Controlling Nonpoint Source Water Pollution: Is Help on the Way (From the Courts or EPA)?

Robert W. Adler

The author is Professor of Law, Wallace Stegner Center for Land, Resources, and the Environment, University of Utah College of Law.

[31 ELR 10270]

Nearly three decades after enactment of the modern Clean Water Act (CWA), efforts to address the largest remaining source of water pollution—runoff and other types of aquatic ecosystem impairment from diffuse activities—remain elusive. Every two years, the U.S. Environmental Protection Agency (EPA) confirms in its biennial National Water Quality Inventory¹ that nonpoint source water pollution, or "polluted runoff," causes the majority of water body impairment throughout the country.² Despite periodic statutory amendments designed to turn this situation around,³ the numbers never seem to change very much. Polluted runoff from row crop agriculture, logging, grazing, development and other sources, along with other activities such as dams, water diversions and the like that significantly alter aquatic and riparian habitat, continue to impair both human and ecological uses of our rivers, lakes, and coastal waters. While significant amounts of money have been spent and substantial programs have been developed to address the problem,⁴ the nature and magnitude of the problem does not seem to have changed significantly.

The clearest explanation for this long-standing state of affairs is that, to succeed, environmental programs must be guided by some mechanism to ensure that whatever tools are chosen are used in ways that are likely to accomplish the task. This is true in particular for programs designed to address aggregate impairment from multiple and diverse sources: "The litany of past failures to plan and implement watershed programs suggests that these renewed efforts must be designed with more rigor and attention to pragmatic concerns such as specificity, accountability, and enforceability."⁵ This type of precise guiding force has been lacking for nonpoint source programs in particular, and watershed protection efforts in general. Indeed, some remain skeptical that this type of comprehensive control program can work effectively even if all of the necessary tools are in place:

It pushes the envelope to think that we can track all sources of pollution, project their behavior into the future, identify all current uses, project their changes in the future, identify the levels of harm to humans and the environment from all the various pollutants and conflicting uses, and then balance the uses and harms appropriately to decide who gets what share of the water and who gets which water for waste disposal.⁶

This Article will explore several recent developments, some in the courts and some in the administrative arena, that provide clues as to whether long-standing barriers to effective control of nonpoint source water pollution can be overcome in the near future. As in any good mystery, however, the clues point in different directions. Two recent judicial decisions suggest different answers, although ironically based on quite similar approaches to deciding the issues of statutory construction presented. Oregon Natural Desert Ass'n v. Dombeck,⁷ a case involving the application of the water quality certification provision in § 401 of the CWA⁸ suggests that the answer may be "no." Pronsolino v. Marcus,⁹ a more recent case involving a challenge to the applicability to nonpoint sources of the CWA's total maximum daily load (TMDL) program,¹⁰ suggests that the answer may be "yes." Similarly, two recent federal administrative agency actions point in opposite directions. A new "unified" policy for watershed management on federal lands¹¹ suggests a largely "business as usual" approach to nonpoint source pollution control on vast land areas of the country that are subject to nonpoint source pollution from logging, grazing, and other activities (another "no"). EPA's recently issued revisions to its TMDL program regulations¹² provide [31 ELR 10271] some promise; yet sufficient questions remain as to whether and how they will actually be implemented to suggest that the correct answer is a resounding "maybe."

Statutory Background

Understanding the current and potential future status of nonpoint source water pollution control efforts requires some background regarding the manner in which point and nonpoint sources are addressed under the CWA. This discussion will highlight key differences and similarities in the legal tools available to reduce or eliminate pollution from those two categories of pollution, and thereby enumerate the principal potential strategies for achieving meaningful control of nonpoint source pollution.

Point Versus Nonpoint Sources; Pollutants Versus Pollution

Two statutory definitional distinctions serve as a useful beginning. A "point source" is defined as "any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged."¹³ The definition specifically excludes, however, "agricultural stormwater discharges and return flows from irrigated agriculture."¹⁴ While the precise scope of the definition has been litigated at the margins,¹⁵ for most channelized discharges of pollutants the meaning is relatively well-defined.¹⁶ Nonpoint sources, by contrast, are constrained by no specific statutory definition. Logically, then, nonpoint sources constitute all sources of water pollution not included in the definition of point source. The scope and meaning of this category of sources, however, depends on the distinction between "discharges" of "pollutants" and other forms of water "pollution."

As defined in the statute, a "pollutant" includes a curiously specific but simultaneously broad list of materials, including "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water."¹⁷ The main sense of this definition is that it covers "things" or "substances" that are discharged into navigable waters. "Pollution," by contrast, is defined more broadly, consistent with the overall objective of the statute,¹⁸ to include any "man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water."¹⁹ Pollution, therefore, includes changes to aquatic ecosystem integrity beyond those caused by the discharge of discrete substances from discrete conveyances, such as alteration of the hydrology and physical habitat and other attributes of water bodies.

The relationship between these two definitional distinctions figures prominently in the court's resolution ofthe Dombeck case discussed below.

Water Quality Standards

Overall attainment of the goals of the CWA is driven in part by ambient environmental standards called water quality standards (WQS).²⁰ WQS are divided into two components. "Beneficial uses" constitute the purposes for which a water body is to be protected; while water quality criteria (WQC) establish conditions deemed necessary to protect those beneficial uses.²¹ Such standards establish the goals for individual water bodies and provide one legal basis for pollution control decisions under the Act.²² Reflecting the complexity of aquatic ecosystems and the diverse sources and types of impairment addressed by the broad purposes of the CWA, WQC are adopted in different forms to serve different purposes.²³ "Narrative criteria" are verbal descriptions of water quality and other conditions of aquatic ecosystems, such as "no toxics in toxic amounts," "no floatable wastes," or no "putrescible wastes."²⁴ Such standards can identify a wide range of chemical, physical, or biological characteristics deemed necessary to protect various designated uses. More precise "numeric criteria" establish limits on the concentrations of specific chemical pollutants or other numeric indicators of water quality, such as maximum permissible temperatures or minimum levels of dissolved oxygen.²⁵ Whole effluent toxicity (WET) measure the combined toxic effects of pollutants in a discharger's effluent, or in the water body itself, on individual test species.²⁶ WET criteria typically establish [31 ELR 10272] the permissible level of mortality to defined test species at specified concentrations of an effluent.²⁷

Historically, water quality criteria have focused on concentrations of pollutants in the water column, which fail to account fully for the fate and transport of various pollutants. Toxic and other pollutants also can be transported to the sediment of water bodies through physical or chemical deposition, where they can harm benthic biota through physical (smothering of organisms or habitat) or toxicological means. EPA is in the process of developing sediment quality criteria to fill this gap.²⁸ Similarly, through bioconcentration, bioaccumulation, and biomagnification,²⁹ pollutants can be conveyed to living organisms (including human consumers of fish and wildlife) through the food chain. More recently, EPA and the states have begun to adopt a fourth type of WQC known as "biological water quality criteria," or "biocriteria."³⁰ Biocriteria establish an affirmative statement of desired ecological attributes by reference to such indicators as species population, diversity, and trophic level structure and function.

The last element of WQS is the antidegradation policy. While by regulation EPA defines antidegradation as a required component of a state's WQS,³¹ it is really a set of rules designed to prevent or to limit additional pollution of waters that meet or exceed other applicable WQC, and for which beneficial uses are already protected. The antidegradation policy is divided into three "tiers." "Tier one" of the policy provides simply that "existing instream water uses and the level of water quality necessary to protect those uses shall be maintained and protected."³² This is more than a restatement of the basic principle that individual WQC must be attained and maintained, because it requires that all existing uses be protected as well as uses identified specifically in the WQS.³³ "Tier two" of the policy requires that water quality better than necessary to protect the fishable and swimmable uses be maintained, hence "antidegradation," subject to certain exceptions.³⁴ "Tier three" of the policy requires, without significant exception,³⁵ that high quality waters in "outstanding national resource" waters (ONRWs) "shall be maintained and protected.³⁶

Implementation of WQS

Implementation of WQS is addressed generally by § 303(d) and (e), with specific control requirements included in other provisions. Section 303(d)(1) requires each state first to identify those waters for which the first round of the Act's technology-based standards were not strict enough to implement any applicable water quality standard, and to rank such waters in order of priority.³⁷ Next, states must identify a TMDL for such pollutant at a level necessary to implement the standard. In essence, a TMDL (or using EPA's alternative regulatory terminology the "loading capacity" of a water body)³⁸ is the combined amount of pollution the state believes [31 ELR 10273] a water body can accept, stated conservatively,³⁹ without exceeding the water quality standard.⁴⁰ The lists of waters and accompanying TMDLs must be submitted to EPA, which must approve the submission or promulgate its own list and TMDLs.⁴¹ Whether prepared by the state or by EPA, the TMDLs then must be incorporated into the state's "continuing planning process"⁴² prepared under § 303(e), described below. Finally, the states must identify separately and calculate TMDLs for all other waters in the state, that is, those not identified under § 303(d)(1)(A) or (1)(B) as unable to meet water quality standards after application of the initial technology-based standards.⁴³ This list logically included all waters that meet WQS, as well as those that are not in compliance but for which the first round of technology-based standards was deemed sufficient to attain the WQS.⁴⁴ However, this latter list is required "for the specific purpose of developing information," and does not have to be submitted to EPA for review and approval.⁴⁵

Thus, through the listing and TMDL process expressly identified in the statute, the states (or EPA) are supposed to identify the amounts of pollution that can be tolerated by individual water bodies before WQS are violated, but not necessarily the means by which such load targets will be achieved, or by which sources of pollution, or even the deadlines by which WQS must be attained.⁴⁶ This daunting implementation problem is addressed by various other provisions of the statute, and by EPA regulations that implement the statutory TMDL process.⁴⁷ These include both general planning programs and requirements, and specific implementing provisions for different pollution sources. The 1972 planning provisions included §§ 201, 208, and 303(e), with § 319 added in 1987. Specific implementation requirements are spread throughout the law, but most notably in §§ 208, 301, 302, 303, 304, 306, 307, 319, 401, and 402.

