Pronsolino v. Nastri

291 F.3d 1123 (2002)

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Nature of the Case

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Facts

D required California to identify the Garcia River as a water body with insufficient pollution controls. As such California was required to set the 'total maximum daily loads' ('TMDLs') for pollution entering the river. 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. Effluent limitations pertain only to point sources of pollution. Point sources are those from a pipe or tunnel. Nonpoint sources of pollution are non-discrete sources; sediment run-off from timber harvesting. 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. States are required to set water quality standards for all waters within their boundaries regardless of the sources of the pollution entering the waters. If a state does not set water quality standards, or D determines that the state's standards do not meet the requirements of the Act, D promulgates standards for the state. Section 303(d)(1)(A) requires each state to identify as 'areas with insufficient controls' 'where the standards are not stringent enough to implement any water quality standard applicable to such waters.' 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 effluent limitations adopted specifically for secondary treatment at publicly owned treatment works. For these wasters, states must establish the 'total maximum daily load' ('TMDL') for pollutants identified by D as suitable for TMDL calculation. If D approves the §303(d)(1) list and TMDLs, the state must incorporate the list and TMDLs into its continuing planning process. If D disapproves, D puts together the missing document or documents. The state then incorporates any D-set list or TMDL into the states continuing planning process. D regulations have made more concrete the statutory requirements. They divide TMDLs into two types: 'load allocations,' for nonpoint source pollution, and 'waste load allocations,' for point source pollution. 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. 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. California submitted its 303(d)(1)(A) list. D disapproved the list because it omitted seventeen water segments that did not meet the water quality standards set by P for those segments. Sixteen of the seventeen water segments, including the Garcia River, were impaired only by nonpoint sources of pollution. California rejected an opportunity to amend, and D then established a new §303(d)(1) list for P, including those segments on it. P retained the seventeen segments on its 1994, 1996, and 1998 § 303(d)(1) lists but did not establish TMDLs for them. Groups sued D to require D to establish TMDLs for the seventeen segments. California missed the consent deadline for the lawsuit settlement, and D established a TMDL for the Garcia River. The TMDL for sediment is 552 tons per square mile per year, a sixty percent reduction from historical loadings. Pronsolino (P) purchased timberland in the Garcia River watershed. In 1998, after re-growth of the forest, they applied for a harvesting permit from the California Department of Forestry. The States required mitigation of 90% of controllable road-related sediment run-off and a containment prohibitions on removing certain trees and on harvesting from mid-October until May 1. A large tree restriction will cost the Pronsolinos (P) $750,000. More parties submitted plans to harvest in the area, and the TMDL would cost from $10 million to $960K. Ps brought this action pursuant to the Administrative Procedure Act challenging D'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. D got the judgment, and Ps appealed.