source pollution); see also Gould, supra note 4, at 476-79 (discussing the inadequacies of sections 208 and 319 of the CWA to regulate nonpoint source pollution).
(6) Agriculture is the most common cause of nonpoint source pollution; it has been identified as the primary pollution source for "sixty-four percent of affected river miles, fifty-seven percent of the affected lake acres, and nineteen percent of affected estuarine areas." Gould, supra note 4, at 464; see also id. at 483-97 (discussing observations and policies of the federal government toward the agricultural community that frustrate the regulation of agricultural nonpoint source pollution).
(7) See Zaring, supra note 5, at 528 (arguing that "lack of adequate incentives" and congressional underfunding render sections 208 and 319 ineffective nonpoint source pollution control mechanisms).
(8) See THOMPSON, supra note 2, at 22, 24 (discussing EPA's failure to obtain funding for CWA nonpoint source programs); see also discussion infra Part V.A.3.
(9) Gould, supra note 4, at 462. See generally Lawrence P. Wilkins, The Implementation of Water Pollution Control Measures--Section 208 of the Water Pollution Control Act Amendments, 15 LAND & WATER L. REV. 479 (1980) (discussing reasons for the failure of section 208, particularly Congress's reluctance to subject land use practices to federal oversight).
(10) For a list of major pollutants causing impairment per acre of lakes and per mile of rivers and coastline organized by state, see Office of Water, EPA, Total Maximum Daily Load (TMDL) Program.' Major Pollutants Causing Impairment by State, at http://www.epa.gov/owow/tmdl/303dcaus.html (last updated Aug. 12, 1999).
(11) 91 F. Supp. 2d 1337 (N.D. Cal. 2000).
(12) Id. at 1356.
(13) Federal Water Pollution Control Act, 33 U.S.C. [section] 1313(d) (1994).
(14) See discussion infra Part III.B.
(15) Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation, 65 Fed. Reg. 43,585 (July 13, 2000) (to be codified at 40 C.F.R. pts. 9, 122, 123, 124, & 130) [hereinafter Revised TMDL Regulation].
(16) Id. at 43,662 (to be codified at 40 C.F.R. [section] 130.2(h)) (defining the TMDL standard).
(17) See id. at 43,668 (to be codified at 40 C.F.R. [section] 130.33) (discussing the minimum elements necessary to constitute a TMDL submission for water bodies polluted solely by nonpoint sources).
(18) 33 U.S.C. [section] 1288 (1994).
(19) Zaring, supra note 5, at 522-25.
(20) Clean Water Act of 1977, Pub. L. No. 95-217, [subsection] 4(e), 31, 32, 33(a), 34, 35, 91 Stat. 1566, 1566, 1576-80 (1977) (codified at 33 U.S.C. [section] 1288 (1994)).
(21) 33 U.S.C. [section] 1288(j)(1) (1994); Zaring, supra note 5, at 524.
(22) Zaring, supra note 5, at 527-28; see also THOMPSON, supra note 2, at 21-22 (discussing the reasons for the failure of section 208).
(24) 33 U.S.C. [section] 1329 (1994).
(25) Gould, supra note 4, at 463; THOMPSON, supra note 2, at 22.
(26) 33 U.S.C. [section] 1329(b)(2), (c)(2) (1994).
(27) Id. [section] 1329(h).
(28) Zaring, supra note 5, at 525-28.
(29) See generally Oliver A. Houck, TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean Water Act, 27 Envtl. L. Rep. (Envtl. L. Inst.) 10,329 (1997) (discussing the tensions between the state and federal governments prior to enactment of section 303 and the resulting stalemate that has created a lack of consensus with regard to control of nonpoint source pollution).
(30) See generally 33 U.S.C. [subsection] 1288, 1329 (1994) (creating a management scheme that can be characterized as federally mandated oversight of nonpoint source pollution controls that are intended to preserve the state as the primary decision maker with regard to water policy and land use controls); id. [subsection] 1251(g), 1370 (evidencing Congress's intent to preserve state authority).