The link between WQS, TMDLs, and planning is most clear in § 303(e), which requires states to adopt a "continuing planning process [(CPP)] . . . which will result in plans for all navigable waters within such state."⁴⁸ While EPA has authority to approve or disapprove a state's CPP, it has no authority to prepare its own plan if the state fails to do so, or does so inadequately.⁴⁹ The plans must include, as most relevant here, effluent limitations and compliance schedules for point sources designed to implement both the technology-based and the water quality-based requirements of the Act⁵⁰; all elements of areawide waste management plans under § 208 (described below)⁵¹; the TMDLs developed under § 303(d)⁵²; and procedures and schedules to implement WQS.⁵³ Thus, at least superficially, Congress envisioned that the continuing planning process would include specific plans to implement WQS in all waters, with the necessary pollution controls for point sources imposed through effluent limitations under § 301, and for nonpoint sources through § 208 areawide plans. However, aside from the basic requirement for "adequate implementation, including schedules of compliance," the statute does not specify how the ambient water quality standards would be translated into source-specific pollution controls,⁵⁴ and by when.

This statutory gap is filled in part by existing EPA regulations that expand the function of the TMDL process to include the allocation of the "acceptable" load of pollution between [31 ELR 10274] point sources, nonpoint sources, natural background levels of pollution, the statutorily mandated "margin of safety," and, at the state's option, a reservation for future growth (new sources of pollution).⁵⁵ In short, the TMDL must address "the effect of all activities or processes that cause or contribute to the water quality-limited conditions of a waterbody."⁵⁶ The portion of the TMDL attributed to a point source is called a wasteload allocation (WLA)⁵⁷; while the portion attributed to a nonpoint source (or category of nonpoint sources), along with natural background pollution, is called a load allocation (LA).⁵⁸

Once the TMDL and its various component allocations are calculated, various statutory mechanisms exist, with highly varying degrees of rigor and effectiveness, to implement those allocations. From a procedural and enforcement perspective, the provisions addressing point sources are strict and relatively clear. By July 1, 1977, point source controls were supposed to include more stringent effluent limitations as necessary to meet any WQS.⁵⁹ Such requirements must be included in national pollutant discharge elimination system (NPDES) permits required for all point source discharges,⁶⁰ and compliance with permit terms is enforceable by states, EPA and citizens through an arsenal of administrative, civil, and criminal sanctions.⁶¹ The potential force of these requirements is illustrated by a recent federal district court order in Montana, which prohibits the issuance of "any new permits or increased permitted discharge[s]" until TMDLs are established for water quality-impaired waters.⁶²

Because the allocation for each point source must be written explicitly into each permit, implicitly the sum of the water quality-based effluent limitations for all contributing point sources must be adequate to ensure compliance with WQS. As noted above, however, the form and content of point source controls necessary and sufficient to implement a TMDL may be less clear where the violation involves other types of WQC, such as narrative, WET, or biological criteria.⁶³ Moreover, the effectiveness of the NPDES in implementing water quality standards depends on the percentage of pollution to a given water body that is classified as a point source. As noted above, Congress expressly excluded all "agricultural stormwater discharges and return flows from irrigated agriculture" from the definition of point source, and therefore the NPDES requirement.⁶⁴ With respect to other categories of discharges EPA has some discretion, however, to decide what types of activities are significant enough to be regulated as point sources. Examples include concentrated agriculture feeding operations, for which EPA imposes additional definitional minima based on the numbers of various types of livestock necessary to constitute a point source,⁶⁵ and silvicultural operations, some of which are defined by regulation as point sources based on the type of activity involved.⁶⁶

Implementation of TMDLs may be more complex for waters impaired in whole or in part by nonpoint sources. Unlike the analogous point source controls, the separate nonpoint source control provisions in the statute do not expressly require the states or EPA to impose on nonpoint sources pollution controls that are tied so precisely to WQS, and contain no similar statutory deadline. Nonpoint source pollution was addressed in the 1972 Act through §§ 201 and 208, which required the preparation of areawide waste treatment management plans designed to "provide control and treatment of all point and nonpoint sources of pollution. . . ."⁶⁷ Such plans were subject to EPA review and approval, and inadequate plans could lead to denial of federal grant funds and other tangential sanctions,⁶⁸ but in sharp contrast to the analogous point source controls, EPA lacked the authority to [31 ELR 10275] develop and implement a § 208 plan if a state failed to do so, or if the state plan was inadequate.⁶⁹

The first-touted, later-maligned, and now largely defunct "§ 208 program" required, inter alia, identification of various categories of nonpoint source pollution, and the development of "procedures and methods" to control those sources "to the extent feasible," known typically as best management practices (BMPs).⁷⁰ However, while these requirements obviously would contribute to the general goal of meeting WQS, § 208 included no specific requirement to match the combined set of controls selected or implemented under the plan with what was necessary to attain or maintain WQS, as determined through TMDLs or otherwise.⁷¹ Moreover, the requirement that BMPs be "feasible" suggests a technology-based rather than water quality-based approach to BMP selection. In other words, while requiring general nonpoint source pollution control practices, the law included no analogy to the precise, numeric water quality-based effluent limitations for point sources.

A new program to address nonpoint source pollution (§ 319) was added in 1987.⁷² While requiring new lists of waters impaired by nonpoint sources of pollution,⁷³ and new statewide plans to redress that pollution,⁷⁴ § 319 added little in the way of rigor to the Act's nonpoint source controls.⁷⁵ Section 319 included a general requirement for states to develop their new programs on a watershed-specific basis "to the maximum extent practicable,"⁷⁶ suggesting the need for states to focus on specific water quality problems, including WQS violations, in individual watersheds. Aside from this vague admonition, however, § 319 did little to cure the lack of a more precise requirement for states to match specific management practices with the degree of control necessary, in combination with new and existing controls on point sources, to meet WQS. Moreover, while § 319 did give EPA the authority to conduct the listing and assessment requirements of § 319(a) if a state failed to do so,⁷⁷ like § 208 it contains no express authority for EPA to prepare or to implement a nonexistent or inadequate nonpoint source pollution control program.⁷⁸

For waters impaired by both point and nonpoint source pollution, this lack of precision in the nonpoint source program adds significant uncertainty to water quality-based controls for point sources as well. Certain sections of the statute could be read to require that, at least absent rigorous nonpoint source controls designed specifically to reduce pollution within a watershed by a defined or definable amount, water quality-based effluent limitations must be set at levels adequate to meet WQS absent any controls on nonpoint sources.⁷⁹ This interpretation would score well in terms of efficacy, given that only point sources are subject to rigorous controls tied expressly to WQS compliance,⁸⁰ but only if existing point source contributions and feasible point source reductions are large enough to bring the water body into attainment. However, the strategy scores poorly in terms of equity, because point sources would be required to bear more than their proportionate share of pollution control obligations while nonpoint sources escape with little or no responsibility. The legislative history of § 303(d) suggests that Congress knew that point sources alone likely would not be adequate to meet WQS for all waters.⁸¹ Given this realization, and the simple fact that nonpoint sources contribute significantly or predominantly to most remaining water quality problems, a TMDL process that neglected to impose controls on such sources would be trivial at best, and more likely entirely worthless.

[31 ELR 10276]

Finally, WQS can be implemented with respect to federally-licensed or permitted activities via state water quality certifications under § 401 of the CWA, which provides, in relevant part:

Any applicant for a Federal license or permit to conduct any activity . . . which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate, or, if appropriate, from the interstate water pollution control agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate, that any such discharge will comply with the applicable provisions of sections [301, 302, 303, 306, and 307 of the Act].⁸²

The potentially broad scope of this provision was suggested in PUD No. 1 of Jefferson County v. Washington Department of Ecology,⁸³ in which the U.S. Supreme Court upheld the validity of a state water quality certification of a § 404 permit⁸⁴ for a dam project on the Dosewallips River, where the certification imposed minimum stream flows the state deemed necessary to implement the state's antidegradation WQS and to protect existing instream fishery uses. Obviously, this decision means that water quality certifications can address types of water "pollution" other than discharges of pollutants.⁸⁵

The issue of whether § 401 is a viable mechanism to address nonpoint source pollution, however, requires another step of statutory construction. In Jefferson County, there was no dispute that some point source discharges would occur in connection with project construction and operation, and hence that some water quality certification was required in connection with that federal permit. Rather, the dam proponents argued that the state's certification was improper, in part, because the asserted flow conditions related to the project operation and not to the discharges themselves. The Court disagreed, finding that once a § 401 certification is issued in connection with any discharge of pollutants, any conditions necessary to implement state WQS "or any other appropriate requirement of state law" are permissible under § 401(d). The Court did was not asked to, and did not, address the further question of whether water quality certification might be required for federal licenses or permits for projects or activities that cause nonpoint source pollution alone.

Mechanisms for Nonpoint Source Control: The Effect of Recent Developments

Based on the above background analysis, four distinct statutory provisions (or categories of provisions) stand out as possible tools to address the long-standing, largely unresolved problem of nonpoint source pollution. Congress enacted two major planning provisions, §§ 208 and 319, specifically to address this issue. While most clearly and indisputably applicable to nonpoint source pollution, however, it is equally clear, at least based on the record of EPA's biennial National Water Quality Inventory, that these provisions have failed miserably to get the job done. Therefore, the remainder of this Article will focus on the potential utility of three other components of the CWA to address nonpoint source pollution, and more specifically on the impact of recent judicial decisions and administrative actions on those possible approaches.

