Amicus Curiae Brief — Pronsolino v. Nastri

MOTION FILED

@ |

MAY 4 6 2005

No. 02-1186

In the

Supreme Court of the United States

>

GUIDO A. PRONSOLINO, et al.,

Petitioners,

¥.

WAYNE NASTRI, Regional Administrator, U.S.

Environmental Protection Agency Region 9, et al.,

Respondents.

>

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

>.

MOTION TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF FOREST

LANDOWNERS OF CALIFORNIA, OREGON

LANDS COALITION, AND PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS

+

ROBIN L. RIVETT

Counsel of Record

M. REED HOPPER

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

Forest Landowners of California,

Oregon Lands Coalition, and

Pacific Legal Foundation

1

MOTION FOR LEAVE TO

FILE BRIEF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.2(b), Forest

Landowners of California (FLC), Oregon Lands Coalition

(OLC), and Pacific Legal Foundation (PLF) respectfully move

to file this brief amicus curiae in support of the Petition for Writ

of Certiorari. Written consent for amicus participation in this

case was granted by counsel of record for Petitioners and all

Respondents except for Pacific Coast Federation of

Fishermen’s Associations, et al., and Association of Metro

Sewage Agencies.’ :

INTEREST OF AMICI CURIAE

The Forest Landowners of California is a nonprofit

association representing the interests of nonindustrial

timberland owners throughout the state. The California

Department of Forestry estimates there are over 30,000

nonindustrial forest properties (larger than 40 acres) in

California, which account for about half of the private

timberland in the state. Most of these entities are small,

family-owned enterprises.

FLC’s members engage in silvicultural activities that can

create sediment which during rainstorms may enter streams as

runoff. This is called nonpoint source pollution. California has

developed a planning program funded and encouraged by the

federal Clean Water Act (CWA), Sections 208 and 319, 33

U.S.C. §§ 1288 and 1329, that promotes methods of land use to

keep the waters clear of such pollution. Under this state

program timberland owners must employ the best management

practices set out in California’s own water quality regulations.

See Cal. Pub. Res. Code §§ 4514.3, 4516.5, 4562.7. In fact,

California has an elaborate system of water quality regulation.

' Letters evidencing such consent have been filed with the clerk of

the Court.

2

See also Cal. Fish & Game Code § 5650, et seg., and Cal.

Water Code § 13000, et seg. (Porter-Cologne Water Quality

Control Act). However, as highlighted in this case, EPA has

imposed an additional but unauthorized set of regulatory

burdens through Section 303(d) of the CWA that seriously

hampers FLC’s members’ ability to carry out their

timber-related businesses.

Most of the small family businesses represented by FLC

depend entirely upon the income from their low-impact timber

harvesting activities to pay for living expenses, retirement,

family, estate taxes, and college and educational needs.

Increased operational costs resulting from Section 303(d)

related restrictions have the potential to cause serious economic

harm to FLC’s members and the over 30,000 small timberland

owners in California.’

Oregon Lands Coalition is a nonprofit Oregon corporation

consisting of a statewide network of nearly 60 groups and

associations. They share a common purpose of ensuring that

public policy decisionmaking carefully considers the broad

impacts environmental regulations have on landowners and

communities as a whole. OLC’s member groups include the

Oregon State Farm Bureau, the Association of Oregon Loggers,

the Oregon Sheep Growers, the Oregon Cattlemen’s f

Association, the Oregon State Grange, and others. These

associations represent the interests of thousands of individuals

throughout Oregon.

For example, the Oregon State Farm Bureau has

represented farmers, ranchers, and small timber owners for the

past 77 years. Its more than 20,000 members represent one of

the largest blocks of private landowners in Oregon. Because of

2 For example, three of the plaintiffs in this case are small

timberland owners in Northern California. Due to these increased

operational restrictions on where and when they may harvest their

own trees, they have suffered additional costs of over $12 million.

ae ee

3

the climate and geography that prevail there, many farms and

ranches contain not only crop and grazing land, but also forest

land. Each of these agricultural uses will be faced with costly

land use restrictions as a result of the Ninth Circuit’s decision

below, just like the Petitioners in this case.

Pacific Legal Foundation is the largest and most

experienced nonprofit public interest law foundation of its kind

in America. Litigating nationwide since 1973, PLF provides a

voice in the courts for thousands of Americans who believe in

limited government, private property rights, individual freedom,

and free enterprise. PLF is headquartered in Sacramento,

California, and has offices in Coral Gables, Florida; Honolulu,

Hawaii; Bellevue, Washington; and a liaison office in

Anchorage, Alaska. PLF has participated in numerous cases

across the country concerning the interpretation of the Clean

Water Act and its restrictions on landowners’ rights to use their

private property in a reasonable, productive manner.’

In separate appellate litigation also concerning the

application of Section 303(d), PLF attorneys are currently

representing several farmers and agricultural organizations.

