Two Appellate Courts Find That TMDLs Cannot Prescribe State Implementation Decisions

Ellen B. Steen
esteen@crowell.com

The Ninth and Eleventh Circuit Courts of Appeals both recently issued rulings concerning Clean Water Act (CWA) requirements for implementation of total maximum daily loads (TMDLs) established pursuant to CWA section 303(d). See Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. May 31, 2002) (Pronsolino), and Sierra Club v. Meiburg,- F.3d -, 2002 WL 1426554 (11th Cir. July 2, 2002) (Meiburg). The decisions are significant in part because they are the first to directly address the CWA's requirements for TMDL implementation. They are also important, however, because their issuance coincides with EPA's reconsideration of a July 2000 Clinton Administration rule on this topic that generated strong and highly publicized congressional and public opposition. See 65 Fed. Reg. 43,586-670 (July 13, 2000). Both decisions make clear that the July 2000 rule exceeded the limits of EPA's CWA authority by requiring an EPA-approved "implementation plan" as an element of each TMDL.

The TMDL Implementation Debate
CWA section 303(d)(1) requires that states establish "total maximum daily loads" for pollutants in certain waters at levels necessary to implement applicable water quality standards. See 33 U.S.C. § 1313(d)(1). EPA must approve or disapprove each TMDL and must directly establish TMDLs in the event of disapproval. See id. § 1313(d)(1)-(2).

As part of sweeping regulatory changes designed to "strengthen" the TMDL program, the July 2000 rule purported to require an "implementation plan" as an element of each TMDL. See 65 Fed. Reg. at 43,625-27. Designating implementation plans as "elements" of TMDLs carried dramatic consequences, and generated considerable controversy, because of EPA's power to approve and directly take over the establishment of TMDLs. By defining TMDLs to include "elements" such as implementation plans, the July 2000 rule had the effect of asserting EPA authority to prescribe water quality planning decisions that arguably were otherwise left exclusively to state determination.

Petitioners who challenged the July 2000 rule in the U. S. Court of Appeals for the D.C. Circuit identified the implementation plan requirements as perhaps the most egregious example of EPA's overreaching the bounds of its authority under CWA section 303(d). Yet recent news that EPA will likely withdraw this aspect of the rule has drawn a firestorm of criticism from environmentalists who charge that this is yet another "rollback" of environmental protections by the Bush Administration. Although the recent Pronsolino and Meiburg decisions do not directly address the validity of the July 2000 rule, which has never gone into effect, they leave no doubt that its implementation plan requirements violate the CWA's clear mandate that states - and states alone - are responsible for TMDL implementation.

Pronsolino v. Nastri - Ninth Circuit Upholds EPA Establishment of TMDLs for Nonpoint Sources Because TMDLs Do Not Prescribe State Implementation and Allocation Decisions
In Pronsolino v. Nastri, the Ninth Circuit considered a landowner's challenge to EPA's authority to establish TMDLs for waters that fail to meet water quality standards solely as a result of "nonpoint source" pollution, such as excessive pollutant loading associated with agriculture or forestry. 291 F.3d at 1130. The court upheld EPA's issuance of the TMDL, ruling that CWA section 303(d) and the language and structure of the CWA support the view that EPA-approved (or EPA-established) TMDLs are required for all waters that will not achieve water quality standards through technology-based controls on "point source" discharges. Id. at 1135-39. Although the CWA authorizes federal regulation only for point source discharges, the court reasoned that states must establish water quality standards for all waters and that TMDLs are a key information-gathering device to assist states in achieving those standards. Id. at 1126-27, 1137-38.

The Pronsolino court reiterated prior rulings that the CWA "provides no direct mechanism to control nonpoint source pollution," thereby "recogniz[ing], preserv[ing], and protect[ing] the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the development and use … of land and water resources …." Id. at 1126-27 (alterations in original). Because TMDLs serve an informational role, however - and do not specify whether or how the maximum loads should be achieved - the court found that requiring federally approved TMDLs for nonpoint source-impaired waters is consistent with the traditional balance of federal and state power. Id. at 1140.

As the first appellate decision to squarely address EPA's TMDL authority with respect to nonpoint source-impaired waters, Pronsolino constitutes a significant setback for those who contend that nonpoint source impairments are beyond the proper scope of the TMDL program. Having said that, what is perhaps most interesting about the decision is its emphasis on the precise role of TMDLs - specifically, the court's conclusion that TMDLs themselves do not require implementation or specify implementation methods. In ruling that EPA's establishment of a TMDL for the nonpoint source-impaired Garcia River did not upset the CWA's balance of federal-state power, the court emphasized that:

California chose both if and how it would implement the Garcia River TMDL. States must implement TMDLs only to the extent that they seek to avoid losing federal grant money; there is no pertinent statutory provision otherwise requiring implementation of § 303 plans or providing for their enforcement.

Id. at 1140 (emphasis in original). This strong statement from the Ninth Circuit undeniably calls into question any rule that would require states to submit for EPA approval an "implementation plan" for each TMDL, let alone a rule that would authorize EPA to directly establish TMDL implementation plans.

The Pronsolino court found that the CWA does require states to develop implementation plans for water quality standards - separate from TMDLs - pursuant to the state continuing planning process (CPP) under CWA section 303(e). Id. at 1140. The decision makes clear, however, that the substance of those plans is entirely a matter of state discretion. As the court noted after describing the water quality standards provisions of CWA section 303:

The upshot of this intricate scheme is that 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 state plans.… TMDLs are primarily informational tools that allow the states to proceed from the identification of waters requiring additional planning to the required plans.

