Two rulings by the Ninth U.S. Circuit Court of Appeals regarding the setting of permissible pollution levels in surface waters offer a mixed review of the issue. Both cases involve the establishment of total maximum daily loads (TMDLs) as mandated by the Clean Water Act. In the first case, the court ruled against environmentalists who sued to force the federal government to set TMDLs for California because the state was slow to do so. But one month later, a different panel of Ninth Circuit judges ruled that federal regulators could establish a TMDL for the Garcia River in Mendocino County. Section 303(d) of the federal Clean Water Act mandates the TMDL process, which requires states to identify all bodies of water that do not meet water quality standards, and then create TMDLs for them. A TMDL calculates the total amount of a pollutant a river or lake can accept and still meet water quality standards. A TMDL is supposed to account for the cumulative impacts of multiple sources of pollution, including point sources, such as sewer plants and factories, and nonpoint sources, such as urban developments and farms. Although Congress approved the Clean Water Act in 1972, states ignored TMDLs for years while focusing on point sources (see CP&DR Environment Watch, August 1999). Not until the 1990s did most states — including California — begin serious TMDL work. This delay in setting TMDLs was the subject of the first lawsuit, filed by San Francisco Baykeeper and other environmental groups. In a suit against the federal Environmental Protection Agency, the environmental groups argued that the state had failed to implement an adequate water pollution control program and had not set TMDLs, so the EPA had a duty to take over the TMDL effort. U.S. District Court Judge Charles Legge ruled against the environmentalists, and a unanimous three-judge panel of the Ninth Circuit upheld the decision. California did not submit any TMDL proposals for review by EPA until 1994 — 15 years after the first deadline contained in the Clean Water Act (§ 303(d), 33 U.S.C. § 1313(d)(2)). However, by May 2000, the state had completed about 50 TMDLs and was on schedule to finish TMDLs for all overly polluted waters within 12 years. Baykeeper argued that the state's failure to do anything until 1994 triggered a nondiscretionary duty by the EPA to set TMDLs for California. But the Ninth Circuit read § 303(d) differently. The court ruled that the EPA is mandated to act only if it disapproves a state's TMDL submission. Under the "constructive submission doctrine," only a state's complete failure to act triggers the EPA's duty to intercede, the court held. The court cited the Tenth Circuit's decision in Hayes v. Whitman, 264 F.3d 1017 (2001), regarding Oklahoma's failure to submit any TMDLs. The Tenth Circuit ruled that EPA did not have a duty to set that state's TMDLs because Oklahoma had established a schedule for completing the 1,400 TMDLs necessary by 2010. "We agree with the Tenth Circuit's decision in Hayes," Justice Procter Hug Jr. wrote for the Ninth Circuit. "California has submitted at least 18 TMDLs and has established a schedule for completing its remaining TMDLs. Under the constructive submission doctrine, then, these actions on the part of California preclude any finding that the state has ‘clearly and unambiguously' decided not to submit any TMDLs." The court also rejected the environmentalists' argument that the EPA violated the Administrative Procedures Act mandate to avoid "unreasonable delay" because the EPA has no statutory duty in the first place. The second case involved the EPA's establishment of a TMDL for sediment for the Garcia River. Landowners Guido and Betty Pronsolino and several branches of the Farm Bureau sued. Their central argument was that because no point sources polluted the Garcia River, the EPA could not regulate nonpoint source pollution. District Court Judge William Alsup ruled against the landowners. A three-judge panel of the Ninth Circuit upheld the ruling. In 1995, environmental and fishermen's groups sued the EPA to force the setting of a TMDL for the Garcia River. To settle the suit, the EPA agreed to establish a TMDL by March 18, 1998. The agency apparently then turned over the process to the state, which completed a draft plan but missed the deadline for adoption. The EPA then established a sediment TMDL for the river. The Pronsolinos sought permission to log 800 acres they owned in the Garcia River watershed. To comply with the EPA's TMDL, the state permitted the logging on the condition that the Pronsolinos greatly limit the amount of sediment from the timber harvest site. Two other landowners also sought timber harvest permits and met similar conditions. They estimated the permit conditions would cost them between $750,000 and $10 million apiece. So they sued, challenging the EPA's authority to set TMDLs for a river that is polluted only by nonpoint sources, such as their logging operations. The Ninth Circuit ruled that the Clean Water Act does not make the distinction claimed by the landowners. "Water quality standards reflect a state's designated uses for a water body and do not depend in any way upon the source of the pollution," Judge Marsha Berzon wrote for the court. "Section 303(d) is structurally part of a set of provisions governing an interrelated goal-setting, information-gathering, and planning process that … applies without regard to the source of pollution." The Ninth Circuit also rejected the argument that the EPA had trod on land use control that properly belonged to the state. The TMDL, the court ruled, was simply a water quality standard. "It does not specify the load of pollutants that may be received from particular parcels of land or describe what measures the state should take to implement the TMDL," Berzon wrote. First Case: San Francisco Baykeeper v. Whitman, No. 01-16111, 02 C.D.O.S. 3181, 2002 DJDAR, 3971 and 2002 DJDAR 4869. Filed April 15, 2002. Modified May 3, 2002. The Lawyers: For Baykeeper: Michael Lozeau, Earthjustice Legal Defense Fund, (415) 567-4141. For EPA: Sandra Slack Glover, Department of Justice, (202) 514-2000. Second Case: Pronsolino v. Nastri, No. 00-16026, 02 C.D.O.S. 4733, 2002 DJDAR 6059. Filed May 31, 2002. The Lawyers: For Pronsolino: Russell Eggert, Mayer, Brown, Row & Maw, (312) 782-0600. For EPA: Sean Donahue, Department of Justice, (202) 514-2000.