(31) See discussion supra Parts II.A. 1-2.
(32) The word "arguably" is used because this author realizes that resolution of the TMDL debate could lead to intense federal involvement in the regulation of nonpoint source pollution.
(33) See discussion infra Part II.B.
(34) VLADIMIR NOVOTNY & GORDON CHESTERS, HANDBOOK OF NONPOINT SOURCE POLLUTION: SOURCES AND MANAGEMENT 6 (1981).
(35) Id. at 6-7.
(36) Id. at 8.
(37) Id. at 437.
(38) Hazardous lands are defined as "areas requiring control treatments." Id. at 401.
(39) Id. at 439; see also Gould, supra note 4, 468-71 (discussing possible mechanisms for reduction of nonpoint source pollution using various land management techniques, including crop rotation, conservation tillage, accurate calculation of fertilizer needs, alternative agriculture, and water management).
(40) THOMPSON, supra note 2, at 233.
(41) See NOVOTNY & CHESTERS, supra note 34, at 393 (stating that land use is a description of the activities which occur in uniform demographic areas, and uniformity is created by local zoning ordinances).
(42) See Gould, supra note 4, at 487-89 (exploring the alternatives of placing the costs of pollution regulation on farmers (producers) versus the public (primary beneficiaries)); see also THOMPSON, supra note 2, at 39-99 (discussing and evaluating various mechanisms for control of agricultural nonpoint source pollution, including investment tax credits, cross-compliance measures, performance taxes, performance standards, design standards, design taxes, and pricing mechanisms); Oliver A. Houck, TMDLs IV: The Final Frontier, 29 Envtl. L. Rep. (Envtl. L. Inst.) 10,469, 10,484 (1999) (discussing alternatives to TMDL implementation, such as taxes, limiting fertilizer use, and conservation programs).
(43) Gould, supra note 4, at 487-89; THOMPSON, supra note 2, at 45-51.
(44) Gould, supra note 4, at 487-89; THOMPSON, supra note 2, at 45-51.
(45) Gould, supra note 4, at 487-89; THOMPSON, supra note 2, at 45-51.
(46) Gould, supra note 4, at 487-89; THOMPSON, supra note 2, at 45-51.
(47) THOMPSON, supra note 2, at 4-6.
(49) Federal Water Pollution Control Act, 33 U.S.C. [section] 1313(d)(1)(C) (1994).
(50) 40 C.F.R. [section] 130.2(i) (2000).
(51) Daniel V. Hyde, Are TMDLs The Answer for Cleaning the Nation's Waters?, L.A. LAW., March 2000, at 15, 16.
(52) See, e.g., Scott v. City of Hammond, 741 F.2d 992, 996 (7th Cir. 1984) (holding that prolonged state failure to submit TMDLs equals a constructive submission of "no TMDLs"); Sierra Club v. Browner, 843 F. Supp. 1304, 1314 (D. Minn. 1993) (defining state action as sufficient to avoid a finding of constructive submissions); Sierra Club v. Hankinson, 939 F. Supp. 872 872 (N.D. Ga. 1996) (citizen suit challenging Georgia's TMDL implementation plan); see also Michael M. Wenig, How "Total" are "Total Maximum Daily Loads"?--Legal Issues Regarding the Scope of Watershed-Based Pollution Control Under the Clean Water Act, 12 TUL. ENVTL. L.J. 87, 94 (1998) (citing above cases as among a "tidal wave of lawsuits").
(53) See Lisa E. Roberts, Is the Gun Loaded This Time? EPA's Proposed Revisions to the Total Maximum Daily Load Program, 6 ENVTL. LAW. 635, 648-53 (2000) (outlining TMDL litigation).
(54) 741 F.2d at 996.
(56) Id. at 997.
(57) Id. at 996.
(58) Id. at 997.
(59) Houck, supra note 2, at 10,394.
(60) 843 F. Supp. 1304 (D. Minn. 1993).
