Petition for Writ of Certiorari — Pronsolino v. Nastri

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O21186FEB6 2003

No. ee oF ENE CLERK

Jn the Supreme Court of the Gnited States

GUIDO A. PRONSOLINO AND BETTY J. PRONSOLINO, AS TRUSTEES

FOR GUIDO A. PRONSOLINO AND BETTY J. PRONSOLINO TRUST;

AMERICAN FARM BUREAU FEDERATION; CALIFORNIA FARM

BUREAU FEDERATION; MENDOCINO COUNTY FARM BUREAU,

Petitioners,

WAYNE NASTRI, REGIONAL ADMINISTRATOR, U.S.

ENVIRONMENTAL PROTECTION AGENCY REGION 9; CHRISTIE

WHITMAN, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION

AGENCY; U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

TIMOTHY S. BISHOP

JEFFREY W. SARLES

SUSAN E. BRICE Counsel of Record

Mayer, Brown, Rowe & Maw RUSSELL R. EGGERT

190 South LaSalle Street CRISTINA CARMODY TILLEY

Chicago, IL 60603 Mayer, Brown, Rowe & Maw

(312) 782-0600 190 South LaSalle Street

Chicago, IL 60603

(312) 782-0600

Counsel for Petitioners

[Additional counsel listed on inside cover]

JOHN J. RADEMACHER NANCY N. MCDONOUGH

American Farm Bureau California Farm Bureau

Federation Federation

225 Touhy Avenue 2300 River Plaza Drive

Park Ridge, IL 60068 Sacramento, CA 95833

(847) 685-8600 (916) 561-5500

QUESTIONS PRESENTED

Section 303(d)(1) of the Clean Water Act, 33 U.S.C.

§ 1313(d)(1), requires each State to identify those waters

within its boundaries for which specified “effluent limitations

* * * are not stringent enough to implement any water quality

standard applicable to such waters,” and to establish total

maximum daily loads (“TMDLs”) of pollutants for those

waters. Although effluent limitations are by definition

applicable only to waters impaired by point sources, the

Environmental Protection Agency (“EPA”) requires each

State to identify and establish TMDLs for ail its waters not

meeting water quality standards, including waters not

impaired by point sources and thus not subject to effluent

limitations at all. On that basis, EPA imposed TMDLs on

numerous California waters impaired only by nonpoint

sources. The Ninth Circuit, before analyzing the meaning of

the statutory provision, held that EPA’s construction was

entitled to Chevron deference. The questions presented are:

1. Whether § 303(d)(1) requires a State to identify all

sub-standard waters within its boundaries, including those

impaired only by nonpoint sources, and establish TMDLs for

those waters.

2. Whether the court below violated this Court’s

precedents by deferring to EPA’s construction of § 303(d)(1)

before analyzing the meaning of that provision.

3. Whether permitting EPA to establish TMDLs for

waters impaired only by nonpoint sources and thereby

impose corresponding land use controls constitutes an

impermissible federal intrusion into a core State function

without a clear statement from Congress.

RULE 29.6 STATEMENT

None of the petitioners has a parent corporation or a non-

wholly owned subsidiary, and no publicly held corporation

owns 10% or more of any petitioner’s stock.

TABLE OF CONTENTS

Page

Pee PAP OEe BRING FLIED cessicecesecssenssvsosscoesevevesoonnssonencsoscees i

RULE 29.6 STATEMENT.......... Sika aleaadibieiatanicianiierisaieaaansd li

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aa Tic cissidsdiiacnnrbicheiiginaiuhdaedabesutatamunions l

iia ied ies ciptiisighaaaeanesnbessenasnestisepoemettes l

STATUTORY PROVISIONS INVOLVED...............0...ee l

il aa alsin cesanlinaetiincte sonsteallahih l

REASONS FOR GRANTING THE PETITION ................... 6

I. The Decision Below Conflicts With This Court’s

Precedents Barring Deference To An Agency’s

Statutory Construction Where The Textual

ants caaaedcecdacddethiadisiniebenbcbnsensebevauvsinns 7

A. The Ninth Circuit impermissibly determined

that it must defer to EPA before analyzing the

iL ssdallacindiniincannannantnsioceseenie 7

B. By its plain terms, § 303(d)(1) applies only to

sub-standard waters polluted by point sources........... 8

C. The plain text meaning of § 303(d)(1) is

confirmed by the statutory structure,

legislative history, and statutory purpose. ................ 11

D. EPA’s construction of § 303(d)(1) is

CRETE SEES EN eee ee 16

II. The Ninth Circuit Construed An Important

Federal Regulatory Statute In A Way That

Conflicts With Relevant Decisions Of This Court......... 19

es...

TABLE OF CONTENTS - continued

Page

A. The 1972 Congress was focused on reducing

SE CE a nkdecinenitentetcieonnticinninsntiiticsctncbinis 19

B. Congress allocated responsibility over |

nonpoint source pollution to the States. ................... 21

III. Whether Congress Authorized EPA To Regulate

Waters Impaired Only By Nonpoint Sources Is

An Important Question Of Federal Law That

Should Be Promptly Settled By This Court. .................. 25

aOR REET sisisiaciynvitscinintisieiesaiiiunnaeniieasensiniiaalsimaninds 29

TABLE OF AUTHORITIES

Page(s)

Cases

American Iron & Steel Inst. v. EPA, 115 F.3d

FE ice Ces FOE iivinciicsanichsiinsaieinioaintiaitteieanialanadiiaaaeian 16

Appalachian Power Co. v. Train, 545 F.2d

Sek GREG BF cciicnictsieaieeabeimonns 19

Arkansas v. Oklahoma EPA, 503 U.S. 91

CPD scsintevhitinieatiiintintebeneidinnenniieiaienninalaasiiaa aaa 26

AT&T v. Iowa Utils. Bd., 525 U.S. 366 (1999)... eee 26

BankAmerica Corp. v. United States, 462 U.S.

Ee ERIE iiccrcianccshsoveateesnypinthtaavgigidinasimhdlaghadibnesaminuaaiata 16

Barnhart v. Sigmon Coal Co., 534 U.S. 438

SITET sninsicscscssnisstecnaipashandueneesdieedlcebiiatenaageliniainabnelaiaasaaaaa 8

Board of Gov. of Fed. Res. Sys. v. Dimension

Pin. Cara, SIG US, SOUT IO) civccetenecnesoeesvvccsinsvenevnseves 15

Borden Ranch P’ship v. United States Army

Corps of Eng’rs, 123 S. Ct. 599 (2002) ........::ssscecseeseeeees 26

Brown v. Gardner, 513 U.S. 115 (1994).........ceessccsersceereeeees 1]

Chemical Mfrs. Ass'n v. NRDC, 470 U.S. 116

CPTI D sic ssissniccihcsisieinsasileennsencepiasieashduisiaanincaneibedadai cease 26

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837

IIe ais csisinssisssinancevnscenitbnibiniascnaicitnaieiandiaapuiaspiedinanede 5, 6, 7

Christensen v. Harris County, 529 U.S. 576

CED nivicssnicineititindnciieciaeainapuiienaaninnilenamiansaiennteciaiaaelin 18

Circuit City Stores, Inc. v. Adams, 532 U.S.

SEIT ciicsivsnssssinnasinssianuiciadainaiiamiaubentabiadbasadiiosniabbininiinanti 10

City of Columbus v. Ours Garage & Wrecker

Save. Har. TLE B. Ce, Fae Ge) retncscccstinvnntttntntciaenses 23

TABLE OF AUTHORITIES -— continued

Page(s)

City of Milwaukee v. Illinois, 451 U.S. 304

(RINSED xcesuvinnvitinnedevihstutuintensinetiiiimisidaias deeded 26

Commissioner v. Engle, 464 U.S. 206 (1984)... 16

Consumer Prod. Safety Comm'n v. GTE

Sylvania, Inc., 447 U.S. 102 (1980) ..........ceseeessseesseeeeeeeees 8

Duncan v. Walker, 533 U.S. 167 (2001)...........:cccsccceesseeeeeees 9

E. I. du Pont de Nemours & Co. v. Train, 430

Sede NEB CWE 6p viciesshoistiseviniictessancadelanianeiaiatetiaionmbicnaln 26

Environmental Defense Fund, Inc. v. Costle,

OST F627 2 CK, GAR, FI tettsisnrcieninannieeiein 20

EPA v. California, 426 U.S. 200 (1976) .............004 16, 19, 26

FDA v. Brown & Williamson Tobacco Corp.,

SoD US. Te COON casricrvisviciniaiidatsihctinvndamaibaea 7

FERC v. Mississippi, 456 U.S. 742 (1982) ........ccceeeeseeeeeees 22

FPC v. Panhandle E. Pipe Line Co., 337 U.S.