Hawes v. Oregon, Oregon Circuit Court for Baker County,

Docket No. 00-198. The plaintiffs are challenging a highly

restrictive state water pollution control program, adopted in

mistaken reliance on the Ninth Circuit’s ruling in this case that

Section 303(d) applies to streams even though they do not have

point sources of pollution. On December 7, 2002, the Oregon

trial court ruled that Section 303(d) imposed restrictions do not

> For example, PLF participated recently as amicus curiae before the

United States Supreme Court in Borden Ranch Partnership v. United

States Army Corps of Engineers, 123 S. Ct. 599 (2002), and Solid

Waste Agency of Northern Cook County v. United States Army Corps

of Engineers, 531 U.S. 159 (2001), both of which concerned the

scope of authority granted to the Army Corps of Engineers and EPA

under the federal Clean Water Act.

4

apply to streams with only nonpoint sources of pollution, e.g.,

agricultural runoff. The decision squarely conflicts with the

Ninth Circuit’s decision in this case. See Pronsolino v. Nastri,

291 F.3d 1123 (9th Cir. 2002).

But, if the Oregon Court of Appeals capitulates to the

Ninth Circuit’s decision herein, agricultural activities may be

shut down on significant stretches of land. For instance, client

Daryl Hawes produces livestock on both sides of the Burnt

River in Baker County, Oregon. The river has no point sources

of pollution, but due to its 303(d) listing, it is expected that

agriculture will be prohibited from taking any actions that might

increase the river’s temperature in any amount. To comply,

Hawes will not be able to use river water to irrigate his crops

and water his cattle at certain times of the year when the

volume and flow rate of the river need to be maintained to keep

it cool. Without access to the River to water his cattle and

irrigate his crops, he will have to develop other costly water

resources, or change his land use to other less valuable crops or

uses that need less water. As a result, the value of his land has

already plummeted and he faces an uncertain future.‘

Amici will augment Petitioners’ arguments by showing

that the Ninth Circuit’s decision ignores the principles of

federalism upon which the Clean Water Act is based. Amici

* Numerous people similarly situated to the Hawes can also expect

similar injuries. Just in California alone more than /5 million acres

of land would be affected by Section 303(d) restrictions attributable

to nonpoint source-only pollution. California State Water Resources

Control Board, Staff Report: Revision of the Clean Water Act

Section 303(d) List of Water Quality Limited Segments (2003),

available at http://\www.swrcb.ca.gov/tmdl/docs/staff_report303d

_voll_011303.pdf. All farms, ranches, and timber operations within

the jurisdiction of not only California, but the entire Ninth Circuit,

are subject to massive restrictions that can actually prohibit

landowners from farming, grazing, or harvesting their land or even

preparing their land for these activities.

5

will explain how the plain language and comprehensive

legislative history of the Act demonstrate Congress’s clear

intent that states, not the federal Environmental Protection

Agency (EPA), are to be in control of regulating land use

activities that may affect water quality. Unfortunately, the

Ninth Circuit’s decision allows EPA to micromanage rural land

uses stripping states of their primary regulatory role over land,

and subjecting landowners to severe regulatory mandates that

may even force some to shut down their farming, ranching, and

forestry operations.

For all the foregoing reasons, the motion of Forest

Landowners of California, Oregon Lands Coalition, and Pacific

Legal Foundation to file a brief amicus curiae should be

granted.

DATED: May, 2003.

Respectfully submitted,

ROBIN L. RIVETT

Counsel of Record

M. REED HOPPER

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

Forest Landowners of California,

Oregon Lands Coalition, and

Pacific Legal Foundation

i

QUESTIONS PRESENTED

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

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

its boundaries for which specified “effluent limitations . . . are

not stringent enough to implement any water quality standard

applicable to such waters,” and to establish total maximum

daily loads (TMDLs) of pollutants for those waters. Although

effluent limitations are by definition applicable only to waters

impaired by point sources, the Environmental Protection

Agency (EPA) requires each State to identify and establish

TMDLs for all its waters not meeting water quality standards,

including waters not impaired by point sources and thus not

subject to effluent limitations at all. On that basis, EPA

imposed TMDLs on numerous California waters impaired only

by nonpoint sources. The questions presented are:

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

establish TMDLs for all substandard waters within its

boundaries, including those impaired only by nonpoint sources.

