Appendix — Pronsolino v. Nastri

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APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 00-16026, 00-16027.

Guido 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.

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Guido A. Pronsolino,

Plaintiff,

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,

Defendants-Intervenors-Appellees,

v.

American Forest & Paper Association; California Forestry

Association,

Plaintiff-Intervenors-Appellants.

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.

Argued and Submitted July 9, 2001.

Filed May 31, 2002.

Before: HALL, WARDLAW and BERZON, Circuit Judges.

* Wayne Nastri is substituted for his predecessor, as Regional Administrator,

U.S. Environmental Protection Agency Region 9. Fed.R.App. P. 43(c)(2).

** Christie Whitman is substituted for her predecessor as Administrator, U.S.

Environmental Protection Agency. Fed.R.App. P. 43(c)(2).

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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.

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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 (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 ine primary mechanism...for the

control of water pollution.” Jd. 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 (1976)). The

1972 Act therefore sought to target primarily “the preventable

causes of pollution,” by emphasizing the use of technological

controls. Jd.; 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

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still might not meet state-set 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 federai

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

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standards for a// 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”

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.” Jd. 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

' The complete text of sections 303(d)(1 (A) and (C) reads:

(A) Each State shall identify those waters within its boundaries for

which the effluent limitations required by section 1311(b)(1 (A) and

section 1311(6\1\(B) of this title are not stringent enough to

implement any water quality standard applicable to such waters. The

State shall establish a priority ranking for such waters, taking into

account the severity of the pollution and the uses to be made of such

waters.

(C) Each State shall establish for the waters identified in paragraph

(1A) of this subsection, and in accordance with the priority ranking,

the total maximum daily load, for those pollutants which the

Administrator identifies under section 1314(a){2) of this title as

suitable for such calculation. Such load shall be established at a level

necessary to implement the applicable water quality standards with

seasonal variations and a margin of safety which takes into account

any lack of knowledge concerning the relationship between effluent

limitations and water quality.

§§ 303(d)(1 (A), (C).

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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.” § 303(d)(1)(C). “A TMDL

defines the specified maximum amount ofa pollutant which can

be discharged or ‘loaded’ into the waters at issue from all

combined sources.” Dioxin/Organochlorine Center v. Clarke,

§7 F.3d 1517, 1520 (9th Cir. 1995).? 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 and TMDLs, the state

must incorporate the list and TMDLs into its “continuing

planning process,” the requirements for which are set forth in

§ 303(e). § 303(d)(2). If the EPA disapproves either the

§ 303(d)(1) list or any TMDLs, the EPA must itself put together

the missing document or documents. /d. The state then

incorporates any EPA-set list or TMDL into the state’s

continuing planning process. Jd.

Each state must also identify all waters not placed on its

§ 303(d)(1) list (the “§ 303(d)(3) list”) and “estimate” TMDLs

for pollutants in those waters. § 303(d)(3). There is no

? The EPA has identified all pollutants, under proper technical conditions,

as suitable for TMDL calculation. 43 Fed. Reg. 60662 (Dec. 28, 1978).

> The CWA does not define the term “total maximum daily load.” The term

“discharge” refers only to pollution emanating from point sources.

Dombeck, 172 F.3d at 1097. The term “loading” refers to the addition of

pollution into a body of water from either point or nonpoint sources. 40

C.F.R. § 130.2(e) (2000).

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requirement that the EPA approve the § 303(d)(3) lists or the

TMDLs estimated for those waters. Jd.

The EPA in regulations has made more concrete the statutory

requirements. Those regulations, in summary, define “water

quality limited segment[s]”—those waters that must be included

on the § 303(d)(1) list—as “[a]ny segment where it is known

that water quality does not meet applicable water quality

standards, and/or is not expected to meet applicable water

quality standards, even after the application of the

technology-based effluent limitations required by sections

301(b) and 306[, 33 U.S.C. § 1316].” 40 C.F.R. § 130.2()

(2000). The regulations then divide TMDLs into two types:

“load allocations,” for nonpoint source pollution, and

“wasteload allocations,” for point source pollution. §

130.2(g)-(i); see also p. 7919, infra. Under the regulations,

states must identify those waters on the § 303(d)(1) lists as “still

requiring TMDLs” if any required effluent limitation or other

pollution control requirement (including those for nonpoint

source pollution) will not bring the water into compliance with

water quality standards. § 130.7(b) (2000).*

3. Continuing Planning Process

The final pertinent section of § 303, § 303(e), requiring each

state to have a “continuing planning process,” gives some

operational force to the prior information-gathering provisions.

The EPA may approve a state’s continuing planning process

only if it “will result in plans for all navigable waters within

such State” that include, inter alia, effluent limitations, TMDLs,

areawide waste management plans for nonpoint sources of

pollution, and plans for “adequate implementation, including

schedules of compliance, for revised or new water quality

standards.” § 303(e)(3).

* We review the regulations in greater detail below.

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The upshot of this intricate scheme is that the CWA leaves

to the states the responsibility of developing plans to achieve

water quality standards if the statutorily-mandated point source

controls will not alone suffice, while providing federal funding

to aid in the implementation of the state plans. See Dombeck,

172 F.3d at 1097; § 303(e); see also § 319(h), 33 U.S.C. §

1329(h) (providing for grants to states to combat nonpoint

source pollution). TMDLs are primarily informational tools that

allow the states to proceed from the identification of waters

requiring additional planning to the required plans. See Alaska

Center for the Environment v. Browner, 20 F.3d 981, 984-85

(9th Cir. 1994). As such, TMDLs serve as a link in an

implementation chain that includes federally-regulated point

source controls, state or local plans for point and nonpoint

source pollution reduction, and assessment of the impact of

such measures on water quality, all to the end of attaining water

quality goals for the nation’s waters.

Il. FACTUAL AND PROCEDURAL BACKGROUND

A. The Garcia River TMDL

In 1992, California submitted to the EPA a list of waters

pursuant to § 303(d)(1)(A). Pursuant to § 303(d)(2), the EPA

disapproved California’s 1992 list because it omitted seventeen

water segments that did not meet the water quality standards set

by California for those segments. Sixteen of the seventeen water

segments, including the Garcia River, were impaired only by

nonpoint sources of pollution.’ After California rejected an

opportunity to amend its § 303(d)(1) list to include the

seventeen sub-standard segments, the EPA, again acting

pursuant to § 303(d)(2), established a new § 303(d)(1) list for

California, including those segments on it. California retained

> California had, however, previously included on its § 303(d)(1) list other

waters polluted only by nonpoint sources of pollution.

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the seventeen segments on its 1994, 1996, and 1998 § 303(d)(1)

lists.

California did not, however, establish TMDLs for the

segments added by the EPA. Environmental and fishermen’s

groups sued the EPA in 1995 to require the EPA to establish

TMDLs for the seventeen segments, and in a March 1997

consent decree the EPA agreed to do so. See Pacific Coast

Fishermens Assocs. v. Marcus, No. 95-4474. According to the

terms of the consent decree, the EPA set March 18, 1998, as the

deadline for the establishment of a TMDL for the Garcia River.

When California missed the deadline despite having initiated

public comment on a draft TMDL and having prepared a draft

implementation plan, the EPA established a TMDL for the

Garcia River. The EPA’s TMDL differed only slightly from the

state’s draft TMDL.

The Garcia River TMDL for sediment is 552 tons per square

mile per year, a sixty percent reduction from historical loadings.

The TMDL allocates portions of the total yearly load among the

following categories of nonpoint source pollution: a) “mass

wasting” associated with roads; b) “mass wasting” associated

with timber-harvesting; c) erosion related to road surfaces; and

d) erosion related to road and skid trail crossings.

B. The Appellants

In 1960, appellants Betty and Guido Pronsolino purchased

approximately 800 acres of heavily logged timber land in the

Garcia River watershed. In 1998, after re-growth of the forest,

the Pronsolinos applied for a harvesting permit from the

California Department of Forestry (“Forestry”).

In order to comply with the Garcia River TMDL, Forestry

and/or the state’s Regional Water Quality Control Board

required, among other things, that the Pronsolinos’ harvesting

permit provide for mitigation of 90% of controllable

road-related sediment run-off and contain prohibitions on

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removing certain trees and on harvesting from mid-October

until May 1.° The Pronsolinos’ forester estimates that the large

tree restriction will cost the Pronsolinos $750,000.

Larry Mailliard, a member of the Mendocino County Farm

Bureau, submitted a draft harvesting permit on February 4,

1998, for a portion of his property in the Garcia River

watershed. Forestry granted a final version of the permit after

incorporation of a 60.3% reduction of sediment loading, a

requirement included to comply with the Garcia River TMDL.

Mr. Mailliard’s forester estimates that the additional restrictions

imposed to comply with the Garcia River TMDL will cost Mr.

Mailliard $10,602,000.

Bill Barr, another member of the Mendocino County Farm

Bureau, also applied for a harvesting permit in 1998 for his

property located within the Garcia River watershed. Forestry

granted the permit after incorporation of restrictions similar to

those included in the Pronsolinos’ permit. A forester states that

these additional restrictions, included to comply with the

TMDL, will cost Mr. Barr at least $962,000.

C. Proceedings Below

On August 12, 1999, the Pronsolinos, the Mendocino County

Farm Bureau, the California Farm Bureau Federation, and the

* Specifically, the harvesting permit specified that the Pronsolinos must: “a)

inventory controllable sediment sources from all roads, landings, skid trails

and agricultural facilities by June 1, 2002; b) mitigate-90% of controllable

sediment volume at ‘road related’ inventoried sites by June 1, 2012; c)

prevent sediment loadings caused by road construction; d) retain five conifer

trees greater than 32 inches in diameter at breast height . . . per 100 feet of

all Class | and Class II watercourses (if the site lacks enough trees to comply,

the five largest trees per 100 feet must be retained); e) harvest only during

dry, rainless periods between May | and October 15; f) refrain from

constructing or using skid trails on slopes greater than 40 degrees within 200

feet of a watercourse; and g) forbear from removing trees from certain

unstable areas which have a potential to deliver sediment to a watercourse.”

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American Farm Bureau Federation brought this action pursuant

to the Administrative Procedure Act, 5 U.S.C. §§ 702, 704, in

the District Court for the Northern District of California against

the EPA and two of its administrators. The Pronsolinos

challenged the EPA’s authority to impose TMDLs on rivers

polluted only by nonpoint sources of pollution and sought a

determination of whether the Act authorized the Garcia River

TMDL.

The parties filed cross-motions for summary judgment. On

August 6, 2000, the district court entered final judgment in

favor of the EPA. The Pronsolinos timely filed this appeal.’

Ill. ANALYSIS

A. Deference to the EPA

As this is a summary judgment case, our review of the

district court’s decision is, of course, de novo. See Oregon

Natural Res. Council, 834 F.2d at 844. Harder to answer is the

question of the degree of deference we owe the EPA’s

regulations and decisions interpreting and applying CWA

§ 303.

The EPA argues that we owe deference to the interpretation

of § 303 embodied in its regulations, pursuant to Chevron

U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984).

An agency’s statutory interpretation is entitled to Chevron

deference if “Congress delegated authority to the agency

’ The American Forest & Paper Association and the California Forestry

Association intervened as intervenor-appellants. The Pacific Coast

Federation of Fishermen’s Associations and the Association of Metropolitan

Sewerage Agencies intervened as intervenor-appellees. The Pacific Legal

Foundation, Forest Landowners of California, and Oregon Lands Coalition

filed an amici curiae brief in support of appellants. The States of California,

Oregon, Washington, Delaware, Maine, Maryland, and New Jersey

submitted an amici curiae brief in support of appellees. Westcas filed a brief

as amicus curiae in support of either party but supporting reversal.

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generally to make rules carrying the force of law, and . . . the

agency interpretation claiming deference was promulgated in

the exercise of that authority.” United States v. Mead, 533 U.S.

218, 226-27 (2001). If Chevron deference applies, we must

defer to the agency’s interpretation as long as it is reasonably

consistent with the statute. /d. at 229.

The Pronsolinos urge an approach at the opposite end of the

deference spectrum, asserting that the EPA’s interpretation

should receive no deference at all because, they maintain, the

EPA has inconsistently interpreted § 303(d) and has not

included its current interpretation in a regulation that has the

force of law. In between Chevron deference and no deference,

however, lies another possibility. The Supreme Court in Mead

recently clarified that agency interpretations that do not qualify

for Chevron deference may nonetheless merit deference

pursuant to Skidmore v. Swift & Co., 323 U.S. 134 (1944). 533

U.S. at 237. Under Skidmore, we defer to the agency’s position

according to its persuasiveness. Mead, 533 U.S. at 221. Factors

relevant to determining persuasiveness may include the

agency’s expertise, care, consistency, and formality, as well as

the logic of the agency’s position. /d. at 228 (citing Skidmore,

323 U.S. at 139-40). Thus, we must consider whether the EPA’s

interpretation is due Chevron deference, as the EPA argues; no

deference, as the Pronsolinos argue; or, alternatively, Skidmore

deference (and, if so, to what extent).

