NACWA Regulatory Alert (RA 06-06)

In recent weeks, NACWA has reported frequently to the membership on legal and policy ramifications of the April 25 decision of the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit that all total maximum daily loads (TMDLs) must specify daily pollutant loadings, and that if this is not possible the U.S. Environmental Protection Agency (EPA or Agency) should either 1) seek an amendment to Clean Water Act (CWA) § 303(d) or 2) change the federal TMDL regulations. The case, Friends of the Earth (FOE) v. EPA, is posted on NACWA’s Litigation Tracker at http://www.nacwa.org/getfile.cfm?fn=2006-04-25foeop.pdf.

This Alert reports on recent developments in this matter, and outlines NACWA’s next steps. Although the FOE decision is legally binding only in the D.C. Circuit, EPA is developing a response to the decision that will have national implications, as described in more detail in this Alert. NACWA will discuss these issues further at the Water Quality Committee meeting during NACWA’s 2006 Summer Conference and 36th Annual Meeting, to be held in Seattle, WA from July 18 – 21. The Committee will meet on Tuesday, July 18 from 10 a.m. to 11:15 a.m. As always, if you have any questions regarding the issues discussed in this Alert, please do not hesitate to contact NACWA’s General Counsel Alexandra Dunn at 202/533-1803 or adunn@nacwa.org or NACWA’s Director of Regulatory Affairs, Chris Hornback, at 202/833-9106 or chornback@nacwa.org.

I. Supreme Court Avenue Still Open
One possible avenue for NACWA activity would have been continued involvement in a rehearing of the FOE case before the D.C. Circuit. On June 9, however, the deadlines for further court action passed without either EPA or intervenor and NACWA member agency the District of Columbia Water and Sewer Authority (DC WASA) pursuing further legal review.

EPA, as represented by the U.S. Department of Justice (DOJ), still has until July 24 to file a petition for a writ of certiorari to the U.S. Supreme Court. Although early signs are that neither EPA nor DOJ are interested in pursuing this option, the judicial process still remains a viable forum for further evolution of this case. As an intervenor, DC WASA also could seek certiorari. The U.S. Supreme Court is interested in resolving conflicts among the federal judicial circuits. In this case, the D.C. Circuit opinion stands in direct conflict with a decision of the U.S. Court of Appeals for the Second Circuit which held that interpreting “daily” narrowly would yield “absurd” results. See Natural Resources Defense Council v. Muszynksi, 289 F.3d 91 (2d Cir. 2001). Despite this clear “circuit split,” the Supreme Court takes only a fraction of the cases presented for review, and thus even with a split, it is unlikely that the Court would accept the case. Nonetheless, we will keep the membership apprised of any new developments in the legal arena.

II. EPA’s Plans
On May 29, NACWA staff, Norm LeBlanc, Chair of the Association’s Water Quality Committee and Director of Water Quality at the Hampton Roads Sanitation District, Virginia Beach, VA, and representatives from the Federal Water Quality Coalition (of which NACWA is a member), met with EPA staff to discuss the Agency’s initial response to the FOE decision. EPA has been communicating in recent weeks with the Regions and states on how to best accommodate the court’s ruling. At this time, it does not appear that EPA plans any wholesale changes to the federal TMDL regulations. Rather, EPA is preparing a brief policy memorandum, expected to be issued soon, which would recommend that all states and Regions developing TMDLs consider including a daily expression of pollutant loadings in a TMDL. Again, while the FOE decision is legally binding only in the D.C. Circuit, NACWA understands that EPA’s memo will make recommendations to all states and Regions. Additional guidance on how these daily expressions are developed will be the subject of a more in-depth document that EPA expects to develop over the next few months.

EPA’s plans seem to provide significant flexibility to permit writers to develop non-daily permit limits so long as they are “consistent with” (as required by 40 CFR § 122.44(d)(1)(vii)(B)) the wasteload allocation in a TMDL. While EPA’s plans make practical sense and would minimally disrupt the existing TMDL program, they could be challenged in the future by the environmental activist community as inconsistent with the spirit of the FOE decision.

In addition, while a non-disruptive policy approach may prove to be the most favorable in terms of real world implementation, NACWA will be carefully reviewing EPA’s development of memoranda and guidance addressing the FOE decision. In particular, NACWA will study EPA’s drafts (to the extent they are made available) to ensure they address the unique concerns of combined sewer overflow (CSO) communities, municipal separate storm sewer systems (MS4s), and other clean water utility situations. We will keep the membership informed of EPA’s progress towards release of the described memoranda.

III. Congressional Activity Unlikely
The D.C. Circuit urged EPA to, if necessary, to amend CWA § 303(d), which references “daily” loads. However, given the limited days that Congress remains in session, and the controversial nature of most environmental statutory changes, at this time it appears unlikely that EPA, NACWA, or other parties will pursue changes to the CWA on the daily load issue. However, the outcome of EPA’s non-regulatory approaches described above may lead to a need for Congressional intervention in the future.

IV. NACWA’s Next Steps
NACWA’s next steps will focus on the memoranda EPA plans to develop. We will continue to engage with EPA on this important issue so that the views of the clean water community are heard. At its May meeting, NACWA’s Board of Directors authorized Fiscal Year (FY) 2006 Targeted Action Funds (TAF) for work on this matter. Given recent developments, NACWA’s Water Quality and Legal Affairs Committees will be evaluating the best expenditure (if any) of these funds. We will report on further developments as they occur, and look forward to discussing these issues with the membership in Seattle, WA.