GIS (IGA) cinonnnsimtinnldaaimaae 16

Friends of the Earth, Inc. v. Laidlaw Envt'l

Sorve., tee., SEB UB. WET CHG eccsevsscsncessnsentactncbinsden 26

Great-West Life & Annuity Ins. Co. v.

Krenmaon, 125 S. Cs. Fae Gat sinsstsnisiasssavininneeabbianie 10

Gwaltney, Ltd. v. Chesapeake Bay Found.,

484 U.S. 49 (1987)......crsrsrsssosssesenevscorenensssesnenssesssesnasswenenes 26

Hawes v. Oregon, No. 00-198, slip. op. 8 (Or.

Cir. Ct., Baker County, Dec. 9, 2002)..........ss0cscrsssssseeees 25

Hess v. Port Authe., SU3 U.S. FO (UFPS) ...eccrscsoorerecossevccseseseee 22

International Paper Co. v. Ouelette, 479 U.S.

GGT CIDE) cnssictesciscienncindpviniadiaitiieniniiinnmnieanmadans 26

Vii

TABLE OF AUTHORITIES -— continued

Page(s)

Jones v. United States, 529 U.S. 848 (2000)................:eees 24

Kawaauhau v. Geiger, 523 U.S. 57 (1998).........cccscceeseeeeee 13

Mertens v. Hewitt Assocs., 508 U.S. 248

ETT seieiiessiibeiehesnsseitnncisipalapaisenitiantaieatiinissilcnieniinnndaninbnnbsned 15

Middlesex County Sewerage Auth. v. National

Sea Clammers Ass'n, 453 U.S. 1 (1981) .......:cccceeeeeeeeee 26

National Broiler Marketing Ass'n v. United

aa Fale SN BO ickicsabinsabeninscbicnnnlaccseasitensentocnine 25

National Wildlife Fed'n v. Gorsuch, 693 F.2d

Sens SAY GUUIIIE sh cxccidabuiicdisieseackionssvibdchiiecucnicéahaptbnebinii 17

New York v. United States, 505 U.S. 144

i. RIES A EES a ae arse eT CT ET 24

NRDC v. Costle, 564 F.2d 573 (D.C. Cir.

Sr dchcouascih silences idibeh ail ueabadAdninotsiaeibsioenpainniiivinineins 12

Olmstead v. Zimring, 527 U.S. 581 (1999)... cccceeeeeeeeeees 25

Public Lands Council v. Babbitt, 529 U.S. 728

SII iidasoiscielchesinsldachaiactiaeastiadialictaeategininibsenhonnsiagianneniniatpeeet 26

PUD No. 1 v. Washington Dep't of Ecology,

Pk We Fe I sti thdtnericcincneinetcictecinniinnecn 20, 21, 23, 26

Reliance Elec. Co. v. Emerson Elec. Co., 404

a TTI cco een cdienletibiesiidadstenssanibueiladtinnénennninnneptaceoinieten 25

Solid Waste Agency v. United States Army

Corps of Eng’rs, 531 U.S. 159 (2001) ..........cecseeeeees passim

Stevens v. Dep't of Treasury, 500 U.S. 1

ITITINI ss duiscihtlietesirptesseipaashacesniispeesiapsebies eebivanteneennesteceanaswanelbicuhiiiedien 25

viii

TABLE OF AUTHORITIES - continued

Page(s)

Train v. Campaign Clean Water, Inc., 420

ee i aicheneeinininihtnasinpesinsisitdeshisiinieeitiiaataanieieaaiaiatinns 26

Train v. Colorado Public Interest Group, 426

Seas 0s SAP ITTII Nii ictascishehebamnssnicaubnseussecndieiestieneeakuinedmiteembainiaceseas 26

United States v. Alaska, 521 U.S. 1 (1997).........cccccecceeeeeeeees 9

United States v. Leslie Salt Co., 350 U.S. 383

(,_. __ERRERRERUSES Ses wr aera ee we Oe aC 18

United States v. Mead Corp., 533 U.S. 218

IEIITT DP inncicesescishuicthcnshaaitaarieidaibataniedaintaibdilnabibaiiinainichsdienaibdianees 17

United States v. Riverside Bayview Homes,

GI ee Be CE citeteliannintennnnntinitnnneienaies 26

United States v. Ruzicka, 329 U.S. 287 (1946) ..........ccccccc0e 25

Statutes & Regulations

Clean Water Act, 33 U.S.C. § 1251 et seq.:

Section 101(a), 33 U.S.C. § 125 1(@) .........cccccccssosssvecesssess 15

Section 101(b), 33 U.S.C. § 1251(b)..... eee eeceeeeeeees 6, 23

Section 206, 33 U.S.C. § 12BB ........cccccscsccsrsscesscosesees passim

Section 208(b), 33 U.S.C. § 1288(b).......... cee eeeeeeeeeee 3,12

TE Fe BO hi tacs Oh BPE ncceecicinntceeitescisintincinensbontoien 3

Section 301(b), 33 U.S.C. § 131 10D)... eee 8,9, 14

DOCS FOS DP Wiese © EB 6 BUND cevecsctaviqnesnsecnsnceomsenesnse 3

EIT Fey Ae Whee ss OF BOO beicctstraticncerestersvenrainncntonmnns 3

Section 303(d), 33 U.S.C. § 1313(d)........ ccc eceeeeeee passim

Section FU3e), 33 UBC. § USERS) ncccccccecossvccsrsccccesesseccees 4

Section 304(a), 33 U.S.C. § 1314(a) .........c.-cccccsscssseeseee 10

Section 304(f), 33 U.S.C. § 13 14(f) 0... eeeeeteseeeeeeeees 11

Section 305(b), 33 U.S.C. § 1315(B)...........cccceccccsssereeees 11

Seaton SED, SP UBL. S CFT cccesceccoccscssesesccccvessesevey passim

Section 31D{a), 33 U.S.C. § TSZILR) .ncccccoccerccscesccsseres 12, 13

TABLE OF AUTHORITIES -— continued

Page(s)

Ne a, Be Eps OP RIO rtenthdetenecetacssciiscsstacsnsions 3,17

Section 502(11), 33 U.S.C. § 1362(11).......... ee eeeeeeeee 3,8

Section 502(14), 33 U.S.C. § 1362(14)..........cc ee eeeeeeeeeees 3

Clean Water Act Amendments of 1977, 91

ss MeN Ts oh ra inea doll siahisdemmancnobiniannenabeninennsbohieigeeds 3

Federal Water Pollution Control Act

Amendments of 1972, 86 Stat. 816 (1972) .................. 3,12

Water Quality Act of 1987, 101 Stat. 7 (1987)... 3

ee a i SD ccctranieseshesiicactciasbiinsissenabcliiahancelinsscntoominuiens 20

Other Authorities

Susan Bruninga, House Panel Members Question

EPA Authority to Issue TMDL Proposal, 30

Env’t Rep. (BNA) 1241 (Nov. 5, 1999)... eeeeeeeeees 28

BF es I, FE UD tettiincaicneniecesesisesescccccseverepenies 22

EPA, Fact Sheet on “The National Costs of

the Total Maximum Daily Load Program

(Draft Report),” http://www.epa.gov/

owow/tmdl/coststudy/costfact.html..............:ccceeceeeeeeeees 27

EPA, Federal Appeals Court Upholds Landmark

Clean Water Decision, Region 9 News Release

(June 3, 2002), http://www.epa.gov/owow/tmdl/

REE SER rears eee ny Sie ee ee eR 27

EPA, Nonpoint Source Guidance (1987), in

CLEAN WATER DESKBOOK 173 (1991)........::cccccceseseeeesees 17

EPA, Overview of the Total Maximum Daily

Load Program, http://www.epa.gov/

gE ANT EO oO TOUTE 27

TABLE OF AUTHORITIES - continued

EPA, Report of the Federal Advisory

Committee on the To.al Maximum Daily

Load (TMDL) Program (July 1998).............::c00008

50 Fed.-Reg. 1774 (Jan. 11, 1985)...............sscccsssssrseses

65 Fed. Reg. 75699 (Dec. 4, 2000) ...............ccsssccssseees

G. Gould, Agriculture, Nonpoint Source

Pollution, and Federal Law, 23 U.C. Davis

Die SUE i I cirendichiprchisernennsibinniiniiianmennesioion

2 F. Grad, TREATISE ON ENVIRONMENTAL

LAW § 3.03[4] [mn] (2000) .......ccessccssesccsssecsscsseccecsneees

H.R. Rep. No. 92-911 (1972), reprinted in 1

LEGISLATIVE HISTORY OF THE WATER

POLLUTION CONTROL ACT AMENDMENTS

Heh 2. ROR NTL eS te T Te

Houck, THE CLEAN WATER ACT TMDL

NE I salinities ntindiceiinniansicatincennesecaniealneiies

R. Lazarus, Nonpoint Source Pollution, 2

PEOEY. EVEL. L. Rev. UAB IGT) a ccccesesscseerscscvsensseess

Letter to President Clinton from National Governors

Ass'n, July 6, 2000, http://www.nga.org/

nga/legislativeUpdate/1,1169,

LEE FER PORe? FCT 7 DUBIN onsen eccssvessercessense

J. Montgomery, Control of Agricultural Water

Pollution: A Continuing Regulatory

Se: TP Ure Sees as OD thtniiiintentercccinnsinns

John Nolon, Jn Praise of Parochialism: The

Advent of Local Environmental Law, 26

Harv. Envtl. L. Rev. 365, 386-410 (2002) ..............

