Member Pipeline - Fax Alerts - April 28, 2006
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for the FaxAlert ArchiveApril 28, 2006
NACWA Preparing
Strategic Response to this Week’s “Daily” Load Decision
In a decision with national implications, the U.S. Court of Appeals for the D.C. Circuit ruled on Tuesday, in Friends of the Earth v. EPA, that all total maximum daily loads (TMDLs) must specify daily pollutant loadings, and that if this is not possible EPA should either 1) seek an amendment to Clean Water Act (CWA) § 303(d) or 2) change the federal TMDL regulations. NACWA’s Board, and its Water Quality and Legal Affairs Committees will discuss strategic next steps in response to the court’s decision this Sunday at NACWA’s May conference. The decision is on NACWA’s Litigation Tracker (http://www.nacwa.org/getfile.cfm?fn=2006-04-25foeop.pdf).The case specifically concerns TMDLs for dissolved oxygen (DO) and total suspended solids (TSS) for D.C.’s Anacostia River, which were expressed as annual and seasonal averages, respectively. The court did not accept EPA’s urging that the word “daily” in TMDL did not preclude expressing TMDLs in non-daily terms (such as seasonal or annual) where the pollutant of concern was not suitable for calculating daily loadings. The court reasoned that “daily means daily, nothing else.” The court further explained:
“[w]e have even less sympathy for EPA's argument given that the agency's predicament is largely of its own creation. The CWA requires the establishment of TMDLs only for "suitable" pollutants, 33 U.S.C. § 1313(d)(l)(C), and although a 1978 EPA regulation provides that "[a]ll pollutants ... are suitable for the calculation of total maximum daily loads," 43 Fed. Reg. at 60,665, EPA conceded at oral argument that nothing forecloses the agency from reconsidering that position. Given that EPA's entire justification for establishing non-daily load limits is that certain pollutants are unsuitable for daily load limits, we are at a loss as to why it neglected this straightforward regulatory fix in favor of the tortured argument that "daily" means something other that daily. At any rate, EPA can change its regulation; we cannot rewrite the Clean Water Act.”
The court ultimately invites EPA to change its regulation stating that “[t]he parties may move to stay the district court’s order on remand to give … EPA a chance to amend its regulation [that] declares ‘all pollutants … suitable’ for daily loads.”
Practical arguments made by NACWA and the CSO Partnership (CSOP) in our 2005 amicus curiae brief were considered, but essentially brushed aside by the court’s straightforward analysis. Our brief showed how a stringent interpretation of the word daily in CWA § 303(d) would undermine CWA § 402(q)’s program for combined sewer systems and CWA’s § 402(p)’s approach to municipal separate storm sewer (MS4) discharges. Responding to similar points made at oral argument by NACWA member agency the District of Columbia Water and Sewer Authority (DCWASA), the court stated “the tension between the CSO Policy’s flexibility and the perceived rigidity of daily loads exists only if daily loads must of necessity be set so low that any storm-event discharge would violate them – a premise unsupported anywhere in the record.” The court concludes that “[i]f adherence to this mandate leads to unintended consequences for water quality or for municipal pocketbooks, interested parties should direct their concerns to EPA or to Congress.”
NACWA’s leadership will evaluate several possible responses to the court’s decision, including: 1) seeking to amend CWA § 303(d); 2) preparing and filing a petition with EPA seeking to remove certain pollutants, which are unsuitable for daily loads, from the TMDL program; and 3) participating in any rehearing of the case before the DC Circuit or, given the new split of opinion on this very issue between the DC Circuit and the Second Circuit, perhaps before the U.S. Supreme Court.
Ben Grumbles, EPA's Assistant Administrator for Water, was quoted in the trade press stating that the Agency would work to revise the total maximum daily load (TMDL) rules "to ensure pollution budgets meet the letter of the law and result in real and measurable improvement to water quality." NACWA will seek to have him elaborate on this at the NACWA/WEF National Clean Water Policy Forum next week. More information on NACWA’s next steps will be reported to the membership as soon as possible. In the interim, questions regarding the decision may be addressed to NACWA’s General Counsel, Alexandra Dunn, at 202/533-1803 or via e-mail at adunn@nacwa.org.