Court Vacates Anacostia River TMDLs

Friends of the Earth, Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006).

Terra Bowling, J.D.

In Friends of the Earth v. EPA, the United States Court of Appeals for the D.C. Circuit was faced with the question of whether the word “daily,” as used in the Clean Water Act (CWA), was flexible enough to represent other increments of time. The D.C. Circuit held that the term daily could only mean daily, a ruling which will force the Environmental Protection Agency (EPA) to amend its seasonal and annual pollution limits for the Anacostia River.

Background
The Anacostia river system, flowing from Maryland to Washington D.C., is polluted by fertilizers, chemicals, and trash that run into the river after every rainfall.1 Another source of trouble is the city’s sewage system, which uses the same pipes for both sewage and stormwater runoff.2 As a result, the river contains many biochemical pollutants that have caused its dissolved oxygen level to sink below the applicable water quality standard. Additionally, the river is murkier than the applicable turbidity standard allows, stunting the growth of plants in the river.

For such highly polluted waters, the CWA requires that states and the District of Columbia establish a “total maximum daily load” (TMDL) of pollutants that can be discharged into the waters. In an effort to decrease the pollution of the Anacostia system, the EPA approved two pollution limits. One TMDL limited the annual discharge of oxygen-depleting pollutants, while another limited the seasonal discharge of pollutants contributing to turbidity.

Friends of the Earth brought suit challenging the TMDLs, claiming that the CWA requires the establishment of daily, not seasonal or annual, loads. The D.C. District Court granted the EPA’s motion for summary judgment, finding that the word “daily” could be interpreted to encompass seasonal or annual limits.3

Daily Means Daily
The D.C. Circuit found that nothing in the language of 33 U.S.C. § 1313 suggested that the EPA was authorized to approve total maximum seasonal or annual loads. “Daily connotes every day,” said Judge Tatel. “Doctors making daily rounds would be of little use to their patients if they appeared seasonally or annually.”4

The EPA argued that deviating from daily limits was necessary in some cases, since some pollutants cause more damage when released in low levels every day, whereas some large, one-day discharges may have no effect if the seasonal or annual discharges remain low. The D.C. Circuit pointed out that the EPA was basically in a predicament of its own devising. The CWA provides that TMDLs must be established only for those pollutants “which the Administrator identifies . . . as suitable.”5 In 1978, the EPA issued a regulation deeming “all pollutants . . . suitable for calculation of total maximum daily loads.”6 If the EPA no longer believes that all pollutants are suitable for TMDLs, it can amend its regulations to reflect its change in position.

Conclusion
The D.C. Circuit remanded the case to the district court with instructions to vacate the EPA’s seasonal and annual pollution caps. The court indicated that the parties could move for a stay, giving the District of Columbia a chance to establish daily load limits or the EPA a chance to amend its regulations. The court further noted that if the unambiguous term “daily” caused unintended results, the parties should direct their concerns to EPA or Congress.

Endnotes
1. Ray Rivera and Elizabeth Williamson, Anacostia Pollution Limits Tightened, The Washington Post, April 26, 2006.
2. Id.
3. Friends of the Earth v. EPA, 346 F. Supp. 2d 182, 189 (D. D.C. 2004).
4. Friends of the Earth, Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006).
5. 33 U.S.C. § 1313(d)(1)(C).
6. 43 Fed. Reg. 60,622, 60,665 (Dec. 28, 1978).