For the first time, a federal judge has upheld the EPA’s authority to set pollution limits for rivers and other waterbodies that are polluted by runoff sources of pollution such as agriculture or forestry.
In ruling on a California case, U.S. District Judge William Alsup said the EPA’s limits for such nonpoint sources of pollution were not binding, but that states would risk losing federal grant money if they did not enact regulations and other land management actions that control runoff and meet water quality goals.
The ruling is not binding on other courts, but was hailed by the Clinton administration as a national precedent in its efforts to force the development of cleanup plans known as Total Maximum Daily Loads for waterbodies that remain polluted nearly three decades after the Clean Water Act became law.
“This important decision allows us to build on our successes of completing the task of cleaning our nation’s waters,” said EPA Administrator Carol Browner.
The challenge had been brought by the American Farm Bureau Federation, private landowners and forestry interests who contended the EPA had no authority to require a TMDL for California’s Garcia River, which is polluted only by runoff — mainly sediment from timber harvesting which was blamed for damaging the river’s coho salmon and steelhead populations.
For years, implementation of the Clean Water Act was focused on forcing increasingly stringent controls on industry and other point source discharges.
But the act also required states and the EPA to identify areas of lakes, rivers and other water bodies that failed to meet water quality standards after point source controls were implemented, and required the development of TMDLs for those areas.
The TMDL is a calculation of the total amount of pollution a waterbody can receive and still meet its standards. That amount is then allocated to various sources of pollution.
TMDLs were rarely written until a spate of suits against the EPA over the past decade forced their development. In the Bay states, court cases have led to timetables for the development of hundreds of TMDLs in Pennsylvania and Virginia; a case is pending for Maryland. In addition, the Bay itself has been listed as “impaired” and will need a TMDL unless it is cleaned up by 2010.
As a result of such a suit, the EPA ordered the development of a number of TMDLs in California, including one for the Garcia River. When the state failed to meet a court-ordered deadline for the TMDL, the EPA released one of its own, as required by law.
The EPA’s, plan, similar to a draft state TMDL, emphasized the protection of fish habitat. It called for a 60 percent reduction of sediment in the river, and allocated portions of the total sediment load to various sources of nonpoint pollution in the river.
The state concluded that if it did not implement the EPA’s TMDL, it could lose federal funding.
Landowners, in one of the first legal challenges by the regulated community to the recent spate of TMDL writing, challenged the EPA’s authority to require and write the plan. Guido and Betty Pronsolino, who own forest property along the Garcia, said restrictions imposed by the state as a result of the TMDL would cost them $750,000 in lost harvests and sediment control implementation.
They argued that because the Clean Water Act only gives the EPA regulatory power over point sources, it could not require TMDLs and pollution allocations for nonpoint sources.
The judge disagreed, concluding that “the Clean Water Act called for a comprehensive set of water-quality standards for every navigable river and water in America … No substandard river or water was immune by reason of its sources of pollution.”
Alsup wrote that the act specifically anticipated that nonpoint source pollution — specifically mentioning agriculture and forestry — be addressed through state regulations, including land use requirements.
The structure of the act, the judge wrote, clearly intended that TMDLs be used to address pollution issues not resolved by traditional approaches, such as restrictions on point source discharges.
The judge agreed that the EPA did not have authority to regulate runoff sources of pollution, but said the agency was not attempting to do so. In fact, he said the state was “free to moderate or modify the TMDL reductions, or even refuse to implement them” but noted that “such attempts might provoke the EPA to withhold federal environmental grant money.”
As a result, the judge said, the EPA’s action was “not direct federal regulation. The regulation is by California.”
In a statement, Farm Bureau said the decision was “less than what the organization had sought,” but hailed the decision as a victory.
“The results of this case lend considerable support to our position that the EPA does not have direct authority to regulate nonpoint sources under the Clean Water Act,” said Farm Bureau President Bob Stallman. “This ruling will keep regulatory authority over nonpoint sources at the state level, where it belongs and where Congress intended it to be.”
The ruling can be downloaded from the EPA's Web site at www.epa.gov/owow/tmdl/lawsuit.html