First, EPA has at least some statutory discretion to tackle more pollution from agriculture, silviculture, and certain other sources by expanding the reach of the NPDES, that is, by defining more activities as point sources, thereby subjecting them to more direct technology-based and water quality-based control requirements. Second, especially in the wake of the Jefferson County decision, it is possible that water quality certifications under § 401 might be used to impose stricter obligations on activities that cause nonpoint source pollution. Finally, the recent rejuvenation of the TMDL process under § 303(d) of the Act might serve as a stimulus for more rigorous nonpoint source controls. Hints as to the efficacy of these three mechanisms are provided in the recent judicial decisions and administrative actions discussed below.

Oregon Natural Desert Ass'n v. Dombeck

In Dombeck, a coalition of environmental groups (hereinafter ONDA) challenged U.S. Forest Service issuance of grazing leases without first obtaining certification from the state of Oregon, pursuant to § 401 of the CWA, that the grazing would not cause violations of state WQS.⁸⁶ While relief was granted by the U.S. District Court for the District of Oregon, a three-judge panel of the Ninth Circuit reversed, finding that § 401 water quality certifications are not required for nonpoint sources of pollution.

In its narrowest formulation, the dispute in Dombeck turned on the meaning of the term "discharge" in § 401. The water quality certification requirement is triggered by "any activity . . . which may result in any discharge into the navigable waters."⁸⁷ As noted above, while the Supreme Court in Jefferson County interpreted § 401 as having a potentially broad reach in terms of addressing many of the types of chemical, physical, and biological impacts that are typical of nonpoint source pollution, and while the pollution actually addressed by the disputed minimum flow conditions in that case were not caused directly by any point source discharge, the parties agreed that some water quality certification was required because point source discharges would occur in connection with construction and operation of the dam. The grazing activities subject to the Forest Service permits challenged in Dombeck, by contrast, involved no point source discharges whatsoever. The issue, then, was whether Congress intended the word "discharge" in § 401 to include pollution from both point and nonpoint sources. This theory is particularly significant for the widespread incidence of nonpoint source pollution from grazing and numerous other activities, especially on huge land areas under federal land management in the West, that generate [31 ELR 10277] nonpoint source pollution and that are subject to federal licenses or permits.

The plaintiffs in Dombeck argued, and the district court agreed, that § 401 certification was required for grazing permits because of the disparate definitions of "discharge" and "discharge of a pollutant" in the statute:

(12) The term "discharge of a pollutant" [means] any addition of any pollutant to navigable waters from any point source. . . .

(13) The term "discharge" when used without qualification includes a discharge of a pollutant.⁸⁸

"Discharge of a pollutant" clearly is limited to releases from point sources. However, because Congress defined "discharge" to include, but not to be limited to, the more narrowly defined term, plaintiffs and the district court reasoned that it must therefore include discharges from both point and nonpoint sources. The government, on the other hand, argued that "discharge" "is limited to point sources, but includes both polluting and nonpolluting releases."⁸⁹

In choosing between these competing interpretations, the Ninth Circuit panel looked beyond the specific definitions and to the language and structure of the Act as a whole. In particular, the Court focused on the fact that the 1972 CWA shifted the focus of direct federal regulation from ambient WQS to effluent limitations imposed on point sources through the NPDES. Congress addressed nonpoint source pollution, by contrast, through federal grants and planning provisions in § 208, and later, § 319.⁹⁰ Thus, prior to 1972, the water quality certification provision required states to certify that an activity would "not violate applicable water quality standards."⁹¹ Because this provision was replaced with language requiring states to certify compliance not only with WQS (§ 303), but also with provisions designed to implement effluent limitations and other requirements on point sources (§§ 301, 302, 306, and 307), the Ninth Circuit panel concluded that "the term 'discharge' in § 1341 is limited to discharges from point sources."⁹² It bolstered its conclusion with legislative history indicating that the certification provisions was amended "to assure consistency with the bill's changed emphasis from water quality standards to effluent limitations based on the elimination of any discharge of pollutants."⁹³ Furthermore, the Ninth Circuit panel noted that elsewhere in the Act, Congress used the term "discharge" solely in connection with point sources, while it used terms such as "runoff" when referring to nonpoint source pollution.⁹⁴ By contrast, when Congress intended to refer to pollution from both point and nonpoint sources, the Court found that it did so more clearly.⁹⁵

The Court also found that its reading of the statute was consistent with the earlier Ninth Circuit decision in Oregon Natural Resources Council v. U.S. Forest Service (ONRC),⁹⁶ which rejected the claim that suits to enjoin logging operations could be brought under the citizen suit provision of the Act,⁹⁷ because the term "effluent limitations" applies only to point sources.⁹⁸ Moreover, the Ninth Circuit distinguished Jefferson County for the reason discussed above, that the parties in that case agreed that a water quality certification was needed by virtue of the fact that some point source discharges were associated with the project, but disagreed on the permissible scope of that certification. As a result, the Court adopted the government's proposed distinction between polluting and nonpolluting discharges as "the logical interpretation . . . that comports with the structure and lexicon of the Clean Water Act."⁹⁹

The decision in Dombeck can be criticized on several grounds. First, the Court may have over-interpreted the import of the 1972 amendments to the water quality certification provision of the statute. While it is correct that Congress added the requirement that states certify compliance with the new provisions of the Act regarding effluent limitations and point sources, it did not do so at the expense of the existing requirement regarding WQS, which remains in § 401 by virtue of its reference to § 303. The Senate Report language quoted in the opinion refers to a "changed emphasis" from WQS to effluent limitations. But the WQS focus of the Act was not eliminated; rather, it was retained both as an important backup to the new technology-based strategy for point sources, and arguably to address aggregate pollution from point and nonpoint sources combined (as discussed above with respect to the TMDL program). Thus, if water quality certifications applied to both point and nonpoint sources before 1972, as the Court seems to imply, there is no clear evidence that Congress intended, through its addition of requirements regarding effluent limitations and point sources, to eliminate certification requirements for nonpoint sources.

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Second, the Ninth Circuit may have relied too heavily on its prior decision in ONRC. The plaintiffs in ONRC sought to enjoin logging operations pursuant to the citizen suit provision of the Act, which applies (as relevant here) to persons "alleged to be in violation of . . . an effluent standard or limitation. . . ."¹⁰⁰ They relied principally on the portion of the definition of "effluent standard or limitation" in § 505(f) which incorporates "an effluent limitation or other limitation under section 311," which in turn includes the provision designed to implement WQS in § 301(b)(1)(C). Section 301(b), however, identifies the full litany of effluent limitations and other requirements that must be imposed on point sources to implement the dual technology-based and water quality-based objectives of the Act. In this context, § 301(b)(1)(C) is designed simply to ensure that effluent limitations imposed on point sources are stringent enough, at a minimum, to meet WQS, and not to extend "effluent limitations" to nonpoint sources as well. Section 401, by contrast, requires compliance with § 303, the Act's overall provision governing WQS, and which is not similarly confined to point sources. Thus, the decision in ONRC limiting effluent limitations under § 301(b)(1)(C) to point sources does not require a similar limitation with respect to the much broader reference to WQS in § 401.¹⁰¹

Whether or not Dombeck was decided correctly, two things are clear. First, the Court was reluctant to reach its decision based on a narrow, technical reading of the statutory language directly at issue. Instead, the Court indicated that its decision must be based on, and consistent with, the overall language and structure of the Act. Second, if other courts follow suit, Dombeck appears to curtail substantially the potential utility of § 401 in addressing nonpoint source pollution. However, Jefferson County may preserve some residual applicability of section 401 to nonpoint sources. Under that decision, once water quality certifications are required for federally licensed or permitted activities that involve a "discharge," they must include "any effluent limitations and other limitations" necessary to assure that the "applicant", not just the discharge, will comply with relevant provisions of the CWA and "any other appropriate requirement of State law. . . ."¹⁰² Thus, whether or not the Ninth Circuit is correct that water quality certifications are not required for federally-licensed or permitted activities involving exclusively nonpoint sources, they still may be used by states to impose requirements regarding nonpoint source pollution associated with larger projects that also involve some point source discharges. Moreover, given that § 401(d) uses the word "shall" rather than "may", this reach might be read to be mandatory and not just discretionary, an issue that was not before the Court in Jefferson County.

Pronsolino v. Marcus

Ever since the citizen suit-driven resurgence of the TMDL program several years ago, representatives of nonpoint sources have argued that Congress did not intend TMDLs to cover nonpoint sources.¹⁰³ In Pronsolino,¹⁰⁴ Judge Alsup of the U.S. District Court for the Northern District of California held that EPA is authorized, under § 303(d) of the CWA, to require TMDLs for waters polluted only by nonpoint sources. As in Dombeck, the court rejected arguments based on narrow proposed interpretations of specific statutory language in favor of an approach it deemed more consistent with the overall structure and purposes of the Act. Unlike Dombeck, however, in the case of § 303(d) that interpretation provides some promise for a statutory mechanism to move in the direction of a more rigorous approach to nonpoint source pollution control.

The Pronsolino case was brought by landowners—joined by the Mendocino County, California, and American Farm Bureaus—who claimed¹⁰⁵ that conditions were imposed on their logging operations by the California Department of Forestry (CDF) due to EPA's allegedly unlawful decision to require TMDLs for the Garcia River and other rivers impaired only by timber harvesting, agriculture, or other nonpoint sources.¹⁰⁶ While TMDLs do not, in and of themselves, impose control obligations on nonpoint sources, the Garcia River TMDL demonstrates the potential utility of the TMDL process in controlling nonpoint source pollution. In the Garcia River watershed and others like it in northern California, historically plentiful runs of coho salmon, steelhead, and other species have been damaged by excess sedimentation from logging practices. The Garcia River TMDL established a total maximum sediment loading of 552 tons per square mile per year within the watershed, which in turn would require a 60% reduction in sediment loads. The TMDL also allocated those load estimates to various categories of nonpoint source pollution associated with logging, such as road-building and operation, timber harvesting, road and skid trail crossings, and gullies associated with roads and skid trails.¹⁰⁷ This analysis allowed the CDF to impose additional control obligations on those activities designed to achieve those targeted sediment load reductions. While this process obviously cannot be as precise as similar exercises for point sources, the process of establishing load reduction targets and designing and implementing control methods to attain those reductions, with monitoring and subsequent modifications over time, has the potential to provide some analytical rigor and measurable rules to the heretofore ill-defined game of nonpoint source pollution planning.

