Pronsolino V. Marcus, the New TMDL Regulation, and Nonpoint Source Pollution: Will the Clean Water Act's Murky TMDL Provision Ever Clear the Waters?

By Hale, Mandi M. | Environmental Law, Fall 2001 | Go to article overview

Pronsolino V. Marcus, the New TMDL Regulation, and Nonpoint Source Pollution: Will the Clean Water Act's Murky TMDL Provision Ever Clear the Waters?


Hale, Mandi M., Environmental Law


I. INTRODUCTION

Touted by the Environmental Protection Agency (EPA) as "the last major impediment to clean water," (1) nonpoint source pollution is currently the foremost cause of the Nation's water pollution problem. (2) The Clean Water Act (CWA) (3) does not define nonpoint source pollution; however, it is generally understood to be pollution that does not originate from a discrete point, such as urban or agricultural runoff. (4) Despite the significant contribution of nonpoint source pollution to the Nation's water pollution problem, the country lacks a successful federal regulatory mechanism. (5) The lack of regulation is due in large part to the difficulties associated with regulating the agricultural industry, (6) Congress's failure to create adequate incentives and funding to facilitate state implementation of nonpoint source pollution management programs, (7) EPA's less than stellar administration of the CWA's nonpoint source pollution provisions. (8) and congressional reluctance to encroach upon the right of states to control land use. (9)

The states also share the blame for the current nonpoint source pollution control problem. Despite recognition that the federal government is limited by its inability or unwillingness to create an effective federal regulatory program, most states have failed to take the initiative to create effective solutions. (10) Recently, however, pursuant to its administrative authority, EPA attempted to intervene and take control of nonpoint source pollution.

On March 30, 2000, the District Court for the Northern District of California decided Pronsolino v. Marcus. (11) In Pronsolino, the court recognized for the first time the authority of EPA to establish total maximum daily loads (TMDLs) for water bodies polluted solely by nonpoint source pollution. (12) The TMDL standard, mandated by section 303(d) of the CWA, (13) currently provides slow but successful regulation of point source pollution. (14) However, prior to Pronsolino, the question of whether TMDLs can be properly applied to water bodies polluted solely by nonpoint sources escaped judicial scrutiny.

On July 13, 2000, on the coattails of apparent judicial approval in Pronsolino, EPA promulgated a regulation authorizing the issuance of TMDLs for waters polluted solely by nonpoint source pollution. (15) The regulation redefined the TMDL standard (16) and offered guidelines for state submittal and EPA approval of TMDLs for water bodies polluted solely by nonpoint sources. (17) This Comment examines the validity of EPA's regulation, specifically whether the CWA authorizes application of TMDLs to waters polluted solely by nonpoint sources. Part II describes traditional federal and state nonpoint source regulatory methods. Part III defines the TMDL standard, outlines the history of TMDLs, and discusses the use of TMDLs to regulate point source pollution. Part IV analyzes the judicial and administrative action condoning the application of the TMDL standard to water bodies polluted solely by nonpoint source pollution. Part V discusses the validity and the efficacy of the TMDL provision with respect to nonpoint sources of pollution. Part VI summarizes the dual purpose of the TMDL under the CWA. Part VII suggests methods to improve the TMDL provision and alternative methods for nonpoint source pollution control. This Comment concludes that the TMDL provision is flawed, and the future effectiveness of the provision will depend upon changes to the CWA and the level of participation of the States.

II. TRADITIONAL CONTROL MECHANISMS FOR NONPOINT SOURCE POLLUTION

A. Federal Statutory Authority

1. Section 208

Section 208 of the CWA, enacted in 1972, is a voluntary provision that allows for limited federal oversight of state nonpoint source pollution control methods, and encourages states to develop institutions designated for the planning and management of nonpoint source pollution control programs. …

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