The EPA has the statutory authority to enact a rule carrying

the force of law as to the issue at hand. The CWA delegates to

the EPA the general rule-making authority necessary for the

agency to carry out its functions under the Act. CWA § 501(a),

33 U.S.C. § 1361(a). One of those functions is to approve or

disapprove the § 303(d)(1) list and any required TMDLs.

§ 303(d)(2). So the EPA has the delegated authority to enact

regulations carrying the force of law regarding the identification

of § 303(d)(1) waters and TMDLs. See Mead, 533 U.S. at 229.

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The Pronsolinos do not contest the EPA’s general

rule-making authority but maintain that it has not been

exercised, because no currently-operative EPA regulation

expressly precludes the Pronsolinos’ position that

§§ 303(d)(1)(A) and (C) do not apply to rivers impaired only by

nonpoint source pollution.’ The pertinent regulations do,

however, reflect the EPA’s interpretation—that is, that the

statute requires the identification on § 303(d)(1) lists of waters

impaired only by nonpoint sources of pollution—and the EPA

so reads its regulations.

The EPA regulations pertinent to § 303(d)(1) lists and

TMDLs focus on the attainment of water quality standards,

whatever the source of any pollution. For instance, the EPA’s

regulations define TMDLs as the “sum of the individual WLAs

[wasteload allocations] for point sources and LAs [load

allocations] for nonpoint sources and natural background.” 40

C.F.R. § 130.2(i). Section 130.2 also defines a “wasteload

allocation” as the “portion of a receiving water’s loading

capacity that is allocated to one of its existing or future point

sources of pollution,” § 130.2(h), and a “load allocation” as the

“portion of a receiving water’s loading capacity that is

attributed either to one of its existing or future nonpoint sources

of pollution or to natural background sources,” § 130.2(g). The

load allocation regulation also advises that, if possible, “natural

and nonpoint source loads should be distinguished.” Jd. No

reason appears why, under this TMDL definition, the amount of

either point source loads or nonpoint source loads cannot be

zero. If the wasteload allocation is zero, then the TMDL would

* In July 2000, the EPA published a final rule that, among many other

provisions, amends its regulations expressly to require the inclusion on §

303(d)1) lists of waters polluted only by nonpoint sources. 65 Fed. Reg.

43586 (July 13, 2000). As the EPA has published a final rule delaying until

August 30, 2003, the effective date of the July 2000 final rule, 66 Fed. Reg.

53044 (Oct. 18, 2001), we do not consider the final rule’s amendments in our

analysis.

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cover only the nonpoint sources and natural background

sources. So read, the regulation provides that a TMDL can

apply where there is no wasteload allocation for point source

pollution. See also, e.g., § 130.2 (referencing the establishment

of TMDLs for nonpoint source pollution); 40 C.F.R.

§ 130.7(c)(1)(ii) (TMDLs must be established for a// pollutants

that prevent the attainment of water quality standards).

Section 130.7 evinces the same understanding. That

regulation directs states to identify those waters listed pursuant

to § 303(d)(1) that still require the establishment of TMDLs if:

(i) Technology-based effluent limitations required by

sections 301(b), 306, 307, or other sections of the Act;

(ii) More stringent effluent limitations (including

prohibitions) required . . . ; and

(iii) Other pollution control requirements (e.g., best

management practices) required by local, State, or Federal

authority are not stringent enough to implement any

water quality standards . . . applicable to such waters.

§ 130.7(b)(1). “Best management practices” pertain to nonpoint

sources of pollution. CWA § 208, 33 U.S.C. § 1288; CWA §

319, 33 U.S.C. § 1329. So, again, § 130.7 does not distinguish

between sources of pollution for purposes of applying the

TMDL requirement. Instead, control requirements applicable to

either type of pollution receive equal treatment in the quest to

achieve water quality standards.

Also consistent with application of the § 303(d)(1) listing

and TMDL requirements to waters impaired only by nonpoint

sources is the regulation addressing water quality standards.

Section 130.3 explains that “[s]uch standards serve the dual

purposes of establishing the water quality goals for a specific

water body and serving as the regulatory basis for establishment

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of water quality-based treatment controls and strategies beyond

the technology- based level of treatment required .. . .” 40

C.F.R. § 130.3. One purpose of water quality standards

therefore—and not surprisingly—is to provide

federally-approved goals to be achieved both by state controls

and by federal strategies other than point-source

technology-based limitations. This purpose pertains to waters

impaired by both point and nonpoint source pollution. The

regulations addressing states’ water quality management plans,

intended to attain the promulgated water quality standards,

confirm this understanding. Such plans must include, among

other things, TMDLs, effluent limitations, and “nonpoint source

management and control.” 40 C.F.R. § 130.6 (emphasis added).

In short, the EPA’s regulations concerning § 303(d)(1) lists

and TMDLs apply whether a water body receives pollution

from point sources only, nonpoint sources only, or a

combination of the two. The EPA has issued directives

concerning the states’ CWA § 303(d) requirements in

conformity with this understanding of its regulations. See, e.g.,

Memorandum from Geoffrey Grubbs, Director, EPA

Assessment and Watershed Protection Division, to Water

Quality Branch Chiefs and TMDL Coordinators (Aug. 13,

1992) (Section 303(d)(1)(A) “applies equally to segments

affected by point sources only, a combination of point and

nonpoint sources, and nonpoint sources only.”); EPA, National

Clarifying Guidance for 1998 State and Territory Clean Water

Act Section 303 (d) Listing Decisions 6 (1997) (“Consistent with

long-standing EPA policy, regulations, and practice, States

should include waterbodies impaired by nonpoint sources alone

on 1998 section 303(d)(1)(A) lists . . . .”).

In light of the current regulations and the agency’s

understanding of those regulations, as well as the delegated

authority of the EPA to interpret the CWA, the EPA’s

interpretation is entitled to Chevron deference. See Mead, 533

U.S. at 226-27; see also Auer v. Robbins, 519 U.S. 452, 461

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(1997) (stating that an agency’s interpretation of its own

regulation is “controlling unless plainly erroneous or

inconsistent with the regulation”) (citations and internal

quotation marks omitted).

At the least, however, we owe the agency’s interpretation

substantial deference under Skidmore. Cf. Mead, 533 US. at

237 n.18 (“It is, of course, true that the limit of Chevron

deference is not marked by a hard-edged rule.”’). Section 303(d)

is one of numerous interwoven components that together make

up an intricate statutory scheme addressing technically complex

environmental issues. Confronted with an issue dependent

upon, and the resolution of which will affect, a complicated,

science-driven statute for which the EPA has delegated |

regulatory authority, we consider the EPA’s interpretation of the

issue informative. See Mead, 533 U.S. at 234 (noting the

“specialized experience and broader investigations and

information available” to agencies and “the value of uniformity

in [ ] administrative and judicial understandings of what a

national law requires”) (citations and internal quotation marks

omitted).

Appellants maintain that we should instead ignore the EPA’s

position, arguing that the Agency has not consistently

interpreted the statute. We disagree with this characterization of

the EPA’s position over the thirty-year period since the

enactment of the statute.

The first regulations promulgated after the enactment of the

CWA in 1972 quite clearly required the identification on

§ 303(d)(1) lists of waters polluted only by nonpoint sources.

The EPA defined as a “water quality” segment— again, those

water bodies to be included on the § 303(d)(1) list, see 43 Fed.

Reg. 60662, 60665 (Dec. 28, 1978)—any water “where it is

known that water quality does not meet applicable water quality

standards and/or is not expected to meet applicable water

quality standards even after the application of the effluent

18a

limitations required .. . .” 40 C.F.R. § 130.2(0)(1) (1978); id.

(1977); id. (1976); 40 C.F.R. § 130.11(d)(1) (1975); id. (1974);

id. (1973).? In contrast, the EPA defined as an “effluent

limitation” segment—those waters making up the separate

§ 303(d)(3) list’? —any water “where it is known that water

quality is meeting and will continue to meet applicable water

quality standards or where there is adequate demonstration that

water quality will meet applicable water quality standards after

the application of the effluent limitations required .. . .” 40

C.F.R. § 130.2(0)(2) (1978); id. (1977); id. (1976); 40 C.F.R.

§ 130.11(d)(2) (1975); id. (1974); id. (1973)"'. Thus, if a water

segment had not met, or would not soon meet, applicable water

quality standards, regardless of the source of pollution, the EPA

required its identification pursuant to § 303(d)(1)(A). In other

words, the EPA initially interpreted § 303(d) exactly as it does

today.'”

* The 1973 regulation differed in an insignificant way from the text quoted.

'° Section 303(d)(3) provides:

For the specific purpose of developing information, each State shall

identify all waters within its boundaries which it has not identified

under paragraph (1)(A) and (1B)[waters for which controls on

thermal discharges are not stringent enough for certain identified

purposes] of this subsection and estimate for such waters the total

maximum daily load with seasonal variations and margins of safety,

for those pollutants which the Administrator identifies under section

1314(a)(2) of this title[CWA § 304(a)(2)] as suitable for such

calculation and for thermal discharges, at a level that would assure

protection and propagation of a balanced indigenous population of

fish, shellfish and wildlife.

§ 303(d)(3) (emphasis added).

'' Again, the 1973 regulation differed insignificantly from the quotation.

'2 The EPA overhauled its regulations in 1979 and provided almost no

regulatory guidance as to the requirements of § 303(d) until the enactrnent

in 1985 of the current regulations. See 44 Fed. Reg. 30016 (May 23, 1979)

(repealing 40 C.F.R. part 130); see also 40 C.F.R. § 35.1511-1(d)(2) (1979);

19a

The Pronsolinos nevertheless contend that the EPA’s current

interpretation is an invention of the early 1990s. They point out

that until that time the EPA did not actively police the

requirement that states include on their § 303(d)(1) lists waters

polluted only by nonpoint source pollution. While that is true,

that agency stance reflected a more general regulatory failure to

enforce the § 303(d) requirements, not a failure with regard only

to waters impaired by nonpoint sources. Until the early 1990s,

the EPA focused its attention almost entirely on the new point

source technological controls, to the exclusion of § 303(d) and

the TMDL program. See Pronsolino v. Marcus, 91 F. Supp. 2d

1337, 1354 (N.D. Cal.2000)" (citing United States General

Accounting Office, Water Pollution: More EPA Action Needed

to Improve the Quality of Heavily Polluted Waters, GAO Report

to the Chairman: Subcommittee on Regulation and Business

Opportunities Committee on Small Business, House of

Representatives (Jan.1989)); see also id. at 1353-54 (describing

the history of EPA enforcement action with respect to §

303(d)); Oliver A. Houck, The Clean Water Act TMDL

Program: Law, Policy, and Implementation 49-56 (1999) (“The

Clean Water Act TMDL Program’’)(same). We have not found,

and the Pronsolinos have not pointed to, any statement by the

EPA—either in regulations or otherwise—that is inconsistent

with the interpretation the agency now espouses.

In short, Congress entrusted to the EPA the responsibility of

approving or disapproving § 303(d)(1) lists, bestowing upon it

the discretion that comes with such responsibility; the EPA has

specialized experience regarding the CWA which this court

lacks; and the agency has consistently interpreted the provisions

§ 35.1521-4(a) (1979).

‘3. The district court opinion in this case explains this history, as well as

many other aspects of this case, carefully and lucidly. We therefore refer to

that opinion at points rather than repeating its analysis.

20a

at issue. We conclude that the EPA’s interpretation is one to

which we owe substantial Skidmore deference, at the very least.

See Mead, 533 U.S. at 227-28.

In the end, though, it does not much matter in this case

whether we review the EPA’s position through the Chevron or

Skidmore/Mead prism. Under both the more and less rigorous

versions of the judicial review standard, the Agency’s position

is, as the discussion below indicates, more than sufficiently

supported by the statutory materials.

B. Plain Meaning and Structural Issues

1. The Competing Interpretations

Section 303(d)(1)(A) requires listing and calculation of

TMDLs for “those waters within [the state’s] 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.” § 303(d) (emphasis added). The

precise statutory question before us is whether, as the

Pronsolinos maintain, the term “not stringent enough to

implement . . . water quality standard[s]” as used in

§ 303(d)(1)(A) must be interpreted to mean both that

application of effluent limitations will not achieve water quality

standards and that the waters at issue are subject to effluent

limitations. As only waters with point source pollution are

subject to effluent limitations, such an interpretation would

exclude from the § 303(d)(1) listing and TMDL requirements

waters impaired only by nonpoint sources of pollution.