The plaintiffs in Pronsolino, however, argued that EPA was not permitted, under the language of § 303(d) and its accompanying legislative history, even to require TMDLs for waters impaired entirely due to nonpoint sources.¹⁰⁸ The [31 ELR 10279] Pronsolinos based their argument on the language of § 303(d)(1)(A), which provides:

Each state shall identify those waters within its boundaries for which the effluent limitations required by section [301(b)(1)(A) and 301(b)(1)(B)] are not stringent enough to implement any water quality standard applicable to such waters. The State shall establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters.¹⁰⁹

Because this provision, which triggers the related TMDL requirement in § 303(d)(1)(C),¹¹⁰ refers to effluent limitations for point sources but no analogous control requirements for nonpoint sources, the plaintiffs argued that the listing requirement applies only to waters polluted, at least in part, by point sources. The district court rejected this argument for reasons that relied largely on the broader structure and purpose of the statute as well as the narrow language of § 303(d)(1)(A) itself.

First, the court noted that plaintiffs' position was not consistent with the stated purposes of TMDLs, which must be incorporated into the state's "continuing planning process" under § 303(e) of the Act. Because this provision requires states to compile plans for all navigable waters that incorporate both point and nonpoint source controls, the court reasoned that TMDLs also logically were designed to address both types of pollution. Similarly, the court explained that the law requires TMDLs to be established at levels necessary to meet WQS, an impossible task in most cases without taking nonpoint as well as point sources into account.¹¹¹

Moreover, the court read the language of § 303(d) in a more straightforward way than suggested by the plaintiffs, and in a manner more consistent with the overall structure of the WQS provision as a whole. WQS are required for all waters; § 303(d)(1) begins with the presumption that states will identify all waters that violate such standards; and the reference to the first round of technology-based requirements for point sources was designed only to provide a limited exception for those waters for which standards were expected to have been met after imposition of those early point source controls. As such, the reference to the first round of technology-based controls served as a logical exception to the general rule that states identify all quality-impaired waters,¹¹² rather than a limitation on the scope of § 303(d) to a fraction of those waters.¹¹³ Therefore, the court found the absence of any reference to nonpoint source controls in § 303(d) entirely logical:

To have excluded the large number of rivers and waters polluted solely by agricultural and logging pollution runoff would have left a chasm in the otherwise "comprehensive" statutory scheme. It would have crippled the continuing planning process by which the states were expressly required to confront nonpoint-source pollution and to incorporate TMDL data into the continuing planning process. . . . Similarly, to have limited TMDLs only to point-source loadings . . . would have left state agencies guessing at how to allocate the burden of cleanup between point and nonpoint contributions of the same pollutant.¹¹⁴

It is undoubtedly premature to pronounce this issue resolved based on the decision of a single district court judge. First, the plaintiffs have appealed the district court's decision to the U.S. Court of Appeals for the Ninth Circuit. Second, it would be extremely surprising if some of the petitioners in the multiple challenges to EPA's recent new TMDL regulations, discussed above, including the American Farm Bureau Federation (one of the Pronsolino plaintiffs), did not raise the same issue in their regulatory challenge in the D.C. Circuit.

Unified Federal Lands Watershed Program

On October 18, 2000, eight federal agencies jointly issued a Unified Federal Policy for a Watershed Approach to Federal Land and Resource Management.¹¹⁵ The policy was issued as one of the "action items" in the president's Clean Water Action Plan.¹¹⁶ While this new policy obviously will have only tangential impacts on the hundreds of thousands of nonpoint sources on state and private lands throughout the country, it signals the manner in which those activities will be governed on more than 800 million acres of federal lands,¹¹⁷ with particularly significant impacts in the West. In addition, because the policy calls for enhanced collaboration between federal land managers and state, tribal, and private landowners and other stakeholders, it will necessarily have some influence on watershed management efforts in other areas. Finally, this policy is significant as the major new tool for nonpoint source pollution control on federal lands in the wake of the Ninth Circuit's rejection of the § 401 strategy in Dombeck.

[31 ELR 10280]

The new policy announces a clear intent on the part of federal agencies to increase their attention to watershed restoration and protection. The stated goals of the policy are to "(1) Use a watershed approach to prevent and reduce pollution of surface and ground waters resulting from Federal land and resource management activities; and (2) Accomplish this in a unified and cost-effective manner."¹¹⁸ It promises to do so through a "consistent and scientific approach" to federal land and resource management, comprehensive and consistent watershed delineation and assessment methods, designation of high-priority watersheds for restoration and protection, improved federal compliance with CWA requirements, improved collaboration with other landowners and stakeholders within watersheds, and assistance in the development of TMDLs in watersheds with significant federal land and resource management activities.¹¹⁹ With respect to nonpoint source pollution in particular, the agencies commit to identify best management practices (BMPs) that meet applicable WQS, adjust those BMPs when monitoring indicates that they do not adequately protect water quality, and mitigate unexpected adverse water quality impacts from BMP implementation.¹²⁰

Aside from these assertions of increased levels of commitment and better coordination and collaboration, however, nothing in the policy signals a major change in legal requirements governing nonpoint source pollution on or off of federal lands, or actually ensures that those sources will be subject to significantly stricter controls. In part in response to public comments alleging that the proposed policy would cause federal agencies to violate existing legal mandates,¹²¹ the policy carefully disclaims any change in legal requirements:

This policy does not create any right or benefit, or trust responsibility, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person. This policy does not alter or amend any requirement under statute, regulation, or Executive Order.¹²²

Reliance on ill-defined BMPs¹²³ reflects nothing more than the standard operating procedure for nonpoint source pollution control, a policy that has failed to make significant progress nationally over the past three decades. If the policy is implemented as intended, it is certainly possible that BMPs can be employed far more effectively than in the past through more consistent, rigorous, site-specific and scientifically driven watershed programs. Given the policy's express failure to impose any enforceable new requirements, however, only time will tell whether theory will be translated into more effective nonpoint source pollution control on the ground and in the water.

EPA's New TMDL Regulations

Given the ruling in Pronsolino that TMDLs apply to nonpoint sources, coupled with the realization that neither § 401 (as interpreted in Dombeck) nor the new federal watershed policy are likely to serve as effective means of new nonpoint source controls, the most significant open question is how effective TMDLs are likely to be in stimulating more rigorous nonpoint source control efforts? The answer may depend on whether EPA's new TMDL regulations will ever take effect, and if so, how effective they will be.

As discussed above, EPA's existing TMDL regulations, which have been in effect for over 20 years, have not provided the necessary stimulus for effective nonpoint source controls, that is, controls that are tied specifically to—and that are revised and enforced as necessary to implement—applicable WQS. Prompted in large part by the rash of citizen suits filed to jumpstart TMDL programs in states around the country, and guided in large part by a federal advisory committee convened to negotiate recommended improvements to the program, EPA issued its revised rules on July 13, 2000.¹²⁴ The rules were issued in the midst of significant political controversy that precipitated an effort by Congress to prevent issuance of the rules, especially at the behest of nonpoint source interests. In order to avoid an appropriations rider, EPA Administrator Carol Browner signed the rules before President Clinton signed the appropriations bill into law. However, because Congress denied EPA funding to implement the rules, the preamble indicates that the "regulation is not effective until 30 days after the date that Congress allows EPA to implement this regulation."¹²⁵ Whether that indefinite date ever arrives will depend on future congressional action, and potentially on the positions of the new U.S. President and new EPA Administrator.

An additional set of wild cards was played by the numerous organizations, including both point and nonpoint source industry groups and environmental groups, that have filed Petitions for Review of the regulations in the U.S. Court of Appeals for the D.C. Circuit.¹²⁶ While the nature and scope of issues that will be briefed in these appeals is not yet known, the challengers undoubtedly will seek to have the rules vacated or remanded, or at a minimum, modified in significant ways. Among the issues that might be raised is a reprise of the main issue decided by the U.S. District for the Northern District of California in Pronsolino. Over the objections of nonpoint source interests during the comment period, the rule requires states to identify "waterbodies that are impaired by point sources only, nonpoint sources only, or by a combination of point and nonpoint sources."¹²⁷

Assuming that EPA's rules survive these political and legal hurdles, however, there is still considerable uncertainty [31 ELR 10281] regarding the real-world effect the new regulations will have on the effectiveness of nonpoint source pollution controls around the country. Several aspects of the rules suggest that they will have a salutary effect by serving as the heretofore missing guideposts by which states will be able to design more efficient and more effective nonpoint source control programs under other provisions of the law, including §§ 208 and 319. Depending on how they are implemented by EPA and the states, however, other aspects of the new rules suggest less certain results.

Several key aspects of the new regulations in particular, provide particular promise. First, while the old regulations defined a TMDL simply as a calculation of the total loading capacity of a water body before WQS are violated, along with an allocation of that total loading among point and nonpoint sources, the new rules define TMDLs as: "A written, quantitative plan and analysis for attaining and maintaining water quality standards in all seasons for a specific waterbody and a pollutant."¹²⁸ The requirement that TMDLs include an implementation plan—a unanimous recommendation of the TMDL Federal Advisory Committee Act Committee—holds promise that TMDL calculations will be more than just numbers on a piece of paper, but rather will be tied to specific implementing actions deemed sufficient to bring nonpoint as well as point sources within their assigned allocations.

