Pronsolino v. Marcus

Decision Date30 March 2000
Docket NumberNo. C 99-01828 WHA.,C 99-01828 WHA.
Citation91 F.Supp.2d 1337
PartiesGuido A. PRONSOLINO and Betty J. Pronsolino as Trustees for the Guido A. Pronsolino and Betty J. Pronsolino Trust, the Mendocino County Farm Bureau, the California Farm Bureau Federation, and the American Farm Bureau Federation, Plaintiffs, v. Felicia MARCUS, Regional Administrator, United States Environmental Protection Agency Region 9, Carol M. Browner, Administrator, United States Environmental Protection Agency, and the United States Environmental Protection Agency, Defendants.
CourtU.S. District Court — Northern District of California

Fredrick S. Levin, of Mayer, Brown & Platt, Los Angeles, CA, for plaintiffs.

S. Randall Humm, United States Department of Justice, Washington, DC, for EPA.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT REGARDING AUTHORITY OF ENVIRONMENTAL PROTECTION AGENCY UNDER THE CLEAN WATER ACT TO LIST SUBSTANDARD RIVERS AND WATERS AND TO ISSUE TMDLS FOR THEM

ALSUP, District Judge.

INTRODUCTION

In this case of first impression, the issue is whether Section 303(d) of the Federal Water Pollution Control Act Amendments of 1972, later renamed the Clean Water Act, authorized the Environmental Protection Agency to determine "total maximum daily loads" for rivers and waters polluted only by logging and agricultural runoff and/or other nonpoint sources rather than by any municipal sewer and/or industrial point sources. 33 U.S.C. § 1313(d). The issue gathers importance from the fact that "nonpoint source pollution has become the dominant water quality problem in the United States, dwarfing all other sources of volume ...."1 According to EPA, 54% of California's substandard rivers and waters are impaired by nonpoint sources only and another 45% are impaired by a combination of both point and nonpoint sources (EPA Tab 23).

STATEMENT

Plaintiffs Guido and Betty Pronsolino own forested land along the Garcia River in the North Coast of California. When they obtained a permit to harvest timber, the California Department of Forestry ("CDF") imposed restrictions designed to reduce soil erosion into the Garcia River. The restrictions include measures such as leaving certain large conifers standing.2 Plaintiffs contend that the conditions are onerous and costly. They argue that CDF imposed these restrictions in order to implement a criterion known as a "total maximum daily load" ("TMDL") set by EPA for the Garcia River. Seeking to strike at the root of their problem, the Pronsolinos brought this action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., to challenge EPA's authority to impose TMDLs on rivers polluted only by timber-harvesting and agricultural runoff and/or other nonpoint sources, as is concededly the case for the Garcia River. Joining them as plaintiffs are the Mendocino County Farm Bureau, the California Farm Bureau and the American Farm Bureau Federation, all of whom dispute EPA's authority to set TMDLs for such rivers.

The Garcia River runs through southwestern Mendocino County into the Pacific Ocean. The river was once flourished as a spawning ground for cold-water fish such as coho salmon and steelhead trout. Excess sediment from logging operations over many years in the region hurt, perhaps severely, the spawning and reproduction of these fish in the Garcia River (and other North Coast rivers).3 In 1966, one journal reported that one-half of "potential coho salmon's habitat in the Garcia River ... was reported as moderately to severely damaged by ongoing logging practices" (quoted in Brown, et al., Historical Decline & Current Status of Coho Salmon in California, 14 No. Am. J. of Fisheries Management 237, 251 (May 1994)). By 1998, a staff report on the Garcia River by the California Regional Water Control Board stated that "[t]he Garcia River and its tributaries have experienced a reduction in the quality and amount of instream habitat that is capable of fully supporting the beneficial use of cold-water fishery, due to increased sedimentation" (Exh. C to Pacific Coast Federation Memorandum at 4). Prior to 1992, California established water-quality standards for the river that include protection of these fish and their habitat (EPA Tabs 8-9). Recent years have seen improvement in the Garcia River, but the restrictions imposed by CDF are intended to further restore the fish habitat.

