Pronsolino v. Nastri

Citation291 F.3d 1123
Decision Date31 May 2002
Docket NumberNo. 00-16026.,No. 00-16027.,00-16026.,00-16027.
PartiesGuido A. PRONSOLINO; 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; The American Farm Bureau Federation, Plaintiffs-Appellants, v. Wayne NASTRI, Regional Administrator, United States Environmental Protection Agency Region 9; Christie Whitman, Administrator, United States Environmental Protection Agency; United States Environmental Protection Agency, Defendants-Appellees, Pacific Coast Federation of Fishermen's Associations, a California Non-Profit corporation; San Francisco Baykeeper, a California Public Benefit corporation; Association of Metropolitan Sewerage Agencies, Defendants-Intervenors-Appellees. Guido A. Pronsolino, Plaintiff, v. Wayne Nastri,<SMALL><SUP>*</SUP></SMALL> Regional Administrator, United States Environmental Protection Agency Region 9; Christie Whitman,<SMALL><SUP>**</SUP></SMALL> Administrator, United States Environmental Protection Agency; United States Environmental Protection Agency, Defendants-Appellees, Pacific Coast Federation of Fishermen's Associations, a California Non Profit corporation; San Francisco Baykeeper, a California Public Benefit corporation, Defendants-Intervenors-Appellees, v. American Forest & Paper Association; California Forestry Association, Plaintiff-Intervenors-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Russell R. Eggert, Mayer, Row & Maw, Chicago, IL, for the plaintiffs-appellants.

Sean H. Donahue, United States Department of Justice, Environment and Natural Resources Division, Washington, DC, for the defendants-appellees.

J. Michael Klise, Crowell & Moring LLP, Washington, DC, for plaintiffs-intervenors-appellants.

Joseph J. Brecher, Oakland, CA, for defendants-intervenors-appellees.

Lawrence S. Bazel, Washburn, Briscoe & McCarthy, San Francisco, CA, Anne M. Hayes, Pacific Legal Foundation, Sacramento, CA, Marc N. Melnick, Office of the Attorney General, State of California, Oakland, CA, and Stephen Yagman, Yagman, Yagman & Reichman, Venice Beach, CA, for amici curiae.

Appeal from the United States District Court for the Northern District of California; William H. Alsup, District Judge, Presiding. D.C. No. CV-99-01828-WHA.

Before: HALL, WARDLAW and BERZON, Circuit Judges.

OPINION

BERZON, Circuit Judge.

The United States Environmental Protection Agency ("EPA") required California to identify the Garcia River as a water body with insufficient pollution controls and, as required for waters so identified, to set so-called "total maximum daily loads" ("TMDLs") — the significance of which we explain later — for pollution entering the river. Appellants challenge the EPA's authority under the Clean Water Act ("CWA" or the "Act") § 303(d), 33 U.S.C. § 1313(d), to apply the pertinent identification and TMDL requirements to the Garcia River. The district court rejected this challenge, and we do as well.

CWA § 303(d) requires the states to identify and compile a list of waters for which certain "effluent limitations" "are not stringent enough" to implement the applicable water quality standards for such waters. § 303(d)(1)(A). Effluent limitations pertain only to point sources of pollution; point sources of pollution are those from a discrete conveyance, such as a pipe or tunnel. Nonpoint sources of pollution are non-discrete sources; sediment run-off from timber harvesting, for example, derives from a nonpoint source. The Garcia River is polluted only by nonpoint sources. Therefore, neither the effluent limitations referenced in § 303(d) nor any other effluent limitations apply to the pollutants entering the Garcia River.

The precise statutory question before us is whether the phrase "are not stringent enough" triggers the identification requirement both for waters as to which effluent limitations apply but do not suffice to attain water quality standards and for waters as to which effluent limitations do not apply at all to the pollution sources impairing the water. We answer this question in the affirmative, a conclusion which triggers the application of the statutory TMDL requirement to waters such as the Garcia River.

I. STATUTORY BACKGROUND

Resolution of the statutory interpretation question before us, discrete though it is, "requires a familiarity with the history, the structure, and, alas, the jargon of the federal water pollution laws." Natural Res. Def. Council v. EPA, 915 F.2d 1314, 1316 (9th Cir.1990). We therefore begin with a brief overview of the Act.

