US EPA can set limits for non-source pollution

The US Court of Appeals has upheld a ruling by a federal judge that the US Environmental Protection Agency (EPA) is able to set limits on pollution from non-point sources, such as sediment run-off from timber harvesting, or from agriculture.

The suit was filed by Betty and Guido Pronsolino, who own 800 acres of forestry land in the Garcia River watershed in Mendocino County, California. On applying for a harvesting permit from the California Department of Forestry, the Pronsolinos were told that the harvesting would have to provide for mitigation of 90% of controllable road-related sediment run-off, and that a permit would include prohibitions on removing certain trees and on harvesting from mid-October until the beginning of May. The Pronsolinos estimate that this would cost them US$750,000.

The Pronsolinos, however, are getting off lightly. A second farmer from the Garcia River watershed, whose forestry permit includes a 60% reduction of sediment loading, estimates that his costs will be US$10.6 million, and a third forester believes the restrictions on his harvest will cost US$962,000.

The Garcia River has already been a pollution prevention battleground for some years, following the State of California’s failure in 1992 to include seventeen water segments in a list of waters for which effluent limitations required by the Clean Water Act were not stringent enough to implement an appropriate water quality standard. Sixteen of the 17, of which the Garcia River was one, were polluted only by non-point source pollution. The EPA rejected the incomplete list, but California still failed to establish total maximum daily load values (TMDLs) for the 17 segments.

The situation resulted, in 1995, in environmental and fisheries groups suing the EPA to require the development of the TMDLs. California again failed to produce a TMDL for the Garcia River by the required deadline, forcing the EPA to produce its own pollution limit for the river.

However, according to the Pronsolinos, the EPA did not have the authority to impose TMDLs on rivers polluted only by non-point sources. They state that there is no current EPA regulation expressly precluding their position that the Clean Water Act regulations do not apply to rivers polluted only by non-point sources.

Nevertheless, the Court of Appeals has now agreed with a ruling by the District Court for the Northern district of California in August 1999 that the Pronsolinos were wrong, stating that, “In short, the EPA’s regulations concerning … TMDLs apply whether a water body receives pollution from point sources only, non-point sources only, or a combination of the two”.

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