ELR Citation: ELR 20460
No(s). C 99-01828 WHA (N.D. Cal. Mar 30, 2000)

The court holds that the Clean Water Act (CWA) authorizes the U.S. Environmental Protection Agency (EPA) to set total maximum daily loads (TMDLs) for rivers polluted only by logging and agricultural runoff and/or other nonpoint sources. Owners of land along the Garcia River in California filed suit against EPA after the state forestry department imposed certain restrictions on their harvest permit in order to implement the TMDL criterion set by EPA for the river. The court first holds that the listing and TMDL requirements of CWA §303(d) apply to point and nonpoint sources. CWA §303(d)(1)(A) requires states to list every river for which effluent limitations would not be strong enough to implement any water quality standard applicable to the river. Once listed, CWA §303(d)(1) requires states to set TMDLs for such substandard rivers. Although the CWA §303(d) procedures for setting TMDLs specifically reference point sources but not nonpoint sources, CWA §303(d) still applies to nonpoint sources. It would be impossible to set TMDLs to meet the necessary water quality standards without taking nonpoint sources into account. Similarly, CWA §303(d) requires each state to identify each and every substandard navigable water within the boundaries of the state for which the effluent limits would not be stringent enough to meet the water quality standards. Since all rivers are included in the universe for which water quality standards are required, all rivers, regardless of source pollution, are included in the universe for which TMDLs are required. Moreover, Ninth Circuit case law and the legislative history of CWA §303(d)'s enactment indicate that the TMDL process covers nonpoint as well as point sources.

The court also holds that "pollutant," as used in the CWA, includes sediment, regardless of whether it comes from a point source or a nonpoint source. The operative language of the Act expressly treated pollutants as emanating from nonpoint sources, and the legislative history referred to nonpoint source sediment as a pollutant. The court further holds that although the 1987 enactment of the CWA §319 nonpoint source management program addressed some of the same issues as CWA §303(d), CWA §319 did not render CWA §303(d) superfluous in regard to TMDLs for nonpoint sources. CWA §319 did not conflict with or duplicate the CWA §303(d) listing/TMDL provisions at issue. Last, the court holds that Congress did not authorize EPA to regulate state land use practices, a point on which EPA agrees. Rather, the decision of how and to what extent to implement the TMDLs for nonpoint sources lies with the states.

[Counsel not available at this printing.]