Search
AMSA Legal Alert (Leg04-10)

Member Pipeline - Legal - Alert (Leg 04-10)

To: Members & Affiliates, Legal Affairs Committee
From: National Office
Date: December 7, 2004
Subject: COURT RULES FAVORABLY IN TOTAL MAXIMUM “DAILY” LOAD CASE
Reference: Legal Alert 04-10

print Printer friendly version

On November 29, the U.S. District Court for the District of Columbia (District) handed AMSA a clear victory in Friends of the Earth (FOE) v. U.S. Environmental Protection Agency (EPA) when it rejected FOE’s argument that total maximum daily loads (TMDLs) can only be expressed as true “daily” limits. In the case, FOE challenged EPA’s approval of TMDLs for the District’s Anacostia River for biochemical oxygen demand (BOD) using a yearly average, and for total suspended solids (TSS) using a seasonal average. AMSA was joined by the CSO Partnership (CSOP) on a July 16 amicus brief in this case supporting member agency the District of Columbia Water and Sewer Authority (DC WASA).

The court’s opinion provides the following guidance that should be of interest to AMSA members across the nation, particularly on TMDL and combined sewer overflow (CSO) policy issues:

This Alert summarizes the decision and its implications for AMSA members. A copy of the decision is available in the Litigation Tracking section of AMSA’s Member Pipeline. As always, please feel free to contact AMSA’s General Counsel Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org with any questions.

I. Case Background

FOE originally brought this case in the U.S. District Court for the District of Columbia Circuit. FOE argued that EPA arbitrarily approved the annual TMDL for DO and seasonal TMDL for turbidity for the Anacostia River because they are insufficient to achieve the District’s water quality standards (WQS). AMSA and DC WASA filed a January 2003 amicus brief before the court of appeals on the substantive issue that 24-hour load form TMDLs for BOD and TSS would conflict with CWA § 402(q) and effectively preclude implementation of EPA’s 1994 CSO Policy.

In June 2003, however, the appeals court dismissed the case for lack of jurisdiction without reaching the substantive issues in the case. FOE v. Whitman, 333 F.3d 184 (D.C. Cir. 2003). The court found that EPA approval of a TMDL is not “approval or promulgation of an effluent limitation” – and thus the EPA action is not subject to direct review in the appeals courts under CWA § 509(b)(1)(E). The dismissal clarified, to the extent there was a question, that TMDL challenges generally should be filed in federal district court. The case then proceeded before the U.S. District Court for the District of Columbia.

II. AMSA’s Amicus Brief

After DC WASA intervened in the case as a defendant in March 2004, AMSA joined with the CSOP to file a July 2004 amicus brief to continue our support of DC WASA. FOE’s argument that TMDLs may be expressed only on a daily basis turned on whether the court would find “daily” as used in CWA § 303(d) an ambiguous term and not the conscious decision of Congress to strictly limit TMDL form. Accordingly, our brief showed how a literal interpretation of “daily” would place the TMDL program in direct conflict with other key municipal CWA programs, particularly CWA § 402(q) for CSOs and § 402(p) for municipal separate storm sewer systems (MS4s). Our brief also provided essential background information to the court on municipal efforts to control CSOs and the challenges municipalities face integrating the CWA’s many wet weather programs.

III. Highlights of the Decision

The court rendered its November 29 decision following a review of EPA and FOE’s cross motions for summary judgment and our amicus brief. The court agrees with EPA and AMSA that Congress did not endorse “an exclusive and narrow daily load calculation for water pollutants for all circumstances, at any regulatory cost, and for zero or trivial regulatory benefit.” Opinion at 11. AMSA’s amicus brief clearly impacted the court’s decision. The court discusses CWA § 402(q) in depth, noting it gives “localities several options for managing sewage overflow from heavy rain” including “permitting processes for long-term plans that allow for various annual overflow events, unlike the uniform and regular daily load limits found in section 303(d).” Id. at 3. The court also references CWA § 402(p)’s use of best management practices for MS4s, which also does not require daily calculation of pollutant reductions or loads. Embracing AMSA’s arguments, the court finds that “if municipalities cannot calculate non-daily TMDLs for their sewage overflow programs, they cannot implement EPA’s CSO Policy.” Id. at 12, note 4. This finding is helpful for AMSA members facing TMDLs in CSO-receiving waters, since non-daily TMDLs are more likely to be consistent with CSO long-term control plans.

In the face of an ambiguous statutory term, courts must give substantial deference to a regulatory agency’s decision. Thus, the court then analyzes whether EPA acted arbitrarily in approving the challenged TMDLs and whether the TMDLs would achieve WQS. The court finds EPA’s choice of a yearly term for BOD limits and a seasonal term for TSS limits reasonable given the information before EPA. In response to FOE’s argument that the TSS TMDL protects wildlife but not recreational and aesthetic uses, the court notes that EPA chose the “most pressing problem” for which the most data was available. Id. at 19-20. This ruling supports prioritizing water quality challenges within a TMDL – also a helpful holding for cities dealing with multiple impairments in a receiving water body.

Further, the court finds that EPA adequately considered the effects of short-term pollutant peaks that might result from the annual or seasonal loads, in light of scientific uncertainty and EPA's use of reliable computer models. The court’s deference to “reliable” modeling opens the door for cities to argue that poor modeling certainly is not entitled to deference. The court also defers to EPA’s conclusion that the TMDLs would meet WQS, particularly because FOE did not present contradictory evidence on this point. And, while FOE alleged EPA improperly calculated the MOS, the court finds EPA’s approach workable “as a matter of administrative policy and scientific uncertainty.” Id. at 26. In this case, EPA used an implicit margin, through conservative loading assumptions, plus a one percent explicit margin. This aspect of the ruling also is helpful, as smaller MOS are generally more equitable for point sources.

The court agreed with FOE’s argument that the District’s narrative criteria for turbidity are subjective. However, the court held that EPA’s decision-making process does not have to “yield to the whim of that unlikely aquatic enthusiast who will not tolerate anything less than the immediate enjoyment of river waters after disruptive storm events." Id. at 31. This helpful statement shows that some courts may be inclined to take a more practical approach to the CWA’s various wet weather control requirements.

Finally, the court rejected FOE’s desire to have individual wasteload allocations assigned to each stormwater and CSO outfall. The court found a single gross allocation appropriate for the District’s 1000 stormwater outfalls and for DC WASA’s CSO outfalls because a single permit was involved. The court notes that allocation can be more complicated where sources are covered by multiple permits, and that individual source allocations might be more workable in such cases. Id. at 33. However, this comment by the court is non-binding dicta.

IV. Effect of the Decision

The court’s decision substantially bolsters the ability of regulatory agencies to develop TMDLs for CSO and stormwater receiving waters using annual, seasonal, or other non-daily load approaches. This decision, provided it is not changed on appeal, will provide strong precedent against arguments that TMDLs must be developed using “daily” loadings.

This also is the first court decision discussing the effect of Congress’ incorporation by reference of EPA’s 1994 CSO Policy in CWA § 402(q). This court notes in referring to § 402(q) that “[i]t need hardly be said that ‘when Congress acts to amend a statute [courts] presume it intends its amendment to have real and substantial effect.’” Id. at 12, note 4. This helpful statement shows the court appreciates Congress’ deliberate endorsement of the CSO Policy and the flexible controls for CSOs it embodies.

Also useful is this court’s emphasis on “reliable” modeling in the face of scientific uncertainty. Finally, this court’s recognition that there are individuals for whom the water will never be clean enough following wet weather reflects a realistic and rich understanding of the challenges municipalities face in controlling storm events.

*    *    *    *    *