Moreover, the implementation plan requirement is explained in greater detail later in the regulation: "The purpose of the implementation plan is to provide a description, in a level of detail appropriate to the circumstances, of actions necessary to implement the TMDL so that the waterbody attains and maintains water quality standards."¹²⁹ For point sources, this entails the wasteload allocations to be met, the point sources to be regulated, the permits at issue, and a schedule for revising those permits consistent with the TMDL.¹³⁰ For nonpoint sources, this includes an identification of source categories or individual nonpoint sources, a "description of specific regulatory or voluntary actions, including management measures or other controls . . . that provide reasonable assurance . . . that load allocations will be implemented and achieved the assigned load reductions," an implementation schedule and predicted attainment date, and monitoring or modeling plans to assess ongoing progress and a process for revising the program, as necessary, based on monitoring results.¹³¹

The pivotal term "reasonable assurance" is defined as "a demonstration that TMDLs will be implemented through regulatory or voluntary actions. . . ."¹³² For nonpoint sources, this means that states must demonstrate, in their TMDLs, that management measure or other controls will be adopted, and that "they specifically apply to the pollutant(s) and the waterbody for which the TMDL is being established; they will be implemented as expeditiously as practicable; they will be accomplished through reliable and effective delivery mechanisms; and they will be supported by adequate water quality funding."¹³³

The new regulatory requirements for implementation plans that include "reasonable assurances" that effective nonpoint source control measures will be adopted still lack the relative precision and enforceability of specific water quality-based effluent limitations for point sources. They continue to allow states to choose purely voluntary implementation methods, including methods that have not proved successful on a national scale in the past, so long as there is "reasonable assurance" that those methods will now be more effective.¹³⁴ Hence, many of the problems that have plagued efforts to control nonpoint source pollution in the past remain. However, the more rigorous effort to tie BMPs to specific load allocations for specific pollutants in specific watersheds, along with the accompanying requirement that TMDLs provide more detailed information to show that BMPs actually will be implemented, provides some promise that future controls might be more successful. These provisions impose more accountability on state nonpoint source control programs consistent with EPA authority under the CWA, without imposing the mandatory federal requirements feared by point source interests.

Second, the new regulations clarify that TMDLs should be written for, and designed to address, violations of WQS for some types of aquatic ecosystem impairment that, in the past, typically have been ignored. In identifying waters to be listed, states are supposed to consider not only chemical pollution but also "physical data and information," "biological data and information," "aquatic and riparian habitat data and information," and "other data and information about water body impairments. . . ."¹³⁵ Listed waters must include "waterbodies for which biological information indicates that they do not attain and maintain water quality standards."¹³⁶ The definition of TMDL goals is defined more broadly than in the past to address water quality violations other than chemical water column criteria:

A TMDL must contain a quantitative expression of the pollutant load or load reduction necessary to ensure that the waterbody will attain and maintain water quality standards, or, as appropriate, the pollutant load or load reduction required to attain and maintain aquatic or riparian habitat, biological, channel or geomorphological or other conditions that will result in attainment and maintenance of water quality standards.¹³⁷

Moreover, the language governing the appropriate ways in which TMDLs can be expressed similarly allows states to [31 ELR 10282] address a wider range of nonpoint source impairment. TMDLs can be expressed not only in terms of allowable pollutant loads or target load reductions, but also "pollutant load or reduction of pollutant load required to attain and maintain aquatic, riparian, biological, channel or geomorphological measures so that water quality standards are attained," or a "quantitative expression of a modification of a characteristic of the water body, e.g., aquatic and riparian habitat, biological, channel, geomorphological, or chemical characteristics, that results in a pollutant load or reduction of pollutant load so that water quality standards are attained."¹³⁸ Because nonpoint sources often include discharges that cause this type of alteration of the aquatic ecosystem as opposed to (or in addition to) a violation of a numeric water quality criterion in the water column itself, this language envisions that a wider range of nonpoint source impacts will be addressed by TMDLs.

However, despite the objections of some environmental groups, EPA declined to require TMDLs for nonpoint and other sources of "pollution," as opposed to those that discharge pollutants into the waters of the United States. As explained above, Congress defined the term "pollution" more broadly to include any "man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water." Most notably, this could include flow impairment or other hydrological modifications, as well as physical habitat changes not related directly to discharges of pollutants. Under the new regulations, while water bodies must be listed under § 303(d) whenever they violate water quality standards, due to the discharge of pollutants or otherwise, TMDLs are not required for those waters that are "impaired by pollution . . . but not impaired by one or more pollutants."¹³⁹

The new regulations also include several key uncertainties, all obviously designed to provide states flexibility in program design and implementation, that will dictate the extent to which the revised TMDL program is likely to succeed generally, as well as for nonpoint sources. For example, states are given wide discretion to determine their own methods and criteria for deciding which water bodies must be listed. States have control over the types of data used to determine attainment status, and over the "number and degree of exceedances of numeric or narrative criteria and periods of nonattainment of designated uses or other factors used to determine whether waterbodies are impaired."¹⁴⁰ Obviously, along with the fact that state WQS can vary widely, this may result in significant disparities among states in terms of the numbers of waters listed and subject to TMDLs, and for what reasons. For states that use stingy listing methods and criteria, fewer waters will be subject to more rigorous TMDLs and associated nonpoint source controls. Likewise, states have some flexibility in determining schedules for developing TMDLs¹⁴¹ and attaining WQS.¹⁴² Finally, EPA declined, in the final rule, to exercise more direct regulatory authority over some sources of pollution by exercising its discretionary authority to define them as point, as opposed to nonpoint sources.¹⁴³

In short, EPA's new, but indefinitely deferred, TMDL regulation provides some new tools and requirements that could result in more effective state nonpoint source pollution controls that are tied more closely to the goal of attainment and maintenance of WQS. Other parts of the regulation, however, could lead to a business-as-usual approach and—absent effective relief from another source—years more of continued impairment of rivers, lakes, and coastal waters throughout the country. The real test will be in how the new rules are implemented and enforced by EPA and the states, that is, if and when they are freed from their current political and legal shackles.

Conclusion

The past two years have presented a number of judicial and administrative opportunities to reinvigorate our efforts to control nonpoint source pollution, which remains—after almost three decades—the largest source of impairment of the nation's surface waters. One case (Dombeck) rejected, at least in the Ninth Circuit, use of the § 401 water quality certification requirement as one potential tool for imposing more rigorous nonpoint source controls on large areas of federal land. Efforts to control this type of pollution on federal lands, then, will depend more closely on the effectiveness of the new Unified Federal Policy for a Watershed Approach to Federal Land and Resource Management. This document, however, is long on statements of vision and intent that could be used to great effect if implemented vigorously, but short on specific new measures to ensure that result. Meanwhile, the U.S. District Court for the Northern District of California confirmed, subject to potential further challenge in the ongoing TMDL litigation in the D.C. Circuit or elsewhere, that the reinvigorated TMDL program under § 303(d) of the Act can be used as a tool to guide more carefully, if not to direct, more and better nonpoint source controls. However, the true effectiveness of that approach will depend first on whether Congress releases EPA's new TMDL rules from the current implementation ban, second on whether the rules survive the assault they face from multiple directions in the U.S. Court of Appeals for the D.C. Circuit, and finally on the manner in which those rules are implemented on the ground by EPA and the states. For now, the world of nonpoint source water pollution control remains as murky as ever.

1. EPA compiles these inventories based on state-generated water quality reports pursuant to § 305(b) of the CWA. 33 U.S.C. § 1315(b), ELR STAT. FWPCA § 305(b).

2. EPA's most recent inventory, released in June 2000, reported that agriculture and hydromodification are the leading sources of river and lake impairment, while urban runoff and land disposal of wastes are the largest contributors to the pollution of estuaries and coastal waters. U.S. EPA, NATIONAL WATER QUALITY INVENTORY, 1998 REPORT TO CONGRESS 62, 88, 119 (EPA 841-R-00-001, June 2000).

3. See, e.g., 33 U.S.C. § 1329, ELR STAT. FWPCA § 319 (nonpoint source pollution provision added to the CWA in 1987); 16 U.S.C. § 6217(g)(5) (nonpoint source control provision added to Coastal Zone Management Act in 1990).

4. See ENVIRONMENTAL LAW INST., ENFORCEABLE STATE MECHANISMS FOR THE CONTROL OF NONPOINT SOURCE WATER POLLUTION (1997).

5. Robert W. Adler, Integrated Approaches to Water Pollution: Lessons From the Clean Air Act, 23 HARV. ENVTL. L. REV. 203, 204 (1999). The section of this Article entitled "Statutory Background" is derived in part from the earlier article.

6. Marc R. Poirier, Water Pollution, in ENVTL. LAW PRACTICE GUIDE 18-1, 18-129 to 18-130 (2000).

7. 172 F.3d 1092, 28 ELR 21471 (9th Cir. 1998).

8. 33 U.S.C. § 1341, ELR STAT. FWPCA § 401.

9. 91 F. Supp. 2d 1337, 30 ELR 20460 (N.D. Cal. 2000).

10. For a comprehensive description and analysis of the TMDL program, see OLIVER A. HOUCK, THE CLEAN WATER ACT TMDL PROGRAM: LAW, POLICY, AND IMPLEMENTATION (Envtl. L. Inst. Monograph 1999).

11. 65 Fed. Reg. 62566 (Oct. 18, 2000). The policy was proposed earlier that year, and subject to public notice and comment. Proposed Unified Policy for Ensuring a Watershed Approach to Federal Land and Resource Management, 65 Fed. Reg. 8834, 8839 (Feb. 22, 2000).

12. EPA, Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation, 65 Fed. Reg. 43586 (July 13, 2000).

13. 33 U.S.C. § 1362(14), ELR STAT. FWPCA § 502(14).

14. Id.

15. See, e.g., Concerned Area Residents for the Env't v. Southview Farm, 34 F.3d 114, 24 ELR 21480 (2d Cir. 1994), cert. denied, 115 S. Ct. 1793 (1995); United States v. Plaza Health Lab., Inc., 3 F.3d 643, 23 ELR 21526 (2d Cir. 1993), cert. denied, 114 S. Ct. 2764 (1994).