2. Whether permitting EPA to establish TMDLs for

waters impaired only by nonpoint sources and thereby impose

corresponding land use controls constitutes an impermissible

federal intrusion into a core State function without a clear

statement from Congress.

ii

TABLE OF CONTENTS

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THE NINTH CIRCUIT’S DECISION

EVISCERATES CONGRESS’S INTENT TO

PRESERVE THE STATES’ AUTHORITY |

OVER WATER POLLUTION REGULATION |

THAT DICTATES LAND USE CHOICES

AND RAISES AN IMPORTANT QUESTION

CALLING FOR THIS COURT’S REVIEW ................ 2

A. The CWA’s Plain Language Reserves Land |

and Water Use Decisions to the States ........... 2 |

B. Congress Did Not Intend That TMDLs |

Would Apply to Waters Affected Only

by Nonpoint Sources of Pollution ............... 7

C. The Ninth Circuit’s Decision Strips States t

of Their Primary Role over Land and Water

Use, Raising Serious Federalism Issues ......... 13 ‘

CREM Cec oc baccesccdesrserssnnecernesensene 15

iil

TABLE OF AUTHORITIES

Page

Cases

FERC v. Mississippi, 456 U.S. 742 (1982) ............ 14

Hess v. Port Authority Trans-Hudson Corp.,

oe Be er eee re ee 15

Hodel v. Virginia Surface Mining and

Reclamation Ass’n, 452 U.S. 264 (1981) ........... 14

National Wildlife Federation v. Consumers

Power Co., 862 F.2d 580 (6th Cir. 1988) ............ 3

Natural Resources Defense Council v. United States

EPA, 16 F.3d 1395 (4th Cir. 1993) .........cceeee 3-4

Oregon Natural Resources Council v. Lyng,

882 F.2d 1417 (9th Cir. 1989), modified,

Oe Wade IOP UN Geile BFE c nck ss cuwsnesetcweees 3

Pronsolino v. Marcus,

91 F. Supp. 2d 1337 (N.D. Cal. 2000) ............. 13

Pronsolino v. Nastri,

ee ee Be GG ED vv sc ei sc becneoecenes 13

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

Bee CED oS reed oes awenceeceeess 2, 13-15

South Dakota v. Dole, 483 U.S. 203 (1987) ........... 13

Vermont Agency of Natural Resources v. United States

ex rel. Stevens, 529 U.S. 765 (2000) ............... 14

Statutes

Be ee BN os bh 045454 ae eve daw aes 5, 7-8, 15

|

iV

TABLE OF AUTHORITIES—Continued

Page

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TABLE OF AUTHORITIES—Continued

Page

Miscellaneous

Conf. Rep., Federal Water Pollution

Control Act Amendments of 1972,

S. Rep. No. 92-1236 (1972), reprinted in

93d Cong., Ist Sess., A Legis. History of the

Water Pollution Control Act Amendments

of 1972, Vol. 1 (Comm. Print 1973) ............ 10-11

Continuing House Deb. on H.R. 11896, Mar. 28,

1972, reprinted in 93d Cong., Ist Sess., A Legis.

History of the Water Pollution Control Act

Amendments of 1972, Vol. 1 (Comm. Print 1973) ... 10

Federal Water Pollution Control Act of 1948,

Pub. L. No. 80-845, 62 Stat. 1155 (1948) ............ 7

Hale, Mandi M., Comment: Pronsolino v. Marcus,

The New TMDL Regulation, and Nonpoint

Source Pollution: Will the Clean Water Act’s

Murky TMDL Provision Ever Clear the Waters?,

oe Re rer res peer 10

House Consideration of the Rep. of the Conf. Comm.,

Oct. 4, 1972, reprinted in 93d Cong., 1st Sess., A

Legis. History of the Water Pollution Control Act

Amendments of 1972, Vol. 1 (Comm. Print 1973) .... 11

4. House Rep., Fed. Water Pollution Control Act

‘| Amendments of 1972, S. Rep. No. 92-911

(1972), reprinted in 93d Cong., Ist Sess.,

A Legis. History of the Water Pollution

Control Act Amendments of 1972, Vol. 1

SR SEE OPTED <a ns ua bbe Fava eke hau baeeeenae 9

vi

TABLE OF AUTHORITIES—Continued

Page

S. Consideration of the Rep. of the Conf.

Comm., Oct. 4, 1972, presentation by

Sen. Muskie, reprinted in 93d Cong.,

Ist Sess., A Legis. History of the

Water Pollution Control Act Amendments

of 1972, Vol. 1 (Comm. Print 1973) ........... 7-8, 11

Water Quality Act of 1965, Pub. L. No. 89-234,

Fe Ck, PO RPE obs bikes veep ewnewenauaeeenenae 7

White, L., The States and the Nation (1953) ........... 14

1

INTEREST OF AMICI CURIAE!

The interests of Amici Curiae Forest Landowners of

California, Oregon Lands Coalition, and Pacific Legal

Foundation are set forth in the preceding motion.

SUMMARY OF ARGUMENT

The Ninth Circuit’s decision ignores the principles of

federalism upon which the Clean Water Act’s (CWA) strategy

to clean the Nation’s waters was based. Specifically, the

decision conflicts sharply with the division of responsibilities

Congress outlined between the Environmental Protection

Agency (EPA) and the states. In crafting the CWA, Congress

envisioned a structure in which EPA would act primarily as an

oversight and support agency for state regulatory efforts

directed at nonpoint source water pollution control. Though

EPA’s role is critical in establishing nationwide goals and

standards, its direct regulatory power is limited. Instead,

Congress intended that states take the lead in implementing the

goals and policies of the Act, and in so doing would have

exclusive control over land use policies.