Page(s)

TABLE OF AUTHORITIES -— continued

Zygmunt Plater et al., ENVIRONMENTAL LAW

Page(s)

ICY CR Se iieice sa titdintsstacittseenicoinncens 22

Proposed Revisions to the Water Quality

Planning and Management Regulation, 64

Fed. Reg. 46012 (Aug. 23, 1999)......ccccccccsesssssseessesseeeseen 28

2A N. Singer, STATUTES AND STATUTORY

CONSTRUCTION § 47.23 (6th ed. 2000) ........... ccc eeeeeeees 1]

Henry Stephens & Monica Dias, TMDLs for

Nonpoint Sources in Kentucky: The

Potential Impact of Pronsolino v. Marcus,

16 J. Nat. Resources & Envt’! L. 1 (2002)... 23

Withdrawal of Revisions to the Water Quality

Planning and Management Regulation, 67

Fed. Reg. 79020 (Dec. 27, 2602) ..............4.

D. Zaring, Agriculture, Nonpoint Source

Pollution, and Regulatory Control: The

Clean Water Act’s Bleak Present and

Future, 20 Harv. Envtl. L. Rev. 515 (1996)

PETITION FOR A WRIT OF CERTIORARI

Petitioners, Guido A. Pronsolino and Betty J. Pronsolino,

as Trustees for the Guido A. Pronsolino and Betty J.

Pronsolino Trust; American Farm Bureau Federation;

California Farm Bureau Federation; and Mendocino County

Farm Bureau, respectfully petition for a writ of certiorari to

review the judgment of the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-31a)

is reported at 29i F.3d 1123. The order of the court of

appeals denying petitioners’ petition for rehearing or

rehearing en banc (App., infra, 32a) is unreported. The

opinion of the district court (App., infra, 33a-71a) is reported

at 91 F. Supp. 2d 1337.

JURISDICTION

The judgment of the court of appeals was entered on May

31, 2002. Petitioners’ timely petition for rehearing was

denied on October 9, 2002. On December 20, 2002, Justice

O’Connor granted an extension of time to file this petition to

February 6, 2003. This Court’s jurisdiction is invoked under

28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 303(d) of the Clean Water Act, 33 U.S.C.

§ 1313(d), is set forth at App., infra, 72a-74a.

STATEMENT

Introduction. This case raises a critical question under

an important federal regulatory statute, the Clean Water Act

(“CWA”). The 1972 legislation initiating the CWA sought to

“restore and maintain the * * * the integrity of the Nation’s

waters” and provided a variety of mechanisms allocated to

the Federal government and the States to achieve that

purpose. The States were to address “nonpoint source”

pollution, such as agricultural run-off, through regional land

and water use plans. The Federal government was to regulate

“point source” pollution, that is, discharges from discrete

conveyances, primarily through technology-based effluent

limitations. The 1972 legislation called for increasingly

stringent effluent limitations where necessary to achieve

water quality goals. The statutory mechanism for calculating

those more stringent limits is a “total maximum daily load”

(“TMDL”). A TMDL represents the maximum amount (or

“load”) of a specified pollutant that can be added to a water

body without reducing water quality below the applicable

standard.

The question at issue is whether the Environmental

Protection Agency (“EPA”) may require the States to identify

and develop TMDLs for waters impaired only by nonpoint

sources. The court below said yes even though the statutory

text says no. The Ninth Circuit accomplished that feat by

deciding to defer to EPA’s construction without first

determining whether the statute itself answered the question.

In addition to flouting the statutory text and established

deference law, the decision below overthrows Congress’s

careful allocation of responsibilities between the Federal and

State governments in the fight against water pollution.

Congress assigned EPA a primary role in addressing point

source pollution. Recognizing that addressing nonpoint

source pollution requires controls over local land uses,

Congress left that task to the States, with the role of the

Federal government limited to providing guidance. By

authorizing EPA to establish TMDLs for waters impaired

only by nonpoint sources, the Ninth Circuit has

impermissibly authorized federal intrusion into a core State

function. That decision will force the States to spend

hundreds of millions of dollars to establish tens of thousands

of TMDLs over the next decade and already is forcing

private landowners to spend vast sums to adhere to EPA’s

unilaterally imposed mandates. Prompt intervention by this

Court is needed to prevent this waste of public and private

resources and to ensure that EPA respects the limits on its

regulatory powers as prescribed by Congress.

Statutory Framework. The Clean Water Act originated

in the Federal Water Pollution Control Act Amendments of

1972, 86 Stat. 816 (1972).' The 1972 Act required the

adoption of “effluent limitations,” quantitative restrictions on

pollutant discharges, for “all point sources.” 33 U.S.C.

§§ 1311(e), 1362(11). A “point source” is a “discernible,

confined and discrete conveyance,” such as a pipe. Id.

§ 1362(14). The Act provided for permits incorporating

appropriate effluent limitations and authorized EPA to

oversee the permit program. /d. §§ 1311, 1342. In Section

208 of the 1972 Act, Congress assigned the task of

addressing nonpoint source pollution to the States through

the development of regional waste treatment management

plans. 33 U.S.C. § 1288. Section 303 addressed water quality

standards, with subsections (a), (b), and (c) giving the States

primary responsibility for establishing and modifying such

standards. 33 U.S.C. §§ 1313(a), 1313(b), 1313(c). Section

303(d) delineates the steps to be taken for waters not

compliant with those standards.

Section 303(d)(1)(A) is the primary provision at issue

here. It requires the States to “identify those waters within its

boundaries for which the effluent limitations required by

section 301(b)(1)(A) and section 301(b)(1)(B) are not

stringent enough to implement any water quality standard

applicable to such waters.” 33 U.S.C. § 1313(d)(1)(A). The

States are then to establish TMDLs for those waters. Jd.

§ 1313(d)(1)(C). Upon EPA approval, the State is to

incorporate those TMDLs into its “continuing planning

' Other components of the CWA include the 1977 amendments,

91 Stat. 1566, and the Water Quality Act of 1987, 101 Stat. 7. The

CWA is codified at 33 U.S.C. § 1251 et seq.

process.” If EPA disapproves either the State’s list of

identified waters or its TMDLs, it may itself identify such

waters and establish appropriate TMDLs. Jd. § 1313(d)(2),

(e). For waters not on the § 303(d)(1)(A) list, States are to

“estimate” TMDLs for informational purposes. /d.

§ 1313(d)(3). The States need not seek EPA approval for

these estimated TMDLs. Jbid.

Factual Background. For two decades after the 1972

legislation was enacted, EPA did not construe § 303(d)(1) as

applicable to waters impaired only by nonpoint sources.

After changing its position in the early 1990s, EPA

disapproved California’s § 303(d)(1)(A) list of identified

waters because it did not include water bodies impaired

solely by nonpoint source poilution. After California refused

to add those water bodies, EPA established its own section

303(d)(1)(A) list for California and subsequently established

TMDLs for 16 water bodies impaired only by nonpoint

source pollution.

EPA’s 1998 TMDL for one of those water bodies, the

Garcia River, required a 60% reduction in sediment loadings

from such nonpoint sources as timber harvesting and farming

and required California to implement this mandate into its

water quality management and basin plans. In May 1998, an

EPA official publicly told California officials that “we do

expect implementation of non-point source TMDL’s [in]

every single timber harvest plan [and] Basin Plan” and made

clear that noncompliance would be punished: “Now, what we

do to get you to do that through all sorts of nasty little tricks

with grants and such, I don’t know, but it’s not a place I want

to go and I’m sure it’s not a place you want to go.” ER-86

{4 21-22.? To avoid these consequences, California began

2 “E.R.” refers to the Excerpts of Record filed with the appeal of

this matter to the Ninth Circuit.

requiring applicants for timber harvest and management

plans to conform their land uses to EPA’s TMDL. Id. § 19.

