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D.C. Circuit Holds that Total Maximum Daily Loads Under the Clean Water Act Require Daily Pollutant Limits

Richard Davis and Ami Grace-Tardy
Beveridge & Diamond, P.C., May 1, 2006

The U.S. Court of Appeals for the District of Columbia has decided that waterbody pollutant limits established for impaired waterbodies under the Clean Water Act, known as Total Maximum Daily Loads (“TMDLs”), must include daily pollutant limits, not annual or seasonal limits as currently allowed by the U.S. Environmental Protection Agency (“EPA”).  Specifically, in Friends of the Earth, Inc. v. Envtl. Prot. Agency, D.C. Cir., No. 05-5015, April 25, 2006, the D.C. Circuit responded to a petition to review two TMDLs established for the Anacostia River, an impaired river that flows through the Nation’s capital.  The petition alleged that EPA had erroneously approved TMDLs that set annual and seasonal loading limits, as opposed to daily limits.  Initially, the Court of Appeals transferred the case to the U.S. District Court for the District of Columbia, which held that the Clean Water Act does not clearly require EPA to calculate only daily TMDLs.  When the case returned to the D.C. Circuit on appeal, the Court reversed and remanded the case to the district court with instructions to vacate EPA’s approvals of the Anacostia River TMDLs.

The Court of Appeals began its analysis by referring to the Clean Water Act, which states that, where waters fail to achieve water quality standards even after the imposition of technology-based standards, states must establish “total maximum daily loads, for those pollutants which the Administrator identifies . . . as suitable for such calculation.”  33 U.S.C. § 1313 (d)(1)(C).  Based on this language and the fact that EPA has found all pollutants suitable for TMDL calculations, the Court unequivocally concluded that Washington, D.C. must establish a daily “total maximum daily load” for each pollutant that violates the Anacostia River’s water quality standards. 

The Court rebuffed EPA’s arguments that the phrase “total maximum daily load” is a term of art that should be understood in light of the remainder of the statute (in which Congress details TMDL requirements without elaborating on the word “daily”), and that some types of pollutants are simply impossible to regulate on a daily load basis.  Again, the D.C. Circuit looked to the plain language of the Clean Water Act.  Concluding that that the meaning of that language is clear on its face, the Court stated that EPA cannot ignore Congressional intent simply because EPA has a preferred policy or because the Agency believes the statute’s plain language may lead to undesirable consequences.  Furthermore, because EPA was afforded the power to determine which pollutants are suitable for the establishment of TMDLs, the Court was at a loss as to why EPA had not made a regulatory change if, indeed, TMDLs are not suitable for the pollutants in question.

In addition to these arguments, the Court also rejected the arguments of the intervenor, the D.C. Water and Sewer Authority, that EPA’s flexible Combined Sewer Overflow Policy, developed as a result of Clean Water Act amendments by the 106th Congress in 2000, was in tension with the TMDL mandates under the Clean Water Act.  The Court gave little credence to the 106th Congress’ opinion of what the 92nd Congress meant by “daily,” and concluded that the CSO Policy would only conflict with TMDL requirements if pollutant loads were set so low that any storm event would violate the TMDL.  In summary, the D.C. Circuit stated that record was not sufficiently persuasive to move the Court to substitute EPA’s-preferred policy for the plain language of the Clean Water Act.  Moreover, “[w]hile Congress almost assuredly never considered combined sewer systems when enacting the CWA it spoke unambiguously in requiring daily loads.” 

This major decision by the D.C. Circuit may have significant consequences for the Clean Water Act’s TMDL program, and for the many municipalities and industrial facilities that discharge into impaired waterbodies.  EPA’s policy of allowing annual or seasonal discharge limits in lieu of daily limits is now prohibited in Washington, D.C. and will, presumably, be called into question in other jurisdictions.  With this decision, however, the Circuits are split on whether TMDLs must be stated in terms of daily loading limits.  Natural Res. Def. Council, Inc., v. Muszynski, 268 F.3d 91 (2d Cir. 2001) (holding that requiring the word “daily” to actually mean daily would be absurd, especially for some pollutants).  Whether this split yields review by the Supreme Court, a regulatory response by EPA, or further litigation in other Courts of Appeals is a subject that is under active consideration by all of the stakeholders.  . 

If you would like to discuss the implications of the Friends of the Earth case in greater detail, or believe that this new opinion may have an impact on a pending matter in which you are involved, you can reach Richard Davis at (202) 789-6025 (rdavis@bdlaw.com), Karen Hansen at (202) 789-6056 (khansen@bdlaw.com) or Ami Grace-Tardy at (202) 789-6076 (agrace@bdlaw.com).

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