One particular feature of this cooperative structure in

deferring to state control over land use is the explicit distinction

Congress drew between point and nonpoint sources of

pollution. Specifically, Congress focused EPA’s regulatory

authority on controlling point-source discharges. With the

exception of imposing limited conditions on the provision of

federal funding, Congress left nonpoint source regulation to the

states.

But EPA’s new interpretation of Section 303(d) of the

CWA, as upheld by the Ninth Circuit, would upset the federal-

' Pursuant to Rule 37.6, Amici Curiae affirm that no counsel for any

party authored this brief in whole or in part and that no person or

entity made a monetary contribution specifically for the preparation

of submission of this brief.

2

state division of responsibilities that Congress created. By

injecting itself into the micromanagement of land uses that is

central to addressing waters affected only by nonpoint sources

of pollution, EPA has set itself up as a sort of super land use

planning agency that has ultimate authority over all local land

use decisions that may in some way affect water quality. This

is an outcome that stands the CWA on its head. It strips states

of their appropriate water quality planning role under the Act

and their long-held, traditional and primary power over land use

planning. Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, 531 U.S. 159, 173

(2001) (SWANCC). Accordingly, this is a very important case

that should be reviewed by this Court.

ARGUMENT

THE NINTH CIRCUIT’S DECISION

EVISCERATES CONGRESS’S INTENT

TO PRESERVE THE STATES’ AUTHORITY

OVER WATER POLLUTION REGULATION

THAT DICTATES LAND USE CHOICES

AND RAISES AN IMPORTANT QUESTION

CALLING FOR THIS COURT’S REVIEW

This case raises an important issue: May the Ninth Circuit

allow the constitutionally designed federal structure of our

Nation to be undermined by an administrative agency’s

misreading and overzealous application of a federal statute? In

this case, the Ninth Circuit succumbed to EPA’s quest for more

power, but in so doing subverted Congress’s promise that in

addressing water pollution states would retain their traditional,

primary role over land and water use planning. The Ninth

Circuit’s decision below ignores this promise.

A. The CWA’s Plain Language Reserves Land

and Water Use Decisions to the States

The federal CWA was adopted to control the amount of

pollution entering the Nation’s waters. It divides sources of

3

water pollution into categories by the way it is introduced into

receiving waters. National Wildlife Federation v. Consumers

Power Co., 862 F.2d 580, 582 (6th Cir. 1988). The first

category consists of the discharge of pollutants from a “point

source.” Point source is defined as “any discernible, confined

and discrete conveyance,” and includes such things as a pipe,

ditch, or channel. 33 U.S.C. § 1362(14). The second category

consists of pollution that comes from a “nonpoint source.” The

CWA does not define “nonpoint source,” but it has been

construed as “any source of water pollution or pollutants not

associated with a discrete conveyance . . . includ[ing] runoff

from fields [and] forests.” Oregon Natural Resources Council

v. Lyng, 882 F.2d 1417, 1424 n.8 (9th Cir. 1989), modified, 899

F.2d 1565 (9th Cir. 1990).

Under the regulatory scheme of the CWA, point source

pollution is prohibited unless EPA, or the state via an EPA-

approved program, has issued a permit (33 U.S.C. § 1311)

specifying pollutant discharge conditions and restrictions. 33

U.S.C. § 1342(a)-(d). The permit typically contains numerical

limits on the amounts of specified pollutants the permittee may

discharge into navigable waters. The limits are known as

“effluent limitations” which by definition apply only to point

source discharges. 33 U.S.C. § 1362(11). This scheme also

requires a state to identify as impaired those waters for which

the “effluent limitations” are not stringent enough to meet the

applicable state-imposed water quality standards’ and establish

2 [T]he CWA requires each state to adopt water quality

standards for all waters of that state and to review them at

least every three years. Id. §§ 1313(a), (b), (c)(1) (1982 &

Supp. 1993). To adopt these standards, states must first

classify the uses for which the water is to be protected, such

as fishing and swimming, and then . . . determine the level of

water quality necessary to protect those uses. Thus, the

following three factors are considered when adopting or

(continued...)

4

Total Maximum Daily Loads, or TMDLs, for the pollutants

entering those affected waters. CWA, Section 303(d)(1), 33

U.S.C. § 1313(d)(1); 40 C.F.R. § 130.2(h) (2003).

Nonpoint source pollution is dealt with in a different

manner. Section 208 of the CWA, 33 U.S.C. § 1288, gave

states the responsibility to draft area wide waste treatment

management plans for identifying sources of nonpoint pollution

and establishing best management practices to control such

pollution. The Act provided financial incentives for nonpoint

sources to adopt best management practices but did not penalize

anyone for failing to do so. In 1987, Section 319, 33 U.S.C.

§ 1329, was added providing new grant opportunities to states

which had complied with the nonpoint source reporting and

planning goals established by Section 319.