The EPA, as noted, interprets “not stringent enough to

implement . . . water quality standard[s]” to mean “not

adequate” or “not sufficient . . . to implement any water quality

standard,” and does not read the statute as implicitly containing

a limitation to waters initially covered by effluent limitations.

According to the EPA, if the use of effluent limitations will not

2la

implement applicable water quality standards, the water falls

within § 303(d)(1)(A) regardless of whether it is point or

nonpoint sources, or a combination of the two, that continue to

pollute the water.

2. The Language and Structure of § 303(d)

Whether or not the appellants’ suggested interpretation is

entirely implausible, it is at least considerably weaker than the

EPA’s competing construction. The Pronsolinos’ version

necessarily relies upon: (1) understanding “stringent enough” to

mean “strict enough” rather than “thoroughgoing enough” or

“adequate” or “sufficient”;'* and (2) reading the phrase “not

stringent enough” in isolation, rather than with reference to the

stated goal of implementing “any water quality standard

applicable to such waters.” Where the answer to the question

“not stringent enough for what?” is “to implement any

[applicable] water quality standard,” the meaning of “stringent”

should be determined by looking forward to the broad goal to

be attained, not backwards at the inadequate effluent

limitations. One might comment, for example, about a teacher

that her standards requiring good spelling were not stringent

enough to assure good writing, as her students still used bad

grammar and poor logic. Based on the language of the contested

phrase alone, then, the more sensible conclusion is that the

§ 303(d)(1) list must contain any waters for which the particular

‘* Stringent means “rigorous, strict, thoroughgoing; rigorously binding or

coercive.” Oxford English Dictionary Online (2001). Defining “stringent”

as “rigorous” or “strict” would lend support to the Pronsolinos’

interpretation. If "stringent" means “thoroughgoing,” however,

§ 303(d){1 (A) would encompass the EPA's broader reading of the statute.

Also, “stringent enough” may have a slightly different meaning from

“stringent” standing alone, such as “adequate” or “sufficient.” See |

Legislative History of the Water Pollution Control Act Amendments of 1972

at 792 (1973) (Legislative History ) (H.R. Rep. 92-911 to accompany H.R.

11896 (March 11, 1972)) (using the term “are inadequate” in place of “not

stringent enough.”).

22a

effluent limitations will not be adequate to attain the statute’s

water quality goals.

Placing the phrase in its statutory context supports this

conclusion. Section 303(d) begins with the requirement that

each state “identify those waters within its boundaries... .”

§ 303(d)(1)(A). So the statute ’s starting point for the listing

project is a compilation of each and every navigable water

within the state. Then, only those waters that will attain water

quality standards after application of the new point source

technology are excluded from the § 303(d)(1) list, leaving all

those waters for which that technology will not “implement any

water quality standard applicable to such waters.”

§ 303(d)(1){A); see American Wildlands v. Browner, 260 F.3d

1192, 1194 (10th Cir. 2001) (“{E]ach state is required to

identify all of the waters within its borders not meeting water

quality standards and establish [TMDLs] for those waters.”)

(citing § 303(d)); Pronsolino, 91 F. Supp. 2d at 1347. The

alternative construction, in contrast, would begin with a subset

of all the state’s waterways, those that have point sources

subject to effluent limitations, and would result in a list

containing only a subset of that subset—those waters as to

which the applicable effluent limitations are not adequate to

attain water quality standards.

The Pronsolinos’ contention to the contrary notwithstanding,

no such odd reading of the statute is necessary in order to give

meaning to the phrase “for which the effluent limitations

required by section [301(b)(1)(A)] and section [301(b)(1)(B)]

: . are not stringent enough.” The EPA interprets

§ 303(d)(1)(A) to require the identification of any waters not

meeting water quality standards only if specified effluent

limitations would not achieve those standards. 40 C.F.R.

§ 130.2(j). If the pertinent effluent limitations would, if

implemented, achieve the water quality standards but are not in

place yet, there need be no listing and no TMDL calculation. /d.

23a

So construed, the meaning of the statute is different than it

would be were the language recast to state only that “Each State

shall identify those waters within its boundaries . . . [not

meeting] any water quality standard applicable to such waters.”

Under the EPA’s construction, the reference to effluent

limitations reflects Congress’ intent that the EPA focus initially

on implementing effluent limitations and only later avert its

attention to water quality standards. See e.g., 1 Legislative

History 71(“The Administrator should assign secondary

priority to [§ 303] to the extent limited manpower and funding

may require a choice between a water quality standards process

and early and effective implementation of the effluent

limitation-permit program.” (statement of Sen. Muskie,

principal author of the CWA and the Chair of the Senate’s

Public Works Committee)); see also Environmental Def. Fund,

Inc. v. Costle, 657 F.2d 275, 279 (D.C. Cir. 1981) (The 1972

CWA “assigned secondary priority to the [water quality]

standards and placed primary emphasis upon both a point

source discharge permit program and federal technology-based

effluent limitations .. . .”).'°

Given all these language considerations, it is not surprising

that the only time this court addressed the reach of

§ 303(d)(1)(A), it rejected a reading of § 303(d)(1)(A) similar

to the one the Pronsolinos now proffer. In Dioxin, 57 F.3d at

1526-27, the plaintiffs argued that the phrase “not stringent

enough” prohibited the EPA from listing under § 303(d)(1)(A)

and establishing TMDLs for toxic pollutants, until after the

implementation and proven failure of § 301(b)(1)(A) “best

'S The district court expressed the same point differently: “The 1972 Act

superimposed the technology-driven mandate of point-source effluent

limitations. To assess the impact of the new strategy on the monumental

clean-up task facing the nation, Congress called for a list of the unfinished

business expected to remain even after application of the new cleanup

strategy.” Pronsolino, 91 F. Supp. 2d at 1347.

24a

practicable technology” effluent limitations. Toxic pollutants,

however, are not subject to “best practicable technology”

controls, '® but to more demanding “best available technology,”

precisely because of their toxicity. /d.

The court in Dioxin held that the EPA acted within its

statutory authority in setting TMDLs for toxic pollutants, even

though the effluent limitations referenced by § 303(d)(1)(A) did

not apply to those pollutants. /d. at 1528. The court explained

that, since best practical technology effluent limitations do not

apply to toxic pollutants, those limitations are, as a matter of

law, “not stringent enough” to achieve water quality standards.

Id. In other words, Dioxin read § 303(d){1)(A) as applying to all

waters in the state, not only to the subset covered by certain

kinds of effluent controls, and it understood “not stringent

enough” to mean “not adequate for” or “inapplicable to.”

Nothing in § 303(d)(1)(A) distinguishes the treatment of

point sources and nonpoint sources as such; the only reference

is to the “effluent limitations required by” § 301(b)(1). So if the

effluent limitations required by § 301(b)(1) are “as a matter of

law” “not stringent enough” to achieve the applicable water

quality standards for waters impaired by point sources not

subject to those requirements, then they are also “not stringent

enough” to achieve applicable water quality standards for other

waters not subject to those requirements, in this instance

because they are impacted only by nonpoint sources.

Additionally, the Dioxin court, applying Chevron deference,

upheld the EPA’s interpretation of § 303(d) “as requiring

TMDLs where existing pollution controls will not lead to

attainment of water standards,” id. at 1527; see also 40 C.F.R.

§ 130.7(b), a holding that directly encompasses waters polluted

only by nonpoint sources.

'© Nor did the effluent limitations required by § 301(b)(1)(B) apply to the

pollutants at issue.

25a

3. The Statutory Scheme as a Whole

The Pronsolinos’ objection to this view of § 303(d), and of

Dioxin, is, in essence, that the CWA as a whole distinguishes

between the regulatory schemes applicable to point and

nonpoint sources, so we must assume such a distinction in

applying §§ 303(d)(1)(A) and (C). We would hesitate in any

case to read into a discrete statutory provision something that is

not there because it is contained elsewhere in the statute. But

here, the premise is wrong: There is no such general division

throughout the CWA.

Point sources are treated differently from nonpoint sources

for many purposes under the statute, but not all. In particular,

there is no such distinction with regard to the basic purpose for

which the § 303(d) list and TMDLs are compiled, the eventual

attainment of state-defined water quality standards. Water

quality standards reflect a state’s designated uses for a water

body and do not depend in any way upon the source of

pollution. See § 303(a)-(c).

Nor is there any other basis for inferring from the structure

of the Act an implicit limitation in §§ 303(d)(1)(A) and (C).

The statutory subsection requiring water quality segment

identification and TMDLs, § 303(d), appears in the section

entitled “Water Quality Standards and Implementation Plans,”

not in the immediately preceding section, CWA § 302, 33

U.S.C. § 1312, entitled “Water Quality Related Effluent

Limitations.” So the section heading does not suggest any

limitation to waters subject to effluent limitations. Porter v.

Nussle, 122 S. Ct. 983, 990 (2002) (“[T]he title of a statute and

the heading of a section are tools available for the resolution of

a doubt about the meaning of a statute.”) (citation omitted).

Additionally, § 303(d) follows the subsections setting forth

the requirements for water quality standards,

§ 303(a)-(c}—which, as noted above, apply without regard to

26a

the source of pollution—and precedes the “continuing planning

process” subsection, § 303(e), which applies broadly as well.

Thus, § 303(d) is structurally part of a set of provisions

governing an interrelated goal-setting, information-gathering,

and planning process that, unlike many other aspects of the

CWA, applies without regard to the source of pollution.

True, there are, as the Pronsolinos point out, two sections of

the statute as amended, § 208 and § 319, that set requirements

exclusively for nonpoint sources of pollution. But the structural

inference we are asked to draw from those specialized

sections—that no other provisions of the Act set requirements

for waters polluted by nonpoint sources—simply does not

follow. Absent some irreconcilable contradiction between the

requirements contained in §§ 208 and 319, on the one hand, and

the listing and TMDL requirements of § 303(d), on the other,

both apply.

There is no such contradiction. Section 208 provides for

federal grants to encourage the development of state “areawide

waste treatment management plans” for areas with substantial

water quality problems, § 208(a), (f), and requires that those

plans include a process for identifying and controlling nonpoint

source pollution “to the extent feasible.” § 208(b)(2)(F). Section

319, added to the CWA in 1987, directs states to adopt

“nonpoint source management programs”; provides grants for

nonpoint source pollution reduction; and requires states to

submit a report to the EPA that “identifies those navigable

waters within the State which, without additional action to

control nonpoint sources of pollution, cannot reasonably be

expected to attain or maintain applicable water quality standards

or the goals and requirements of this chapter.” § 319(a)(1)(A).

This report must also describe state programs for reducing

nonpoint source pollution and the process “to reduce, to the

maximum extent practicable, the level of pollution” resulting

from particular categories of nonpoint source pollution.

§ 319(a)(1)(C), (D).

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27a

The CWA is replete with multiple listing and planning

requirements applicable to the same waterways (quite

confusingly so, indeed), so no inference can be drawn from the

overlap alone. See, e.g., § 208(b); § 303(d)(1)(A), (d)(1)(B),

(d)(3), (e); CWA § 304(1), 33 U.S.C. § 1314(1); CWA § 314, 33

U.S.C. § 1324(a); § 319(a). Nor are we willing to draw the

more discrete inference that the § 303(d) listing and TMDL

requirements cannot apply to nonpoint source pollutants

because the planning requirements imposed by § 208 and § 319

are qualified ones—“to the extent feasible” and “to the

maximum extent practicable”—while the § 303(d) requirements

are unbending. For one thing, the water quality standards set

under § 303 are functional and may permit more pollution than

it is “feasible” or “practicable” to eliminate, depending upon the

intended use of a particular waterway. For another, with or

without TMDLs, the § 303(e) plans for attaining water quality

standards must, without qualification. account for elimination

of nonpoint source pollution to the extent necessary to meet

those standards. § 303(e)(3)(F).

The various reporting requirements that apply to nonpoint

source pollution are no more impermissibly redundant than are

the planning requirements. Congress specifically provided that

in preparing the § 319 report, states may rely on information

from § 303(e), which incorporates the TMDLs. § 319(a)(2).

Moreover, states must produce a § 319 report only once, but

must update the § 303(d)(1) list periodically. § 319;

§ 303(d)(2). Also, the § 319 report requires the identification of

a plan to reduce nonpoint source pollution, without regard to the

attainment of water quality standards, while the plans generated

using the § 303(d)(1) lists and TMDLs are guided by the goal

of achieving those standards. § 319; § 303(d), (e).

Essentially, § 319 encourages the states to institute an

approach to the elimination of nonpoint source pollution similar

to the federally-mandated effluent controls contained in the

CWA, while § 303 encompasses a water quality based apprc ach

28a

applicable to all sources of water pollution. As various sections

of the Act encourage different, and complementary, state

schemes for cleaning up nonpoint source pollution in the

nation’s waterways, there is no basis for reading any of those

sections—including § 303(d)—out of the statute.