Id. at 1129-30 (emphasis added). Thus, "[t]he Garcia River TMDL … serves as an informational tool for the creation of the state's implementation plan, independently - and explicitly - required by Congress [under section 303(e)]." Id. at 1140. Moreover, beyond the enticement of federal funding, nothing in the CWA dictates how, when, or even whether states carry out their implementation plans because "there is no pertinent statutory provision otherwise requiring implementation of § 303 plans or providing for their enforcement." Id. at 1140.

Significantly, the Pronsolino court's emphasis on state control over TMDL implementation decisions also calls into question the July 2000 rule's requirement that TMDLs include detailed allocations among pollutant sources. See 65 Fed. Reg. at 43,623, 43,667. In upholding EPA's establishment of the Garcia River TMDL, the court emphasized that the TMDL:

… identifies the maximum load of pollutants that can enter the Garcia River from certain broad categories of nonpoint sources if the river is to attain water quality standards. It does not specify the load of pollutants that may be received from particular parcels of land or describe what measures the state should take to implement the TMDL.

291 F.3d at 1140. The clear implication of the court's ruling is that an EPA TMDL that allocated pollutant loads among particular nonpoint sources would tread too far into the area of land use planning that is expressly reserved for the states.

The court's linkage of allocation with other implementation decisions underscores that allocating pollutant loads among sources is essentially an element of implementation planning. As noted in a recent National Academy of Sciences study of the TMDL program, "[a]llocation is first and foremost a policy decision on how to distribute costs among different stakeholders in order to achieve a water quality goal." Assessing the TMDL Approach to Water Quality Management, National Academy Press (2001) at 97 (available at http://www.nap.edu). Thus, even aside from the July 2000 rule's "implementation plan" requirements, the assertion of EPA authority to disapprove and take over state allocation decisions itself unlawfully intrudes into state implementation planning.

Sierra Club v. Meiburg - Eleventh Circuit Rules That States Are Responsible For Implementation Planning Even When EPA Establishes TMDLs
In Meiburg, the Eleventh Circuit considered whether EPA was required to prepare implementation plans for 124 TMDLs that the agency had established for impaired waters in Georgia pursuant to a consent decree. The district court had held that EPA's prior consent decree with the Sierra Club must be read to include the preparation of TMDL implementation plans because "[d]eveloping TMDLs without implementing them amounts to an academic endeavor which would have no effect on water quality in Georgia." 2002 WL 1426554 *8. The Court of Appeals disagreed, however, finding that TMDLs have value independent from implementation planning and that implementation planning is accomplished by states separate from the establishment of TMDLs. According to the court, "TMDLs are a necessary step before any implementation plans can be formulated.… The decree put the TMDL task with all of its difficulties on EPA. The responsibility for implementing the TMDLs once they were established was left to Georgia, as it is in the Clean Water Act itself." Id. (emphasis added). The court also disagreed that the broad CWA goal of achieving cleaner water could justify a requirement for EPA-prepared TMDL implementation plans. Instead, "the national policy and objectives relating to clean water are most reliably embodied in the Act itself, which puts the responsibility for implementation of TMDLs on the states." Id.

Having concluded that EPA's consent decree could not be interpreted to require EPA preparation of TMDL implementation plans, the court then determined that the district court abused its discretion in modifying the decree to include such a requirement. The court rejected the Sierra Club's argument that the decree as drafted had not achieved its purpose because Georgia had failed to prepare proper implementation plans, let alone to achieve water quality standards. Id. at *11. According to the court, the purpose of the decree was not to achieve the ultimate goal of clean water, but to establish TMDLs - one of "several steps to achieve clean water" set forth in the CWA. Id.

Thus, under EPA's consent decree, as under the CWA itself, TMDLs define numeric targets - they do not encompass implementation planning. Instead, TMDL implementation is addressed separately, through several programs with varying levels of federal oversight and control. As the court explained:

The consent decree does not supplant the Act itself. Under the decree, Georgia is still responsible for incorporating TMDLs, regardless of whoever establishes them, into its section 303(e) plan; Georgia is still responsible for incorporating TMDLs into its NPDES permits; and Georgia is still responsible for implementing nonpoint source pollution controls. EPA agreed only to a supervisory role with respect to some of these implementation-related processes, but it did not agree to take over the implementation process.

Id. Any complaint about the state's action - or inaction - with respect to TMDL implementation must be addressed in the context of those other CWA programs and regulations, not by challenging the TMDLs themselves as inadequate. Id. *11-12.

Conclusion
Under the reasoning of the courts in Pronsolino and Meiburg, the role of TMDLs is to define a goal: the total, maximum pollutant input to a waterbody that is consistent with achieving applicable water quality standards. EPA's power to approve or directly establish TMDLs ensures that the goal is properly defined. States alone, however, determine how to get there. Both decisions indicate that the allocation and implementation plan requirements of the July 2000 TMDL rule exceeded EPA's CWA authority and that the agency is well advised to reconsider these aspects of the rule.

Ellen Steen and her colleagues at Crowell & Moring LLP represent a group of agricultural and forestry trade associations challenging EPA's July 2000 TMDL rule. They also represented plaintiff-intervenors in the Pronsolino litigation.