16. The definition of "discharge," discussed in more detail below as the key disputed issue in the Dombeck case, "includes a discharge of a pollutant." That term, in turn, means "any addition of any pollutant to navigable waters from any point source. . . ." 33 U.S.C. § 1362(12), ELR STAT. FWPCA § 502(12). Despite the obvious tautology in these definitions, the basic meaning is clear: point source discharges occur when pollutants are released into navigable waters through discrete conveyances.

17. Id. § 1362(6), ELR STAT. FWPCA § 502(6). Certain specified categories of materials are excluded. Id.

18. "The objective of this [act] is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Id. § 1251(a), ELR STAT. FWPCA § 101(a).

19. Id. § 1362(19), ELR STAT. FWPCA § 502(19).

20. Id. § 1313(c), ELR STAT. FWPCA § 303(c).

21. Id. § 1313(c)(2)(A), ELR STAT. FWPCA § 303(c)(2)(A) ("Such revised or new water quality standard shall consist of the designated use of the navigable water involved and the water quality criteria for such waters based upon such uses."); 40 C.F.R. §§ 130.2(d), 131.3(I).

22. 40 C.F.R. §§ 130.1(b), 130.3, 131.2.

23. Id. § 131.3(b) (criteria may be "expressed as constituent concentrations, levels, or narrative statements . . .").

24. See Environmental Defense Fund v. Costle, 657 F.2d 275, 11 ELR 20459 (D.C. Cir. 1981) (approving the use of narrative rather than numeric salinity criteria).

25. See Natural Resources Defense Council v. EPA, 915 F.2d 1314, 20 ELR 21372 (9th Cir. 1990) (describing WQC as "the maximum concentration of pollutants that could occur without jeopardizing the use"); Westvaco v. EPA, 899 F.2d 1383, 20 ELR 20816 (4th Cir. 1990) (describing WQC as the "amount of various pollutants" that may be present in a water body).

26. By regulation, EPA defines WET as "the aggregate toxic effect of an effluent measured directly by a toxicity test." 40 C.F.R. § 122.3. The legality of WET criteria was upheld in two separate decisions by the U.S. Court of Appeals for the D.C. Circuit. American Paper Inst. v. EPA, 996 F.2d 346, 23 ELR 20984 (D.C. Cir. 1993); Natural Resources Defense Council v. EPA, 859 F.2d 156, 19 ELR 20016 (D.C. Cir. 1988). The use of WET criteria was boosted by Congress in the 1987 Water Quality Act, through amendments to §§ 303(c)(2)(B) and 304(a)(8) of the statute, which expressly recognized, and in some cases required, the use of "biological assessment and monitoring methods," a synonymous nomenclature for WET testing procedures. 33 U.S.C. §§ 1313(c)(2)(B), 1314(a)(8), ELR STAT. FWPCA §§ 303(c)(2)(B), 304(a)(8).

27. For example, the criterion might establish that an effluent would "fail" the test if more than 50% of the test organisms (such as fathead minnows) died after exposure to a 10% dilution of the effluent after 24 hours. This would be known as a 24-hour LC[50] (with "LC" denoting "lethal concentration"). 60 Fed. Reg. 53529, 53533 (Oct. 16, 1995); 40 C.F.R. § 136.3(a).

28. 62 Fed. Reg. 58114 (Oct. 29, 1997); U.S. EPA, Contaminated Sediment Management Strategy, at http://www.epa.gov/watrhome/pubs/sediment.html (last modified Apr. 6, 1999).

29. Bioconcentration is the process by which fish and aquatic animals accumulate chemicals and toxins in their tissues from contaminated water directly through the skin and gills. Biomagnification is the process by which chemicals and toxins are accumulated and compounded through the food chain. Bioaccumulation is the result of both the processes of bioconcentration and biomagnification. It refers to the concentration of chemicals and toxins in the tissues of aquatic life that occurs due to bioconcentration and biomagnification. See JEFFREY A. FORAN & LARRY E. FINK, REGULATING TOXIC SUBSTANCES IN SURFACE WATERS 43-44, 123-25 (1993); ROBERT W. ADLER ET AL., THE CLEAN WATER ACT, TWENTY YEARS LATER 64-65 (1993).

30. For an extensive review of this effort, see BIOLOGICAL ASSESSMENT AND CRITERIA, TOOLS FOR WATER RESOURCE PLANNING AND DECISIONMAKING (Wayne S. Davis & Thomas P. Simoneds., 1995).

31. 40 C.F.R. §§ 131.6(d), 131.12.

32. Id. § 131.12(a)(1).

33. "Designated uses are those uses specified in water quality standards for each water body or segment whether or not they are being attained." Id. § 131.3(f). "Existing uses are those uses actually attained in the water body on or after November 28, 1985, whether or not they are included in the water quality standards." Id. § 131.3(e).

34. Id. § 131.12(a)(2). Degradation may be allowed, so long as the minimum Tier 1 requirements continue to be met, and after appropriate public participation and intergovernmental coordination, where the state concludes "that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located." Id. Where such degradation is allowed, the "highest statutory and regulatory requirements" must be imposed on all existing and new sources of pollution to those waters. Id.

35. The qualifier "significant" is necessary because EPA policy guidance indicates that some degree of minor or temporary degradation in fact may be permissible for Tier 3 waters under very limited circumstances.

[Section] 131.12(a)(3) dealing with the designation of outstanding National resource waters (ONRW) was changed to provide a limited exception to the absolute "no degradation" requirement. EPA was concerned that waters which properly could have been designated as ONRW were not being so designated because of the flat no degradation provision, and therefore were not being given special protection. . . . States may allow some limited activities which result in temporary and short-term changes in water quality.

OFFICE OF WATER REGULATIONS AND STANDARDS, U.S. EPA, QUESTIONS & ANSWERS ON ANTIDEGRADATION, ANTIDEGRADATION POLICY ii (1985); John Harleston, What Is Antidegradation Policy: Does Anyone Know?, 5 S.C. ENVTL. L.J. 33, 54 (1996).

36. 40 C.F.R. § 131.12(a)(3).

37. The referenced technology-based standards are based on the best practical control technology currently available (BPT) for industrial sources and secondary treatment for municipal sources. 33 U.S.C. § 1313(d)(1)(A), ELR STAT. FWPCA § 303(d)(1)(A). By somewhat confusing and internally inconsistent regulations, EPA has (perhaps illegally) expanded the list of existing and proposed future controls that can be used to exclude a water body from listing under § 303(d)(1). A "water quality-limited segment" is defined as a waters that cannot meet WQS after application of all technology-based effluent limitations under §§ 301(b) and 306 of the Act, not just the first (and weakest) round of such requirements. 40 C.F.R. § 130.2(j). TMDLs, in turn, must be developed only for "water quality-limited segments" that are not expected to meet WQS after imposition of technology-based standards under §§ 301(b), 306, 307, or other sections of the Act; stricter effluent limits imposed under state authority; and other pollution controls, such as best management practices (BMPs) for nonpoint sources. Id. § 130.7(b).

38. Under EPA's slightly modified terminology, the loading capacity represents the "greatest amount of loading that a water can receive without violating water quality standards." 40 C.F.R. § 130.2(f). A TMDL, as explained further below, is the sum of the individual allocations of the loading capacity among various sources. From a numeric perspective, because the TMDL equals the loading capacity, the difference in terminology is not significant. As discussed below, however, the evolving concept of a TMDL envisions a comprehensive water body restoration plan, and not just a pure number.

39. TMDLs must be established "with seasonal variations and a margin of safety." 33 U.S.C. § 1313(d)(1)(C), ELR STAT. FWPCA § 303(d)(1)(C).

40. Id.; 40 C.F.R. § 130.7. This figure is also referred to as the "assimilative" of the water body. A separate set of TMDLs is supposed to be prepared for waters impaired by thermal discharges. 33 U.S.C. § 1313(d)(1)(B), (d)(1)(D), ELR STAT. FWPCA § 303(d)(1)(B), (d)(1)(D).

41. 33 U.S.C. § 1313(d)(2), ELR STAT. FWPCA § 303(d)(2); 40 C.F.R. § 130.7(d). The first set of lists was supposed to be submitted within 180 days after EPA identified, pursuant to § 304(a)(2)(D), 33 U.S.C. § 1313(a)(2)(D), ELR STAT. FWPCA § 304(a)(2)(D) (the pollutants for which TMDLs were deemed to be appropriate. Id. Additional submissions are required "from time to time" thereafter. Id. In 1978, EPA identified all pollutants as suitable for the issuance of TMDLs. 43 Fed. Reg. 60662 (Dec. 28, 1978).

42. 33 U.S.C. § 1313(e), ELR STAT. FWPCA § 303(e).

43. Id. § 1313(d)(3), ELR STAT. FWPCA § 303(d)(3); 40 C.F.R. § 130.7(e).

44. Of course, while this distinction may have made sense in 1972, it is now a logical anachronism. Either secondary treatment and BPT controls on point sources have resulted in the attainment of WQS, or they have not. Thus, § 303(d)(3) lists compiled at this point should be limited to waters that meet WQS. In reality, and not surprisingly given that states have been dragged to the § 303(d)(1) process, apparently no state has ever prepared a § 303(d)(3) list.

45. 33 U.S.C. § 1313(d)(3), ELR STAT. FWPCA § 303(d)(3); 40 C.F.R. § 130.7(e).

46. Section 101(a)(3) establishes a "national goal that wherever attainable" the minimum fishable and swimmable WQS be achieved by July 1, 1983. 33 U.S.C. § 1251(a)(3), ELR STAT. FWPCA § 101(a)(3). While point source controls necessary to meet WQS were supposed to be met by July 1, 1977, id. § 1311(b)(1)(C), ELR STAT. FWPCA § 301(b)(1)(C), no similar statutory deadlines apply to other controls needed to meet the WQS. Moreover, both the 1977 deadline and the 1983 goal have long-passed without modification, leaving no effective statutory deadlines for future compliance.

