The Clean Water Act §303(d) requires that States
establish total maximum daily loadings (TMDLs) for pollutants. By looking
at all the pollutants entering a body of water from all sources, TMDLs are
supposed to permit a comprehensive assessment of what reductions are
necessary to achieve water quality standards/
EPA interpreted §303(d) to include pollutant
loadings from all sources, including non-point sources and natural
background.
Pursuant to §303(d), California proffered a list of
TMDLs. EPA rejected the list because it omitted 16 bodies of water than
were being polluted solely by non-point sources.
EPA told California to establish TMDLs that required a 60%
reduction in sediment loadings.
The issue was that logging, forestry and agricultural
activity was making a lot of mud that was draining into and clouding up
the rivers to the point where it was killing fish and aquatic plants.
California complied with EPA. They were sued by a variety
of agricultural groups from the Garcia River valley.
The Appellate Court upheld the TMDLs and found that EPA
did not exceed its authority.
Most other parts of the Clean Water Act distinguish
between point sources and non-point sources, but the Appellate Court
found that §303(d) should be read to include both.
The Court noted that in the Clean Water Act,
point sources and non-point sources are treated differently for many
purposes, but not all. Since §303(d) makes no such distinction,
a distinction should not be inferred by reading other parts of the Act.
In fact, §303(d)(1)(A) explicitly requires that
waters be listed if they are impaired by a combination of point and
non-point sources.
How could EPA be required to list waters impaired by
non-point sources of pollution without having the ability to regulate
those sources under §303(d)(1)(C)?
The Court did not buy the argument that because EPA had
not enforced the TMDL in this manner in the past, that doesn't mean that
they were estopped from enforcing it now.
This case represented an expansion of how EPA interpreted
the §303(d) TMDL limits. Prior to this case, EPA had made a
distinction between point source and non-point source pollution and had
not enforced TMDLs on bodies for water solely polluted by non-point
sources.
