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Supreme Court Rejects Petition Seeking Clarity on Daily Discharge Limits
The U.S. Supreme Court Jan. 16 denied review of an appellate court ruling that required the Environmental Protection Agency to set daily discharge limits for impaired waters under the Clean Water Act (D.C. Water & Sewer Authority v. Friends of the Earth Inc., U.S., No. 06-119, certiorari denied 1/16/07).
The D.C. Water & Sewer Authority had petitioned the court to determine whether the U.S. Court of Appeals for the District of Columbia Circuit interpreted the act erroneously by ordering EPA to require total maximum daily limits (TMDLs) for oxygen-depleting pollutants and turbidity in the Anacostia River be calculated on a daily basis rather than a seasonal or annual basis (Friends of the Earth Inc. v. EPA, 446 F.3d 140, 62 ERC 1161 (D.C. Cir. 2006); 80 DEN A-1, 4/26/06 ).
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.
Because the Supreme Court denied the petition, the D.C. Circuit's opinion stands.
Meaning of 'Daily.'
The case 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 U.S. District Court for the District of Columbia held that the word "daily" was ambiguous in the Clean Water Act and that EPA was reasonable in approving seasonal and annual TMDLs for the Anacostia River (Friends of the Earth v. EPA, 346 F. Supp. 2d 182, 60 ERC 1073 (D.D.C. 2004).
The case was appealed and the D.C. Circuit concluded in April 2006 that EPA erred in approving one TMDL based on annual limits for oxygen-depleting substances and a seasonal TMDL based on limits for turbidity-causing total suspended solids, or solid waste discharges, for the Anacostia River. The D.C. Circuit held that the word "daily" in TMDLs means "every day" under the plain language of the statute (144 DEN A-12, 7/27/06 ).
In its petition, the D.C. utility argued that Section 303(d) of the Clean Water Act specifically states that a TMDL must be set at a level necessary to implement the applicable water quality standards and must take seasonal variations and a margin of safety into account. The utility's attorneys said the D.C. Circuit's literal interpretation takes away the flexibility offered by EPA to wastewater utilities in complying with the agency's 1994 combined sanitary overflows (CSO) policy (227 DEN A-1, 11/27/06 ).
In response to the petition, EPA contended that its recently issued nationwide guidance provided enough flexibility to state permitting agencies and to clean water permit holders to apply a daily limit for TMDLs in impaired waters.
Further, EPA said in its brief that the case did "not warrant" 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.
NACWA 'Disappointed' With Decision
The National Association of Clean Water Agencies said Jan. 16 it is disappointed the Supreme Court did not accept the D.C. Circuit decision for review. NACWA joined with the Wet Weather Partnership in filing a brief in support of the D.C. Water and Sewer Authority, a NACWA member agency.
The court's refusal to hear the case leaves a split between the D.C. Circuit and the U.S. Court of Appeals for the Second Circuit on how to interpret the TMDL provisions in the Clean Water Act, NACWA said. The Second Circuit ruled in 2001 that EPA did not need daily TMDL limits to protect water quality in impaired water (NRDC v. Muszynski, 289 F.3d 91, 53 ERC 1289 (2d. Cir. 2001); 198 DEN A-2, 10/16/01).
NACWA said it considered the Friends of the Earth case a good opportunity for the Supreme Court to clear up the confusion between the two circuits. The association added that it will continue to work with EPA "to ensure any forthcoming guidance provides a clear and consistent direction for the nation's clean water agencies on implementing the TMDL program."
By Andrew S. Neal