The impact on landowners was dramatic. Petitioners

Guido and Betty Pronsolino had purchased 800 acres of land

by. the Garcia River in 1960. In 1998, after investing

substantial resources to regenerate depleted forests over

almost four decades, the Pronsolinos obtained a state permit

to begin harvesting their timber—but subject to onerous new

obligations to satisfy EPA’s TMDL. Among other things, the

Pronsolinos had to suspend harvesting between November

and April and during rainy periods the rest of the year, retain

substantial numbers of conifer trees, limit road construction,

and cease using certain skid trails. The estimated cost of

complying with just the conifer tree requirement was

$750,000. ER-86 9 27-35. A neighboring landowner faced

additional costs of over $10 million from the new EPA

mandates. Id. {4 45-51.

In April 1999, petitioners sued EPA and EPA officials on

the ground that § 303(d)(1) does not require the States to

identify and establish TMDLs for waters that are free of point

source pollution. The district court granted EPA’s motion for

summary judgment, and the Ninth Circuit affirmed.

The Ninth Circuit first ruled that EPA’s construction of

§ 303(d)(1) is entitled to Chevron deference. App., infra, 16a.

The court did so prior to determining whether the meaning of

that provision is clear and despite EPA’s failure to adopt any

“currently-operative” regulation embodying that construc-

tion. Jd. at 14a. The court based its deference ruling on

EPA’s own interpretation of related regulations that it had

adopted and on EPA’s general authority to interpret the

Clean Water Act. /d at 12a-20a. Only then did the court turn .

to the statutory text. It construed § 303(d)(1)(A), which by its

terms requires the States to identify only those waters for

which specified effluent limitations are “not stringent

enough” to achieve water quality standards, to require the

States to identify al] waters not compliant with water quality

standards. Jd. at 21a-22a. The court also held that upholding

EPA does not authorize any intrusion on State authority over

land use controls because “California chose both if and how it

would implement the Garcia River TMDL.” Jd. at 30a

(emphasis in original).

REASONS FOR GRANTING THE PETITION.

By the time the court below got to the text of § 303(d)(1),

it already had deferred to EPA’s construction of it. This

remarkable mode of proceeding stands this Court’s Chevron

doctrine on its head. Under Chevron, a statute must be

ambiguous before deference may be accorded to an agency’s

construction, and only then if the agency’s construction is

reasonable. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837,

842-845 (1984). There is nothing ambiguous about

§ 303(d)(1). It does not require the identification of all

impaired waters in a State for the purpose of establishing

TMDLs. To the contrary, it expressly restricts the waters to

be identified to point-source impaired waters for which two

specific types of effluent limitations are “not stringent

enough” to achieve water quality standards. EPA and the

court below removed this restriction to some waters from the

statute and replaced it with all waters. By doing so, they

disregarded both the plain textual meaning and this Court’s

decisions recognizing that Congress left regulation of

nonpoint source pollution to the States.

Controlling nonpoint source pollution necessarily entails

regulation of private land uses. Congress has not authorized

federal regulation of such a core State and local function,

much less provided the “clear statement” of such an intent

that this Court’s precedents require. To the contrary,

Congress clearly stated its policy “to recognize, preserve, and

protect the primary responsibilities and rights of States * * *

to plan the development and use [of] land and water

resources.” 33 U.S.C. § 1251(b). Nevertheless, the decision

below grants EPA authority to impose burdensome

regulatory mandates on the States to control nonpoint source

pollution. The land use restrictions in EPA’s TMDLs are ~

indistinguishable in effect from the effluent limitations that

Congress made applicable only to point sources. Review by

this Court is required to clarify critical questions regarding

the administration of—and the allocation of federal and state

responsibilities under—an important federal regulatory

statute.

I. THE DECISION BELOW CONFLICTS WITH

THIS COURT’S PRECEDENTS BARRING

DEFERENCE TO AN AGENCY’S STATUTORY

CONSTRUCTION WHERE THE TEXTUAL

MEANING IS CLEAR.

A. The Ninth Circuit Impermissibly Determined

That It Must Defer To EPA Before Analyzing

The Meaning Of The Statute.

Contrary to this Court’s precedents, the Ninth Circuit

began the analysis section of its opinion, entitled “Deference

to the EPA,” by inquiring into “the degree of deference”

owed to EPA. App., infra, 12a. Relying on EPA’s

construction of its own regulations to authorize federal

imposition of TMDLs on waters impaired only by nonpoint

sources, the court concluded that “EPA’s interpretation is

entitled to Chevron deference” and alternatively to

Skidmore/Mead deference. Id. at 16a-17a. Only then did it

turn to the text of § 303(d)(1) itself.

The Ninth Circuit got it precisely backwards. Courts must

“first ask” whether the statutory meaning is clear before

Considering whether deference is appropriate. FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 132 (2000);

accord Solid Waste Agency v. United States Army Corps of

Eng’rs, 531 U.S. 159, 172 (2001). An independent analysis

must precede the deference inquiry because courts may not

even “contemplate” deference where the statute is

unambiguous on the point at issue. Barnhart v. Sigmon Coal

Co., 534 U.S. 438, 462 (2002). Thus, “the starting point for

interpreting a statute is the language of the statute itself.”

Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447

U.S. 102, 108 (1980). The decision below—that § 303(d)(1)

mandates identification of a// state waters not meeting water

quality standards in order to establish TMDLs (App., infra,

21a-22a)—cannot be reconciled with the plain language of

that statutory provision.

B. By Its Plain Terms, § 303(d)(1) Applies Only To

Sub-Standard Waters Polluted By Point Sources.

Section 303(d)(1) does not require a state to identify all

of its sub-standard waters for purposes of mandatory

TMDLs. Instead, each state must identify only those waters

“for which the effluent limitations required by section

301(b)(1)(A) and section 301(b)(1)(B) are not stringent

enough to implement any water quality standard applicable to

such waters.” § 303(d)(1)(A) (emphasis added). The TMDL

requirement applies only to that sub-class of a state’s sub-

standard waters. § 303(d)(1)(C). Because effluent limitations

by definition apply only to waters that are impaired by point

sources (33 U.S.C. § 1362(11)), the waters to be identified

must be limited to those impaired by point sources. Waters

impaired only by nonpoint sources cannot be among the

waters for which effluent limitations are “not stringent

enough” because they are not subject to effluent limitations

at all.

By construing this provision to require the identification

of all impaired waters within a state, the court below read the

“effluent limitations * * * not’ stringent enough” limitation

out of the statute. Without that limitation, each state plainly

would have to identify all impaired waters within its

boundaries. Yet, according to the court below, with that

limitation each state still must identify all impaired waters

within its boundaries. The Ninth Circuit’s view cannot be

right because it would make the “effluent limitations * * *

not stringent enough” language completely superfluous. See

Duncan v. Walker, 533 U.S. 167, 174 (2001) (refusing to

construe statutory provision “precisely the same” as if it did

not contain limiting term); United States v. Alaska, 521 U.S.

1, 59 (1997) (courts must “avoid an interpretation of a statute

that renders some words altogether redundant”); Solid Waste

Agency, 531 U.S. at 172 (rejecting argument that word

“navigable” in Clean Water Act had no “independent

significance”).

Congress could have required the States to identify

“waters,” “all waters,” “waters not meeting water quality

standards,” or “waters impaired by point and nonpoint

sources” for purposes of establishing TMDLs. Instead, it

designated only waters for which the effluent limitations

“required by section 301(b)(1)(A) and section 301(b)(1)(B)

are not stringent enough.” The effluent limitations “required

by section 301(b)(1)(A) and section 301(b)(1)(B)” involve

relatively modest treatment requirements applicable to all

point sources, regardless of the quality of the receiving water

body. But in some instances these basic technology-derived

limits will not suffice. For example, the total pollution load

might cause a river with a multiplicity of point sources to fall

short of its applicable water quality standard, even though

each individual source met its limit. In that case, the TMDL

would provide a basis to calculate the “more stringent

limitation * * * necessary to meet water quality standards.”

33 U.S.C. § 1311(b)(1)(C). Thus, the plain language of

§ 303(d)(1) shows that Congress prescribed mandatory

TMDLs to help clean up point source impaired waters for

which existing effluent controls were not stringent enough.

The statutory text cannot plausibly be stretched to apply

to waters impaired only by nonpoint sources, which are not

subject to any effluent limitations. EPA’s construction,

accepted by the court below, departs from this plain meaning.

It makes sub-standard waters for which effluent limitations

are “not stringent enough” the equivalent of all sub-standard

waters, even waters with no point source pollution and thus

not subject to any effluent limitation. That construction

departs not only from the plain text but from plain logic. No

reasonable doctor would understand a hospital rule that

patients be treated with Medicine B, where Medicine A is

“not stringent enough” to cure them, to require use of

Medicine B for an ailment to which Medicine A was never

applicable at all.

The court below thought it could avoid this problem and

uphold EPA’s construction by recharacterizing “not stringent

enough” as not “adequate” or not “sufficient” or not

“thoroughgoing enough.” App., infra, 2la. But any such

revision, even if appropriate, would be unavailing because it

does not cure the defect in EPA’s construction. If Congress

had intended identification of all substandard waters, it

would not have provided for identification of only some of

those waters. See Great-West Life & Annuity Ins. Co. v.