There is one final aspect of the Act’s structure that bears

consideration because it supports the EPA’s interpretation of

§ 303(d): The list required by § 303(d)(1)(A) requires that

waters be listed if they are impaired by a combination of point

sources and nonpoint sources; the language admits of no other

reading. Section 303(d)(1)(C), in turn, directs that TMDLs

“shall be established at a level necessary to implement the

applicable water quality standards . . . .” Jd. (emphasis added).

So, at least in blended waters, TMDLs must be calculated with

regard to nonpoint sources of pollution; otherwise, it would be

impossible “to implement the applicable water quality

standards,” which do not differentiate sources of pollution. This

court has so recognized. Browner, 20 F.3d at 985 (“Congress

and the EPA have already determined that establishing TMDLs

is an effective tool for achieving water quality standards in

waters impacted by non-point source pollution.”).

Nothing in the statutory structure—or purpose—suggests that

Congress meant to distinguish, as to § 303(d)(1) lists and

TMDLs, between waters with one insignificant point source and

substantial nonpoint source pollution and waters with only

nonpoint source pollution. Such a distinction would, for no

apparent reason, require the states or the EPA to monitor waters

to determine whether a point source had been added or

removed, and to adjust the § 303(d)(1) list and establish

TMDLs accordingly. There is no statutory basis for concluding

that Congress intended such an irrational regime.

Looking at the statute as a whole, we conclude that the

EPA’s interpretation of § 303(d) is not only entirely reasonable

29a

but considerably more convincing than the one offered by the

plaintiffs in this case.'’

C. Federalism Concerns

The Pronsolinos finally contend that, by establishing TMDLs

for waters impaired only by nonpoint source pollution, the EPA

has upset the balance of federal-state control established in the

CWA by intruding into the states’ traditional control over land

use. See Solid Waste Agency of Northern Cook County v.

United States Army Corps of Eng’rs, 531 U.S. 159, 172-73

(2001). That is not the case.

The Garcia River TMDL identifies the maximum load of

pollutants that can enter the Garcia River from certain broad

categories of nonpoint sources if the river is to attain water

quality standards. It does not specify the load of pollutants that

may be received from particular parcels of land or describe

what measures the state should take to implement the TMDL.

Instead, the TMDL expressly recognizes that “implementation

and monitoring” “are state responsibilities” and notes that, for

this reason, the EPA did not include implementation or

'7 It is therefore unnecessary to examine the legislative history. See Dep't of

Hous. and Urban Dev. v. Rucker, 122 S. Ct. 1230, 1234 (2002).

Nonetheless, we have reviewed that history and considered the legislative

history arguments put forth by the Pronsolinos. The thrust of those arguments

mirrors the arguments based on the statute’s language and structure,

addressed above. We reject them for the same reason: That Congress meant

to include waters impaired by point sources where technological controls had

not attained water quality standards—as the legislative history shows, |

Legislative History 792-93 (H.R. Rep. 92-911 to accompany H.R. 11896

(March 11, 1972))}—does not prove that it intended to exclude nonpoint

sources from the TMDL requirement.

30a

monitoring plans within the TMDL.'"* EPA, Garcia River

Sediment Total Maximum Daily Load 43 (Mar. 16, 1998).

Moreover, § 303(e) requires—separately from the §

303(d)(1) listing and TMDL requirements—that each state

include in its continuing planning process “adequate

implementation, including schedules of compliance, for revised

or new water quality standards” “for all navigable waters within

such State.” § 303(e)(3). The Garcia River TMDL thus serves

as an informational tool for the creation of the state’s

implementation plan, independently—and explicitly—required

by Congress.

California chose both if and how it would implement the

Garcia River TMDL. States must implement TMDLs only to

the extent that they seek to avoid losing federal grant money;

there is no pertinent statutory provision otherwise requiring

implementation of § 303 plans or providing for their

enforcement. See CWA § 309, 33 U.S.C. § 1319; CWA § 505,

33 U.S.C. § 1365."

'® The regulatory amendments scheduled to go into effect August 30, 2003,

do require the inclusion of an implementation plan as part of each TMDL.

65 Fed. Reg. 43586 (July 13, 2000); see also 66 Fed. Reg. 53044 (Oct. 18,

2001) (effective date). We express no opinion as to the validity of this

requirement.

'? See also Professor Houck’s summary:

Within the statutory scheme § 319 is the carrot, funding state

programs for nonpoint source abatement statewide, for all waters

whether they are currently above standard or below. In keeping with

its broad sweep, § 319’s provisions are voluntary. States may choose

to participate or not . . .. Section 303(d), on the other hand, addresses

a narrower and more nasty job: the chronically polluted waters of the

United States. For this problem zone, enter a stick: quantified

pollution load allocations. The nature of the allocations and of the

implementing controls remains up to the states, but states do have to

come up with them.

The Clean Water Act TMDL Program 62.

3la

Finally, it is worth noting that the arguments that the

Pronsolinos raise here would apply equally to nonpoint source

pollution controls for blended waters. Yet, as discussed above,

Congress definitely required that the states or the EPA establish

TMDLs for all pollutants in waters on § 303(d)(1) lists,

including blended waters.

We conclude that the Pronsolinos’ federalism basis for

reading § 303 against its own words and structure is unfounded.

IV. CONCLUSION

For all the reasons we have surveyed, the CWA is best read

to include in the § 303(d)(1) listing and TMDLs requirements

waters impaired only by nonpoint sources of pollution.

Moreover, to the extent the statute is ambiguous—which is not

very much—the substantial deference we owe the EPA’s

interpretation, under either Chevron or Skidmore, requires that

we uphold the agency’s more than reasonable interpretation. We

therefore hold that the EPA did not exceed its statutory

authority in identifying the Garcia River pursuant to

§ 303(d)(1)(A) and establishing the Garcia River TMDL, even

though the river is polluted only by nonpoint sources of

pollution.

The decision of the district court is AFFIRMED.

32a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 00-16026, 00-16027.

Guido A. Pronsolino, et al.,

Plaintiffs-Appellants,

v.

Felicia Marcus, Regional Administrator, United States

Environmental Protection Agency Region 9, et al.,

Defendants - Appellees,

Pacific Coast Federation of Fishermen’s Associations, a

California Non-Profit corporation, et al., |

Defendant-Intervenors-Appellees.

ORDER

[Filed October 9, 2002}

Before: HALL, WARDLAW and BERZON, Circuit Judges

The panel has unanimously voted to deny appellee’s petition

for rehearing. Judge Wardlaw and Judge Berzon have voted to

deny the petition for rehearing en banc. Judge Hall recommends

denial of the petition for rehearing en banc.

The full court has been advised of the petition for rehearing

en banc, and no active judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing en

banc are DENIED.

33a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 99-01828 WHA.

Guido 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.

March 30, 2000.

ORDER ON CROSS-MOTIONS FOR SUMMARY

JUDGMENT REGARDING AUTHORITY OF ENVIRON-

MENTAL PROTECTION AGENCY UNDER THE CLEAN

WATER ACT TO LIST SUBSTANDARD RIVERS AND

WATERS AND TO ISSUE TMDLS FOR THEM

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INTRODUCTION

In this case of first impression, the issue is whether Section

303(d) of the Federal Water Poliution 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 ... .”' 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.’ Plaintiffs contend that the conditions are onerous and

' Houck, TMDLs, Are We There Yet?: The Long Road Toward Water-

Quality Based Regulation Under the Clean Water Act, 27 ELR 10391,

10399 (Aug. 1997).

? The conditions included the following: that the Pronsolinos: (a) inventory

controllable sediment sources from all roads, landings, skid trails and

agricultural facilities by June 1, 2002; (b) mitigate 90% of controllable

sediment volume at “road related” inventoried sites by June 1, 2012; (c)

prevent sediment loading caused by road construction; (d) retain five conifer

trees greater than 32 inches in diameter at breast height (“dbh”) per 100 feet

of all Class I and Class II watercourses (if the site lacks enough trees to

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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). 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

comply, the five largest trees per 100 feet must be retained); (e) harvest only

during dry, rainless periods between May | and October 15; (f) refrain from

constructing or using skid trails on slopes greater than 40% within 200 feet

of a watercourse; and (g) forbear removing trees from certain unstable areas

which have a potential to deliver sediment to a watercourse. These

recommendations were incorporated into the Pronsolinos’ NTMP (Joint

Stmt. ¥ 32).

> Coho salmon were recently listed by the National Marine Fisheries Service

as a threatened species. 61 Fed. Reg. 56138 (Oct. 31, 1996). The Service

also recently proposed to list steelhead trout as threatened for the same

region. 63 Fed. Reg. 13347 (Mar. 19, 1998).

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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

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draft (Pl. Tab 25)). The EPA TMDL was sensitive to the

fish-habitat problem (EPA Tab | 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: strearn 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.

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Overall, the TMDL for the Garcia River called for a sixty

percent reduction of sediment (Joint Stmt. J 15).* 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. J 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

4 16). In order to achieve these load allocations, the TMDL

called for percentage reductions in sediment loading from these

nonpoint sources (Joint Stmt. at JJ 14, 15). There were only

“slight differences” between the regional board’s pending

TMDL and the EPA's TMDL as issued (PI. Tab 25).

The regional board concluded that if it did not implement

EPA’s TMDL, then EPA could withdraw federal funding to the

* EPA’s regulations on TMDLs were issued in 1985. 40 C.F.R. § 130.7. The

record herein contains a summary of the TMDL process (EPA Tab 7 at 2):

The TMDL process, in essence, is the following: States identify

specific waters where problems exist or are expected; States set

priorities; States allocate pollutant loadings among point and

nonpoint sources; and EPA approves State actions or acts in lieu of

the State if necessary. Point and nonpoint sources then reduce

pollutants to achieve the pollutant loadings established by the TMDL

through a wide variety of Federal, State, Tribal, and local authorities,

programs, and initiatives.

States have primary responsibility for developing lists and TMDLs

under section 303(d). Section 303(d)\(1 A) and the implementing

regulations (at 40 C.F.R. § 130.7(b)) provide States with latitude to

determine their own priorities for developing and implementing

TMDLs. In particular, the flexibility to States offered by the priority

ranking process of section 303(d)(1)(A) is a good opportunity for

incorporating rotating basin or other watershed approaches into the

TMDL process.

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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 runoff 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 inherently permitted under these standards. See William

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H. Rogers, Jr., Environmental Law 252, 259-62 (2d ed.1994).

In 1966, however, the Refuse Act of 1899, 30 Stat. 1152, was

reinvigorated by the Supreme Court. United States v. Standard

Oil Co., 384 U.S. 224, 230 (1966), held that all discharges of all

foreign substances and pollutants (except those flowing from

streets and sewers as liquids) were illegal without a permit from

the Army Corps of Engineers. This set up a clash between the

absolute prohibition of the Refuse Act and _ the

reasonable-discharge approach of the standards. The Court of

Appeals for the Third Circuit resolved this clash in favor of the

Refuse Act in United States v. Pennsylvania Industrial

Chemical Corp., 461 F.2d 468 (3d Cir. 1972). These

developments led to the legislation in 1972 now known,

together with subsequent amendments, as the Clean Water Act.

The 1972 Act was provoked by a groundswell of sustained

popular support for genuine water restoration and

environmental legislation. The Act became law over a

presidential veto.

The Supreme Court, although it has never faced the issue

now presented, has consistently referred to the 1972 Act as

intended “to establish an all-compassing program of water

pollution regulation” and “to establish a comprehensive

long-range policy for the elimination of water pollution.”

Repeatedly, the Supreme Court has used the word

“comprehensive” to describe the Act. E.g., Milwaukee v.

Illinois, 451 U.S. 304, 318-19 (1981); Arkansas v. Oklahoma,

503 U.S. 91, 99 (1992). The Act anticipated “a partnership”

between the states and the federal government, “animated by a

shared objective: ‘to restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters.’” Jd.

at 101. Achievement of “water quality which provides for the

protection and propagation of fish, shellfish and wildlife” was

an express statutory objective. 86 Stat. 816.

The 1972 Act represented a major shift in enforcement

policy—away from primary reliance on water-quality standards

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and toward primary reliance on specific effluent limits on all

point sources, the latter being any discernible, confined and

discrete conveyance such as a pipe or ditch. 33 U.S.C.

§ 1362(14). The Act established the National Pollution

Discharge Elimination System (“NPDES”) and required an

NPDES permit for any discharge by any point source into any

navigable water of the United States, interstate or intrastate. The

new strategy sought to force the best technology practicable or

achievable on dischargers. By 1977, industry was required to

meet effluent limitations achievable through “best practicable

control technology currently available.” By 1983, it was to

achieve control levels based on the “best available technology

economically available.” 33 U.S.C. § 1311. Instead of solely

working backwards from the water-quality standards to develop

acceptable levels of effluent from point sources, the new lead

strategy was to require point sources to employ state-of-the-art

treatment, even if it led, as a happy circumstance, to even

cleaner water than called for by the standards. EPA was to issue

NPDES permits except to the extent states adopted

EPA-approved NPDES programs.