(62) Id. at 1311, 1314.
(63) Roberts, supra note 53, at 650.
(64) 939 F. Supp. 872 (N.D. Ga. 1996).
(65) Id. at 873.
(67) Roberts, supra note 53, at 652 n. 130. For a state-by-state list of current TMDL litigation see EPA, Office of Water, TMDL Litigation by State, at http://www.epa.gov/owow/tmdl/lawsuit1.html (last updated July 19, 2001).
(68) See Roberts, supra note 53, at 651 (stating that EPA is taking "active steps" by "launching initiatives of its own orders and consent decrees ... to achieve some consensus on the TMDL program among [the] states").
(69) Robert W. Adler, Integrated Approaches to Water Pollution: Lessons From the Clean Air Act, 23 HARV. ENVTL. L. REV. 203, 215-16 (1999).
(70) Id. at 226.
(73) Id. at 208.
(74) Id; see also Houck, supra note 42, at 10,486 (stating that TMDLs are "the best prospect of those now available for coming to grips with the last major, unregulated sources of water pollution in this country"--nonpoint source pollution).
(75) Revised TMDL Regulation, supra note 15, at 43,587-88.
(76) See, e.g., Wenig, supra note 52, at 117-25 (discussing nonpoint source pollution and the TMDL listing requirement); Adler, supra note 69, at 226-30 (discussing implementation of TMDLs for nonpoint sources); Houck, supra note 42, at 10,484-85 (discussing the propriety of application of TMDLs to nonpoint sources); Houck, supra note 2, at 10,400 (stating that "TMDLs for point sources alone makes no pollution control sense at all").
(77) Pronsolino v. Marcus, 91 F. Supp. 2d 1337, 1356 (N.D. Cal. 2000).
(79) Id. at 1338.
(83) 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. IV 1998).
(84) Pronsolino, 91 F. Supp. 2d at 1338.
(85) Id. at 1356.
(86) In the preamble to the Revised TMDL Regulation, EPA stated "the requirement to identify and establish TMDLs for waterbodies exists regardless of whether the waterbody is impaired by point sources, nonpoint sources or a combination of both. Pronsolino." Revised TMDL Regulation, supra note 15, at 43,588.
(87) Federal Water Pollution Control Act, 33 U.S.C. [section] 1313(d)(1)(A) (1994).
(88) See Revised TMDL Regulation, supra note 15, at 43,662 (to be codified at 40 C.F.R. [section] 130.2(h)) (stating that "TMDLs must be established ... for waterbodies on Part 1 of the list of impaired waterbodies").
(89) Id. at 43,665 (to be codified at 40 C.F.R. [section] 130.25) (emphasis added).
(91) 33 U.S.C. [section] 1313(d)(1), (d)(3) (1994).
(92) 467 U.S. 837 (1984). The Pronsolino court was not faced with the task of analyzing the validity of the Revised TMDL Regulation because it was not promulgated until after the court rendered its opinion. However, the Pronsolino court's analysis was a statutory interpretation analysis. Under Chevron, statutory interpretation is the mechanism the court uses to determine the validity of a regulation. Thus, a litigant challenging the Revised TMDL Regulation would be making comparable arguments to those advanced by the litigants in Pronsolino; therefore, this Comment analyzes, among others, the arguments used by the Pronsolino court.
(93) Id. at 842-43.
(94) Id. at 843.
(95) Id. at 844.
(96) 33 U.S.C. [section] 1313(d)(1)(C) (1994).
(97) Id. [section] 1313(d)(1)(A).
(99) Pronsolino v. Marcus, 91 F. Supp. 2d 1337, 1346 (N.D. Cal. 2000).
(100) Id. An effluent limitation is a "restriction ... on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources." 33 U.S.C. [section] 1362(11) (1994) (emphasis added).
