McComb, Staci A.

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University of Denver

Water Law Review Volume 6 Issue 1 Article 21 9-1-2002 Pronsolino v. Nastri, 291 F. 3d 1123 (9th Cir. 2002) Staci A. McComb Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Staci A. McComb, Court Report, Pronsolino v. Nastri, 291 F. 3d 1123 (9th Cir. 2002), 6 U. Denv. Water L. Rev. 161 (2002). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COURT REPORTSPronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002) (upholding theEnvironmental Protection Agency's statutory interpretation of itsauthority to impose total maximum daily loads on waters containingonly nonpoint source pollution).Betty and Guido Pronsolino ("Pronsolinos") filed suit pursuant tosections 702 and 704 of the Administrative Procedure Act in theUnited States District Court for the Northern District of California.They challenged the Environmental Protection Agency's ("EPA")authority to impose total maximum daily loads ("TMDLs") on riversonly polluted by non-point sources and sought a determination ofwhether the Clean Water Act ("CWA") authorized the Garcia RiverTMDLs. The district court granted summary judgment to the EPA.The Pronsolinos appealed to the Court of Appeals for the NinthCircuit, which affirmed the district court's grant of summaryjudgment.Congress enacted the CWA in 1972. Section 303 of the CWArequired each state to identify the waters within its boundaries forwhich the required effluent limitations are not stringent enough toestablish applicable water quality standards. Section 303(d)(1)(C)required states to-establish TMDLs on the waters it identified within itsboundaries. In 1992, the EPA set TMDLs on the Garcia River inCalifornia pursuant to this provision of the CWA.In 1998, the Pronsolinos and other landowner along the GarciaRiver applied for harvesting permits. The EPA granted the permits,but required the landowners to comply with certain restrictions,including the TMDLs previously set by the EPA. The Pronsolinossubsequently filed suit.The EPA argued the court should defer to their interpretation ofthe CWA regulations based on Chevron, which held that an agency'sstatutory interpretation is entitled to such deference if "Congressdelegated authority to the agency generally to make rules carrying theforce of law, and... the agency interpretation claiming deference waspromulgated in the exercise of law." The Pronsolinos did not contestthe EPA's rulemaking authority, but instead argued that the EPA failedto exercise it here. The Pronsolinos argued the EPA should receive nodeference because it inconsistently interpreted section 303(d). Thecourt interjected a middle standard of deference set out in Skidmore,where deference was determined according to the agency'spersuasiveness.With regard to the EPA's rulemaking and interpretation of thelaws, the court determined that the Chevron standard applied becauseof the delegated authority of the EPA to interpret the CWA. Even still,the court decided it should apply, at a minimum, deference underSkidmore. However, the court found both standards resulted in thesame decision. It held the EPA's regulations of TMDLs appliedregardless of how the water body received its pollution. DisagreeingIssue 1WATER LAW REVEWthat the EPA had inconsistently interpreted the statute at issue, thecourt found that the EPA interpreted the statute today exactly as it didinitially.The Pronsolinos contended the EPA upset the balance of thefederal and state control created by the CWA by establishing TMDLsfor waters impaired only by nonpoint source pollution. The courtdisagreed and determined the Garcia River TMDLs served as aninformational tool for the creation of the state's implementation plan,which Congress independently and explicitly requires. Thus, the courtfound no merit in the federalism argument.Ultimately, the court upheld EPA's reasonable interpretation ofthe CWA, finding that the EPA did not exceed its statutory authority inidentifying the Garcia River pursuant to section 303(d) (1) (A) andestablishing the Garcia River TMDLs, even though the river waspolluted only by non-point sources of pollution.Staci A. McCombKa Makani 'O Kohala Ohana Inc. v. Dep't of Water Supply, 295 F.3d955 (9th Cir. 2002) (holding the minimal economic involvement of afederal agency does not satisfy the National Environmental Policy Act's"major Federal action" requirement mandating an environmentalimpact statement).Ka Makani '0 Kohala Ohana ("Ka Makani"), a citizen's coalition,filed suit in the United States District Court for the District of Hawaiirequesting injunctive relief against the Hawaii Department of WaterSupply ("DWS") and other federal and county agencies and officialspending the completion of a federal environmental impact statement("EIS"). The district court granted summary judgment to thedefendants, DWS. Ka Makani appealed to the Court of Appeals for theNinth Circuit. The appellate court affirmed the district court'sdecision granting summary judgment to DWS.DWS began planning the Kohala water project in 1987. The waterproject would transfer as much as 20 million gallons of groundwaterper day from the northern part of Kohala to the southern part ofKohala. The project involved two governmental agencies, the UnitedStates Geological Survey ("USGS") and the United States Departmentof Housing and Urban Development ("HUD"). The USGS providedpartial funding for the project and participated in a series ofpreliminary studies, which assessed the groundwater availability. In1988, the DWS and the USGS entered into four Joint FundingAgreements, which divided the costs of the studies. HUD involveditself after Congress passed an appropriations bill allotting $500,000 tothe County of Hawaii for an EIS. HUD provided application materialsand advice, including a recommendation restricting the scope of theactivities. Narrowing the scope of the project exempted it from theVolume 6

Pronsolino v. Nastri, 291 F. 3d 1123 (9th Cir. 2002)

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Pronsolino v. Nastri, 291 F. 3d 1123 (9th Cir. 2002)

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