Appeals Court: Pollution Caps Required By CWA Must Be Set As Daily Loads

The U.S. Court of Appeals for the D.C. Circuit criticized EPA's argument that the language under the Clean Water Act for the establishment of total maximum daily loads (TMDLs) left room for agency to establish seasonal or annual loads (Friends Of The Earth vs. EPA, No. 055015A, April 25, 2006).

"Nothing in (CWA's language) even hints at the possibility that EPA can approve total maximum 'seasonal' or 'annual' loads," the court stated. "The law says 'daily.' We see nothing ambiguous about this."

Earthjustice, representing Friends of the Earth, brought litigation challenging EPA's approach to setting pollution caps for the Anacostia River, which flows from Maryland through Washington, D.C. The Anacostia River has been classified as one of the dirtiest rivers in the country. Urban runoff, and an antiquated sewer system that releases untreated sewage water directly into the river during heavy rainfall events, have killed fish and harmed recreational activities in and around the river. Fishing and swimming in the Anacostia are not recommended due to high pollution levels.

This case arises from the violation of two of the Anacostia's key water quality standards. First, because the river contains many biochemical pollutants that consume oxygen, its dissolved oxygen level has sunk below the applicable water quality standard, putting the river's aquatic life at risk of suffocation. Second, the river is murkier than the applicable turbidity standard allows, stunting the growth of plants that rely on sunlight and impairing recreational use.

To remedy these violations, EPA approved one TMDL limiting the annual discharge of oxygen-depleting pollutants, and a second limiting the seasonal discharge of pollutants contributing to turbidity.

In its arguments, EPA emphasized that, under the CWA, TMDLs must "be established at a level necessary to implement the applicable water quality standards." According to the agency, "(t)hat Congress took the step of elaborating on what a TMDL should be is a strong indication that it was not using the word 'daily' as the exclusive expression of its intent on the question of how a TMDL should be established."

The court stated that as written, the CWA statute requires states to establish daily loads that also meet applicable water quality standards. "The existence of two conditions does not authorize EPA to disregard one of them," the court found.

The decision can be found at http://www.cadc.uscourts.gov/internet/internet.nsf.

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