(101) Pronsolino, 91 F. Supp. 2d at 1346. Although the issue of whether TMDLs are applicable to water bodies polluted solely by nonpoint sources was not directly addressed, several courts would seemingly agree with the Pronsolino plaintiffs. See, e.g., Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 294 (D.C. Cir. 1981) ("Section 303(d) ... requires the states to identify waters where point source controls alone will be insufficient to implement the water quality standards applicable to such waters."); Alaska Ctr. for the Env't v. Reilly, 762 F. Supp. 1422, 1424 (W.D. Wash. 1991) (stating that "the Act requires use of a water-quality based approach" when "technology-based controls" are "found insufficient to clean up certain ... segments"); DeKalb County v. EPA, No. 79-969A, slip op. at 6 (N.D. Ga. Nov. 25, 1980) (holding section 303(d) applies "only if application of the section 301 standards ... fails to achieve the water quality standards").
(102) Pronsolino, 91 F. Supp. 2d at 1346.
(104) Id. at 1350.
(105) 33 U.S.C. [section] 1313(d)(1)(A) (1994).
(106) Pronsolino, 91 F. Supp. 2d at 1347. The court cited Alaska Center for the Environment v. Browner (ACE), 20 F.3d 981 (9th Cir. 1994), in support of its argument that the lack of exclusion created an implied inclusion of such waters. The court asserted that "[n]othing in the [ACE] opinion so limited [the TMDL provision to point sources]." Id. at 1348. Relying on this reasoning, the Pronsolino court held that "the TMDL process covered nonpoint-source pollution." Id.
(107) Id. at 1347.
(109) Id. at 1343.
(110) 33 U.S.C. [section] 1313(d)(1)(A) (1994).
(111) Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 732 (1989).
(112) 33 U.S.C. [section] 1313(d)(1)(A) (1994).
(113) Section 301(b)(1)(A) required non-publicly owned point sources to achieve effluent limitations by July 1, 1977. Id. [section] 1311(b)(1)(A). Section 301(b)(1)(B) required publicly owned treatment works to achieve by July 1, 1977 "effluent limitations based upon secondary treatment as defined by the Administrator." Id. [section] 1311(b)(1)(B).
(114) Id. [section] 1311(b)(1)(A), (b)(1)(B).
(115) Id. [section] 1311(b)(1)(C) (stating that "any more stringent limitation" that can be met through application of sections 301(b)(1)(A) and 301(b)(1)(B) "including those necessary to meet water quality standards" shall be achieved no later than July 1, 1977).
(116) This situation should be distinguished from one in which effluent limitations are revised using section 302. Section 302 of the CWA provides for revision of an effluent limitation created pursuant to section 301 when the effluent limitation is no longer adequate to assure the attainment of the goals of the CWA. Id. [section] 1312(a). However, section 303 goes one step further by creating a water body-by-water body list and requiring that effluent limitations be customized in order to achieve local water quality standards that may be set at a level more stringent than the fishable/swimmable goals of the CWA. Id. [section] 1313(d).
(117) Id. [section] 1311(b)(1)(C).
(118) Language found in section 303(d)(4) is relevant to this assertion. Section 303(d)(4) allows for revisions of "effluent limitation[s] based on a total maximum daily load or other waste load allocation...." Id. [section] 1313(d)(4)(A), (B) (emphasis added). This sentence provides two telling inferences. First, that a TMDL functions as a basis for creation of an effluent limitation, and second, recognition that the TMDL is a waste load allocation. Also important is the fact that absent from this section is authorization for revision of a load allocation based upon a total maximum daily load. See generally id. [section] 1313.
(119) See id. [section] 1313(d)(1)(A).
(120) A connection between sections 301(b)(1)(C) and 303(d)(1)(C) is important to establish because section 301(b)(1)(C) is indisputably applicable to point sources only. See id. [section] 1311(b)(1)(C).
(121) Both sections 301(b)(1)(C) and 303(d)(1)(C) mandate more stringent limitations in the event that application of sections 301(b)(1)(A) and 301(b)(1)(B) are not adequate to meet water quality standards. See id. [subsection] 1311(b)(1)(C), 1313(d)(1)(C).