The Structure of the 1972 Act

Although the technology-based strategy of effluent

limitations on all point sources (the NPDES permit program)

was its capstone, the 1972 Act nonetheless carried forward the

pre-existing regime of water-quality standards and even

extended that regime to all navigable waters of the United

States, interstate or intrastate. The Act explicitly recognized the

separate problems of point versus nonpoint pollution and

established different approaches to mitigate them. Point sources

were subjected to NPDES regulation (under Sections 301-02

and 402). Nonpoint sources were left subject to state regulation.

How TMDLs were supposed to fit into both branches of the

solution is the problem presented by this case.

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In analyzing this issue, it is important to bear in mind the

comprehensive way in which all sources of pollution were

addressed by the 1972 Act, albeit in different ways. It is

important also to focus on the language actually adopted in

1972 (rather than in later amendments) because the issue here

turns on the meaning of the 1972 language. The NPDES

program has already been described. The following review of

the structure of the 1972 Act focuses on those provisions

arguably relevant to TMDLs and/or nonpoint-source pollution.

Under Section 102(a) of the 1972 Act, EPA was to cooperate

with other state and federal agencies, municipalities and

industry to “prepare or develop comprehensive programs for

preventing, reducing or climinating the pollution of the

navigable waters,” giving “due regard” to “the protection and

propagation of fish and aquatic life and wildlife,” among other

purposes. 86 Stat. 817. Under Section 104(n) and (p), EPA was

to promote “continuing comprehensive studies of the effects of

pollution, including sedimentation in the estuaries and estuarine

zones of the United States on fish and wildlife, on sport and

commercial fishing . . . ” (86 Stat. 823) and to “carry out a

comprehensive study and research program to determine new

and improved methods and the better application of existing

methods of preventing, reducing, and eliminating pollution

from agriculture . . . .” 86 Stat. 824. In sum, while these

provisions did not reference TMDLs, they called for

“comprehensive” programs and studies, including protection of

fish and wildlife.

Section 201 authorized grants for “waste treatment

management” on an “areawide” basis to “provide control or

treatment of all point and nonpoint sources of pollution... .”

§ 201(c). In turn, Section 208 called for “areawide waste

treatment management” planning by the states, expressly

including plans for “nonpoint sourcz” pollution. To that end,

EPA was required to publish regulations guiding the

identification of areas with “substantial water quality control

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problems.” § 208(a)(1). The states were then to identify such

areas. § 208(a)(2). Within one year thereof, responsible state

organizations were called upon to “have in operation a

continuing areawide waste treatment management planning

process” with initial plans certified to EPA within two years.

§ 208(b)(1). Such plans were to include a number of

components, the most germane of which was explicitly directed

at “nonpoint source” pollution. Under Section 208(b)(2)(F), for

example, the plans had to include:

a process to (i) identify, if appropriate, agriculturally and

silviculturally related nonpoint sources of pollution,

including runoff from manure disposal areas, and from

land used for livestock and crop production, and (ii) set

forth procedures and methods (including land use

requirements) to control to the extent feasible such

sources [emphasis added];

The Section 208 process was summarized succinctly by a 1981

textbook on nonpoint-source pollution as follows:

Specifically, Section 208 of the act calls for area-wide

water pollution planning in areas designed by the

governor of each state that would include both point and

nonpoint sources and pollution abatement programs. The

plans should include: (a) identification of the treatment

works necessary to meet the anticipated municipal and

industrial waste treatment needs of the area with

associated construction priorities, time schedules, and the

establishment of regulatory programs for such treatment

works, including urban runoff and storm water; (b)

identification of the sources of nonpoint

pollution—agriculture (including runoff from irrigated

fields), silviculture, runoff from land used for livestock

and crop production or land that has had manure applied

to it, mining, saltwater intrusion, waste disposal on lands,

disposition of all residual waste generated in the

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designated area, and land and subsurface excavations; (c)

setting forth of a procedure and methods (including

land-use requirements) that feasibiy will control such

sources.

Novotny & Chesters, Handbook of Nonpoint Pollution 19

(1981). In short, Section 208 contemplated that nonpoint

sources would be remedied through state regulation and

required the states to develop programs to do so.

Turning to Section 303, at the core of this controversy, its

title was “Water Quality Standards and Implementation Plans.”

Subsection (a) required the states to adopt water-quality

standards promptly, to the extent not previously done, and to

carry forward those already adopted (subject to further EPA

approval). Standards were to be set, as stated, for both interstate

and intrastate waters. Subsection (c) imposed periodic updating

of the standards and submission to EPA for review and

approval. Standards were to take into account the unique needs

of each waterway, including “propagation of fish and wildlife”

as well as “agricultural...and other purposes.” 86 Stat. 848.

Subsection (b) instructed EPA to impose its own standards on

any state failing to set standards. 86 Stat. 847. These standards,

the Supreme Court has said (once again), were meant by

Congress to be “comprehensive.” PUD No. I of Jefferson

County v. Washington Dep’t of Ecology, 511 U.S. 700, 704

(1994).

Significantly, in the process of setting standards, Section 303

did not exempt any rivers or waters—all were covered to the

full extent of federal authority over navigable waters. Nor was

any distinction drawn between point sources and nonpoint

sources. The goal was to set standards for all navigable

waterways in America, balanced and tailored to accommodate

the various needs of each, including, explicitly, the need for the

protection of fish and wildlife. The standards-setting process of

Section 303 plainly applied to waters polluted by point sources

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as well as nonpoint sources, either alone or in combination. All

parties agree on this conclusion.

It was onto this comprehensive standards regime that

Congress imposed the requirement at issue, a requirement

subdivided into a listing and a TMDL. As to the first, Section

303(d)(1)(A) provided:

Each state shall identify those waters within its

boundaries for which the effluent limitations required by

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

enough to implement any water quality standard

applicable to such waters. The State shall establish a

priority ranking for such waters, taking into account the

severity of the pollution and the uses to be made of such

waters.

Section 303(d) thus became an intersection between the old and

new strategies. It called for an assessment of the expected

beneficial impact of the main innovation of the

Act—imposition of the best effluent reduction technology could

supply. If those reductions alone would bring a waterway into

compliance with standards, well and good. If not, then Section

303(aX(1) required the waterway to join a list of unfinished

business.* That list, once completed, then had to be prioritized

by the states. For each listed river and water, Section

303(d)(1)(D) of the Act next required the states to establish

TMDLs:

Each State shall establish for the waters identified in

paragraph (1)(A) of this subsection, and in accordance

with the priority ranking, the total daily maximum load,

for those pollutants which the Administrator identifies

> Professor Oliver Houck states: “The rationale was that water quality

standards would clean up waters which remained substandard after

application of technology-based limits.” Houck, 27 ELR at 10337.

46a

under Section 304(a)(2) as suitable for such calculation.

Such load shall be established at a level necessary to

implement the applicable water quality standards with

seasonai variations and a margin of safety which takes

into account any lack of knowledge concerning the

relationship between effluent limitations and water

quality.

TMDLs were thus required for all listed rivers and waters, at

least as to pollutants identified by EPA as suitable for such

calculation (and EPA long ago stated that “all” pollutants were

suitable for such calculation).° The controversy herein is

whether the Garcia River should have been listed at all.’

Plaintiffs say no, it should not have been and, therefore, EPA

should never have issued its TMDL. Before addressing this

argument, it is instructive to complete the remainder of the

structural review.

The next step—under Section 303(d)(2)—was for the State

to submit the prioritized list and TMDLs for EPA review and

for EPA to either approve or disapprove them. To repeat, EPA

was Statutorily required to approve or disapprove the lists and

the TMDLs. If approved, then the state was “to incorporate” the

lists and TMDLs into its “continuing planning process” under

Section 303(e). If disapproved, EPA was to revise the list

and/or TMDLs so as to implement the applicable water-quality

standards. As revised, the state was then “to incorporate” them

into its planning under Section 303(e). Either way, the lists and

TMDLs were obliged to be incorporated into the states’

® 43 Fed. Reg. 60662 (Dec. 28, 1978).

” EPA’s regulations call it a list of “water-quality” limited segments. 40

C.F.R. § 130.7(b).

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continuing planning process, a process summarized

momentarily.®

As to nonlisted rivers and waters, Section 303(d)(3) imposed

an “informational” TMDL requirement regarding fish and

wildlife:

For the specific purpose of developing information, each

State shall identify all waters within its boundaries which

it has not identified under paragraph (1)(A) and (1)(B) of

this subsection and estimate for such waters the total

maximum daily load with seasonal variations and margins

of safety, for those pollutants which the Administrator

identifies under Section 304(a)(2) as suitable for such

calculation and for thermal discharges, at a level that

would assure protection and propagation of a balanced

indigenous population of fish, shellfish and wildlife.

As stated, this provision applied only to nonlisted waters. The

informational TMDLs were not subject to EPA review. EPA

was not authorized to review or to issue the “informational”

TMDLs. This provision sought establishment of state-prepared

TMDLs that would “assure protection and propagation of a

balanced indigenous population of fish, shellfish and wildlife.”

They, too, were intended for the continuing planning process.’

* The Act does not define total maximum daily load. EPA’s regulations

break it into a “wasteload allocation” for point sources and a “load

allocation” for nonpoint sources. 40 C.F.R. § 130.2.

* Although the water-quality standards themselves were supposed to take

“into consideration” the “propagation of fish and wildlife,” those standards

also had to take into account the “use and value” of the waters for a number

of other purposes. 33 U.S.C. § 1313(c)(2). As aresult, a standard itself might

be a compromise of competing considerations. The TMDL requirement of

Section 303(d)(3) would specifically help the states identify the extent and

types of pollution injurious to fish and wildlife.

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Section 303(e) imposed on the states “a continuing planning

process” reviewable by EPA for consistency with the Act. EPA

was to approve “any continuing planning process” that would

result in “plans for a// navigable waters within such state . . .

which were to include, among other things, total maximum

daily loads for pollutants in accordance with subsection (d)”

(emphasis added). Subsection (d), in turn, covered both the

TMDLs for listed waters and “informational” TMDLs. The

plans also were required to include the “area-wide waste

management plans” under Section 208. In turn, as seen, those

plans had to include “a process” to identify “nonpoint sources

of pollution” and “methods (including land-use requirements)

to control” them. The Section 303(e) plans were also expected

to include “adequate implementation, including schedules of

compliance, for revised or new water quality standards.” In

short, the mandatory planning process of Section 303(e)

covered “all navigable waters” and was to address “adequate

implementation” of all water-quality standards, had to include

plans incorporating TMDLs, and had to address “nonpoint

sources of pollution.” A wild river, therefore, polluted only by

logging in its watershed, was clearly meant to benefit from the

continuing planning process.

Section 304 was entitled “Information and Guidance.”

Section 304(a) generally called for EPA-set “criteria for water

quality accurately reflecting the latest scientific knowledge”

including impacts on fish and wildlife. EPA was to develop

“information”

(A) on the factors necessary to restore and maintain the

chemical, physical, and biological integrity of all

navigable waters, ground waters, waters of the contiguous

zone, and the oceans; (B) on the factors necessary for the

protection and propagation of shellfish, fish, and wildlife

for classes and categories of receiving waters and to allow

recreational activities in and on the water; and (C) on the

measurement and classification of water quality; and (D)

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Sor the purposes of section 303, on and the identification

of pollutants suitable for maximum daily load

measurement correlated with the achievement of water

quality objectives.

§ 304(a)(2) (emphasis added). In requiring “identification of

pollutants suitable” for the TMDL measurements of Section

303, no distinction was drawn between point and nonpoint

sources in Section 304(a). That provision was comprehensive.

In contrast, Section 304(b) focused only on point sources. It

required EPA to issue guidelines for effluent limitations.

Section 304(e) focused only on “nonpoint sources of pollution.”

It required EPA to issue “(1) guidelines for identifying and

evaluating the nature and extent of nonpoint sources of

pollutants and (2) processes, procedures, and methods to control

pollution resulting from . . . agriculture and silvicultural

activities, including runoff from fields and crop and forest

lands.” 86 Stat. 852. Section 304(a), in short, covered all

sources of pollutants and called for a predicate step for the

TMDL process at issue.

