Anacostia Riverkeeper v. EPA
In May 2009, the NACWA Board approved Association participation in Anacostia Riverkeeper v. U.S. Environmental Protection Agency (EPA), a total maximum daily load (TMDL) appeal pending in the U.S District Court for the District of Columbia (D.C.). After successfully litigating to force EPA to include daily loads in TMDLs in 2006, the plaintiffs now seek to have daily loads be controlling even when the TMDL is directed towards achieving seasonal or annual loadings. The TMDL at issue in the case primarily addresses sediment and total suspended solids that may be discharged over both the growing season and annually. The plaintiffs allege that the daily loads are not stringent enough to achieve the applicable water quality standards of both Maryland and the District of Columbia. NACWA, along with the Wet Weather Partnership and other municipal groups including member agency DC Water, filed a Motion to Intervene in the litigation in 2009, taking the position that restrictive daily loads are not necessary to control pollutants that only need to be regulated on a seasonal or annual basis.
The United States District Court for the D.C. issued a ruling July 25, which was largely favorable for municipal interests in the litigation challenging the Anacostia River TMDL for sediment and total suspended solids (TSS). The court’s decision granted NACWA’s Motion for Summary Judgment in part and denied it in part. In agreeing the municipal intervenors and EPA, the court found that:
- It is permissible to set very high daily loadings for sediment/TSS when striving to implement a standard for secchi depth that is expressed as seasonal or annual averages — this was the main issue in the case and is a critical victory for NACWA and the municipal utility community;
- EPA properly targeted the TMDL to the seasonal secchi depth criteria rather than the numeric turbidity criteria;
- EPA may impose wasteload allocations for municipal separate storm sewer systems (MS4s) in the aggregate rather than having to break the loadings down and apply them to individual outfalls; and
- EPA may use an implicit margin of safety.
However, the court disagreed with EPA’s omission of loadings for other, non-aquatic life uses and held that when developing a TMDL for a particular pollutant, the State or EPA must address all applicable water quality standards (WQS), including all designated uses and water quality criteria. The court rejected the argument that the TMDL need only address the use impairments included in the state’s 303(d) list. The court indicated that EPA violated the CWA by failing to address all WQS and gave the Agency one year to go back and revisit the TMDL to develop loadings to address recreational and aesthetic uses for the river.
While NACWA is disappointed with the court’s requirement that the TMDL must address all applicable WQS, the ruling overall in this case represents an important victory for NACWA and the clean water community on a number of other critical issues.
- Complaint, Jan. 15, 2009
- DCWASA Motion to Intervene, April 13, 2009
- DCWASA Answer to Complaint, April 13, 2009
- FOE Opposition to Motion to Intervene, April 22, 2009
- DCWASA Reply to Opposition, April 24, 2009
- Order Granting DCWASA Intervention, April 28, 2009
- Scheduling Order, April 28, 2009
- Municipal Coalition Motion to Intervene, June 08, 2009
- Municipal Coalition Answer, June 08, 2009
- Friends of the Earth Opposition to NACWA Motion to Intervene, June 19, 2009
- Friends of the Earth Motion for Summary Judgment, July 17, 2009
- NACWA/WWP Motion for Summary Judgment, September 18, 2009
- EPA Motion for Summary Judgment, September 19, 2009
- DCWASA Motion for Summary Judgment, September 19, 2009
- Friends of the Earth Response, October 7, 2009
- District Court Opinion and Order, July 25, 2011