Knudson, 122 S. Ct. 708, 712 (2002) (the term “equitable

relief” in statute “must mean something less than ail relief”)

(emphasis in original); Circuit City Stores, Inc. v. Adams,

532 U.S. 105, 113 (2001) (statutory exemption did not apply

to all employees where it specifically referenced specific

class of employees). Even if not “adequate” or not

“sufficient” or not “thoroughgoing enough” means the same

as not “stringent enough,” EPA’s construction cannot cure

that defect.

The court below also opined that “effluent limitations

*** not stringent enough” meant only that the 1972

Congress intended to have EPA employ TMDLs at some

unspecified time in the future. App., infra, 23a. That

hypothesis is refuted by other portions of the 1972

legislation, which required EPA to identify pollutants

“suitable for’ TMDL measurement by October 1973

(§ 304(a)(2)(D)) and required the States to submit initial lists

of waters and TMDL calculations by Apnil 1974

(§ 303(d)(2). And whatever Congress’s intent as to the

timing of TMDL deployment, that has nothing to do with

which waters must be identified for that purpose.

The point source limitation in § 303(d)(1) stands in

marked contrast to the omission from that provision of any

reference to nonpoint sources. See 2A N. Singer, STATUTES

AND STATUTORY CONSTRUCTION § 47.23, at 305-07 (6th ed.

2000) (statute’s specification of one category creates “an

inference that all omissions should be understood as

_exclusions”). Indeed, where Congress did intend to address

nonpoint source pollution in the 1972 Act, it did so

expressly.’ “[W]here Congress includes particular language

in one section of a statute but omits it in another section of

the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.” Brown v. Gardner, 513 U.S. 115, 120 (1994).

The lack of any reference to nonpoint source pollution

confirms the plain text meaning of § 303(d)(1)}—that

Congress intended only waters impaired by point sources to

be subject to mandatory TMDLs.

C. The Plain Text Meaning Of § 303(d)(1) Is Con-

firmed By The Statutory Structure, Legislative

History, and Statutory Purpose.

The structure of the Clean Water Act confirms that

§ 303(d)(1) is not directed to waters impaired only by

> See § 304(f), 33 U.S.C. § 1314(f) (requiring EPA to issue

“guidelines for identifying and evaluating the nature and extent of

nonpoint sources of pollutants”); § 305(b\(1\E), 33 U.S.C.

§ 1315(b)1XE) (requiring states to provide EPA with “a

description of the nature and extent of nonpoint sources of

pollutants”); § 208(b\2)(F), 33 U.S.C. § 1288(b)(2)(F) (requiring

regional waste treatment management plans to include processes to

identify “agriculturally and silviculturally related nonpoint sources

of pollution”).

nonpoint sources. Three provisions, §§ 303(d)(3), 208, and

319, are particularly significant.

Section 303(d)(3) provides for a wholly separate and

distinct TMDL process for waters not described in

§ 303(d)(1), including waters impaired only by nonpoint

sources. It provides that states are to “estimate” TMDLs for

waters not on the § 303(d)(1) list “[flor the specific purpose

of developing information.” 33 U.S.C. § 1313(d)(3). These

estimated, informational TMDLs, which need not be

approved and may not be prescribed by EPA (§ 303(d)(2)),

allow for preventative planning against the risk of point-

source impairment. For example, if a manufacturer seeks to

build a factory on a waterway impaired only by nonpoint

source pollution, § 303(d)(3) TMDLs would provide

information that would aid in establishing the scope of

needed effluent limitations. The court below failed to account

for this important distinction between mandatory TMDLs for

waters impaired by point sources and_ estimated,

informational TMDLs to prevent future point source

impairment of waters presently impaired only by nonpoint

sources, such as the Garcia River.

Congress designed § 208 of the 1972 Act to address

nonpoint source pollution. That provision calls for state and

local bodies to develop regional waste treatment management

plans to identify and control, inter alia, “agriculturally and

silviculturally related nonpoint sources of pollution.” 33

U.S.C. § 1288(b)(2)(F). As the D.C. Circuit explained, the

1972 Congress relied on § 208 to address water pollution in

“agricultural and forest areas.” NRDC v. Costle, 564 F.2d

573, 578 (D.C. Cir. 1977). See also 2 F. Grad, TREATISE ON

ENVIRONMENTAL LAw § 3.03[4][n], at 3-216.7 (2000) (§ 208

was an “early attempt to deal with nonpoint sources under the

Federal Water Pollution Control Act”). Section 208 shows

that the 1972 Congress relied on the States to address

nonpoint source pollution, limiting the role of the Federal

government to guidance on developing the regional

management plans. Nothing in the 1972 Act indicates that

Congress intended federally imposed TMDLs to supplement

§ 208 management plans in addressing nonpoint source

pollution.

In fact, Congress waited until 1987 to address nonpoint

source pollution with measures. stronger than the

management plans set forth in § 208. It did so by enacting a

new § 319 of the Act, entitled “Nonpoint source management

programs.” 33 U.S.C. § 1329. Section 319(a)(1) is the mirror

image of § 303(d)(1), modifying the latter’s requirements to

make them applicable in the nonpoint source context.

Whereas § 303(d)(1)(A) requires identification of waters for

which the specified controls over point source pollution are

not stringent enough to achieve water quality standards,

§ 319(a)(1)(A) requires identification of waters for which

“additional action to control nonpoint sources of pollution” is

needed. Whereas § 303(d)(1)(C) requires establishment of

TMDLs for particular pollutants that prevent the identified

waters from achieving water quality standards,

§ 319(a)(1)(C) requires identification of “best management

practices and measures” to control “nonpoint sources” and

reduce the levels of particular pollutants “to the maximum

extent practicabie.”

If § 303(d)(1) already covered nonpoint source pollution,

the 1987 Congress would have had no need to add these

parallel provisions in § 319(a)(1). See Kawaauhau v. Geiger,

523 U.S. 57, 62 (1998) (rejecting “interpretation of a

congressional enactment which renders superfluous another

portion of that same law”); Stone v. INS, 514 U.S. 386, 397

(1995) (Congress would have had “no reason” to enact

amendment if it simply reprised “already existing”

provision). EPA and the court below sought to overcome this

obstacle to their desired result by urging that Congress

merely supplemented § 303(d)(1) TMDLs with overlapping

§ 319(a)(1) best management practices to address nonpoint

source pollution. See App., infra, 27a. But just as two

parallel lines never overlap, the parallelism between

§§ 303(d)(1) and 319(a)(1) indicates that they were directed

to two distinct purposes. The 1987 Congress saw the need for

the States to take stronger measures to address nonpoint

source pollution than did the 1972 Congress. Without ever

indicating that it considered § 303(d)(1) TMDLs to be an

available tool for that purpose, it enacted a comparable

provision directed to nonpoint source pollution, utilizing besi

management practices and similar state and local programs.

Even if the court below could validly ignore the plain text of

§ 303(d)(1) as written by the 1972 Congress, there was no

valid reason for it to show more deference to EPA’s current

construction of that provision than to the construction of the

1987 Congress.

The plain text meaning of § 303(d)(1)}—that Congress

intended TMDLs to apply only to waters impaired by point

sources and to pave the way for more stringent effluent

controls—is confirmed by unambiguous legislative history.

As the House Report explained, “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.” H.R.

Rep. No. 92-911 (1972), reprinted in 1 LEGISLATIVE

HISTORY OF THE WATER POLLUTION CONTROL ACT

AMENDMENTS OF 1972, at 753, 792 (1973) (emphasis added).

See also id. at 788-789 (“if the sum of the discharges from

point sources meeting such effluent limitations would

preclude the meeting of water quality standards,” TMDLs

would require establishment of “more stringent effluent

limitations”) (emphasis added). Nowhere in the extensive

Congressional reports and debates is there any suggestion

that TMDLs were to be directed to nonpoint source pollution.

The reliance of the court below on the “broad goals” of

the 1972 Act cannot overcome its plain text. See Mertens v.

Hewitt Assocs., 508 U.S. 248, 261 (1993) (“statute’s ‘basic

purpose’” is “inadequate to overcome the words of its text”);

Board of Gov. of Fed. Res. Sys. v. Dimension Fin. Corp., 474

U.S. 361, 373-374 (1986) (same). In any event, the primary

goal of the 1972 Act was to eliminate or reduce point source

pollution. Section 101(a) set forth six national policy goals,

none directed to waters impaired only by nonpoint sources

beyond the regional waste treatment provisions in § 208. It

was not until § 319 was added in 1987—15 years after the

TM.L provisions were enacted—that Congress established a

“national policy that programs for the control of nonpoint

sources of pollution be develaped and implemented.” 33

U.S.C. § 1251(a)(7). And even then, nonpoint sources were

“not subject to any comprehensive regulatory structure, at

least at the federal level.” 2 Grad, supra, TREATISE ON

ENVIRONMENTAL LAW § 3.03[4][n], at 3-216.

