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WATER QUALlTY/LlTIGA TION TMDlslPronsolino v. Marcus Q~8~1~~D AP~ 11 ~~~~ 300692 Coler:;>'. C',:'lservaholl '''>'f". WESTERN STATES WATER Special Report #1351 April 7. 2000 On March 30, the U.S. District Court for the Northern District of California issued its ruling on cross- motions for summary judgment in the case of Pronsolino, et a/., v. Marcus, et a/. ry./SW #1311 and #1330), finding in favor of the defendants. Judge William Alsup ruled that the U.S. Environmental Protection Agency (EPA) and states have the authority to identify which waterbodies are impaired by nonpoint sources of pollution, and to identify the maximum amount of pollutants that may enter these waterways. This is the first decision to squarely address the issue of whether non point sources of pollution fall within the scope of the Clean Water Act's (CWA) Total Daily Maximum Load (TMDL) program, as found in Section 303. Judge Alsup's reasoning focused on the comprehensive scope of the TMDL program. He found that Congress intended to include non point source pollution in the CWA's water quality standards program, noting that such pollution is the dominant water quality problem in the United States today. EPA Administrator Carol Browner lauded the ruling, saying, "This important decision allows us to build on our successes of completing the task of cleaning our nation's waters." Lois Schiffer, Assistant Attorney General, U.S. Department of Justice, Environment Division, also hailed the decision, stating, "The court has affirmed a strong tool for restoring America's rivers and cleaning up pollution, regardless of its source: The plaintiffs had argued that the listing of impaired waterbodies and the TMDL requirements of CWA Section 303(d) "were exclusively reserved for point sources" of pollution. They contended that waters impaired bya cOrT)bination of point and non point sources should be listed under both 303(d) and 319(a)(1)(A) "and the pointand non point sources be addressed pursuant to those respective listings." Finally, the plaintiffs argued that waterbodies Impaired solely by non point sources of pollution should not be listed and no TMDL should be required. Judge Alsup found that the "expressly contemplated use of TMDLs was their 'incorporation' into the 'continuing planning process' by the states under Section 303(e)," and further found that "TMDLs had to be set at levels that would 'implement' the applicable water-quality standards. It would have been impossible to do so without taking any nonpoint sources into account as well as any point sources." The judge reasoned that since the starting point from which a 303(d) listing decision is to be made is the substandard nature of a waterbody, and that those waters which are "redeemable under the imposition of...technology on point sources" are "expressly excluded from the list," that all waters, "regardless of source of pollution-were included in the universe for which listing and TMDLs were required-save and excluding only those for which effluent limitations would be sufficient to achieve compliance with standards." In discussing why Congress never mentioned nonpoint sources in Section 303(d), Judge Alsup found it was unnecessary, reasoning that the 1972 Act had shifted to the imposition of technology-based mandates and that in order to "assess the impact of the new strategy...Congress called for a list of the unfinished business expected to remain even after application of the new cleanup strategy. In calling for such a list, it was unnecessary to reference non point pollution." Arguing that excluding non point sources from the TMDl scheme "would have crippled the continuing planning process," he continues, "to have limited TMDls only to point-source loadings, ...would have left state agencies guessing at how to allocate the burden of cleanup between point and non point contributions of the same pollutant." The judge then reviewed. Ninth Circuit case law, the legislative history of the CWA, and the definition of "pollutant" for precedent supporting the conclusions just discussed. He found that decisions in a number of cases lent authority to his decision, although none had previously addressed the issue on point. He also found that nothing in the legislative history "expressly limited the role of water-quality standards or load calculations" to the single purpose of regulating "only point sources through Section 303(d)" or limiting "load calculations only as a predicate step in adjusting effluent limits." Judge Alsup characterized the definition of "pollutant" as "the more troubling issue," as the statutory definition did not include the word "sediment," which was at issue in this case, and even more troubling, the phrase "discharged into water" is "uniquely associated with point sources under Section 502(12)." However, he found that case law had found, and the legislative history had referred to, sediment as a "pollutant." He further concluded - finding that other language of the