High Court Opts Out Of Dirty-Water Debate

Lower-court ruling on pollutant control definitions stands, but issue remains far from clear

1/29/2007

By Bruce Buckley

A recent appellate court ruling that redefines how Washington, D.C., measures pollutants in its sewer overflows could affect billions of dollars’ worth of wastewater projects aimed at reducing sewage in bodies of water nationwide, with the U.S. Supreme Court’s Jan. 16 decision not to review it.

The high court let stand an April decision by the U.S. Circuit Court of Appeals for the District of Columbia that required stricter measurement of “total maximum daily loads” (TMDL) of pollutants from the city’s combined sewer overflows (CSO) spilling into the Anacostia River. The U.S. Environmental Protection Agency had previously defined TMDL in the Clean Water Act based on seasonal daily averages, taking into consideration that pollutant levels could be higher from heavy storms sending overflows into the river.

In April, the D.C. Circuit ruled in  favor of environmental group Friends of the Earth that “daily connotes every day,” suggesting that actual daily readings would need to be enforced. The D.C. Water and Sewer Authority (DCWASA) and the National Association of Clean Water Agencies in July sought Supreme Court review of the ruling. EPA and Friends of the Earth filed motions last November against that move. 

“The circuit court was very clear in its ruling that EPA’s approach to cleaning up the Anacostia was inadequate under the law,” says David Baron, an attorney who represents Friends of the Earth.

The ruling is expected to impact DCWASA’s $2.2-billion, 20-year long-term control plan, which includes construction of eight miles of new “subway-sized” tunnels, pumping station improvements and upgrades at its 370-million-gallon-per-day Blue Plains Wastewater Treatment Plant.

Environmentalists hailed the case as setting a precedent for other communities with CSO systems. At least 772 municipalities have them, spending nearly $5 billion to develop and implement plans in recent years, says NACWA. “By establishing this new way of [measuring TMDL], we have to go back and rework these plans,” says Susan Bruninga, a NACWA spokesperson. “If anything, it will delay when we’ll put these controls in place.”

The ruling could have a chilling effect on water-sewer agencies that oversee CSOs as they review their improvement plans, says Jodi Perras of Perras and Associates, an Indianapolis consultant. “Communities need some certainty that when they are investing billions of dollars of ratepayers’ money, the investment will bring them into compliance and meet requirements,” she says. “Does it make sense to go after that next larger storm, that one storm that occurs once or twice a year? The bigger the storm you try to capture, the more money you spend. Most engineers working on this don’t see a lot of sense in that.”

DCWASA’s plans will be delayed and the project could potentially go back to the drawing board, says spokeswoman Michele Quander Collins. The court has given EPA until June 2008 to finalize TMDL revisions to those now in place, she says. DCWASA has already slowed plans to make 180 soil borings at potential tunnel sites.

“The waiting could slow down our work by a few years on the control plan,” Collins says. “We don’t want to continue to invest billions in a design that won’t meet water quality standards.”

In addition to its CSO plan, DCWASA’s resources are already stretched to tackle billions of dollars’ worth of other capital projects, such as replacing a large portion of its water service lines and improvements at Blue Plains.

While the outcome of the case will lead to changes in how EPA sets TMDL standards, there is lingering uncertainty about how the standard will be applied. In November, EPA Assistant Administrator Benjamin Grumbles recommended in a memo that “states consult with EPA regarding TMDL projects early in the development process to determine appropriate approaches to expressing TMDLs and allocations.” But he added that the court decision does not affect existing EPA policy and guidance as expressed in National Pollution Discharge Elimination System permits.

NACWA General Counsel Alexandra Dunn expects the conflicting interpretations will lead to a wave of lawsuits from environmental groups, likely delaying other major water and sewer upgrades nationwide. “EPA is setting communities up for failure because they are saying that daily means daily, but we won’t implement it that way,” she says. “We’re left with EPA setting guidance that transfers the battlefield to the permits. Rather than clearing the water in terms of national policy, it only muddies it.”