By R. BRENT WALTON
Short, Cressman & Burgess

Nonpoint source water pollution is a large problem in the Northwest because of the ubiquitous sources and the vulnerability of our waters and fish. For example, western mountainsides are collapsing into streambeds due to years of logging.

The U.S. District Court of Oregon reported: "in 1975 a severe storm hit the Mapleton District. A Forest Service survey of 70 percent of the district showed 245 landslides. Of these slides, nine percent were natural events, 14 percent were road related, and 77 percent were in clearcut units apparently unrelated to roads or landings . . . In 1982, a Forest Service aerial photo survey showed 50 road-related and 79 clearcut related landslides. These slides scoured 14.29 miles of streams."

TMDL Program: The Basics

1. The Total Maximum Daily Load program identifies waters that are and will remain polluted after the application of technology-based standards; 2. prioritizes or ranks these waters, taking into account the severity of the pollution; and... 3. establishes TMDLs of permissible discharge of pollutants into the water at levels necessary to meet applicable water quality standards, accounting for seasonal variations and a safety margin to reflect scientific uncertainties and future development. Under section 303(e), states are required to develop plans for all waters that include, but are not limited to, discharge limitations at least as stringent as water quality standards and TMDLs. In other words, for all waters on the list the state must develop a plan and set pollution level -- TMDL -- to ensure that the waterbody meets its designated use and water quality standards.

According to the state of Idaho, the principal source of water pollution on the South Fork of the Salmon River is logging roads. Furthermore, forestry practices, which have caused increased turbidity in streams, have been blamed by some for the demise of salmon stocks.

Of course, forest management is not the sole source of nonpoint pollution in the Northwest. There is also agriculture, nutrient loadings, cattle, stormwater, and more. However, silviculture is the backdrop for one of the first legal battles over nonpoint pollution and its application to the Total Maximum Daily Load program under the federal Clean Water Act.

Undeniably, we have reached a consensus that the environment must be protected. It is equally undeniable that there is no consensus why, or by whom, or how such protections will be attained. Fundamentally, the first question is based on whether we protect the environment or manage it for human use.

When it comes to water, management for human use understandably prevailed. Among the myriad uses humans put water to is the assimilation of waste. Another is drinking. Another is fishery habitat, which includes water temperature, quantity and quality, and often competes with human uses.

To protect the nation's waters, Congress enacted the Clean Water Act. The Act is a comprehensive management scheme envisioned by Congress to clean up impaired waters polluted by point sources and nonpoint sources such as runoff, agricultural or livestock farms, or urban developments, according to a recent decision by United States District Court Judge William Alsup in Pronsolino vs. Marcus.

Since its enactment in the early 1970s, the focus of the Act has been on point source discharges, such as pollution from pipes and ditches, and controlling these pollution discharges through the NPDES permit process. With the Pronsolino ruling interpreting section 303 of the Act, this emphasis may be changing.

Pronsolino is about sediment and silt deposits along a segment of the Garcia River. The decision means that California can include the Garcia River on its list of impaired waters for which existing technologically-based effluent controls are inadequate to meet water quality standards, otherwise known as the 303(d) list.

Like the South Fork of the Salmon River and other waters in the Northwest, a major source of contamination along this segment of the river is sediment from logging operations.

Worded broadly, the court held that "no substandard river or water was immune by reason of its sources of pollution." Though a broad brush, the decision is what is sure to be the first in a long line of cases because of the far-reaching impacts -- if California can include nonpoint pollution sources on its 303(d) lists so can other states. The 303(d) list is the cornerstone of the federal Clean Water Act's Total Maximum Daily Load (TMDL) program.

The TMDL program identifies waters that are and will remain polluted after the application of technology-based standards; prioritizes or ranks these waters, taking into account the severity of the pollution; and establishes TMDLs of permissible discharge of pollutants into the water at levels necessary to meet applicable water quality standards, accounting for seasonal variations and a safety margin to reflect scientific uncertainties and future development.

Under section 303(e), states are required to develop plans for all waters that include, but are not limited to, discharge limitations at least as stringent as water quality standards and TMDLs. In other words, for all waters on the list the state must develop a plan and set pollution level -- TMDL -- to ensure that the waterbody meets its designated use and water quality standards.