Congress’s restriction of mandatory TMDLs to waters

impaired by point source pollution not only was consistent

with the purpose of the 1972 Act but sensible in light of the

nature of TMDLs. Requiring precise, quantitative load

allocations makes sense for point source pollution.

Discharges from the end of a pipe can be controlled by

technology, easily sampled and measured to determine

compliance, and limited by the permit process. But that

approach makes no sense at all in the context of nonpoint

source pollution. The Garcia River TMDL, for example,

focuses on sediment, most of which results from runoff after

rainfall. ER -86 § 12. Neither rainfall nor runoff occurs with

the predictability and precision appropriate for quantitative

TMDL controls. That is why the Clean Water Act provisions

directed to nonpoint source pollution employ estimates and

qualitative management programs to address that problem,

and these only “to the extent feasible,” and “to the maximum

extent practicable.” 33 U.S.C. §§ 1288, 1329. Using

mandatory TMDLs, new tools developed as part of the 1972

Act’s focused effort to eradicate point source pollution,

would be inconsistent with these feasibility and practicability

constraints on the reduction of nonpoint source pollution.

In sum, if Congress had wanted to impose TMDLs on

waters impaired only by nonpoint sources, it would have

“legislate[d] to make that intention manifest.” EPA v.

California, 426 U.S. 200, 228 (1976). It did not do so in the

1972 Act and has not done so since, and neither EPA nor the

Ninth Circuit may legislate in its stead. See American Iron &

Steel Irst. v. EPA, 115 F.3d 979, 996 (D.C. Cir. 1997) (EPA

“exceeded its authority when it sought to impose effluent

limitations upon nonpoint-source discharges”). The eagerness

of the court below to ratify EPA’s expansion of § 303(d)(1)

TMDLs to waters impaired only by nonpoint sources, which

led it to determine the “degree of deference” owed to EPA

before determining the meaning of the statutory text,

manifested an open disdain for this Court’s precedents.

D. EPA’s Construction Of § 303(d)(1) Is Unreason-

able.

Even if the meaning of § 303(d)(1) were ambiguous, the

unreasonableness of EPA’s construction precludes it from

obtaining deference. See Commissioner v. Engle, 464 US.

206, 226 (1984) (“unreasonable” agency construction is “not

entitled to deference”). The unreasonableness of reading

§ 303(d)(1)(A) as if it did not contain an express restriction

on the waters to be identified is underscored by the fact that

EPA did not articulate its current position until some two

decades after § 303(d)(1) was enacted.

An agency’s failure to enforce a provision for so long

“strongly suggests that it did not read the statute as granting

such power.” BankAmerica Corp. v. United States, 462 U.S.

122, 131 (1983); accord FPC v. Panhandle E. Pipe Line Co.,

337 U.S. 498, 513 (1949). For more than 20 years after

passage of the 1972 Act, EPA dealt with nonpoint source

pollution not through TMDLs but through advisory

management planning under § 208 and, once the Act was

amended in 1987, through nonpoint source identification and

planning under § 319. Under interest group pressure to do

more, EPA changed course in the 1990s and, without seeking

Congressional approval, for the first time asserted its

authority to impose TMDLs on the States as a means to

address waters impaired only by nonpoint sources.

Following enactment of the 1972 Act, EPA viewed § 208

as the sole provision designed to control nonpoint source

poliution. As the D.C. Circuit noted, “[iJn EPA’s view, the

Act divides the causes and control of water pollution into two

categories, point sources of pollutants (regulated through the

§ 402 permit program) and nonpoint sources of pollution

(regulated by the states through ‘areawide waste treatment

management plans’ under § 208).” National Wildlife Fed’n v.

Gorsuch, 693 F.2d 156, 165-166 (D.C. Cir. 1982). EPA

maintained that position when it first adopted TMDL

regulations in 1985. Those regulations did not refer to waters

impaired only by nonpoint sources, and EPA’s preface stated

that “those waters not covered by this interpretation” are

subject only to the informational and estimated TMDLs

under section 303(d)(3). 50 Fed. Reg. 1774, 1775 (1985). As

late as 1987, 15 years after § 303(d) was enacted, EPA issued

a comprehensive guide to the States’ role in addressing

nonpoint source pollution which did not even mention

TMDLs or § 303(d). EPA, Nonpoint Source Guidance

(1987), in CLEAN WATER DESKBOOK 173, 177 (1991).

EPA changed course in 1992, circulating an internal

memorandum stating that the § 303(d)(1) TMDL process

applied to waters impaired only by nonpoint sources. ER-91

Ex. 17, at 2. This change in position, which was never the

subject of rulemaking or public comment, provided the

backdrop for EPA’s rejection of California’s § 303(d)(1) list

in 1992 and initiated the events leading to this litigation. See

United States v. Mead Corp., 533 U.S. 218, 231 (2001) (lack

of notice-and-comment weighs against deference to agency

determination); Christensen v. Harris County, 529 U.S. 576,

587 (2000). EPA understood that its new position represented

a significant departure from its prior construction. As it

admitted in a 1997 memorandum, it had not previously

provided guidance on “implementation of TMDLs for waters

impaired only by nonpoint sources.” ER-91 Ex. 7, at 5.

This history establishes that for two decades the agency

charged with enforcing the Clean Water Act construed

§ 303(d)(1), in accordance with its plain meaning, as

inapplicable to waters impaired only by nonpoint sources.

Succumbing to outside pressure, EPA later bypassed

Congress and unilaterally expanded the scope of § 303(d)(1).

There is no reason to defer to EPA’s redrafting of the statute

to fit its current policy predilections. See Solid Waste

Agency, 531 U.S. at 168 (rejecting agency’s current position

as inconsistent with its “original interpretation of the CWA”);

United States v. Leslie Salt Co., 350 U.S. 383, 396 (1956)

(agency’s “more recent ad hoc contention as to how the

statute should be construed cannot stand” against “prior long-

standing and consistent administrative interpretation”).

EPA’s policy shift was particularly unreasonable because

it authorized federal encroachment upon a traditional state

power, control over local land uses. See infra, Part II.B. An

agency assertion that Congress intended such encroachment

without a “clear indication” of such intent is unreasonable

and not entitled to deference. Solid Waste Agency, 531 U.S.

at 172-173.4

* EPA’s reading of § 303(d\1) has been controversial even

within federal administrative circles. In 1996, EPA formed an

advisory committee on TMDL issues pursuant to the Federal

Advisory Committee Act. After two years of meetings, the

Committee could not reach agreement on “whether waters

impacted only by nonpoint sources are to be listed under

§ 303(d)(1)(A), § 303(d\3), or only under § 319” and thus it

II. THE NINTH CIRCUIT CONSTRUED AN IMPOR-

TANT FEDERAL REGULATORY STATUTE IN A

WAY THAT CONFLICTS WITH RELEVANT

DECISIONS OF THIS COURT.

A. The 1972 Congress Was Focused On Reducing

Point Source Pollution.

The decision below departs from this Court’s decisions

recognizing that the primary aim of the 1972 Act was to

initiate Federal programs to reduce point source pollution,

with reduction of nonpoint source pollution left to the States.

The 1972 Act has been universally understood to embody

that allocation. See Appalachian Power Co. v. Train, 545

F.2d 1351, 1373 & n.68 (4th Cir. 1976) (“Congress

consciously distinguished between point source and nonpoint

source discharges, giving EPA authority under the Act to

regulate only the former,” with nonpoint sources subject

“only to analysis, study, and suggestions”). As this Court has

explained, the novel aspects of the 1972 Act focused on point

source pollution. The Act introduced “two major changes” in

the effort to abate and control water pollution—the

imposition of “maximum ‘effluent limitations’ on ‘point

sources’” and the establishment of a permit system to achieve

and enforce the “effluent limitations.” EPA v. California, 426

U.S. 200, 204-205 (1976). Those changes, both involving

“effluent limitations,” were addressed only to point source

“decided not to address these legal issues in its report.” EPA,

Report of the Federal Advisory Committee on the Total Maximum

Daily Load (TMDL) Program 42 (July 1998). Another directly

concerned federal agency, the U.S. Forest Service, objected to the

application of § 303(d){1) to nonpoint-source-impaired waters,

stating that the provision “was written with point sources in mind”

and that Congress passed § 319 “specifically to address nonpoint

sources of pollution.” See April 29, 1997 letter from Forest Service

to EPA, quoted in Houck, THE CLEAN WATER ACT TMDL

PROGRAM 61-62 (1999).

pollution. TMDLs, a newly designed tool to achieve water

quality standards, were part of those changes and the fight

against point source pollution. Congress intended water

quality standards to serve as “a supplementary basis for

effluent limitations * * * so that numerous point sources,

despite individual compliance with effluent limitations, may

be further regulated to prevent water quality from falling

below acceptable levels.” Jd. at 205 n.12 (emphasis added).