Section 305, labeled “Water Quality Inventory,” called for an

EPA-led report by January 1, 1974 that described the “specific

quality,” during 1973, “of all navigable waters” that included a

roster of all point sources discharging into said waters, and that

identified “specifically those navigable waters, the quality of

which is adequate to provide for the protection and propagation

of shellfish, fish and wildlife,” among other things. Starting in

January 1975, each state was to submit an annual report to EPA

that described the water quality of all “navigable waters” within

its borders, analyzing the extent to which “all navigable waters”

within the state provided for the protection of shellfish, fish and

wildlife, analyzing the extent to which eliminating the discharge

of pollutants and a level of water quality provided for the

protection and propagation of shellfish, fish and wildlife, and

among other things (§ 305(b)(1)(E), 86 Stat. 854):

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a description of the nature and extent of nonpoint sources

of poliutants, and recommendations as to the programs

which must be undertaken to control each category of

such sources, including an estimate of the costs of

implementing such programs.

Section 305 made clear that no river or water in the United

States was immune from its process; all navigable waters were

covered; nonpoint-source pollution was to be analyzed without

exception.

In summary, the 1972 Act addressed all sources of pollution,

although each type in different ways. It sought comprehensively

to protect and to restore all navigable waters in America.

Although Congress imposed direct NPDES regulation only on

point sources, Congress plainly carried forward the pre-existing

regime of water-quality standards and, indeed, expanded it to

include intrastate waters. That regime was intended (in part) to

mitigate nonpoint-source pollution through state land-use

regulation. These general conclusions are not really in dispute

in this case.

Construction of Section 303(d)

The issue on which the parties divide is the extent to which

nonpoint sources of pollution were to count in assembling the

substandard-waters list required by Section 303(d) and in

preparing the corresponding TMDLs. In their opening brief,

plaintiffs contended that the listing and TMDL requirements of

Section 303(d) were “exclusively reserved for point sources”

(P1.Br.14) and that “Section 303(d) focuses solely on point

sources” (P1.Br.16). In their reply (at 8), plaintiffs stated: “A

water body that is impaired by both point and nonpoint sources

should be listed under both Section 303(d) and Section

319(a)(1)(A) ang the point and nonpoint sources be addressed

pursuant to those respective listings.” A water polluted only by

logging runoff or other nonpoint sources of pollution, like the

Sla

Garcia River, plaintiffs argue, should not be listed and no

TMDL should be prepared. Plaintiffs base their arguments on

the fact that effluent limitations—which apply only to point

sources—are referenced in the listing requirement of Section

303(d) whereas no reference is made to nonpoint sources:

Each state shall identify those waters within its

boundaries for which the effluent limitations required by

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

enough to implement any water quality standard

applicable to such waters. The State shall establish a

priority ranking for such waters, taking into account the

severity of the pollution and the uses to be made of such

waters.

All versions of plaintiffs’ arguments must be rejected for four

reasons.

First, the sole import of placing a river or water on a Section

303(d) list was that it would trigger the TMDL requirement.

What use, then, did the statute contemplate for the TMDL? If

the TMDL, for example, were to be used only to adjust NPDES

effluent limitations for point sources, then plaintiffs’ argument

might have force. Such a narrower use, although a legitimate

one, was not set forth in the statute as the sole use. Indeed, that

use was not even expressly called out in the Act, although it

was inferrable from Section 301(b)(1)(C), Section 302(a), and

Section 303(d)(1)(C). The expressly contemplated use of

TMDLs was their “incorporation” into the “continuing planning

process” by the states under Section 303(e). That was the side

of the equation, however, pertinent to nonpoint-source

regulation (as well as to any state-administered NPDES

program).'° Moreover, the TMDLs had to be set at levels that

'0 The states are allowed but not required to adopt state-administered

NPDES programs. In the absence of such a program approved by the EPA,

the NPDES program within a state is administered by EPA itself. See

52a

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. It

seems evident that TMDLs were intended, in part, to be used to

help states evaluate and develop land-management practices to

mitigate nonpoint-source pollution. Otherwise, as one court has

stated, it would frustrate the “comprehensive approach” adopted

in the 1972 Act. Natural Resources Defense Council, Inc. v.

Fox, 909 F. Supp. 153, 156 (S.D.N.Y. 1995). In short, the

statutorily-defined role of the TMDL is inconsistent with

plaintiffs’ argument.

Second, plaintiffs argument is inconsistent with the logic

expressed in Section 303(d). Section 303 was entitled “Water

Quality Standards And Implementation Plans.” Water-quality

standards were required for al] navigable waters, intrastate or

interstate. The first sentence of Section 303(d) required each

state to “identify those waters within its boundaries” for which

the new effluent limits would not be stringent enough to meet

the standards. The starting point was, therefore, each and every

substandard navigable water within the boundaries of the state.

Then, only those redeemable through the imposition of

state-of-the-art technology on point sources, the lead strategy

under the Act, were expressly excused from the list. Since all

rivers and waters regardless of pollution source were included

in the universe for which water-quality standards were required,

all of them—again 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

Milwaukee v. Illinois, 451 U.S. 304, 311 (1981). Even today, after nearly

thirty years, two states do not have approved NPDES programs.

53a

limitations would be sufficient to achieve compliance with

standards.’

Third, while it is true that nonpoint-source pollution was not

mentioned in Section 303(d), the reason seems obvious. The

1972 Act superimposed the technology-driven mandate of

point-source effluent limitations. To assess the impact of the

new strategy on the monumental clean-up task facing the

nation, 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 nonpoint pollution. Any polluted waterway— whether

its sources were point, nonpoint or a combination—had to be

listed if it would not be cleansed by the new approach. To have

excluded the large number of rivers and waters polluted solely

by agricultural and logging runoff would have left a chasm in

the otherwise “comprehensive” statutory scheme. It would have

crippled the continuing planning process by which the states

were expressly required to confront nonpoint-source pollution

and to incorporate TMDL data into their continuing planning

process. To achieve the standards, an intermediate step was

needed. That step required engineering data. That was the role

of the TMDL. Similarly, to have limited TMDLs only to

point-source loadings, as argued for by plaintiffs, would have

left state agencies guessing at how to allocate the burden of

cleanup between point and nonpoint contributions of the same

pollutant. '

'' This was subject to the further proviso that TMDLs only had to be set for

those “pollutants” identified by EPA under Section 304(a)(2), 33 U.S.C.

1314(a,(2), as suitable for TMDL calculation, a subissue discussed in detail

below.

- '2 For these three reasons, the Court finds that Congress has directly spoken

to the precise question at issue. There is, therefore, no need to resort to

supplemental aids of construction. Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984).

54a

Fourth, the Ninth Circuit has already gone on record that the

TMDL process covers nonpoint as well as point sources, as set

forth below. None of these decisions is four-square on point but

some come close. Plaintiffs’ argument is hard to reconcile with

the Ninth Circuit's caselaw.

The Ninth Circuit Caselaw

Although the Ninth Circuit has not decided the precise issue

raised, its Clean Water Act precedents support the conclusion

reached above. The earliest-cited case to reach the Ninth Circuit

involved a challenge by environmentalists to NPDES permits

issued by EPA to Alaska gold-placer mines. The court held that

EPA had erred in failing to require an effluent limitation for

turbidity in the permit. The court distinguished between

nonpoint-source pollution (no NPDES permit required) and

point-source pollution (NPDES permit required), but held that

water discharged through a sluice box was a point source. The

EPA was required, therefore, to include in the permits whatever

effluent limitations were necessary to achieve state

water-quality standards (under Section 301(b)(1)(C)). Trustees

for Alaska v. EPA, 749 F.2d 549, 557-58 (9th Cir. 1984).

In Oregon Natural Resources Council v. United States

Forest Serv., 834 F.2d 842 (9th Cir. 1987), the plaintiff

organization argued that Section 301, which established effluent

limitations for point sources, should incorporate limitations

designed to achieve state standards for achieving elimination of

nonpoint runoff. The Ninth Circuit rejected the attempt to

confound the two separate ways in which the Act distinguished

between point and nonpoint pollution:

We recognize that nonpoint sources of pollution

constitute a major source of pollution in the nation’s

waters [footnote omitted]. However, we do not believe

that the Act allows for the enforcement of state water

quality standards, as affected by nonpoint sources, under

55a

the citizen suit provision. When Congress established the

National Pollutant Discharge Elimination System

(NPDES) in 1972 and concomitantly created a new

approach to regulating and abating water pollution, it

drew a distinct line between point and nonpoint pollution

sources. Point sources are subject to direct federal

regulation and enforcement under the Act [footnote

omitted]. See 33 U.S.C. § 1342. Nonpoint sources,

because of their very nature, are not regulated under the

NPDES. Instead, Congress addressed nonpoint sources of

pollution in a separate portion of the Act which

encourages states to develop areawide waste treatment

managment plans [footnote omitted]. See 33 U.S.C.

§ 1288 (emphasis added).

Oregon Natural Resources Council, 834 F.2d at 849. The court

remanded, however, for a determination on whether the timber

sale would cause nonpoint-source runoff in violation of the

water-quality standards set by Oregon. In no way does the

decision address the Section 303(d) list or TMDL features. But

the decision does recognize that the 1972 Act comprehended

nonpoint-source regulations through state areawide waste

treatment management plans.

Of most immediate significance are the following two

decisions. In Alaska Center for the Environment v. Browner, 20

F.3d 981 (9th Cir. 1994), the district court ordered EPA to issue

TMDLs for Alaska waters, after a long period of inaction by the

agency. EPA appealed only on grounds of plaintiffs’ alleged

lack of standing. The Ninth Circuit affirmed. EPA's standing

argument involved the fact that even if TMDLs were issued,

Alaska would have, at least in part, discretion “with respect to

non-point source pollution.” The Ninth Circuit responded:

Here, by contrast, third party involvement does not render

the relief sought completely speculative. Congress and the

EPA have already determined that establishing TMDLs is

56a

an effective tool for achieving water quality standards in

waters impacted by non-point source pollution.

Alaska Center, 20 F.3d at 985. Significantly, therefore, the

Ninth Circuit went on record that the TMDL process covered

nonpoint-source pollution. At the very least, this statement

covered rivers and waters affected by both point sources and

nonpoint sources. Nothing in the opinion so limited it, however,

and the court's rationale seems equally applicable to rivers

spoiled only by logging runoff.

In Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517

(9th Cir. 1995), the court of appeals upheld EPA’s TMDL for

dioxin, which had been set at the lowest level measurable by the

current technology. The court of appeals described a TMDL as

follows (id. at 1520):

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. Thus a TMDL

represents the cumulative total of all “load allocations”

which are in turn best estimates of the discrete loading

attributed to nonpoint sources, natural background

sources, and individual wasteload allocations (““WLAs’”),

that is, specific portions of the total load allocated to

individual point sources. When a TMDL and specific

wasteload allocations for point sources have been

established, any NPDES permits issued to a point source

must be consistent with the terms of the TMDL and

WLA. See 40 C.F.R. § 130.2.

This decision also treated TMDLs as applicable to nonpoint

sources. The court then went on to hold that Section 303(d) did

not require development and proven failure of best available

technology before setting a TMDL for a toxic pollutant. /d. at

1528.

57a

In summary, the Ninth Circuit has already stated that TMDLs

are an “effective tool for achieving water quality standards in

waters impacted by non-point source pollution” (Alaska Center)

and that “[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). In the face of

these statements, it would be difficult for a district court within

the Ninth Circuit to hold that TMDLs were not required for

listed rivers arid waters harmed only by nonpoint pollution.”

The Legislative History

Section 303(d) originated in the House of Representatives.

The House committee report, on which plaintiffs base their

legislative-history argument, stated:

Water quality standards will be utilized for the purpose of

setting effluent limitations in those cases where effluent

limitations for point sources would not be consistent with

such standards. Even though all point sources must be

January 1, 1976, as a minimum, meet the requirements of

subsection (b)(1)(A) and subsection (b)(1)(B) of section

301 all point sources could be required to meet a more

stringent effluent limitation consistent with water quality

standards of the receiving waters if the effluent

'? In Natural Resources Defense Council v. EPA, 915 F.2d 1314 (9th Cir.

1990), the Ninth Circuit held under a 1977 Amendment, that EPA

regulations had to include a requirement that the states identify all sources

discharging any pollutant believed to be impairing water quality into a listed

river or water. The decision explained the broad outline of the 1972 Act and

stated that the fact that only point-source pollution was directly regulated but

otherwise did not address the immediate issue. Oregon Natural Desert Ass'n

v. Dombeck, 172 F.3d 1092 (9th Cir. 1998), held that a grazing permit issued

by the United States Forest Service did not require prior state certification

of compliance with state water-quality standards, holding that such

certifications were required only for “discharges,” which referred only to

point sources. 172 F.3d at 1095.

58a

limitations set pursuant to subjection (b)(1)(A) and

subsection (b)(1)(B) of section 30] are inadequate to meet

those water quality standards. In this case a more

stringent effluent limitation will be imposed.