Section 303(d)(1) of the CWA, 33 U.S.C. § 1313(d)(1), is

the focus of this case. It requires states to identify as impaired

certain water bodies that have not met state water quality

standards and then establish TMDLs for the pollutants that are

causing those water bodies not to meet their standards. The

critical question advanced in this case is whether Congress ever

intended that those waters affected only by nonpoint sources of

pollution, i.e., farming, forestry, be listed as impaired and have

mandatory TMDLs assigned to them. The reason this question

2 (...continued)

evaluating a water quality standard: (1) one or more

designated uses of the state waters involved; (2) certain water

quality criteria, expressed as numeric pollutant concentration

levels or narrative statements representing a quality of water

that supports a particular designated use; and (3) an

antidegradation policy to protect existing uses and high

quality waters. Jd. § 1313(c)(2)A) (Supp. 1993); 40 C.F.R.

§ 131.

Natural Resources Defense Council v. United States EPA, 16 F.3d

1395, 1400 (4th Cir. 1993).

5

has practical and constitutional importance’ is that if the answer

is yes, the only way the federally mandated TMDLs can be met

is to change land use practices. In other words, despite

Congress’s promises to the contrary, states will be forced by

EPA to eliminate or change land uses as the only way to reduce

pollutant levels in these waters.

Stripping the wheat from the chaff, the fundamental issue

is this: Does Section 303(d)(1) of the CWA grant EPA

authority to mandate TMDLs for water bodies affected only by

nonpoint source runoff? The plain language of Section

303(d)(1) expressly assigns to states the responsibility to

establish TMDLs only for waters that receive “effluents” which

by definition come singularly from point sources. The Section

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(b)(1)(B) of this title are not stringent

enough to implement any water quality standard

applicable to such waters. ...

(C) Each State shall establish for the waters

identified in paragraph (1)(A) of this subsection . . .

the total maximum daily load, for those pollutants

which the Administrator identifies . . . as suitable for

such calculation. Such load shall be established at a

level necessary to implement the applicable water

quality standards ....

> The Ninth Circuit’s decision raises serious concerns about federal

intrusion into state affairs “to plan the development and use. . . of

land and water resources.” 33 U.S.C. § 1251(b).

6

33 U.S.C. § 1313(d)(1)(A)-(C) (emphases added). Sections

1311(b)(1)(A) and (B), referenced in Section 1313(d)(1), state,

respectively:

(b) ... In order to carry out the objective of

this chapter there shall be achieved—

(1)(A) not later than July 1, 1977, effluent

limitations for point sources, other than publicly

owned treatment works ....

(B) for publicly owned treatment works in

existence on July 1, 1977 . . . effluent limitations

based upon secondary treatment... .

33 U.S.C. § 1311(b) (emphases added). The term “effluent

limitation” is defined in the CWA as:

[A]ny restriction established by a State or the

[EPA] Administrator on quantities, rates, and

concentrations of chemical, physical, biological, and

other constituents which are discharged from point

sources....

33 U.S.C. § 1362(11) (emphasis added). Thus, as written, it is

patently clear that Sections 1311(b)(1)(A) and (B) can apply

only to point sources of pollution. Nevertheless, the Ninth

Circuit’s decision below not only dismissed this express

language, but also the historical underpinnings of the CWA and

states’ traditional responsibility under our federal system of

government to plan the development and use of land and water.

Any doubt as to what the language of Section 303(d)(1) means

is dispelled by reviewing the history of the Clean Water Act and

recognizing that no deference may be given to the Ninth

Circuit’s interpretation which extinguishes the traditional and

constitutionally designed role of states over land use control.

7

B. Congress Did Not Intend That TMDLs

Would Apply to Waters Affected Only

by Nonpoint Sources of Pollution

The Federal Water Pollution Control Act first adopted in

1948, Pub. L. No. 80-845, 62 Stat. 1155 (1948), and as

amended by the Water Quality Act of 1965, Pub. L. No. 89-234,

79 Stat. 903 (1965), was an initial effort to clean our Nation’s

waters by having the states establish water quality standards’ for

their waters, and providing courts authority to grant relief from

nuisance-like pollution after considering the practicability and

economic feasibility of abatement. But the approach of each

state simply setting water quality standards and coupling that

with a fairly weak enforcement system was ineffective. It was

just too difficult to determine what individual discharger or

pollution source was the ultimate cause of exceeding the water

quality standard; moreover state water quality programs were

severely underfunded. See generally S. Consideration of the

Rep. of the Conf. Comm., Oct. 4, 1972, presentation by Sen.

| Muskie, reprinted in 93d Cong., Ist Sess., A Legis. History of

the Water Pollution Control Act Amendments of 1972, Vol. 1

at 164-65 (Comm. Print 1973).