Consistent with that understanding, Congress designed

TMDLs to enable the States and EPA to determine what

further controls would be necessary to control point source

pollution. Options included adopting more stringent effluent

limitations to achieve water quality standards (see 33 U.S.C.

§ 1311(b)(1)(c)), limiting the activities of authorized point

source polluters (see PUD No. | v. Washington Dep't of

Ecology, 511 U.S. 700, 712-713 (1994)), or denying or

modifying point source permits (see 40 C.F.R. § 122.62 (a)).

See Environmental Defense Fund, Inc. v. Costle, 657 F.2d

275, 294 (D.C. Cir. 1981) (TMDLs are “allocated by

insertion into NPDES permits, among the various point

source dischargers upon the stream segment”).

Congress did not direct TMDLs to nonpoint source

pollution, such as agricultural run-off, because by its very

nature it is not subject to effluent controls, no matter how

stringent. Moreover, at the time of enactment, Congress “had

comparatively scant information concerning the origins of

nonpoint source pollutants, their relative contribution to the

overall water pollution problem, and the feasibility of

controls. Additionally, there was a strong feeling that

nonpoint source pollution is too highly dependent on local

topographic, soil, and vegetative conditions to be

successfully regulated through national limitations applicable

to point source pollutants.” J. Montgomery, Control of

Agricultural Water Pollution: A Continuing Regulatory

Dilemma, 1976 U. Ill. L.F. 533, 539-540.° The 1972

Congress therefore focused the new legislation on effluent

controls, permits, TMDLs, and other measures to address

point source pollution. EPA’s requirement that TMDLs be

prepared for waters impaired only by nonpoint sources

conflicts with this Court’s recognition that Congress intended

overall water quality standards to play but a “supplementary”

role in the 1972 Act scheme.

B. Congress Allocated Responsibility Over Non-

point Source Pollution To The States.

Congress’s focus on the Federal government’s role in

reducing point source pollution was consistent with its

understanding that the States would continue to bear

responsibility for reducing nonpoint source pollution. As this

Court has explained, “the Clean Water Act establishes

distinct roles for the Federal and State Governments.” PUD

No. 1, 511 U.S. at 704. On the one hand, the Federal

government regulates “technology-based limitations on

individual discharges into the country’s navigable waters

from point sources.” bid. On the other hand, the “States are

responsible for enforcing water quality standards” on

intrastate waters, which necessarily implicate nonpoint

source pollution. Jd. at 707.

That division of responsibility comports with historical

practice and the differences between point source and

> Montgomery’s exhaustive article does not mention § 303(d) or

the use of TMDLs as an option for controlling nonpoint source

pollution. That omission is consistent with other authorities

addressing nonpoint source pollution under the 1972 Act. See G.

Gould, Agriculture, Nonpoint Source Pollution, and Federal Law,

23 U.C. Davis L. Rev. 461 (1990); D. Zaring, Agriculture, |

Nonpoint Source Pollution, and Regulatory Control: The Clean

Water Act's Bleak Present and Future, 20 Harv. Envtl. L. Rev. 515

(1996).

nonpoint source pollution. The diffuse nature of nonpoint

source pollution, such as runoff from farms, forests, and

parking lots, requires that it be addressed through controls

over private land use practices. See 117 Cong. Rec. 38825

(1971) (the only “effective way” to intercept and control

runoff is through “land use control”) (Sen. Muskie). As this

Court long has recognized, land use regulation “is perhaps

the quintessential state activity” (FERC v. Mississippi, 456

U.S. 742, 768 n.30 (1982)) and has been “traditionally

performed” by state and local governments. Hess v. Port

Auth., 513 U.S. 30, 44 (1994). In fact, “the overwhelming

majority of land-use management” is performed by local

state subdivisions “through local government regulation.”

Zygmunt Plater et al., ENVIRONMENTAL LAW AND POLICY

1164 (2d ed. 1998); see also John Nolon, Jn Praise of

Parochialism: The Advent of Local Environmental Law, 26

Harv. Envtl. L. Rev. 365, 386-410 (2002) (discussing broad

array of land-use controls applied by local governments for

environmental purposes).

Federal control of nonpoint source pollution necessarily

impinges on the traditional core State function of controlling

land uses. It “inevitably will require the development of

controversial and entirely new land-use management

techniques.” R. Lazarus, Nonpoint Source Pollution, 2 Harv.

Envtl. L. Rev. 176, 183 (1977). For example, as a result of

the Garcia River TMDL’s requirement that sediment

loadings be reduced by 60%, petitioners Guido and Betty

Pronsolino were forced, inter alia, to forgo harvesting on

rainy days between May and October, harvesting many large

conifer trees altogether, and using their own skid trails. ER-

86 F9 11-12, 14-15, 32. Experts predict that the decision

below will make EPA a “de facto land planning agency [that]

can override all state decisions regarding natural resources

industries or agriculture.” Henry Stephens & Monicz Dias,

TMDLs for Nonpoint Sources in Kentucky: The Potential

Impact of Pronsolino v. Marcus, 16 J. Nat. Resources &

Envt’l L. 1, 29 (2002). The Ninth Circuit nonetheless

acquiesced in EPA’s assertion that it may impose such

onerous land use obligations on the States and private

landowners.

The decision below cannot be reconciled with this

Court’s repeated admonitions in Clean Water Act cases that

such a “heavy regulatory burden on the States” should not be

attributed to Congress without solid “textual support” and,

indeed, a “clear statement” from Congress. PUD No. /, 511

U.S. at 718; Solid Waste Agency, 531 U.S. at 174. As

demonstrated in Part I above, Congress provided no “clear

statement” or any textual support at all for the imposition of

§ 303(d)(1) TMDLs, with their burdensome land use

mandates, on the States. Rather, as this Court recently put it,

“Congress chose to ‘recognize, preserve, and protect the

primary responsibilities and rights of States to plan the

development and use of land and water resources.’” Solid

Waste Agency, 531 U.S. at 174, quoting 33 U.S.C. § 1251(b).

Thus, an agency’s interpretation of the Clean Water Act that

results in a “significant impingement of the States’ traditional

and primary power over land and water use” cannot stand.

Ibid. Instead, courts must “read the statute as written” to

avoid such a result. /bid.°

The district court recognized the “practical reality” that

implementing TMDLs for waters impaired only by nonpoint

sources could force the States to “knuckle under to coercive

threats by EPA,” but it opined that “this is not direct federal

° The fact that § 303(d)\(1)(A) does not employ the terms “point

sources and nonpoint sources as such” (App., infra, 24a) does not

overcome the need for a “clear statement” from Congress. Not

only do the provision’s references to “effluent limitations” apply

only to point sources, as demonstrated above, but “[mlJere silence”

is insufficient “to establish a clear and manifest purpose to pre-

empt local authority.” City of Columbus v. Ours Garage &

Wrecker Serv., Inc., 122 S. Ct. 2226, 2232 (2002).

regulation.” App., infra, 69a. The court of appeals agreed,

calling TMDLs mere “informational tools that allow the

states” to achieve water quality standards. App., infra, 9a

(emphasis added); see also id. at 30a. The lower courts’

dismissal of the coercive impact of mandatory TMDLs rings

hollow in light of EPA’s strong-arm behavior, as reflected in

the record of this case. EPA’s Garcia River TMDL assigned

and allocated numeric maximum loads with respect to

specific land uses. EPA required California to list all sub-

standard waters impaired only by nonpoint source pollution,

imposed a TMDL on the Garcia River that expressly required

California to incorporate specific sediment loadings into its

State Water Quality Management Plan, and required

California to implement EPA’s TMDL through additional

restrictions on timber harvesting. See ER-91 Ex. 1, at 6-7, 58.

EPA’s misreading of § 303(d)(1) has thrust it squarely into

the local land use arena, effectively forcing states to adopt

EPA-directed land use measures. Even if EPA officials do

not actually stand on the affected land and supervise its use,

threatening state officials with “all sorts of nasty little tricks”

achieves the same result. See ER-86 4 21.

Indeed, EPA’s construction of § 303(d)({1) authorizes so

substantial an intrusion into this area of traditional state

concern as to raise severe constitutional questions. See Jones

v. United States, 529 U.S. 848, 858 (2000) (narrowly

construing federal statute to avoid infringing on a “traditional

state concern”); Solid Waste Agency, 531 U.S. at 173 (same).

The Constitution does not permit the federal government to

“regulate state governments’ regulation” of local land uses,

as EPA seeks to do. New York v. United States, 505 U.S.

