# Amicus Curiae Brief — Pronsolino v. Nastri

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1138%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 926

## Text

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

Page
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TRIE Se RAMEE ce cc sic cen seccvcssdccesss l
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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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Regulation and Rule

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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 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1138%3A7. Public record. Not legal advice.