Farmer challenges EPA authority under Clean Water Act

Published January 1, 2000

California farmers Guido and Betty Pronsolino have filed suit against the Environmental Protection Agency, claiming the agency overstepped its authority when it denied the family a chance to harvest timber from its farm.

Explaining why the Pronsolinos sued, a frustrated Bill Pauli, president of the California Farm Bureau, said, “The Pronsolinos and other landowners have borne the burden of the EPA’s illegal actions for too long. Enough is enough. We’re seeking a legal precedent telling the EPA to allow states to regulate non-point sources, as Congress intended.” The Pronsolinos filed suit on April 12, 1999 in U.S. District Court for Northern California.

In 1960, the Pronsolinos purchased 800 acres of heavily logged timberland along the Garcia River in Mendocino County, California. The family began immediately to re-plant trees on the property, the ranch now known as the Copper Queen.

In early 1998, the Pronsolinos obtained a permit from the California Department of Forestry to harvest 1.5 million board feet of lumber over 15 years. But in March of that year, EPA issued rules restricting the amount of sediment runoff into the Garcia River, thereby limiting timber harvesting and certain agricultural activities.

EPA’s decision requires the Pronsolinos to inventory and control sediment loading on the Copper Queen ranch. They are completely prohibited from harvesting certain areas of the farm; in other areas, they may harvest only during five-and-a-half months of the year. On some areas of the ranch, they may not use roads or skid trails to move timber out.

The Pronsolinos’ lawsuit notes that EPA’s restrictions will result in significant economic losses for the family. EPA’s restrictions are more onerous than those in the California Forest Practices Act, adopted in 1973 to control sediment runoff from timber harvesting.

Why EPA stepped in

EPA claims authority to regulate timber harvesting on the Pronsolinos’ ranch under the Clean Water Act. The Act requires states to submit to EPA lists of “impaired water segments”–bodies of water that fail to meet water quality standards because of “point sources” of pollution. A point source is defined as any discernible, confined, and discrete conveyance, such as a pipe, from which pollutants may be discharged.

EPA disapproved of the impaired waters list California submitted. The federal agency had determined that 17 water segments, of which the Garcia River is one, failed to meet water quality standards due to “non-point sources” of pollution: agriculture runoff, forestry, and construction sites.

California, though, refused to place the Garcia River watershed on its impaired waters list. In 1992, EPA overruled state regulators and placed the Garcia River on its list of polluted waters. As a result of that list, EPA in 1998 established a total maximum daily load (TMDL) for sediment in the Garcia River, making it the first TMDL in the state for non-point sources of sediment pollution. The TMDL is the maximum amount of a pollutant that a water segment can receive without violating water quality standards.

What the other players think

The Natural Resources Defense Council and similar environmental groups generally applaud EPA’s efforts to regulate non-point sources of water pollution. The agriculture industry, by contrast, by-and-large rejects the federal government’s intervention.

“We’re working with the state to improve agriculture’s control over erosion and other non-point sources,” notes Carolyn Richardson, director of the California Farm Bureau’s Department of Environmental Advocacy. “But it’s difficult for the state to go forward with non-point source plans if it’s going to be interfered with by the federal EPA–and that’s what’s been happening.”

The American Farm Bureau Federation, an intervenor in the case for the Pronsolinos, concurs with Richardson. Dean Kleckner, the Farm Bureau’s president, commented, “The federal Clean Water Act permits EPA to impose TMDL restrictions on point sources of pollution, but it does not provide EPA the authority to regulate non-point sources of pollution in this manner.”

EPA action rests on shaky ground

EPA’s efforts to tightly regulate sediment runoff are controversial as a matter of sound science. According to the National Academy of Sciences, between 25 and 60 percent of sediment deposition into waters is due to air deposition, not run-off. Sediment can come from several sources, including farm and silviculture operations or natural processes (described as “background loadings” in a TMDL calculation) caused by sediment from stream bank erosion and air-blown particles.

Allocating sediment reductions between non-point sources and background loading is difficult. Landowners often find themselves held responsible for sediment coming from background sources. As the Pronsolinos discovered, landowners can be required to make deep cutbacks in their land use activities in order to make up for background sediment loadings over which they have no control.

Contending that EPA lacks the authority to control non-point sources of pollution through the TMDL process, the Pronsolinos have asked the court to overrule EPA’s decision to regulate the Garcia River. They have been joined in the suit by the American Farm Bureau Federation, California Farm Bureau Federation, and Mendocino County Farm Bureau. All parties are proceeding with discovery, and at press time no further action has been taken.

Jefferson G. Edgens is a natural resource policy expert with the University of Kentucky. He can be reached at [email protected].