Under the Clean Water Act, management decisions about water are typically made by the people who use it: the local communities, industry, and government authorities. The 303(d) program, a program that was included in the original act but lay relatively dormant until recently, retains this dynamic. It is the state that determines the water's use and standard, assesses water quality, submit its inventory and TMDLs to EPA for approval, and allocates pollution loadings to point and nonpoint sources.

In theory, the reason the TMDL program works is that a TMDL is a quantitative assessment of water quality problems and contributing pollutants performed by the local interest -- presumably those with the political will to improve the water quality. It specifies the amount a pollutant needs to be reduced to meet water quality standards, allocates pollutant load reductions among pollutant sources in a watershed, and provides the basis for taking actions needed to restore a waterbody, through point source and nonpoint source controls.

Guido Pronsolino, a landowner, attacked the TMDL program at its sourc -- the 303(d) listing of the Garcia River. Pronsolino argued that the Garcia River should not have been listed because it was contaminated solely because of nonpoint pollution, instead of point sources such as pipes or ditches. To make his point Pronsolino emphasized that 303(d) fails to mention nonpoint pollution; nonpoint pollution is covered under Section 319 of the Clean Water Act.

Judge Aslsup rejected Pronsolino's argument. The purpose of 303(d) is to trigger the TMDL process, which is meant to backstop the degradation of polluted waters not meeting water quality standards even after the implementation of technology-driven controls. "TMDLs had to be set at levels that would 'implement' the applicable water quality standards . . . It would have been impossible to do so without taking any non-point sources into account as well as any point sources."

Indeed, the court concluded that failure to include nonpoint sources would result in an absurdity given Congress's comprehensive scheme:

"In call for such a list [303(d) list], it was unnecessary to reference non-point pollution. . . . Any polluted waterway -- whether its sources were point, non-point or a combination -- had to be listed if it would not be cleansed by the new approach. To have excluded the large number of rivers and waters polluted solely by agricultural and logging runoff would have left a chasm in the otherwise 'comprehensive' statutory scheme."

"This important decision allows us to build on our successes of completing the task of cleaning our nation's waters," said Carol Browner, EPA administrator.

"Undeniably, we have reached a consensus that the environment must be protected. It is equally undeniable that there is no consensus why, or by whom, or how such protections will be attained. Fundamentally, the first question is based on whether we protect the environment or manage it for human use."

Just how clean and how quickly our waters are cleaned will await implementation of TMDLs. In Washington, the state is under court order to complete TMDLs within the next several years.

If other courts follow Judge Alsup's lead, the potential impact in the Northwest may be great. It may be that TMDLs will be required for temperatures that are protective of endangered or threatened salmon populations. Such TMDLs may include larger stream buffers than are being or have been negotiated under the Tri-County Agreement or 4(d) rules, and may even fundamentally change logging and forestry practices.

Chances are, Pronsolino is the first ripple in the water.

In 1998, Washington's Department of Ecology identified over 640 lakes, streams, and estuaries as impaired out of the 1,099 for which the state has data. According to the state, temperature is one of "the primary water quality problems." The 1998 list has grown by another 100. But of the waterbodies included on the 1998 list, a total of 282 waters were listed because of temperature.

Elevated water temperature generally occurs in areas where loggers or developers have harvested trees or cleared land for land development, taking away shade, which is necessary to keep the water temperature sufficiently cool and healthy for fish. Thus, there is great incentive for the timber industry and developers to avoid a Pronsolino-like decision in Washington.

Such a decision would compound the potential legal pitfalls recently sewn by the Endangered Species Act. No matter the agreements entered, 4(d) rules, or similar protections offered to developers, timber industry, and other sources of nonpoint pollution, the legal requirements of the Clean Water Act and its application to nonpoint sources through the TMDL process and a Pronsolino-like decision may require more to protect the water quality standards the state has set.

The timber industry is but the first of the nonpoint sources likely to be impacted by a Pronsolino-like decision; agriculture, developers, city planners, dairy farmers and cattle ranchers are sure to follow. Pronsolino and the timber industry parties to the action have filed a Notice of Appeal to the Ninth Circuit Court of Appeals. A decision is not expected for some time.

R. Brent Walton is an associate with Short, Cressman & Burgess in Seattle. He practices in the area of environmental law.