(122) Section 303(d)(1)(A) states "[t]he state shall establish a priority ranking" of waters identified. Id. [section] 1313(d)(1)(A).
(123) See id. [section] 1311(b)(1)(C).
(124) H.R. REP. No. 92-911, at 105 (1972) (emphasis added).
(125) Id. (emphasis added).
(126) See 33 U.S.C. [section] 1362(11) (1994) (defining "effluent limitation" as "any restriction ... on quantities, rates, and concentration of chemical, physical, biological, and other constituents which are discharged from point sources") (emphasis added); see also Or. Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1097 (9th Cir. 1998) (holding the term "discharge" in the CWA is limited to point sources).
(127) H.R. REP. No. 92-911, at 105-06 (emphasis added).
(128) Pronsolino v. Marcus, 91 F. Supp. 2d 1337, 1350 (N.D. Cal. 2000).
(129) H.R. REP. NO. 92-911, at 106.
(130) See 33 U.S.C. [section] 1313(d) (1994) (failing to mention nonpoint sources in the subsection).
(131) Pronsolino, 91 F. Supp. 2d at 1346.
(132) Id. at 1346-47.
(133) See H.R. REP. No. 92-911, at 104-09.
(134) Because this section is concerned with the legislative history of the CWA, this author has chosen to discuss the section of the CWA in existence in 1972. For the sake of clarification, the argument would remain the same if section 319 was substituted for section 208.
(135) 33 U.S.C. [section] 1311 (1994 & Supp. V 1999).
(136) Id. [section] 1288.
(137) This is consistent with the definition of the TMDL, which is "[t]he sum of the individual WLAs for point sources and the LAs for nonpoint sources and natural background." 40 C.F.R. [section] 130.2(i) (2000).
(138) This logic explains why Congress said: "This should not be interpreted to mean that such more stringent industrial and municipal effluent limitations will, in themselves, bring about a meeting of water quality standards for receiving waters. The Committee clearly recognizes that non-point sources of pollution are a major contributor to water quality problems." H.R. REP. NO. 92-911, at 106 [1972).
(139) See the definition of a TMDL, which states that "[i]f Best Management Practices (BMPs) or other nonpoint source pollution controls make more stringent load allocations practicable, then wasteload allocations can be made less stringent." 40 C.F.R. [section] 130.2(i) (2000). Thus the definition contemplates that the bottom line is the amount of nonpoint source pollution and that point sources are to adjust around the amount of load allocation.
(140) See 33 U.S.C. [section] 1329 (1994).
(141) See id. [section] 1313(d)(1)(C).
(142) See generally Esther Bartfield, Point-Nonpoint Source Trading: Looking Beyond Potential Cost Savings, 23 ENVTL. L. 43 (1993) (discussing the benefits of water pollution trading). The definition of TMDL also contemplates pollution tradeoffs in situations where the point sources can convince nonpoint sources to reduce their pollutant loads. See 40 C.F.R. [section] 130.2(i) (2000) (stating "the TMDL process provides for nonpoint source control tradeoffs").
(143) The Pronsolino plaintiffs made a similar argument with respect to the current provision--section 319, Pronsolino v. Marcus, 91 F. Supp. 2d 1337, 1347 (N.D. Cal 2000).
(144) 33 U.S.C. [section] 1313(d)(1)(C) (1994).
(145) Id. [section] 1362(6) (emphasis added).
(146) Pronsolino, 91 F. Supp. 2d at 1351-52. But see Wenig, supra note 52, at 151 (asserting that the statutory language clearly shows Congress did not mean to limit the term "discharge" to point sources and to find otherwise is contrary to the plain meaning of the statute).