As a result of this need to change the way it approached

water pollution, Congress adopted the Federal Water Pollution

Control Act of 1972. Congress made it clear, however, that

while the strategy would change, the primary role of the states

would not. In the preamble to the 1972 Act, Congress

emphasized this deference stating:

It is the policy of the Congress to recognize,

preserve, and protect the primary responsibilities and

rights of States to prevent, reduce, and eliminate

pollution, to plan the development and use

(including restoration, preservation and

enhancement) of land and water resources, and to

* See n.2, supra, at 3-4.

5

ic ieee

8

consult with the Administrator in the exercise of his

authority under this chapter.

33 U.S.C. § 1251(b). This was a central theme of the 1972 Act;

the federal government would not arrogate to itself the

traditional responsibilities and roles of the states. But Congress

also knew some strategy changes were needed to reduce water

pollution. As such, Congress expressly addressed point source

pollution with a new approach: advanced mandated

technological controls.

In an attempt to avoid economic dislocation, Congress

took a stepped approach to achieving the goals of the CWA and

set a national goal that by January 1, 1976, all point source

controls would be required to comply with “the best practicable

control technology currently available.” ao VBS.

§ 1311(b)(1)(A). That is, any factory or plant discharging

effluent from a point source into the Nation’s waters was given

a deadline by which to employ technologically available and

affordable pollutant control systems. This standard was

enforced through the Act’s permitting scheme, outlined in

Section 402 of the Act (33 U.S.C. § 1342). By January 1, 1981,

all point sources had to employ a stricter standard of

effluent control: “best available technology.” 33 U.S.C.

§ 1311(b)(2)(A). This provision required effluent dischargers

to use the best technology developed for controlling pollutant

discharges, virtually regardless of cost. The hope was that these

long-range requirements would encourage the development

of affordable and effective technologies to address eiflent

discharges, and allow the economic activities of the Nation to

continue with minimal disruption. See, e.g., S. Consideration

of the Rep. of the Conf. Comm., in 93d Cong., Ist Sess., A

Legis. History of the Water Pollution Control Act Amendments

of 1972, supra, at 169-70.

Congress also adopted in 1972 Section 303(d), 33 U.S.C.

§ 1313(d), to further enhance the likelihood that the Act’s

9

controls on point source discharges of pollution would succeed

in cleaning the Nation’s waters. First, water quality standards

were promulgated pursuant to Section 303(d) as a goal against

which to measure the amount of pollution reduction success

point source controls had achieved. Second, in the event goals

had not been achieved and such waters remained impaired, the

standards were a basis to establish yet more stringent effluent

limitations further reducing the pollutant load levels discharged

from point sources. The House Report to H.R. 11896, which

introduced Section 303(d) to the CWA’s legislative process,

explained:

Subsection (d)(1) of section 303 requires each

State to identify . . . those waters . . . for which the

effluent limitations required for non-publicly owned

point sources and for publicly owned treatment

works .. . are not stringent enough to implement any

water standard applicable to such waters. ...

The State shall establish from any waters so

identified . . . the total maximum daily load [TMDL]

House Rep., Fed. Water Pollution Control Act Amendments of

1972, S. Rep. No. 92-911, at 106 (1972), reprinted in 93d

Cong., Ist Sess., A Legis. History of the Water Pollution

Control Act Amendments of 1972, Vol. 1, at 793 (Comm. Print

1973). Given that the House Bill was the origin of TMDLs, it

is telling that the House Report explained Section 303(d)

exclusively in terms of point source controls. There is no

indication that the water quality standards imposed by Section

303(d) were intended to be directed at nonpoint sources.

Specifically, the purpose of TMDLs was to provide a

backstop standard for point source controls: to ensure that,

first, the point source control program was working, and,

second, even if point source dischargers were already

complying with the mandates of Sections 30i(b)(1)(A)

10

and (b)(2)(A) but still not achieving the applicable water quality

standards, such dischargers might nonetheless be required to

comply with greater control measures.” TMDLs were imposed

under Section 303(d) to define the amount and kind of

pollutants that a given water segment could withstand and still

meet applicable water quality standards. Accordingly, the states

(or EPA, depending upon who was implementing the Section

402 permitting scheme) could identify which pollutants (or

polluters) warranted more stringent effluent controls.

As the Section 303(d) TMDL proposal wound through the

legislative process, every congressional statement relating to

Section 303(d) explained the provision only in terms of its

utility in establishing effluent standards which, as stated supra

at 9-10, relate only to point source discharges.® Thus, these

> See Mandi M. Hale, Comment: Pronsolino v. Marcus, The New

TMDL Regulation, and Nonpoint Source Pollution: Will the Clean

Water Act’s Murky TMDL Provision Ever Clear the Waters?, 31

Envtl. L. 981, 996 (2001) (author argues that Section 303(b)(1 (C)’s

requirement of more stringent effluent limitations if water quality

standards are not met through best practicable control and best

available control technologies of Section 301(b)(1)(A) and Section

301(b)(1)(B) are met through imposition of TMDLs).