Although Section 303(d) of the Clean Water Act required the states and EPA to identify certain substandard waters and to set TMDLs for them a generation ago, the Garcia River and other North Coast rivers escaped their gaze until recently. In 1992, EPA required California to add the Garcia River and sixteen other North Coast waters to its list of substandard waters. Thereafter, California retained the same waters on its list in 1994, 1996 and 1998. Meanwhile, a group of fishermen and environmental groups sued EPA, alleging that the then-recent addition of the Garcia River and sixteen other water segments to California's list of substandard waters meant that California and/or the EPA had to prepare TMDLs for the rivers. That case ended in a consent decree in March 1997 requiring TMDLs for all the rivers. Consent Decree, Pacific Coast Federation of Fishermen's Association v. Marcus, et al., No. 95-4474 MHP (Mar. 6, 1997).

Pursuant to the consent decree, EPA set March 16, 1998, as the deadline for the establishment of a TMDL for the Garcia River. California's North Coast Regional Water Quality Control Board initiated public comment on a draft TMDL but missed the deadline. EPA immediately released its own TMDL for the Garcia River (which was only slightly different from the state draft (Pl. Tab 25)). The EPA TMDL was sensitive to the fishhabitat problem (EPA Tab 1 at 8, 9 and 12):

Brown et al. (1994) reports that coho salmon previously occurred in as many as 582 California streams from the Smith River near the Oregon border to the San Lorenzo River on the central coast. There are now probably less than 5,000 native coho salmon spawning in California each year, many in populations of less than 100 individuals. Coho populations today are probably less than 6% of what they were in the 1940s and there has been at least 70% decline since the 1960s. Brown et al. (1994) conclude that the reasons for the decline of coho salmon in California include: stream alterations brought about by poor land-use practices and by the effects of periodic floods and drought, the breakdown of genetic integrity of native stocks, introduced diseases, over harvest, and climatic change.

* * * * * *

The Garcia River watershed has experienced a reduction in the quality and quantity of instream habitat which is capable of supporting the cold water fishery, particularly that of coho salmon and steelhead. Controllable factors contributing to this habitat loss include the acceleration of sediment production and delivery due to land management activities and the loss of instream channel structure necessary to maintain the system's capacity to efficiently store, sort and transport delivered sediment.

Overall, the TMDL for the Garcia River called for a sixty percent reduction of sediment (Joint Stmt. ¶ 15).4 The TMDL set the total maximum amount of sediment loading at an average of 552 tons per square mile per year and allocated portions of this total load to various categories of nonpoint sources in the Garcia River watershed (Joint Stmt. ¶ 12). The various categories of nonpoint sources were: (a) mass wasting associated with roads; (b) mass wasting associated with timber-harvesting activities; (c) erosion related to road surfaces; and (d) erosion related to road and skid trail crossings and gullies from diversions on roads and skid trails (Joint Stmt. at ¶ 16). In order to achieve these load allocations, the TMDL called for percentage reductions in sediment loading from these nonpoint sources (Joint Stmt. at ¶¶ 14, 15). There were only "slight differences" between the regional board's pending TMDL and the EPA's TMDL as issued (Pl. Tab 25).

The regional board concluded that if it did not implement EPA's TMDL, then EPA could withdraw federal funding to the state agency. CDF, the state agency charged with approving timber-harvesting plans, such as those required of plaintiffs under state law, also believed that failure to implement the TMDL would imperil federal funding. In this connection, the Clean Water Act calls upon the states to incorporate whatever TMDLs are authorized for listed rivers and waters—the question here being whether a TMDL was authorized at all.

Plaintiffs' forester estimated that TMDL compliance would cost the Pronsolinos upwards of $750,000. Larry Mailliard and Bill Barr, members of plaintiff Mendocino County Farm Bureau, are similarly situated. They estimated their compliance would cost $10,602,000 and $962,000 respectively. This suit was filed on April 12, 1999, seeking a determination whether a TMDL for the Garcia River was authorized by the Clean Water Act.

ANALYSIS

The general issue presented is the extent to which logging and agricultural run-off and other nonpoint sources of pollution are relevant in the listing-and-TMDL process of Section 303(d) of the Clean Water Act of 1972. 33 U.S.C. 1313(d). Put more narrowly, the issue is whether listing and TMDLs are required for rivers and waters polluted only by logging and agricultural runoff and/or other nonpoint sources, such as the Garcia River.

The landscape is illuminated by the events leading to the enactment. Under the Federal Water Pollution Control Act of 1948, 62 Stat. 1155, the primary responsibility for control rested with the states. In 1965, the Water Quality Act required each state to develop comprehensive water-quality standards for interstate waters, taking into account, among other factors, the "propagation of fish and wildlife." 79 Stat. 903. Such standards did not identify and directly regulate pollutants. Rather, they stated a desired condition of the water. Reasonable discharges were...

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