(147) Pronsolino, 91 F. Supp. 2d at 1351. The CWA defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source [and] any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source...." 33 U.S.C. [section] 1362(12) (1994) (emphasis added). The CWA defines "point source" as "any discernable, confined and discrete conveyance ... from which pollutants are or may be discharged." Id. [section] 1362(14). The CWA defines the term "effluent limitation" as a "restriction ... on quantities, rates, and concentrations of ... constituents which are discharged from point sources...." Id. [section] 1362(11).
(148) The court considered two other issues with respect to the definition of pollutant, which this author feels are not reasonably disputed: 1) whether sediment should be considered a pollutant, and 2) whether the phrase "discharged into water" found within the definition of point sources modifies all listed substances or Just the last antecedent--agricultural waste. Pronsolino, 91 F. Supp. 2d at 1351. The court resolved the first issue by citing several cases that have held sediment to be a pollutant. Id. (citing Rybachek v. EPA, 904 F.2d 1276, 1285-86 (9th Cir. 1990); Idaho Conservation League v. Thomas, 91 F.3d 1345, 1347 (9th Cir. 1996); Driscoll v. Adams, 181 F.3d 1285, 1291 (9th Cir. 1999); United States v. M.C.C. of Florida, Inc., 772 F.2d 1501, 1505-06 (11th Cir. 1985); Hudson River Fishermen's Ass'n v. Arcuri, 862 F. Supp. 73, 76 (S.D.N.Y. 1994)). The second issue was raised, but not resolved by the court because the court ultimately concluded the use of "discharge" does not dictate that a pollutant must come from a point source; it is irrelevant whether discharge modifies the whole list or just "agricultural waste." Id. at 1351-52.
(149) See Wenig, supra note 52, at 151-52 (discussing the interpretation of the definition of "discharge"). But see Or. Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1097 (9th Cir. 1998) (holding that the term discharge used in the context of section 401 does not include nonpoint sources).
(150) 33 U.S.C. [section] 1362(16) (1994) (emphasis added).
(151) Id. [section] 1362(5) (emphasis added).
(152) Id. [section] 1362(10) (emphasis added).
(153) Id. [section] 1362(16) (emphasis added).
(154) Wenig, supra note 52, at 151.
(155) 172 F.3d 1092 (9th Cir. 1998).
(156) Id. at 1095-96.
(157) Pronsolino v. Marcus, 91 F. Supp. 2d 1337, 1351-52 (N.D. Cal. 2000).
(158) Id. at 1352; see, e.g., 33 U.S.C. [section] 1255(d) (1994) (mandating that the Administrator use "accelerated effort[s] to achieve practical application of: (1) waste management methods applicable to point and nonpoint sources of pollutants to eliminate the discharge of pollutants, including but not limited to, elimination of runoff of pollutants ...; (2) advanced waste treatment methods applicable to point and nonpoint sources, including inplace or accumulated sources of pollutants"); id. [section] 1314(e) (stating that "[t]he Administrator... may publish regulations, supplemental to any effluent limitations ... [for] toxic or hazardous pollutant[s] under section (a)(1) or  of this title, to control plant site runoff ... [which] may contribute significant amounts of such pollutants to navigable waters"); id. [section] 1315(b)(1)(E) (requiring states to submit a biennial report to Congress that includes "a description of the nature and extent of nonpoint sources of pollutants").