° For example, Congressman Harsha explained:

[I]ndustry will be on notice now that they . . . have to go

beyond [best practicable technology] and assure that the best

practicable technology will meet the water quality standards

and the load limits .. . .

Continuing House Deb. on H.R. 11896, Mar. 28, 1972, reprinted in

93d Cong., Ist Sess., A Legis. History of the Water Pollution Control

Act Amendments of 1972, Vol. 1, at 524 (Comm. Print 1973)

(emphasis added). And, “Subsection (d){1) requires each State to

identify the waters . . . for which effluent limitations required by

section 301 are not stringent enough to implement a water quality

(continued...)

Ze

11

statements demonstrate that Section 303(d)’s mandate to

establish TMDLs on impaired water bodies was intended,

understood, and designed for the express purpose of defining

more stringent effluent limitations on point source discharges.

In fact, Amici could not find a single report or debate that

discussed Section 303(d)’s TMDL standard as a means of

setting limitations on nonpoint source pollution. Instead, in

1972, nonpoint source pollution control was addressed only

under Section 208 of the Act.’

In contrast to the CWA’s provisions for point source

controls, the Act’s provisions for nonpoint sources of pollution

° (...continued)

standard . . . .”, Conf. Rep., Federal Water Pollution Control Act

Amendments of 1972, S. Rep. No. 92-1236, at 123 (1972), reprinted

in 93d Cong., Ist Sess., A Legis. History of the Water Pollution

Control Act Amendments of 1972, Vol. 1, at 306 (Comm. Print

1973) (emphasis added). Also, “[s]ection 303 contains provisions

for the identification of waters where the technological standards are

not stringent enough to implement applicable water quality

standards. For these waterways, the States are required to establish

load limits . . . .”. House Consideration of the Rep. of the Conf.

Comm., Oct. 4, 1972, reprinted in 93d Cong., Ist Sess., A Legis.

History of the Water Pollution Control Act Amendments of 1972,

Vol. 1, at 246 (Comm. Print 1973) (emphases added). And finally:

“To the extent the State may wish to continue an examination of

water quality in order to determine if more restrictive effluent limits

may be required, this section [303] will be useful.” S. Consideration

of the Rep. of the Conf. Comm., Oct. 4, 1972, reprinted in 93d

Cong., Ist Sess., A Legis. History of the Water Pollution Control Act

Amendments of 1972, supra, at 171 (emphases added).

” Congress amended the CWA in 1987 also to address nonpoint

source pollution in Section 319. There again, nonpoint source

pollution control was left in the hands of the states as EPA’s role is

limited to providing standards, expertise, and funding. See 33 U.S.C.

§ 1329.

12

contained a distinctly different federal approach. Under the

proposed bills, and as finally enacted, Section 208 addressed

state-created plans for controlling nonpoint sources of pollution

and focused the federal role primarily on providing a funding

mechanism and expert assistance for developing such plans.

The federal regulatory role was strictly limited to providing

approval of the plans. See 33 U.S.C. § 1288(g)-(j).

Of course, like many federal funding measures, Congress

did impose conditions upon the states in return for federal

funds. Section 208’s most fundamental condition is that states

must develop and operate a continuing area wide waste

management plan. 33 U.S.C. § 1288(b). However, conditions

regarding the plan still left it to the states to develop and

implement their nonpoint source pollution control programs

specifically describing Section 208 as a mechanism for

(a) . . . encouraging and facilitating the

development and implementation of areawide waste

treatment management plans....

33 U.S.C. § 1288(a) (emphasis added).

In fact, while each plan is to include specific elements, the

severity of these elements is subject to the judgment of each

state. Specifically, a state’s plan is asked to include, if

appropriate, a series of procedures and methods (including land

use requirements) to control certain nonpoint sources of

pollution, to the extent feasible. See 33 U.S.C. § 1288(b)(2)(F)-

(I). This deferential approach to state pollution control

decisions for nonpoint sources stands in stark contrast to the

mandatory standards related to point sources.

Overall, the legislative history and plain language of the

CWA shows that Congress placed broad discretion in the states

to regulate nonpoint source controls, subject only to minimum

13

federal standards for funding.* Contrary to the ruling by the

Ninth Circuit, Congress did not authorize EPA to require states

to impose the TMDL requirement of Section 303(d) on waters

that contain no point sources of pollution. States are therefore

governed only by area wide waste management plans under the

Section 208 planning process.

