Clean Water Advocacy - Newsroom - NACWA in the News
Wednesday, May 3, 2006
Grumbles Says EPA Considering Several Options After TMDL Ruling
David Loos, Greenwire reporter
U.S. EPA will move swiftly to address last week's federal appeals court ruling that forces the agency to enforce daily pollution limits but will avoid any approach that could "turn the TMDL program on its head," Ben Grumbles, chief water administrator, said yesterday.
Grumbles said EPA continues to assess an array of regulatory, legislative and legal options following last week's decision that strictly interpreted the definition of total maximum daily load (TMDL), which specifies the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards.
In its strongly worded decision, a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia accused EPA of violating the Clean Water Act by allowing a Washington, D.C., sewage treatment agency to replace daily pollution discharge limits prescribed by the law with long-term annual and seasonal measures in the Anacostia River.
"'Daily' connotes 'every day,'" Judge David Tatel wrote.
"Doctors making daily rounds would be of little use to their patients if they
appeared seasonally or annually."
Grumbles spoke at yesterday's National Clean Water Policy Forum, where the
decision was on the minds of most water managers in attendance. While Grumbles
gave little in the way of specifics about what avenue EPA will pursue following
the ruling, he emphasized that "TMDL needs to remain an important tool."
"We will look at whether or not we can respond to the decision in a
non-regulatory way, we will look at it to see if we need to revise our
regulations on TMDLs, and we will also look at if the best approach is working
with Congress on a targeted statutory change," he said.
"It's a fairly devastating opinion, just in terms of practical implementation,"
said Alexandra Dunn, general counsel for the National Association of Clean Water
Agencies. Though TMDL programs have existed since the 1970s, only in recent
years have they become popular with states and municipalities. All programs
require the approval of EPA.
Dunn said that with new TMDL programs in development throughout the country,
major changes in how pollutants are regulated could have major implications,
particularly in cities such as Washington with combined stormwater and sanitary
sewer systems. "There is a reason that annual measurements are often used," she
said. "The reality is that lots of pollutants are not acute on a daily basis."
Industry officials agree that EPA is going to need to clarify its interpretation
of the provision or ask Congress to amend that provision of the Clean Water Act.
Dunn said amending the CWA is a viable option only if EPA leads the effort. She
cited the conclusion of last week's decision, which noted that "interested
parties should direct their concerns to EPA or to Congress, either of which can
take steps to mitigate any fallout from CWA's unambiguous directive."
Grumbles and other officials have not discounted the possibility of a Supreme
Court showdown over the issue. Grumbles noted last week's ruling creates a split
in the circuit courts. In a 2001 decision by the 2nd U.S. Circuit Court of
Appeals, the judges wrote that interpreting "daily" to be daily would be
"absurd" when it comes to TMDLs.
"They conducted an analysis by looking at TMDLs in the context of the statute,"
Dunn said. "The D.C. Court took a very conservative view."
While pressed for specifics about EPA's strategy, Grumbles noted that the ruling
is less than a week old and the agency will need time to address its
implications. "We want to ensure that there is a practical and scientifically
based approach to implementing the TMDL program," Grumbles said.