144, 166 (1992). Construing § 303(d)(1) not to mandate

TMDLs for waters impaired only by nonpoint sources would

avoid both upsetting the federalist balance prescribed by

Congress in the Clean Water Act and crossing the

constitutional line.

pte gas

Ill. WHETHER CONGRESS AUTHORIZED EPA TO

REGULATE WATERS IMPAIRED ONLY BY

NONPOINT SOURCES IS AN IMPORTANT

QUESTION OF FEDERAL LAW THAT SHOULD

BE PROMPTLY SETTLED BY THIS COURT.

Although no other court of appeals has ruled on the

precise question at issue—whether § 303(d)(1) requires the

identification and establishment of TMDLs for waters

impaired only by nonpoint sources—there are compelling

reasons why this Court should promptly decide this

important question of federal law.’

Regardless of any inter-circuit conflict, this Court has

granted certiorari in light of a “clear misreading by the lower

courts of the applicable and important federal statute”

(Stevens v. Dep't of Treasury, 500 U.S. 1, 5 (1991)); to

consider “an unresolved question under an important federal

statute” (Reliance Elec. Co. v. Emerson Elec. Co., 404 U.S.

418, 421-422 (1972)); to review “questions of importance in

the administration of” an important federal regulatory statute

(United States v. Ruzicka, 329 U.S. 287, 288 (1946));

because of “the importance of the issue for the agricultural

community” (National Broiler Marketing Ass'n v. United

States, 436 U.S. 816, 820 (1978)); because of “the

importance of the question presented to the States and

affected individuals” (Olmstead v. Zimring, 527 U.S. 581,

596 (1999)); and to review whether an agency exceeded its

” A recent ruling by a state trial court directly conflicts with the

decision below. In Hawes v. Oregon, No. 00-198, slip. op. 8 (Or.

Cir. Ct., Baker County, Dec. %, 2002), the court ruled that “the

intent of Congress was to require the implementation of TMDLs

on point sources of pollution but not on nonpoint sources.” It

therefore held that Oregon acted beyond its authority in executing

an agreement with EPA “concerning the implementation of

TMDLs for nonpoint sources of pollution.” Twelve copies of that

ruling have been lodged with the Clerk.

authority by imposing regulatory mandates in conflict with

the governing statute. Public Lands Council v. Babbitt, 529

U.S. 728, 739 (2000); AT&T v. Iowa Utils. Bd., 525 U.S. 366

(1999). The decision below warrants this Court’s review

under each of these criteria. And this Court has many times

recognized the importance of resolving unsettled questions

about the construction and application of the Clean Water

Act.

An early and definitive ruling by the Court is especially

warranted in this case because the decision below has

confused the established statutory line between Federal and

State regulation of water pollution. Many of the affected

waters flow through more than one State. Only this Court can

establish a clear national rule as to whether EPA may

mandate § 303(d)(1) TMDLs for waters impaired solely by

nonpoint sources. A uniform understanding of the Clean

Water Act’s allocation of federal-state responsibilities is

critical to delineating permissible uses of land and water in

all 50 States.

® E.g., Borden Ranch P’ship v. United States Army Corps of

Eng’rs, 123 S. Ct. 599 (2002); Solid Waste Agency v. United

States Army Corps of Eng’rs, 531 U.S. 159 (2001); Friends of the

Earth, Inc. v. Laidlaw Envt'l Servs., Inc., 528 U.S. 167 (2000);

PUD No. | v. Washington Dep't of Ecology, 511 U.S. 700 (1994),

Arkansas v. Oklahoma EPA, 503 U.S. 91 (1992); Gwaltney, Ltd. v.

Chesapeake Bay Found., 484 U.S. 49 (1987); International Paper

Co. v. Ouelette, 479 U.S. 481 (1987); Chemical Mfrs. Ass'n v.

NRDC, 470 U.S. 116 (1985); United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121 (1985); Middlesex County Sewerage

Auth. v. National Sea Clammers Ass'n, 453 U.S. 1 (1981); City of

Milwaukee v. Illinois, 451 U.S. 304 (1981); E. I du Pont de

Nemours & Co. v. Train, 430 U.S. 112 (1977); EPA v. California,

426 U.S. 200 (1976); Train v. Colorado Public Interest Group,

426 U.S. 1 (1976); Train v. Campaign Clean Water, Inc., 420 U.S.

136 (1975).

“4

This is no small matter. EPA’s position, as sustained

below, will require at least 40,000 TMDLs over the next

decade.’ Developing these TMDLs will cost the States over

$1 billion, most of which will come from public funds.'°

Roughly half of these TMDLs will be directed to waters

impaired only by nonpoint sources.'' As the National

Governors Association wrote to President Clinton on July 6,

2000, the “states simply do not have the enormous resources

necessary to accomplish such a task.”'? Complying with

these comprehensive, novel, and federally imposed land use

mandates also will impose incalculable costs on private

landowners. As the record in this case shows, the Garcia

River TMDL alone imposed over $10 million in costs on just

one landowner. See App., infra, 1la. And as petitioners

Guido and Betty Pronsolino discovered, such TMDLs force

landowners to make deep and costly cutbacks in land use

activities to compensate for background sediment loadings

over which they often have no control. A dispositive ruling

* See EPA, Notice of Request for Comments on State, Regulated

Community, and Small Business Cost Resulting from the TMDL

Program, 65 Fed. Reg. 75699, 75700 (2000).

'0 See EPA, Fact Sheet on “The National Costs of the Total

Maximum Daily Load Program (Draft Report),”

http://www.epa.gov/owow/tmdl/coststudy/costfact.html.

'' See EPA, Federal Appeals Court Upholds Landmark Clean

Water Decision, Region 9 News Release (June 3, 2002),

http://www.epa.gov/owow/tmdl/lawsuit.html (“54 percent of

California’s impaired waterways are polluted by non-point sources

exclusively”); EPA, Overview of the Total Maximum Daily Load

Program, http://www.epa.gov/owow/tmdl/tptmdl (43% of waters

nationwide on 1998 § 303(d\1) lists are impaired solely by

nonpoint sources).

'2 Available at http://www.nga.org/nga/legislativeUpdate/| 1169,

C_LETTER%S5ED_1077,00.html.

by this Court is needed to prevent such an enormous and

needless waste of resources.

Recent events underscore the urgent need for review of

the decision below. In 1999, EPA proposed a new rule to

formalize its position that § 303(d)(1) applies to waters

impaired only by nonpoint sources. In doing so, EPA

effectively recognized that its longstanding TMDL

regulations, enacted in 1985, are out of step with its current

position. See Proposed Revisions to the Water Quality

Planning and Management Regulation, 64 Fed. Reg. 46012

(Aug. 23, 1999). EPA was widely criticized for seeking to

effect this change without seeking Congressional

authorization. See Susan Bruninga, House Panel Members

Question EPA Authority to Issue TMDL Proposal, 30 Env’t

Rep. (BNA) 1241, 1242 (Nov. 5, 1999). Responding to this

criticism, Congress passed H.R. 4425 in June 2000 to block

funding for implementation of EPA’s proposed rule. EPA

sought to avoid that legislation by publishing its rule in the

Federal Register just hours before President Clinton signed

H.R. 4425 into law (as P.L. 106-246). In the face of litigation

challenging the validity of the new rule, EPA first delayed its

effective date and then withdrew it. See Withdrawal of

Revisions to the Water Quality Planning and Management

Regulation, 67 Fed. Reg. 79020 (Dec. 27, 2002).

That withdrawal does not reflect any pullback from

EPA’s application of § 303(d)(1) to waters impaired only by

nonpoint sources. See 67 Fed. Reg. at 79026 (“EPA

anticipates no reduction in the pace of TMDLs being

developed”). Rather, EPA now intends to rely on the decision

below to implement its TMDL program—and thereby bypass

Congress and the litigation that its aggressive new rule had

provoked. This recent history confirms EPA’s refusal to

abide by the statutory text and underscores the vital need for

this Court’s intervention. Only Congress, not EPA or the

Ninth Circuit, may amend the Clean Water Act.

2S EEA 8 ran gPe RAEN NM sles NSS Fe son Bi gases £ sie nen care

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

TIMOTHY S. BISHOP JEFFREY W. SARLES

SUSAN E. BRICE Counsel of Record

Mayer, Brown, Rowe & Maw RUSSELL R. EGGERT

190 South LaSalle Street CRISTINA CARMODY TILLEY

Chicago, IL 60603 Mayer, Brown, Rowe & Maw

(312) 782-0600 190 South LaSalle Street

Chicago, IL 60603

(312) 782-0600

NANCY N. MCDONOUGH

California Farm Bureau

JOHN J. RADEMACHER

American Farm Bureau

= Federation

ps — po 2300 River Plaza Drive

Park Ridge, IL 60068

847) 685-8600 Sacramento, CA 95833

initia (916) 561-5500

FEBRUARY 2003

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.