ELR Citation: ELR 20689
No(s). 00-16026, -16027 (9th Cir. May 31, 2002)

The court holds that the U.S. Environmental Protection Agency (EPA) did not exceed its statutory authority in identifying the Garcia River under Clean Water Act (CWA) §303(d)(1)(A) and establishing the Garcia River total maximum daily load (TMDL) even though the river is polluted only by nonpoint sources of pollution. After EPA established a TMDL for the Garcia River, the tree harvesting activities of landowners who own property in the Garcia River watershed were restricted. The landowners then challenged 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. CWA §303(d) requires 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. Thus, EPA interpreted the phrase "are not stringent enough" as triggering 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. The court holds that EPA's regulations concerning §303(d)(1) lists and TMDLs apply whether a body receives pollution from a point source, a nonpoint source, or a combination of the two. The court next holds that in light of the current regulations and the Agency's understanding of those regulations, as well as the delegated authority of EPA to interpret the CWA, the Agency's interpretation is entitled to deference. Moreover, the Agency's position is supported by the statute. Section 303(d) and the TMDL requirements of the CWA are best read to include waters impaired only by nonpoint sources of pollution. The landowners' federalism concerns were also unfounded.

A prior decision in this litigation is published at 30 ELR 20460.]

Counsel for Plaintiffs
Russell R. Eggert
Mayer, Brown, Rowe & Maw
190 S. La Salle St., Chicago IL 60603
(312) 782-0600

Counsel for Defendants
Sean H. Donahue
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Berzon, J. Before Hall and Wardlaw, JJ.