NACWA, Wet Weather Partnership Seek Supreme Court Review in Clean Water Act Case

Clean Water Advocacy - News Releases - August 25, 2006

For Immediate Release: August 25, 2006

Alexandra Dunn, NACWA General Counsel, 202/533-1083
John Sheehan, Wet Weather Partnership, 804/716-9021

NACWA, Wet Weather Partnership
Seek Supreme Court Review in Clean Water Act Case

The National Association of Clean Water Agencies (NACWA) and the Wet Weather Partnership (WWP) today asked the U.S. Supreme Court to review a decision by the U.S. Court of Appeals for the District of Columbia Circuit that would interfere with efforts to clean up the nation’s waters. NACWA and the Partnership filed their friend-of-the-court brief in support of the petition to the Supreme Court filed by the D.C. Water and Sewer Authority (DC WASA), a NACWA and WWP member agency. WASA has sought review of the April 25, 2006 decision by the D.C. Circuit relating to the total maximum daily loads (TMDL) program under the Clean Water Act.

Specifically, the D.C. Circuit held that daily pollutant load limits are required for all TMDLs and that the seasonal and annual averages for dissolved oxygen and total suspended solids for the Anacostia River in Washington, D.C. which EPA found to protect water quality, were not valid. NACWA and WWP strongly disagree with this conclusion and identify several key reasons the Supreme Court should review the case and overturn the D.C. Circuit’s decision.

DC WASA is one of the 80 NACWA and WWP member agencies that operate combined sewer overflow (CSO) collection systems, which nationwide serve nearly 45 million people. Collectively, CSO communities have already spent about $5 billion to develop and implement plans, many of which are based on TMDLs with seasonal or annual limits approved by EPA. NACWA and WWP argue that many communities may have to revise their plans to adhere to the court’s findings, potentially wasting millions already spent to cleanup their waters and delaying further water quality improvement if the D.C. Circuit’s decision is allowed to stand.

“These TMDLs are subject to challenge based upon the D.C. Circuit’s decision,” NACWA and WWP said in the brief. “The impact of invalidating these TMDLs would not only have adverse regulatory consequences but would also have adverse environmental consequences.” The brief continues that the “ramifications of the D.C. Circuit decision extend far beyond the Anacostia River in the District of Columbia and will significantly impact NACWA’s CSO member communities nationwide.”

Furthermore, NACWA and WWP note that the D.C. Circuit’s decision conflicts with a 2001 ruling by the U.S. Court of Appeals for the Second Circuit, which came to the opposite conclusion, holding that such an interpretation of EPA’s regulations would be “absurd.”

“This ruling in the D.C. Circuit will severely hamper efforts by the nation’s clean water agencies to do their jobs cleaning up rivers and streams using practical, common-sense approaches,” Alexandra Dunn, NACWA General Counsel, said. “The conflict of opinion between the D.C. Circuit and the Second Circuit creates confusion as to how we’re supposed to do that, especially in situations where rivers, such as D.C.’s Anacostia, cross state lines. Annual pollutant loadings could be allowed on one stretch of river and not another.”

NACWA represents the interests of nearly 300 of the nation’s publicly owned wastewater treatment works, serving the majority of the sewered population in the United States, collectively treating and reclaiming over 18 billion gallons of wastewater every day.

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