47. See 40 C.F.R. § 130.1(d) ("These control measures [necessary to meet WQS] are implemented by issuing permits, building publicly-owned treatment works (POTWs), instituting best management practices for nonpoint sources of pollution and other means").

48. 33 U.S.C. § 1313(e)(3), ELR STAT. FWPCA § 303(e)(3); 40 C.F.R. § 130.5 (essentially paraphrasing the statute).

49. For states without an adequate CPP, EPA can withhold grant funding, see, e.g., 33 U.S.C. § 1284(a)(2), ELR STAT. FWPCA § 303(a)(2), and deny approval of the state's national pollutant discharge elimination system (NPDES) permitting program under § 402. Id. § 1313(e)(2), ELR STAT. FWPCA § 303(e)(2).

50. Id. § 1313(e)(3)(A), ELR STAT. FWPCA § 303(e)(3)(A). Effluent limitations required by § 303(e)(3) must be "at least as stringent as any requirements contained in any applicable water quality standard. . . ." Id.

51. Id. § 1313(e)(3)(B), ELR STAT. FWPCA § 303(e)(3)(B). This subsection also requires incorporation of basin plans under § 209 of the Act. However, as explained below, this requirement became moot with the demise of the river basin planning program in other federal legislation.

52. Id. § 1313(e)(3)(C), ELR STAT. FWPCA § 303(e)(3)(C).

53. Id. § 1313(e)(3)(F), ELR STAT. FWPCA § 303(e)(3)(F). This subsection requires "adequate implementation, including schedules of compliance, for revised or new water quality standards. . . ." The plans also must include procedures for revision and intergovernmental coordination, controls over the disposal of residual waste from water treatment processing, and an inventory and ranking of needs for the construction of public waste treatment works. Id. § 1313(e)(3)(D), (E), (G), and (H), ELR STAT. FWPCA § 303(e)(3)(D), (E), (G), and (H).

54. This gap may have been entirely intentional, consistent with Congress' express intent to leave as much of the details of the water pollution control program to state discretion as possible. See id. §§ 1251(b), 1251(g), 1370, ELR STAT. FWPCA §§ 101(b), 101(g), 510. In addition, because states testified consistently during the legislative hearing process that they had the technical capabilities to translate WQS into adequate specific pollution controls, Oliver A. Houck, TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean Water Act, 27 ELR 10329, 10332-34, 10336 (July 1997), Congress may have seen no need to impose more specific federal requirements.

55. 40 C.F.R. § 130.2(I).

56. U.S. EPA, REPORT NO. EPA 440/4-91-001, GUIDANCE FOR WATER QUALITY-BASED DECISIONS: THE TMDL PROCESS 19 (Apr. 1991).

57. 40 C.F.R. § 130.2(h).

58. Id. § 130.2(g). While the regulation combines pollution loads from multiple sources into the definition of load allocation, "wherever possible, natural and nonpoint source loads should be distinguished." Id.

59. 33 U.S.C. § 1311(b)(1)(C), ELR STAT. FWPCA § 301(b)(1)(C). See also id. § 1312, ELR STAT. FWPCA § 302 (providing separate but heretofore unused procedure by which EPA may impose stricter water quality-based effluent limitations), id. § 1313(e)(3)(A), ELR STAT. FWPCA § 303(e)(3)A) (requiring water quality-based effluent limitations as part of the continuing planning process), id. § 1341, ELR STAT. FWPCA § 401 (allowing states to impose additional conditions on any federal licenses or permits, including EPA-issued permits under the CWA, as necessary to implement WQS). EPA regulations prohibit the issuance of an NPDES permit when "conditions cannot assure compliance with applicable water quality requirements of all affected States," 40 C.F.R. § 122.4(d); and require permits to include conditions "necessary to . . . achieve water quality standards." Id. § 122.44(d).

60. 33 U.S.C. § 1342, ELR STAT. FWPCA § 402 (requiring point source permits issued by states or EPA to meet "all applicable requirements" of § 301, among others); Trustees for Alaska v. EPA, 749 F.2d 549, 15 ELR 20146 (9th Cir. 1984); American Mining Congress v. EPA, 965 F.2d 759, 22 ELR 21135 (9th Cir. 1992); Armco, Inc. v. EPA, 869 F.2d 975, 19 ELR 20769 (6th Cir. 1989). Absent a specific statutory exemption, permits are required for all point sources, regardless of size or significance. 33 U.S.C. § 1311(a), ELR STAT. FWPCA § 301(a) (prohibiting "the discharge of any pollutant by any person" except as in compliance with the permitting requirement of § 402, and applicable substantive controls); Natural Resources Defense Council v. Costle, 568 F.2d 1369, 8 ELR 20028 (D.C. Cir. 1977) (rejecting EPA's de minimis exception to permit requirement). By statutory definition, agricultural stormwater and irrigation return flows are exempted from this requirement. 33 U.S.C. § 1362(14), ELR STAT. FWPCA § 502(14) (definition of point source).

61. 33 U.S.C. § 1319, ELR STAT. FWPCA § 309 (enforcement provisions generally); id. § 1365, ELR STAT. FWPCA § 505 (citizen suits).

62. Friends of the Wild Swan v. EPA, No. CV 97-35-M-DWM (D. Mont. Sept. 22, 2000).

63. It is clear, however, that water quality-based effluent limitations in some form, including WET limitations, are required in such cases. 40 C.F.R. § 122.44(d)(1).

64. 33 U.S.C. § 1362(14), ELR STAT. FWPCA § 502(14).

65. See 40 C.F.R. § 122.23.

66. See id. § 122.27.

67. 33 U.S.C. § 1281(c), ELR STAT. FWPCA § 201(c).

68. Whenever the Administrator determines after public hearing that a State is not administering a program approved under this section in accordance with the requirements of this section, the Administrator shall so notify the State, and if appropriate corrective action is not taken within a reasonable time, not to exceed ninety days, the Administrator shall withdraw approval of such program. The Administrator shall not withdraw approval of any such program unless he shall first have notified the State, and made public, in writing, the reasons for such withdrawal.

33 U.S.C. § 1288(b)(4)(D)(i), ELR STAT. FWPCA § 208(b)(4)(D)(i). See also id. § 1288(f), ELR STAT. FWPCA § 208(f).

69. This difference undoubtedly reflected Congress' reluctance to subject a wide range of land use practices to federal control. See generally Lawrence P. Wilkins, The Implementation of Water Pollution Control Measures—Section 208 of the Water Pollution Control Act Amendments, 15 LAND & WATER L. REV. 479 (1980).

70. 33 U.S.C. § 1288(b)(2)(F)-(K), ELR STAT. FWPCA § 208(b)(2)(F)-(K). The categories of nonpoint source pollution required to be addressed under § 208 included agriculture and silviculture, abandoned mines, construction activities, salt water intrusion, disposal of residual waste, and land disposal and land filling of pollutants. Id. In its water quality management regulations EPA defines BMPs as "methods, measures or practices selected by an agency to meet its nonpoint source control needs," which "include but are not limited to structural and nonstructural controls and operation and maintenance procedures," and which "can be applied before, during and after pollution-producing activities to reduce or eliminate the introduction of pollutants into receiving waters." 40 C.F.R. § 130.2(m). Curiously, in its NPDES regulations EPA has a similar but separate definition of BMPs imposed to address types of industrial pollution such as "site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage." Id. § 122.2.

71. Various provisions suggest some additional linkage between §§ 208 and 303. For example, a state was required to impose the nonpoint source control requirements developed under § 208 categorically throughout the state when it determined it was necessary to ensure "consistency with a statewide regulatory program" under § 303. 33 U.S.C. § 1288(b)(4)(A), ELR STAT. FWPCA § 208(b)(4)(A). Given the lackluster implementation of the nonpoint source control provisions of § 208 generally, see ADLER ET AL., supra note 29, at 183-85; Houck, supra note 54, at 10342, it is highly doubtful that any state ever implemented this provision. In any event, neither of these provisions expressly required states to evaluate the combination of point and nonpoint source controls developed under § 208 with the overall load reductions found necessary under § 303(d).

72. 33 U.S.C. § 1329, ELR STAT. FWPCA § 319.

73. Id. § 1329(a), ELR STAT. FWPCA § 319(a) (requiring state nonpoint source assessment reports).

74. Id. § 1329(b), ELR STAT. FWPCA § 319(b) (requiring new statewide management programs).

75. ADLER ET AL., supra note 29, at 188-91; Houck, supra note 54, at 10342.

76. 33 U.S.C. § 1319(b)(4), ELR STAT. FWPCA § 319(b)(4).

77. Id. § 1319(d)(3), ELR STAT. FWPCA § 319(d)(3).

78. EPA does have the authority to disapprove an inadequate state program, id., and to deny grant funding for the program in such cases. Id. § 1319(h), ELR STAT. FWPCA § 319(h). Denial of program funding to a state with inadequate desire or will to implement that program, however, is hardly a potent incentive for tougher state action.

79. Section 301(b)(1)(C), for example, requires simply that effluent limitations include "any more stringent limitation, including those necessary to meet water quality standards. . . ." Id. § 1311(b)(1)(C), ELR STAT. FWPCA § 301(b)(1)(C). Similarly, § 303(e)(3)(A) requires "effluent limitations and schedules of compliance . . . at least as stringent as any requirements contained in any applicable water quality standard." Of course, this could mean limitations necessary, in combination with applicable controls on other point and nonpoint sources, to meet WQS.

80. This, however, assumes that pollution load reductions from the point sources alone are adequate to attain the standards, a dubious proposition in many cases.

81. This should not be interpreted to mean that such more stringent industrial and municipal effluent limitations will, in themselves, bring about a meeting of water quality standards for receiving waters. The Committee clearly recognizes that non-point sources of pollution are a major contributor to water quality problems.

