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EPA Asks Supreme Court to Reject Petition Seeking Clarity on Daily Discharge Limits
The Environmental Protection Agency asked the U.S. Supreme Court on Nov. 22 to reject a petition by District of Columbia's wastewater utility to review a recent appellate court ruling that required EPA to set daily discharge limits for impaired waters (D.C. Water and Sewer Authority v. Friends of the Earth Inc., U.S., No. 06-119, 11/22/06).
EPA contended that its' recently issued nationwide guidance provides enough flexibility to state permitting agencies and to clean water permit holders to apply a daily limit for total maximum daily loads (TMDL) in impaired lakes, streams, and rivers, as required by the U.S. Court of Appeals for the District of Columbia in April (222 DEN A-9, 11/17/06 ).
The D.C. Circuit opinion requiring more stringent daily limits
for discharging pollutants into impaired waters "does not warrant" a Supreme
Court review because the "judgment will only have limited effect because it is
controlling law only in the District of Columbia," the government said. EPA's
"recently issued nationwide guidance for expressing TMDLs as daily loads" clears
up any ambiguity on how to apply daily discharge limits, the government added.
A TMDL is a calculation of the maximum amount of a pollutant that a water body
can receive and still meet water quality standards. EPA has the authority to
approve or disapprove TMDL lists prepared by states in compliance with Section
303(d) of the Clean Water Act.
The Clean Water Act requires that effluent limits for permit holders reflect the
approved TMDL limits, whether they be daily, annual, or seasonal, for impaired
waters.
Brief Responds to D.C. Utility Petition
The agency's brief responds to the petition filed in July by the District of
Columbia Water and Sewer Authority. The utility asked the Supreme Court to
review whether the D.C. Circuit interpreted the Clean Water Act erroneously by
ordering EPA to require daily TMDL limits for oxygen-depleting pollutants and
turbidity causing sediments in the Anacostia River (Friends of the Earth Inc. v.
EPA, D.C. Cir., No. 05-5015, 4/25/06; 144 DEN A-12, 7/27/06 ).
The case before the D.C. Circuit dealt with two of the Anacostia River's water
quality standards--dissolved oxygen levels and applicable turbidity standards.
To fix the water quality, EPA approved one TMDL limiting the annual discharge of
oxygen-depleting pollutants and another TMDL limiting seasonal discharges that
cause turbidity. Friends of the Earth, an environmental advocacy group, sued EPA
in the district court for not requiring daily discharge limits.
The D.C. Circuit remanded the ruling issued by the U.S. District Court for the
District of Columbia, which said that EPA was reasonable in approving seasonal
and annual TMDLs for the Anacostia River because the meaning of the term "daily"
was ambiguously stated in the Clean Water Act (Friends of the Earth v. EPA, 346
F. Supp. 2d 182, 60 ERC 1073 (D.D.C. 2004)).
The District of Columbia Water and Sewer Authority petitioned the Supreme Court
because the D.C. Circuit decision requires it to discharge pollutants in
compliance with the daily TMDL limits for the Anacostia River.
The utility also asked the Supreme Court to clear up the "significant
uncertainty" generated by two conflicting opinions from the D.C. Circuit and the
U.S. Court of Appeals for the Second Circuit.
The Second Circuit ruled in 2001 that EPA did not need daily TMDL limits to
protect water quality in impaired water (NRDC v. Muszynski, 53 ERC 1289 (CA 2
2001); 198 DEN A-2, 10/16/01).
Daily Limits Not Required in Permits
In its brief to the Supreme Court, EPA said the Clean Water Act provides the
flexibility for determining what limits should be included in TMDLs. The
"crucial hallmark and function of a TMDL is not that it is expressed in daily
terms, but that it is set at a 'level necessary to implement the applicable
water quality standards with seasonal variations,' " the agency said.
In both the guidance and the brief, EPA said it tried to alleviate concerns
among discharge permit holders that a daily TMDL limit would lead to more
stringent standards. In the guidance, EPA stated that the Clean Water Act has
"some flexibility" in how daily TMDLs are expressed.
EPA maintained that the "current disagreement between the D.C. and Second
circuits will only have limited prospective effect" because the agency's
guidance directs all permitting agencies to draft TMDLs consistent with the D.C.
Circuit, but in a way that accounts for seasonal variations.
The National Association of Clean Water Agencies, which represents publicly
owned wastewater utilities, also is supporting the D.C. Water and Sewer
Authority's petition to the Supreme Court.
Wastewater Utilities Disappointed With EPA
Alexandra Dunn, NACWA's general counsel, told BNA Nov. 24 she is "disappointed"
that EPA didn't support the utility's petition before the Supreme Court.
"We think the [Supreme Court] would have taken the case because there is a solid
split between the appellate courts," Dunn said. "Without EPA's support for
review, it is unlikely the Supreme Court will take the case."
Dunn said she disagrees with EPA that the guidance should resolve the legal
uncertainties arising from the appellate court decisions. In the absence of a
legal review, Dunn said the wastewater utility industry would remain "open" to
the idea of petitioning EPA to promulgate rules that clarify what a daily TMDL
entails. That is the avenue the D.C. Circuit suggested as a possible remedy, she
said.
NACWA and others, however, will wait to see how much controversy EPA's guidance
generates and how many challenges are issued as a result of the guidance before
they decide to petition for additional rulemaking, Dunn said.
By Amena H. Saiyid