• Clean Water Act
• Environmental

Supreme Court Declines to Grant Certiorari in Case Requiring Daily Pollutant Limits for Clean Water Act Total Maximum Daily Loads

Beveridge & Diamond, P.C., January 18, 2007

On January 16, 2007, the U.S. Supreme Court declined to grant certiorari to review the D.C. Circuit’s 2006 decision finding that the Clean Water Act’s Total Maximum Daily Load (“TMDL”) requirements compel EPA to establish daily pollutant loadings, rather than annual, seasonal, or other temporally based types of pollutant loadings.  Friends of the Earth, Inc. v. EPA, et al., 446 F.3d 140 (D.C. 2006).  The D.C. Circuit held that “[d]aily means daily, nothing else,” based on the court’s view that nothing in the TMDL section of the  Act  “even hints at the possibility that EPA can approve total maximum ‘seasonal’ or ‘annual’ loads.”  Id. at 142, 144.  In so holding, the D.C. Circuit expressly rejected the more contextual approach to the issue previously taken by the U.S. Court of Appeals for the Second Circuit,  which found that the use of the word “daily” was “susceptible to a broader range of meanings” than loads calculated on a daily basis, given other statutory references requiring EPA and states to account for seasonal variations and other factors in establishing TMDLs.  Natural Res. Def. Council, Inc., v. Muszynski, 268 F.3d 91 (2d Cir. 2001).  For further analysis of the D.C. Circuit’s Friends of the Earth decision, click here.

The District of Columbia Water and Sewer Authority, an intervenor in the lower court case, petitioned the high court to review the decision in
Friends of the Earth, which affected D.C. area waters, such as the Anacostia River.  EPA opposed the cert. petition, arguing to the Court that the D.C. Circuit’s opinion in Friends of the Earth had limited jurisdictional reach, as it only applied in the District of Columbia, and that a resolution of the Circuit split was not of national significance to the Agency.  EPA also argued that the decision had limited practical effect on  EPA’s programs for improving water quality since the court’s directive would not alter EPA’s existing policy and guidance for establishing National Pollutant Discharge Elimination System (“NPDES”) permit terms based on TMDLs.  Indeed, in new guidance written as the Supreme Court was evaluating the cert. petition, EPA stated its continued belief “that the use of the word ‘daily’ in the term ‘total maximum daily load’ is not an unambiguous direction from Congress that TMDLs must be stated in the form of a uniformly applicable 24-hour load.”  “Establishing TMDL ‘Daily’ Loads in Light of the Decision by the U.S. Court of Appeals for the D.C. Circuit in Friends of the Earth, Inc. v. EPA, et al., No. 05-5015 (April 25, 2006) and Implications for NPDES Permits,” (November 15, 2006) (“EPA Memorandum”). Nevertheless, acknowledging the “significant legal uncertainty” within the regulated community  given the split Circuit decisions, EPA prepared the new guidance to provide direction on how to address the establishment of daily loads in TMDLs prepared or revised in the future.

In the EPA Memorandum, the Agency “recommends” that all future TMDLs and pollutant load allocations, including future revisions of existing TMDLs, be expressed in daily time increments.  TMDLs currently under development should be revised “if feasible” to express daily loads.  The  EPA Memorandum does not propose any changes to existing EPA policy or guidance, as the Agency believes it has sufficient flexibility under current practice for the expression of daily pollutant loads.  The bigger focus of the EPA Memorandum, and presumably the primary reason EPA argued to the Supreme Court as it did, was the Agency’s view that Friends of the Earth does not affect a NPDES permit writer’s authority to use discretion in establishing NPDES permit terms based on TMDLs, however written, because there is no express or implied Clean Water Act requirement that TMDL-driven effluent limitations be expressed solely in daily terms.  Moreover, EPA regulations requiring the permitting authority to ensure that the permit will allow for the achievement of water quality standards does not require that effluent limitations in NPDES permits be expressed in an identical form as TMDL pollutant load allocations. 

Now that it is clear the Supreme Court will not weigh in on the TMDL “daily” issue as decided by the D.C. and Second Circuits, the next important development in this area of water quality law will be the issuance of guidance by EPA over the next few months on the establishment of daily pollutant load allocations for bacteria, TSS, sediments, and nutrients, which are of particular concern because these pollutants, due to the nature of how they reach and impact water bodies, are commonly measured on annual and seasonal bases.  EPA also expects to issue a series of technical fact sheets and case studies during 2007 to assist in the development of pollutant loads for all pollutants.

If you would like to discuss the implications of the EPA Memorandum, the Circuit split, or the Supreme Court’s denial of the cert. petition in Friends of the Earth  in greater detail, please contact Karen Hansen at (202) 789-6056 (khansen@bdlaw.com), Richard Davis at (202) 789-6025 (rdavis@bdlaw.com), or Ami Grace-Tardy at (202) 789-6076 (agrace@bdlaw.com).