H.R. REP. NO. 92-911, at 793 (1972). Section 303(d) derived from the House bill, over opposition in the Senate, which favored reliance on technology-based controls.

82. 33 U.S.C. § 1341(a)(1), ELR STAT. FWPCA § 401(a)(1).

83. 511 U.S. 700, 24 ELR 20945 (1994).

84. 33 U.S.C. § 1344, ELR STAT. FWPCA § 404.

85. See Debra L. Donahue, The Untapped Power of Clean Water Act Section 401, 23 ECOLOGY L.O. 201 (1996) (arguing that, under this case, water quality certifications can address a broad range of impacts to the health of aquatic ecosystems).

86. 172 F.2d at 1092, 28 ELR at 21471 (9th Cir. 1998). The case was brought in the U.S. District Court for the District of Oregon based on both the citizen suit provision of the CWA, 33 U.S.C. § 1365, ELR STAT. FWPCA § 505, and the Administrative Procedure Act, 5 U.S.C. § 702, available in ELR ADMIN. PROC.

87. 33 U.S.C. § 1341(a), ELR STAT. FWPCA § 401(a) (emphasis added).

88. 172 F.3d at 1095-96, 28 ELR at 21472 (quoting 33 U.S.C. § 1362(12), (16), ELR STAT. FWPCA § 502(12), (16)).

89. 172 F.3d at 1096, 28 ELR at 21472. To give full effect to Congress' definitions, the government had to provide an alternative explanation of how "discharge" could include something other than point source discharges of pollutants. Rather than distinguishing point source from nonpoint source discharges of pollutants, it distinguished point source discharges of pollutants from nonpolluting point source discharges. Because the narrower definition applies to the discharge of "any pollutant," and because "pollutant" is defined so broadly, it is not clear how any point source discharge could fit into this second category, and no examples are provided in the court's opinion. A discharge of pure, distilled water, absent any "pollutant" whatsoever, by definition would not be a "discharge of a pollutant." No logical purpose would be served by reading Congress' distinction in this way.

90. See id.

91. See id. at 1097, 28 ELR at 21473 (quoting Pub. L. No. 91-224, § 21(b)(1), 84 Stat. 91 (1970)).

92. See id.

93. See id. (quoting S. REP. NO. 92-414, at 69 (1971), reprinted in 1972 U.S.C.C.A.N. at 3764, 3735).

94. See id. at 1098, 28 ELR at 21473 (citing 33 U.S.C. §§ 1288, 1314(f), ELR STAT. FWPCA §§ 208, 304(f)).

95. See id. The court pointed in particular to 33 U.S.C. § 1323(a), ELR STAT. FWPCA § 313(a), which requires federal agencies to comply with WQS with respect to "any activity which may result in the discharge or runoff of pollutants." This provision was not at issue before the district court in Dombeck because the citizen suit under § 505, 33 U.S.C. § 1365, ELR STAT. FWPCA § 505, had to be based on an NPDES permit. See id. A plaintiff may allege that a Forest Service administrative action is unlawful because it might cause violations of WQS in a suit brought under the Administrative Procedure Act. See Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688, 17 ELR 20021 (9th Cir. 1986).

96. 834 F.2d 842, 18 ELR 20450 (9th Cir. 1987).

97. 33 U.S.C. § 1365, ELR STAT. FWPCA § 505.

98. Plaintiffs in that case argued that effluent limitations for purposes of the citizen suit provision could also apply to nonpoint sources because § 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C), ELR STAT. FWPCA § 301(b)(1)(C), applies to WQS, and that WQS apply to both point and nonpoint sources. See 172 F.3d at 1097, 28 ELR at 21473.

99. See 172 F.3d at 1098, 28 ELR at 21473.

100. 33 U.S.C. § 1365(a)(1), ELR STAT. FWPCA § 505(a)(1).

101. The next sentence of § 401(a), however, is potentially more troublesome: "In the case of any such activity for which there is not an applicable effluent limitation or other limitation . . . the State shall so certify. . . ." This language could be read to supportthe court's reading of the provision as applying solely to point sources, for which effluent limitations typically apply.

102. Id. § 1341(d), ELR STAT. FWPCA § 401(d).

103. See U.S. EPA, REPORT OF THE FEDERAL ADVISORY COMMITTEE ON THE TOTAL. MAXIMUM DAILY LOAD (TMDL) PROGRAM 41-43 (EPA 100-R-98-006 July 1998) (federal advisory committee agreed to disagree on whether waters impaired only by nonpoint sources must be listed under CWA § 303(d)(1)(A), thereby triggering the accompanying TMDL requirements).

104. 91 F. Supp. 2d at 1337, 30 ELR at 20460.

105. The case was brought under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., available in ELR STAT. ADMIN. PROC.

106. 91 F. Supp. 2d at 1338, 30 ELR at 20461.

107. Id. at 1339-40, 30 ELR at 20461-62.

108. Plaintiffs argued initially that TMDLs also could not be required for waters impaired by both point and nonpoint sources. During the briefing process, however, plaintiffs later conceded that TMDLs were required for such "blended" waters, but not for waters impaired exclusively by nonpoint sources. Id. at 1346, 30 ELR at 20464.

109. Id. Section 301(b)(1)(A) refers to effluent limitations for industrial sources based on BPT, the first round of the statute's technology-based controls for industrial sources. 33 U.S.C. § 1311(b)(1)(A), ELR STAT. FWPCA § 301(b)(1)(A). Section 301(b)(1)(B) refers to effluent limitations for publicly owned treatment works based on "secondary treatment," embodying the statute's technology-based controls for public sewage treatment plants. 33 U.S.C. § 1311(b)(1)(B), ELR STAT. FWPCA § 301(b)(1)(B).

110. "Each State shall establish for the waters identified in paragraph (1)(A) of this subsection, and in accordance with the priority ranking, the total maximum daily load . . . at a level necessary to implement the applicable water quality standards. . . ." 33 U.S.C. § 1313(d)(1)(D), ELR STAT. FWPCA § 303(d)(1)(D).

111. 91 F. Supp. 2d at 1346-47, 30 ELR at 20464-65.

112. The exception is logical because it would have made no sense, viewed from the 1972 time frame, for states to devote limited water quality planning resources to waters that were expected to meet WQS after implementation of technology-based point source controls due to be achieved by 1977.

113. Id. at 1347, 30 ELR at 20465.

114. Id. The court also concluded that its decision was consistent with prior decisions in the Ninth Circuit, the somewhat limited legislative history of § 303(d), with the 1987 enactment of § 319 of the Act (requiring an additional round of nonpoint source pollution planning), and with the definitions in the law. See id. at 1348, 30 ELR at 20465.

115. 65 Fed. Reg. 62566-601 (Oct. 18, 2000). The agencies include the U.S. Departments of Agriculture (USDA), Commerce, Defense, Energy and the Interior (DOI), and EPA, the Tennessee Valley Authority, and the U.S. Army Corps of Engineers. The policy was proposed originally by the USDA and the DOI. 65 Fed. Reg. 8834-901 (Feb. 22, 2000). While the final policy was issued after an opportunity for public notice and comment, the agencies indicate specifically that it is not intended to be a rule. The proposed policy prompted 248 comments from 126 organizations and 122 individuals.

116. CLEAN WATER ACTION PLAN: RESTORING AND PROTECTING AMERICA'S WATERS, 1998 (CWAP). The CWAP was also issued by multiple federal agencies, under the leadership of EPA, the USDA, and the DOI.

117. 65 Fed. Reg. at 62566.

118. Id. at 62569.

119. Id. at 62569-70.

120. Id. at 62570.

121. See id. at 62566-67.

122. Id. at 62571.

123. The Glossary defines BMPs as:

Methods, measures, or practices to prevent or reduce water pollution, including, but not limited to:

1. Structural and nonstructural controls,

2. Operation and maintenance procedures, and

3. Other requirements and scheduling and distribution of activities.

Id. at 62571.

124. 65 Fed. Reg. 53585 (July 13, 2000).

125. 65 Fed. Reg. at 53586.

126. American Farm Bureau Fed'n v. Browner and related cases (Nos. 00-1320 and consolidated cases, D.C. Cir.). In the interests of full disclosure, the author is co-counsel for a coalition of environmental groups, including the National Wildlife Federation, Southern Environmental Law Center, Northwest Environmental Advocates, Trout Unlimited, and the Center for Marine Conservation, that has moved to intervene in order to help EPA to defend the rules against these various challenges.

127. 40 C.F.R. § 130.25(a)(3) (promulgated but deferred indefinitely) (revised).

128. Id. §§ 130.2(h), 130.32(a) (revised).

129. Id. § 130.32(c) (revised).

130. Id. § 130.32(c)(1).

131. Id. § 130.32(c)(2).

132. Id. § 130.2(p).

133. Id. § 130.2(p)(2).

$=S

134. Examples of [acceptable] procedures or authorities that may be reliable delivery mechanisms include State, Territorial, and authorized Tribal programs approved by EPA under section 319 of the Clean Water Act; participation in existing United States Department of Agriculture conservation of water quality protection programs; participation in existing programs under the Coastal Zone Act Reuthorization Amendments; regulations; local ordinances; performance bonds; contracts; cost-share agreements; memoranda of understanding; site-specific or watershed-specific voluntary actions; and compliance audits of best management programs.

Id. § 130.2(p)(2)(iii).

135. Id. § 130.23(b).

136. Id. § 132.5(a)(2).

137. Id. § 130.33(a).

138. Id. § 130.33(b).

139. Id. § 130.27(a)(2).

140. Id. § 130.23(c)(3).

141. Id. § 130.28(b) (authority to extend 10-year TMDL development program by an additional 5 years).

142. Id. § 130.32(c)(4) ("For all impaired waterbodies, the implementation plan must be based on the goal of attaining and maintaining the applicable water quality standards within ten years whenever attainment and maintenance within this period is practicable.") (emphasis added).

143. See 65 Fed. Reg. 43585, 43591 (July 13, 2000).