(159) This issue was not raised by the plaintiffs, but rather by EPA in a footnote in its brief. The court requested oral arguments on the issue and was apparently persuaded by EPA's interpretation of "pollutant." Pronsolino, 91 F. Supp. 2d at 1351-52. EPA did not change any of its CWA regulatory definitions through promulgation of the Revised TMDL Regulation; therefore, all of the regulatory definitions still mirror the wording of the statutory definitions. See 40 C.F.R. [section] 130.2 (2000). However, in the preamble to the Revised TMDL Regulation EPA clarified its interpretation of "pollutant":
EPA wishes to clarify the relationship between pollutants and pollution for the purposes of section 303(d). Pollution, as defined by the CWA, and the current regulations is "the man-made or man-induced alterations of the chemical, physical, biological, and radiological integrity of a waterbody." This is a broad term that encompasses many types of changes to a waterbody, including alterations to the character of a waterbody that do not result from the introduction of a specific pollutant or the presence of pollutants in a waterbody at a level that causes an impairment. In other words, all waterbodies which are impaired by human intervention suffer from some form of pollution. In some cases, the pollution is caused by the presence of a pollutant, and a TMDL is required. In other cases it is caused by activities other than the introduction of a pollutant. The following are two examples of pollution cased by pollutants. The discharge of copper from an NPDES regulated facility is the introduction of a pollutant into a waterbody. To the extent that this pollutant alters chemical or biological integrity of the waterbody, it is also an example of pollution.... Similarly, landscape actions that result in the introduction of sediment into a waterbody may constitute pollution when that sediment (which is a pollutant) results in an alteration of the chemical, physical, or biological integrity of the waterbody. TMDLs would have to be established for each of these waterbodies.
Revised TMDL Regulation, supra note 15, at 43,592.
(160) Pronsolino, 91 F. Supp. 2d at 1352 (stating that the legislative history with respect to the definition of discharge is "unilluminating").
(161) Gwaltney of Smithfield, Ltd., v. Chesapeake Bay Found., 484 U.S. 49 (1987).
(162) Pavelic & Leflore v. Marvel Entm't Group, 493 U.S. 120, 123-24 (1989).
(163) 33 U.S.C. [section] 1252(a) (1994). Section 102 of the CWA mandates the establishment of "[c]omprehensive programs for water pollution control":
The Administrator shall, after careful investigation, and in cooperation with the other Federal Agencies, State water pollution control agencies, interstate agencies, and the municipalities and industries involved, prepare or develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters and ground waters and improving the sanitary condition of surface and underground waters .... For the purpose of this section, the Administrator is authorized to make joint investigations with any such agencies of the condition of any waters in any State or States, and of the discharges of any sewage, industrial wastes, or substance which may adversely affect such waters.
(164) Id. [section] 1254(n)(1) (stating that "[t]he Administrator shall, in cooperation with the ... State ... conduct and promote, and encourage contributions to, continuing comprehensive studies of the effects of pollution"); id. [section] 1254(p) (stating that "[i]n [encouraging state cooperation for interstate waters] the Administrator shall, in cooperation with ... the States, carry out a comprehensive study and research program to determine new and improved methods [to prevent, reduce, and eliminate nonpoint agricultural pollution]").
(165) Pronsolino, 91 F. Supp. 2d at 1342.
(166) See 33 U.S.C. [section] 1311 (1994) (the effluent limitation provision applicable to point sources); id. [section] 1329 (mandating management programs for nonpoint source pollution).
(167) Id. [section] 1314.
(168) Id. [section] 1314(a)(2)(D).
(169) Id. [section] 1314(b).
(170) Id. [section] 1314(f). The Pronsolino court actually cited to section 304(e). However, looking at the text of the CWA it is clear that the court intended to cite to section 304(f).
(171) Pronsolino v. Marcus, 91 F. Supp. 2d 1337, 1345 (N.D. Cal. 2000).
(172) Id. (emphasis added).
(173) See 33 U.S.C. [section] 1314(a)(2) (1994), which states:
The Administrator, after consultation with appropriate Federal and State agencies and other interested persons, shall develop and publish, within one year after October 18, 1972 (and from time to time thereafter revise) information (A) on the factors necessary to restore and maintain the chemical, physical, and biological integrity of all navigable waters, ground waters, waters of the contiguous zone, and the oceans; (B) on the factors necessary for the protection and propagation of shellfish, fish, and wildlife for classes and categories of receiving waters and to allow recreational activities in and on the water; and (C) on the measurement and classification of water quality; and (D) for the purpose of section  of this title, on and the identification of pollutants suitable for maximum daily load measurement correlated with the achievement of water quality objectives.
(174) See generally id. [section] 1314(b), (f).
(175) Pronsolino, 91 F. Supp. 2d at 1343.