Any required more stringent effluent limitations will be

set on the basis of that reduction in the quantity and

quality of the discharge of pollutants which would be

required to make the total discharge load in the receiving

waters from municipal and industrial sources consistent

with water quality standards. This should not be

interpreted to mean that such more stringent industrial and

municipal effluent limitations will, in themselves, bring

about a meeting of water quality standards for receiving

waters. The Committee clearly recognize that non-point

sources of pollution are a major contribution to water

quality problems.

The Committee heard extensive testimony during the

oversight and legislative hearings to the effect that it is

extremely difficult to apportion the discharge load from

all point sources along a waterway or section of a

waterway. However, testimony was also heard from the

more experienced States that they already have this

capability. The Committee feels that with appropriate

support from the Administrator, the required analysis can

be completed by the State in a timely fashion.

H.R. Rep. No. 92-911, at 105-06 (1972) (emphasis added).

From this, plaintiffs conclude that while Congress

understood the role of nonpoint sources to be a “major

contribution” to water-quality problems, it elected to regulate

only point sources through Section 303(d) and described load

calculations only as a predicate step in adjusting effluent limits.

To be sure, the focus of the passage was on effluent

limitations and their adjustment to meet water-quality

59a

standards. Nothing in this passage, however, expressly limited

the role of water-quality standards or load calculations to this

single purpose. The passage also recognized that “non-point

sources of pollution are a major contribution to water quality

problems.” The passage also seemed, therefore, to recognize

that mitigation of nonpoint-source pollution would also be

required to meet standards. In conference, moreover, Section

303(d)(1)(C) was amended to amplify the TMDL text, although

not directly as to the specific issue presented. The conference

report then stated:

(1) Subsection (d)({1) requires each State to identify the

waters within its boundaries for which effluent limitations

required to section 301 are not stringent enough to

implement a water quality standard applicable to the

waters. The State is to establish a priority ranking for

such waters, taking into account the severity of the

pollution and uses to be made of the water.

* * *

(3) Each State is to establish for waters identified under

paragraph (1)(A) in accordance with the priority ranking

the total maximum daily load for those pollutants which

the Administrator identifies as suitable for such

calculation. This is to be established at a level necessary

to implement water quality standards with seasonal

variations and a margin of safety.

* * *

(5) The State is to submit to the Administrator from time

to time the waters so identified and loads so established.

The Administrator is to approve or disapprove the

identification and load within 30 days after submission. If

they are approved, the State must incorporate them into its

plan under subsection (e). If he disapproves them, he is

60a

required to identify the waters and establish the loads,

and the State is to incorporate that into its current plan.

* * *

(7) Each State is required to have a continuing planning

process consistent with this Act and to submit such plan

within 100 days after the date of enactment of this Act to

the Administrator for his approval. The Administrator

must approve or disapprove such process within 30 days

after submission, and he must, from time to time, review

the State's approved planning process to insure that it is at

all times consistent with the Act.

* * *

(9) The planning process must include a process which

will result in plans for all navigable waters within the

State which include, among other things, total maximum

daily loads for pollutants and thermal discharges.

The conference report followed the construction of the Act

adopted by this Court, a construction that would, removing only

those waters redeemed by the effluent limitations, result in a

plan and TMDL for every substandard navigable water within

a state.'*

The Definition of Pollutant

For this Court, the more troubling issue is one not raised by

plaintiffs but one raised by EPA in a footnote (Def. Br. 25 n.

24) and on which the Court requested argument. It concerns the

statutory definition of “pollutant.” TMDLs were made

obligatory, as stated, only for “those pollutants which the

'* The earlier Senate report stated, “[i]t has become clearly established that

the waters of the Nation cannot be restored and their quality maintained

unless the very complex and difficult problem of nonpoint sources is

addressed.” S. Rep. No. 92-414, 92nd Cong., Ist Sess. 39 (1971).

6la

Administrator identifies under Section 304(a)(2) as suitable for

such calculation.” In turn, the latter provision called for EPA to

consult with state and federal agencies and to develop and

publish an identification of pollutants suitable for TMDL

measurement correlated with the achievement of water-quality

objectives. After enactment, EPA identified “all” pollutants as

suitable. 43 Fed. Reg. 60662 (Dec. 28, 1978).

But what is a “pollutant”? “Pollutant” was defined in

Section 502 as meaning “dredged spoil, solid waste, incinerator

residue, sewage, garbage, sewage sludge, munitions, chemical

wastes, biological materials, radioactive materials, heat,

wrecked or discarded equipment, rock, sand, cellar dirt and

industrial, municipal and agricultural waste discharged into

water” (emphasis added). Two issues arise. First, the statutory

definition did not include the word “sediment.” To that, there is

a dispositive answer. The Ninth Circuit has already held that

“sediment” and natural material from the “bank alongside” a

river is a pollutant (in the context of a placer-mining point

source). Rybachek v. EPA, 904 F.2d 1276, 1285-86 (9th Cir.

1990); accord: Idaho Conservation League v. Thomas, 91 F.3d

1345, 1347 (9th Cir. 1996) (TMDL prepared for sediment);

Driscoll v. Adams, 181 F.3d 1285, 1291 (11th Cir. 1999)

(sediment is a pollutant); see also United States v. M.C.C. of

Florida, Inc., 772 F.2d 1501, 1505-06 (11th Cir. 1985) (dredged

spoil includes vegetation and sediment); Hudson River

Fishermen's Ass'n v. Arcuri, 862 F. Supp. 73, 76 (S.D.N.Y.

1994) (pollutants include rock, sand and dirt). Moreover, the

legislative history referred to "sediment" as a “pollutant,”

stating “sediment, often associated with agricultural activities,

is by volume our major pollutant . . . .” S. Rep. No. 92-414, 92d

Cong. Ist Sess. 52 (1971). This statement appears, incidentally,

in the same report briefly explaining that the definition of

pollutant was borrowed from the Refuse Act. /d. at 76.

Second, and more troubling, the italicized phrase

above—‘“discharged into water”—was part of the statutory

62a

definition of pollutant. “Discharges” are uniquely associated

with point sources under Section 502(12). Oregon Natural

Desert Ass'n v. Dombeck, 172 F.3d 1092, 1095 (9th Cir. 1998).

One might wonder, therefore, whether the entire list of statutory

pollutants was confined to point sources. If so, then TMDLs

were authorized only for point-source pollutants (as would be

other features of the Act). Preliminarily, however, the statutory

definition is ambiguous for it reads “dredged spoil . . . rock,

sand, cellar dirt and industrial, municipal and agricultural waste

discharged into water.” The phrase “discharged into water”

might have been intended to modify only the tag-end phrase

“and industrial municipal and agricultural waste.” Alternatively,

it might have been intended to modify the entire list. To add

confusion, the statutory definition of “discharge” in Section

502(12) itself incorporated the term “pollutant,” thus injecting

a circularity problem.

Significantly, the Act otherwise referred to “nonpoint

sources” of “pollutants,” including from “agricultural and

silvicultural activities, including runoff from fields and crop and

forest lands.” E.g., §§ 105(d), 304(e), see also 305(b)(1)(E).

The operative language of the Act, therefore, expressly treated

pollutants as emanating from nonpoint sources. That usage was

broader than and inconsistent with a narrow image of pollutants

only flowing out of a pipe. Similarly, Section 201(d)(2) called

for construction of facilities providing for, among other things,

“the confined and contained disposal of pollutants not

recycled.” If pollutants had to be discharged into water, they

could not also be confined and contained. These provisions

make reasonably clear that pollutants could derive from any

source, not merely from point sources. So too with the

legislative history. While the background of the definitions is

unilluminating, the legislative history otherwise referred to

nonpoint-source “sediment” as a “pollutant,” as quoted above.

See H.R.Rep. No. 92-911, 92nd Cong., 2nd Sess. 102 (1972);

S. Rep. No. 92-414, 92nd Cong., Ist Sess. 10, 13, 52, 68

63a

(1971); S.Rep. No. 92-1236, 92nd Cong., 2nd Sess. 126 (1972).

To confine pollutants to point sources, finally, would impair the

“comprehensive” fabric of the Act. Any residual doubt on this

score is eliminated by deference to the reasonable construction

adopted by the agency charged with enforcement of the Act.

Chevron, 467 U.S. at 865. Therefore, the Court holds that

“pollutant,” as used in the Act, includes sediment, regardless of

whether it comes from a point source or a nonpoint source.

The 1987 Amendment and Section 319

In 1987, Congress amended Section 319 to the Clean Water

Act. It was specifically directed to nonpoint-source

management programs. 33 U.S.C. § 1329; 112 Stat. 3283. This

enactment, plaintiffs urge, would have been unnecessary and

superfluous if Section 303(d) already comprehended nonpoint

sources. In brief, Section 319(a)(1) required each governor to

submit to EPA a report that identifies:

Those navigable waters within the State which, without

additional action to control nonpoint sources of pollution,

cannot reasonably be expected to attain or maintain

applicable water quality standards... .

The report was to identify categories and subcategories of

nonpoint sources, the state's process for identifying best

management practices, the state's measures to control each such

category and subcategory, and the state and local programs for

controlling pollution from nonpoint sources. Section 319(b)

also required each state to submit a “management program” for

controlling nonpoint-source pollution, including an

identification of the best management practices which will be

undertaken to reduce “pollutant loadings” resulting from each

category and subcategory. Plaintiffs are correct that the 1987

amendment covered some of the same general ground that EPA

contends was already enacted. Nonetheless, plaintiffs' argument

is rejected for three reasons:

64a

First, while Section 319 addressed nonpoint pollution, it did

not conflict with or duplicate the Listing/TMDL provisions at

issue. The Section 303(d) list called for all unfinished business

after application of technology-driven effluent limitations.

Section 319, however, sought instead to list those rivers and

waters which could not achieve standards “without additional

action to control nonpoint sources of pollution.” The two lists

would partially overlap, to be sure, but were not the same. A

river ruined only or mainly by industrial waste might make the

Section 303(d) list—but only that list—if the best available

technology would be insufficient to meet state standards and

any cleanup of nonpoint contaminants would make no material

difference. In contrast, a remote river muddied by excessive

logging might make both lists. Moreover, Section 319 was

silent as to TMDLs whereas Section 303(d) required them.

Section 303(d), therefore, supplied an important ingredient for

the reports and plans under the 1972 Act as well as those later

required under Section 319. Just as the TMDLs were input for

the area-wide management plans under Section 208 and

continuing planning process establish under Section 303(e), the

TMDLs were needed for the planning required under Section

319. Finally, Section 310 authorizes federal grants to the states

for nonpoint-source management programs, a new and

additional feature to combat a continuing problem.

Second, while the 1987 enactment adopted newer and

stronger measures to address the problem of nonpoint pollution,

the 1972 enactment plainly spelled out—expressly

so—medicine of its own. The phrase “nonpoint sources of

pollution” was prominent in the 1972 Act (see Sections 201(c),

208(b)(2)(F), 304(e), 395(b)(1)(E)), as set forth above. It is

inaccurate to argue, as do plaintiffs, that nonpoint-source

pollution escaped attention under the 1972 Act.

Third, the Ninth Circuit has rejected a similar attempt to

infer congressional intent for the 1972 Act from a later Clean

Water Act amendment (in that case from the 1977 amendment):

4

ee ie Pa nat

65a

This legislative history does not persuade us, because it is

not part of the law, was written long after the law was

passed, and seems inconsistent with the law passed when

it was written. This is 1977 “history” about a 1972 law.

Instead of giving us a window into the thinking of the

legislators who wrote the bill, it gives us the advice of

someone on a House Conference Committee staff five

years after section 1369 was promulgated about how we

should construe a law passed by an earlier Congress under

a different president in a different political era.

Subsequent legislative history in the form of committee

reports of subsequent congresses are generally considered

an “extremely hazardous basis for inferring the meaning

of acongressional enactment.” Consumer Product Safety

Comm. v. GTE Sylvania, Inc., 447 U.S. 102, 118 fn. 13

(1980).

Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1311-12 (9th

Cir. 1992). So too here.

* * *

It is true, as plaintiffs note, that several members of Congress

stated that the 1987 amendment would be “a first step” or

would “begin” the process of addressing this source of water

degradation (see Pl. Br. 21). One must, however, remember the

context. After 1972, EPA was exceedingly slow, even resistant

to, the water-quality approach.'* Following the 1972

amendments, EPA was preoccupied in promulgating the

technology standards required for point-source regulation. At

least in the upper chamber, Senator Edmund Muskie, a

champion of the technology approach, had urged EPA to give

it top priority and relegate the standards approach to “secondary

'S The history is documented in Houck, TMDLs. Are We There Yet?: The

Long Road Toward Water Quality-Based Regulation Under the Clean Water

Act, 27 ELR 10391 (1997).

66a

priority.” Senate Report of Committee of Conference on S.