A. The Major Goals and Concepts of the CWA

Congress enacted the CWA in 1972, amending earlier federal water pollution laws that had proven ineffective. EPA v. California, 426 U.S. 200, 202, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). Prior to 1972, federal water pollution laws relied on "water quality standards specifying the acceptable levels of pollution in a State's interstate navigable waters as the primary mechanism ... for the control of water pollution." Id. The pre-1972 laws did not, however, provide concrete direction concerning how those standards were to be met in the foreseeable future.

In enacting sweeping revisions to the nation's water pollution laws in 1972, Congress began from the premise that the focus "on the tolerable effects rather than the preventable causes of pollution" constituted a major shortcoming in the pre 1972 laws. Oregon Natural Desert Assoc. v. Dombeck, 172 F.3d 1092, 1096 (9th Cir. 1998) (quoting EPA v. State Water Resources Control Board, 426 U.S. 200, 202-03, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976)). The 1972 Act therefore sought to target primarily "the preventable causes of pollution," by emphasizing the use of technological controls. Id.; Oregon Natural Res. Council v. United States Forest Serv., 834 F.2d 842, 849 (9th Cir.1987).

At the same time, Congress decidedly did not in 1972 give up on the broader goal of attaining acceptable water quality. CWA § 101(a), 33 U.S.C. § 1251(a). Rather, the new statute recognized that even with the application of the mandated technological controls on point source discharges, water bodies still might not meet stateset water quality standards, Natural Res. Def. Council, 915 F.2d at 1316-17,. The 1972 statute therefore put in place mechanisms other than direct federal regulation of point sources, designed to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." § 101(a).

In so doing, the CWA uses distinctly different methods to control pollution released from point sources and that traceable to nonpoint sources. Oregon Natural Res. Council, 834 F.2d at 849. The Act directly mandates technological controls to limit the pollution point sources may discharge into a body of water. Dombeck, 172 F.3d at 1096. On the other hand, the Act "provides no direct mechanism to control nonpoint source pollution but rather uses the `threat and promise' of federal grants to the states to accomplish this task," id. at 1097 (citations omitted), thereby "recogniz[ing], preserv[ing], and protect[ing] the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the development and use ... of land and water resources...." § 101(b).

B. The Structure of CWA § 303, 33 U.S.C. § 1313
1. Water Quality Standards

Section 303 is central to the Act's carrot-and-stick approach to attaining acceptable water quality without direct federal regulation of nonpoint sources of pollution. Entitled "Water Quality Standards and Implementation Plans," the provision begins by spelling out the statutory requirements for water quality standards: "Water quality standards" specify a water body's "designated uses" and "water quality criteria," taking into account the water's "use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes...." § 303(c)(2). The states are required to set water quality standards for all waters within their boundaries regardless of the sources of the pollution entering the waters. If a state does not set water quality standards, or if the EPA determines that the state's standards do not meet the requirements of the Act, the EPA promulgates standards for the state. §§ 303(b), (c)(3)-(4).

2. Section 303(d): "Identification of Areas with Insufficient Controls; Maximum Daily Load"1

Section 303(d)(1)(A) requires each state to identify as "areas with insufficient controls" "those waters within its boundaries for which the effluent limitations required by section [301(b)(1)(A)] and section [301(b)(1)(B)] of this title are not stringent enough to implement any water quality standard applicable to such waters." Id. The CWA defines "effluent limitations" as restrictions on pollutants "discharged from point sources." CWA § 502(11), 33 U.S.C. § 1362(11). Section 301(b)(1)(A) mandates application of the "best practicable control technology" effluent limitations for most point source discharges, while § 301(b)(1)(B) mandates application of effluent limitations adopted specifically for secondary treatment at publicly owned treatment works. § 301(b)(1), 33 U.S.C. § 1311(b)(1).

For waters identified pursuant to § 303(d)(1)(A)(the "§ 303(d)(1) list"), the states must establish the "total maximum daily load" ("TMDL") for pollutants identified by the EPA as suitable for TMDL calculation.2 § 303(d)(1)(C). "A TMDL defines the specified maximum amount of a pollutant which can be discharged or `loaded' into the waters at issue from all combined sources." Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517, 1520 (9th Cir.1995).3 The TMDL "shall be established at a level necessary to implement the applicable water quality standards...." § 303(d)(1)(C).

Section 303(d)(2), in turn, requires each state to submit its § 303(d)(1) list and TMDLs to the EPA for its approval or disapproval. If the EPA approves the list...

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