C. The Ninth Circuit’s Decision Strips States

of Their Primary Role over Land and Water

Use, Raising Serious Federalism Issues

EP’ ’s grafting of Section 303(d) TMDL mandates onto a

state’s nonpoint source control program turns the Act on its

head and strips from states their traditional and primary role

over land use. SWANCC, 531 U.S. at 174. In short, EPA’s

application of Section 303(d) alters the entire nature of the

* The courts below minimized concerns about the mandatory nature

of the Section 303(d) TMDL process by contending that the

inclusion of NPS-impaired water bodies under Section 303(d) did not

necessarily intrude on state prerogatives to regulate nonpoint sources

because “[a] state could even refuse to implement a TMDL .. .

although to do so might provoke EPA to curtail or to deny grant

money to the state.” Pronsolino v. Marcus, 91 F. Supp. 2d 1337,

1356 (N.D. Cal. 2000); Pronsolino v. Nastri, 291 F.3d 1123, 1140

(9th Cir. 2003) (“States must implement TMDLs only to the extent

that they seek to avoid losing grant money ... .”). See also Petition

for a Writ of Certiorari at 24 (discussing EPA’s warning that failure

to implement its TMDLs might prompt the agency to engage in

“nasty little tricks” with grants and such). But the provisions of Title

II in general—and Section 208 in particular—expressly spell out the

conditions Congress imposed on the provision of federal funding.

Neither the Ninth Circuit nor EPA has provided any statutory or case

authority for the proposition that an agency may conflate a federal

Act to make the conditional funding provisions of one part (here,

Title II) depend upon compliance with any other provision (here,

their interpretation of Title III). Congress, and not executive

agencies, has power under the Spending Clause to condition funding.

See South Dakota v. Dole, 483 U.S. 203, 206 (1987).

14

Section 208 area wide waste management plan. It is no longer

a state plan outlining the state ’s discretionary efforts to reduce

nonpoint source discharges, but is now a plan that must include

EPA-imposed TMDL mandates. This raises significant

constitutional and federalism questions. As explained in Hodel

v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S.

264, 289 (1981), “forc[ing] States to choose between

performing tasks set by Congress and abandoning . . . land use

regulation,” a “field traditionally reserved to state authority”

raises serious Tenth Amendment and federalism concerns. See

FERC v. Mississippi, 456 U.S. 742, 783 & n.12 (1982)

(O’Connor, J., partial concurrence; partial dissent) (“‘A federal

system implies a partnership, all members of which are

effective players on the team and all of whom retain the

capacity for independent action. It does not imply a system of

collaboration in which one of the collaborators is annihilated by

the other.’” (quoting L. White, The States and the Nation 3

(1953))). And there is in the CWA “nothing approaching a

clear statement from Congress that it intended” to empower the

federal government to preempt the entire field of water quality

regulation and land use planning. See SWANCC, 531 U.S. at

174. Without such a “clear statement,” this Court should not

permit such a shift in power. See Vermont Agency of Natural

Resources v. United States ex rel. Stevens, 529 U.S. 765, 787

(2000).

The Ninth Circuit’s decision that embraces EPA’s

expansive interpretation of its power under the CWA, of course

raises this same concern about federal intrusion into state

affairs. Unlike the Ninth Circuit, however, this Court has

noted: “[W]here an administrative interpretation [such as

EPA’s concerning Section 303(d)] alters the federal-state

framework by permitting federal encroachment upon a

traditional state power,” SWANCC, 531 U.S. at 173, such

concern is heightened and deference to administrative

interpretation is properly rejected. Specifically, the Ninth

15

Circuit’s decision in this case that Section 303(d) allows EPA

to take over a state’s discretionary nonpoint source pollution

prevention planning by mandating TMDLs for waters affected

only by nonpoint sources “would result in a significant

infringement of the states’ traditional and primary power over

land and water use.” Jd. at 174. See Hess v. Port Authority

Trans-Hudson Corp., 513 U.S. 30, 44 (1994) (“[RJegulation of

land use [is] a function traditionally performed by local

governments.”). “Rather than expressing a desire to readjust

the federal-state balance [in adopting the CWA], Congress

chose to ‘recognize, preserve, and protect the primary

responsibilities and rights of States . . . to plan the development

and use . . . of land and water resources... .’ 33 U.S.C.

§ 1251(b).” SWANCC, 531 U.S. at 174.

But the Ninth Circuit’s decision fails to recognize this

division of responsibility and strips from the states their primary

role in solving land use and water quality problems. This

cannot be what Congress intended; certainly, it is not what

Congress said. Protection from nonpoint source pollution was

to remain in the hands of the states according to Section 208.

It was never intended that states would lose their sovereign

power over land use decisions and be subjected to EPA control

under Section 303(d).

CONCLUSION

By enacting the Clean Water Act, Congress never intended

EPA to grab from states their traditional authority to prescribe

local land uses to address water quality problems. Under

Sections 208 and 319 of the CWA, Congress reserved this role

only for states. Nevertheless, the Ninth Circuit’s decision shifts

this role to EPA by gratuitously expanding EPA’s authority

under Section 303(d) of the CWA. This arrogation of power

16

creates a serious federalism problem calling for this Court’s

review. The Petition for Writ of Certiorari should be granted.

DATED: May, 2003.

Respectfully submitted, |

ROBIN L. RIVETT |

Counsel of Record |

M. REED HOPPER |

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100 |

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

Forest Landowners of California,

Oregon Lands Coalition, and

Pacific Legal Foundation