(176) See generally 33 U.S.C. [section] 1313 (1994).
(177) Id. [section] 1288.
(178) THOMPSON, supra note 2, at 22. Congressional acquiescence is the concept that by remaining silent on an issue, Congress has implicitly authorized it. DAVID E. ENGAHL, CONSTITUTIONAL POWER: FEDERAL AND STATE IN A NUTSHELL 395 (5th ed. 1974).
(179) THOMPSON, supra note 2, at 22.
(180) Id. at 24.
(181) EPA has yet to finish guidance on implementation of TMDLs in areas polluted predominantly or solely by nonpoint sources. See EPA, Office of Water, New Policies for Establishing and Implementing Total Maximum Daily Loads (TMDLs), at http: //www.epa.gov/owow/tmdl/policy.html (last updated June 15, 2001) (indicating that "EPA's guidance on implementation of TMDLs is incomplete because it does not yet address implementation of TMDLs for waters impaired only by nonpoint sources or by a blend of point and nonpoint sources in which nonpoint sources dominate").
(182) For text of the TMDL definition see infra Part IV.
(183) A TMDL is "[t]he sum of the individual WLAs for point sources and LAs for nonpoint sources and natural background." 40 C.F.R. [section] 130.2(i) (2000).
(184) Federal Water Pollution Control Act, 33 U.S.C. [section] 1313(d)(3) (1994).
(186) Id. [section] 1313(d)(1)(A).
(187) See discussion supra Part V.A. 1.a.
(188) Section 303(d)(3) states that "each State shall identify all waters within its boundaries which it has not identified under paragraph (1)(A) and (1)(B)." 33 U.S.C. [section] 1313(d)(3) (1994) (emphasis added); see Mallard v. United States Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 302 (1989) (stating that "shall" is usually mandatory).
(189) 33 U.S.C. [section] 1313(d)(3) (1994).
(190) "Each State shall have a continuing planning process approved under paragraph (2) of this subsection." Id. [section] 1313(e)(1). Paragraph 2 referred to in section 303(e)(1) pertains only to TMDLs identified under section 303(d)(1). Id. [section] 1313(d)(2).
(191) See generally id. [section] 1319. This section provides for enforcement of NPDES permits, thus TMDLs which are incorporated into NPDES permits can be enforced. However, the section does not allow for enforcement under section 303.
(192) Revised TMDL Regulation, supra note 15, at 43,668.
(193) Id. at 43,667.
(194) Houck, supra note 29, at 10,331.
(195) See discussion supra Part II.B.
(196) THOMPSON, supra note 2, at 25 (stating that "[w]hile federal efforts can be of great use to state and local governments when effectively implemented, no federal program can or should purport to tackle the whole poison runoff problem--or even any single aspect of the problem--from start to finish").
(197) See discussion supra Parts II.A-B.
(198) Federal Water Pollution Control Act, 33 U.S.C. [section] 1313(d)(3), (e) (1994).
(199) The 1987 Amendments to the CWA added nonpoint source pollution control as an official goal of the CWA. Id. [section] 1251(a)(7).
(200) See Federal Crop Insurance Act, 7 U.S.C. [section] 1508 (1994 & Supp. V 1999) (containing general information about the federal crop insurance policy).
(201) For further information on possible state nonpoint source pollution control mechanisms see THOMPSON, supra note 2.
(202) See discussion supra Part II.B.
(203) See discussion supra Part II.B.
MANDI M. HALE, Notes and Comments Editor, Environmental Law, 2001-2002; J.D. and Certificate in Environmental and Natural Resources Law expected 2002, Northwestern School of Law of Lewis and Clark College; B.S. 1998, University of California, Davis (Genetics). The author would like to thank Micah Hale for his support and guidance and Professor Craig Johnston for acting as advisor to this Comment.
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|Title Annotation:||total maximum daily loads|
|Author:||Hale, Mandi M.|
|Date:||Sep 22, 2001|
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