2770 in Lib. Of Cong., A Leg. Hist. Of the Water Pollution

Control Act Amendment of 1972, 93d Cong. Ist Sess. 171

(1973). In that spirit, EPA did virtually nothing under Section

303(d) for six years.'®

_ Then, in 1978, EPA was ordered to publish a final

identification of pollutants, a preliminary step under Section

303(d) necessary before any state had to prepare a TMDL.

Board of County Commrs. v. Costle, No. 78-0572, slip op.

(D.D.C. June 20, 1978) (unpublished order); see 43 Fed.Reg.

42303 (Sept. 20, 1978). EPA stated that it had not considered

such finalization “as a matter of high priority” because the

“practical results” of TMDLs were already being accomplished,

it felt, through basin planning. Jd. at 42303. The final

identification was published on December 28, 1978. It did not

identify any pollutants by name but instead simply identified

“all pollutants, under proper technical conditions, as being

suitable for the calculation of total maximum daily loads.” The

phrase “proper technical conditions” was defined to mean “the

availability of analytical methods, modeling techniques and

database necessary to develop a technology defensible TMDL.”

Such availability, the EPA said, would have to be determined

on a case-by-case basis. /d. at 60662. EPA then asked each state

merely to identify “one or more” water-quality limited stream

segments within 180 days, leaving it to the future as to when

more than one would be due. /d. at 60666.

The states were also slow to respond. Most states submitted

no lists under Section 303(d), although Nevada submitted a list

in 1979 for the Walker River, a river polluted only by nonpoint

sources. EPA then took the position that until a state submitted

a TMDL, EPA had nothing to approve or disapprove. Houck,

'© Under Section 303(e), EPA first published a water-quality standards

regulations in 1975. 40 C.F.R. § 130.7; 40 Fed. Reg. 55334 (Nov. 28, 1975).

67a

27 ELR at 10393. Eventually, the Seventh Circuit held that the

prolonged failure of a state to submit anything was a

“constructive submission” of no TMDL at all, triggering EPA’s

duty to act. Doing nothing was, the court held, tantamount to

approval of a “constructive submission.” Scott v. City of

Hammond, 530 F. Supp. 288 (N.D. Ill. 1981), aff'd in part, rev'd

in part, 741 F.2d 992, 996 (7th Cir. 1984). Another suit in

Oregon led to a consent decree in 1987 with a timetable for

EPA to act if Oregon did not submit a list of substandard

waters. Northwest Environmentai Defense Center v. Thomas,

No. 86-1578 BU (D. Or. June 3, 1987). In 1991, Judge

Rothstein in Seattle held that EPA had flagrantly violated the

Act by failing to implement the TMDL requirements for

Alaska. Based on Alaska’s “constructive submission” of no

TMDLs at all, EPA was required to initiate its own process for

promulgating TMDLs for that state. The Ninth Circuit affirmed.

Alaska Center for the Environment v. Reilly, 762 F. Supp. 1422,

1429 (W.D. Wash. 1991), aff'd, 20 F.3d 981 (9th Cir. 1994). A

series of other TMDL lawsuits against EPA were filed in

Washington, Idaho, Georgia, New York. Houck, 27 ELR at

10395-96 (summarizing results). That EPA had virtually no

TMDL program at all was the conclusion of a 1989 report on

the TMDL process by the United States General Accounting.

GAO, Water Pollution: More EPA Action Needed to Improve

the Quality of Heavily Polluted Waters, GAO Report to the

Chairman: Subcommittee on Regulation and Business

Opportunities Committee on Small Business, House of

Representatives (Jan.1989).

In April 1991, finally, EPA began to warm to the TMDL

process and published its first guidelines for state

implementation of Section 303(d) (EPA Tab 16). EPA set

October 1992 as a deadline for submission of the lists of

substandard rivers and waters. Houck, 27 ELR at 10395. It was

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into this renaissance of Section 303(d)—twenty years after its

passage—that the Pronsolinos were drawn.'’

In light of this history, it is no wonder that some elected

representatives regarded the 1987 amendment as a “first step”

toward controlling nonpoint-source pollution. The Court is

convinced, however, that the first step was plainly authorized in

1972—only to be little noticed due to other cleanup priorities

until a generation later.

Grants Versus Regulation

The word “regulate” pervades plaintiffs’ argument. Congress

did not, they say, authorize EPA to regulate state land-use

practices. The Court agrees. EPA agrees. Unlike EPA’s

'7 Although EPA was exceedingly slow to implement the TMDL

requirements, EPA has not taken a position in conflict with its construction

urged in this case. To the contrary, EPA's first description of the TMDL

process in its revised Water Quality Planning & Management Regulations is

fully consistent. 40 C.F.R. Parts 35 and 130 and 50 Fed. Reg. 1774-75 (Jan.

11, 1985). At oral argument, plaintiffs cited a recent Supreme Court decision

concerning a government agency's regulatory authority. In Food and Drug

Administration v. Brown & Williamson Tobacco Corp., 120 S. Ct. 1291

(2000), the Court held the FDA had no authority to regulate tobacco

products under the Food, Drug and Cosmetic Act. Congress had enacted six

separate pieces of legislation addressing the problem of tobacco use and

human health. /d. at 1306. In adopting each statute, Congress had “acted

against the backdrop of the FDA's consistent and repeated statements that it

lacked authority under FDCA to regulate tobacco absent claims of

therapeutic benefit by the manufacturer.” Congress had considered, and

rejected, legislation that would have given the FDA such authority. It is

evident, under these circumstances, that the statutes enacted by Congress

“effectively ratified the FDA’s long-held position that it lacks jurisdiction to

regulate tobacco products.” /bid. The Court concluded that Congress did not

give the FDA the authority it now sought to regulate tobacco products. Here,

on the other hand, EPA had never made any statements to Congress

expressing a lack of authority to issue a TMDL for waters polluted by

nonpoint sources. Furthermore, EPA has not been inconsistent in its position

concerning TMDLs for nonpoint-source polluted waters.

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authority to revise individual NPDES permits issued by states

for individual point sources, EPA received no authority to

review land-use restrictions placed (or not placed) on

timber-harvesting permits by CDF or any other practice

permitted for agriculture or silviculture. The 1972 Act was clear

that states should finally decide whether, and to what extent,

land-management practices should be adopted to mitigate

runoff. To assist the states in gathering information, the

statutory role of the TMDL was to identify the load necessary,

as a matter of engineering, to implement the water-quality —

standards. Without such engineering data, states would be left

to guess what needs to be done to meet those standards.

Under the Act, California must “incorporate” the TMDL in

its planning. Nothing, however, requires that the TMDL be

uncritically and mechanically passed through to every relevant

parcel of land. California is free to select whatever, if any,

land-management practices it feels will achieve the load

reductions called for by the TMDL. California is also free to

moderate or to modify the TMDL reductions, or even refuse to

implement them, in light of countervailing state interests.

Although such steps might provoke EPA to withhold federal

environmental grant money, California is free to run the risk.

A practical reality, of course, is that once federal

environmental grant money begins to flow, state regulatory

agencies become dependent on it. They become sensitive to

threats to terminate it—terminations that would entail job and

programmatic cuts. This influences behavior. A state may

knuckle under to coercive threats by EPA. A state may

uncritically apply TMDL-loading reductions, like the ones at

issue, without regard to other legitimate state interests or to the

unique circumstances of an applicant. Even so, this is not direct

federal regulation. The regulation is by California—though

influenced by incentives established by Congress and the

agency charged with protecting the environment. Cf, North

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Carolina Dept. of Transportation v. Crest Street Community

Council, 479 U.S. 6, 8 (1986).

Landowners like the Pronsolinos have avenues of redress.

They can appeal unreasonable or unauthorized restrictions

within the state administrative system. Aggrieved landowners

in a river basin might collectively or singly challenge a TMDL

by EPA or a Section 303(d) listing under the Administrative

Procedure Act as “arbitrary” or “capricious,” or “unsupported

by substantial evidence,” or an “abuse of discretion.” 5 U.S.C.

§§ 702, 706. Landowners, for example, might try to show that

EPA's engineering is manifestly wrong. No such claim,

however, is made here. The only claim is that the Garcia River

should never have been listed in the first place and that no

TMDL at all was ever authorized, a claim that must be rejected

for the reasons stated.

CONCLUSION

In summary, the Clean Water Act called fora comprehensive

set of water-quality standards for every navigable river and

water in America. For every substandard navigable river or

water, Congress sought a determination whether the central

innovation of the 1972 Act—technology-driven limits on

effluent— would be sufficient to achieve compliance. If not, the

river or water was required to go on a list of unfinished business

and a TMDL calculation was required. The TMDL was to

quantify the load improvements necessary to meet standards. If

EPA disagreed with a state’s list or any TMDL as inconsistent

with the purposes of the Act, then EPA was required to revise

the list or the TMDL. No substandard river or water was

immune by reason of its sources of pollution. The process was

made just as mandatory for wild but ruined rivers as it was for

urban-blighted waters.

Once the TMDLs were prepared, they were intended to be

applied to point and nonpoint sources differently. As to point

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sources, the TMDLs were to be taken into account in further

restricting effluent, under NPDES permits, as authorized by

Section 301(b)(1)(C). As to nonpoint sources of pollution, the

TMDLs were to be incorporated into the continuing planning

processes of the states. This conferred a large degree of

discretion on the states in how and to what extent to implement

the TMDLs for nonpoint sources. A state could even refuse to

implement a TMDL, eschewing best management practices if

it wished, although to do so might provoke EPA to curtail or to

deny grant money to the state. But as to whether TMDLs were

. authorized in the first place for all substandard rivers and

waters, there is no doubt. They plainly were and remain so

today—without regard to the sources of pollution.

This resolves the issue raised over the power of EPA to list

waters like the Garcia River or to issue TMDLs for such waters.

The complaint raised no question whether the specific listing or

specific TMDL was otherwise unlawful. The complaint did not,

for example, challenge the specifics of the TMDL as arbitrary

or capricious. The case now having been fully resolved on

cross-motions for summary judgment, JUDGMENT shall be

entered for defendants. The Clerk shall then close the file.

Dated: March 30, 2000

/s/

William Alsup

United States District Judge

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APPENDIX D

STATUTORY ADDENDUM

Section 303(d) of Public Law 92-500, 86 Stat. 816 (1972)

(d)(1)(A) Each State shall 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. The State shall establish a priority ranking for such

waters, taking into account the severity of the pollution and the

uses to be made of such waters.

(B) Each State shall identify those waters or parts thereof

within its boundaries for which controls on thermal discharges

under section 301 are not stringent enough to assure protection

and propagation of a balanced indigenous population of

shellfish, fish, and wildlife.

(C) Each State shall establish for the waters identified in

paragraph (1)(A) of this subsection, and in accordance with the

priority ranking, the total maximum daily load, for those

pollutants which the Administrator identifies under section

304(a)(2) as suitable for such calculation. Such load shall be

established at a level necessary to implement the applicable

water quality standards with seasonal variations and a margin

of safety which takes into account any lack of knowledge

concerning the relationship between effluent limitations and

water quality.

(D) Each State shall estimate for the waters identified in

paragraph (1)(B) of this subsection the total maximum daily

thermal load required to assure protection and propagation of a

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balanced, indigenous population of shellfish, fish and wildlife.

Such estimates shall take into account the normal water

temperatures, flow rates, seasonal variations, existing sources

of heat input, and the dissipative capacity of the identified

waters or parts thereof. Such estimates shall include a

calculation of the maximum heat input that can be made into

each such part and shall include a margin of safety which takes

into account any lack of knowledge concerning the

development of thermal water quality criteria for such

protection and propagation in the identified waters or parts

thereof.

(2) Each State shall submit to the Administrator from time

to time, with the first such submission not later than one

hundred and eighty days after the date of publication of the first

identification of pollutants under section 304(a)(2)(D), for his

approval the waters identified and the loads established under

paragraphs (1)(A), (1)(B), (1)(C), and (1)(D) of this subsection.

The Administrator shall either approve or disapprove such

identification and load not later than thirty days afer the date of

submission. If the Administrator approves such identification

and load, such State shall incorporate them into its current plan

under subsection (e) of this section. If the Administrator

disapproves such identification and load, he shall not later than

thirty days after the date of such disapproval identify such

waters in such State and establish such loads for such waters as

lie determines necessary to implement the water quality

standards applicable to such waters and upon such identification

and establishment the State shall incorporate them into its

current plan under subsection (e) of this section.

(3) For the specific purpose of developing information,

each State shall identify all waters within its boundaries which

it has not identified under paragraph (1)(A) and (1)(B) of this

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subsection and estimate for such waters the total maximum

daily load with seasonal variations and margins of safety, for

those pollutants which the Administrator identifies under

section 304(a)(2) as suitable for such calculation and for

thermal discharges, at a level that would assure protection and

propagation of a balanced indigenous population of fish,

shellfish and wildlife.

ee ee ns ee