Friends of Earth, Inc. v. E.P.A., 05-5015.

• Decision Date: 25 April 2006
• Docket Number: No. 05-5015.,05-5015.
• Citation: 446 F.3d 140
• Parties: FRIENDS OF THE EARTH, INC., Appellant v. ENVIRONMENTAL PROTECTION AGENCY, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 140

446 F.3d 140

FRIENDS OF THE EARTH, INC., Appellant v. ENVIRONMENTAL PROTECTION AGENCY, et al., Appellees.

No. 05-5015.

United States Court of Appeals, District of Columbia Circuit.

Argued March 2, 2006.

Decided April 25, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Columbia (No. 04cv00092).

Howard I. Fox argued the cause and filed the briefs for appellant.

John A. Bryson, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief were Greer S. Goldman, Attorney, and James H. Curtin and Stefania D. Shamet, Counsels, U.S. Environmental Protection Agency.

David E. Evans argued the cause for appellee District of Columbia Water and Sewer Authority. With him on the brief was Stewart T. Leeth.

F. Paul Calamita, John A. Sheehan, and Alexandra Dapolito Dunn were on the brief for amici curiae Combined Sewer Overflow Partnership and National Association of Clean Water Act Agencies in support of appellees.

Before: TATEL, BROWN, and GRIFFITH, Circuit Judges.

TATEL, Circuit Judge.

This case poses the question whether the word "daily," as used in the Clean Water Act, is sufficiently pliant to mean a measure of time other than daily. Specifically, the Environmental Protection Agency (EPA) takes the position that Congress, in requiring the establishment of "total maximum daily loads" to cap effluent discharges of "suitable" pollutants into highly polluted waters, left room for EPA to establish seasonal or annual loads for those same pollutants. The district court found EPA's contextual and policy arguments sufficiently persuasive to disregard the plain meaning of "daily," but we do not. Daily means daily, nothing else. If EPA believes using daily loads for certain types of pollutants has undesirable consequences, then it must either amend its regulation designating all pollutants as "suitable" for daily loads or take its concerns to Congress. We therefore reverse and remand with instructions to vacate the non-daily "daily" loads.

I.

Flowing from Maryland through the northeast and southeast quadrants of Washington, D.C. and a stone's throw away from the site for the Washington Nationals' new stadium, the Anacostia River has "the dubious distinction of being one of the ten most polluted rivers in the country." Kingman Park Civic Ass'n v. EPA, 84 F.Supp.2d 1, 4 (D.D.C.1999). As such, it falls far short of meeting water quality standards set pursuant to the Clean Water Act (CWA) and designed to protect designated recreational uses like fishing and swimming. 33 U.S.C. § 1311(b)(1)(C) (mandating the achievement of water quality standards); 47 D.C.Reg. 284, 284-85 (Jan. 21, 2000) (to be codified at D.C. Mun. Regs., tit. 21, § 1101.1) (establishing water quality standards based on uses including "primary contact recreation" and "consumption of fish & shellfish").

For bodies of water, like the Anacostia River, that fail to meet applicable water quality standards, the CWA requires states (defined by the Act to include the District of Columbia, 33 U.S.C. § 1362(3)) to establish a "total maximum daily load," or TMDL,

for those pollutants which the Administrator identifies . . . as suitable for such calculation. Such load shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality.

Id. § 1313(d)(1)(C). In 1978, EPA issued a regulation deeming "[a]ll pollutants . . . suitable for the calculation of total maximum daily loads." Total Maximum Daily Loads Under Clean Water Act, 43 Fed. Reg. 60,662, 60,665 (Dec. 28, 1978) (emphasis added). This regulation remains unchanged today.

Once approved by EPA, TMDLs must be incorporated into permits allocating effluent discharges among all pollution sources, including point sources (like factories) and non-point sources (like stormwater run-off). See 33 U.S.C. § 1342(a)(1) (authorizing EPA to issue effluent discharge permits "upon condition that such discharge will meet . . . [among other requirements] all applicable requirements under section[] 1311"); id. § 1311(b)(1)(C) (mandating the achievement of "any more stringent limitation, including those necessary to meet water quality standards"); see also 40 C.F.R. § 122.44(d)(1)(vii)(B) (requiring permitting authority to set effluent limits "consistent with the assumptions and requirements of any available wasteload allocation for the discharge prepared by the State and approved by EPA"). If pollution loads stay below the applicable TMDLs for a given body of water, then in theory the body of water should achieve its water quality standards.

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. See Letter from Rebecca Hanmer, Dir., Water Prot. Div., EPA, to James R. Collier, Chief, Bureau of Envtl. Quality (Dec. 14, 2001) (oxygen-depleting substances); EPA, Total Suspended Solids, Total Maximum Daily Loads for the Anacostia River, D.C. (Mar.2002) (total suspended solids). Neither TMDL limited daily discharges.

Appellant Friends of the Earth (FoE) petitioned this court for review of the TMDL approvals, arguing (among other things) that the CWA requires the establishment of "total maximum daily loads," not seasonal or annual loads. Concluding that we lacked subject matter jurisdiction, we transferred the case to the U.S. District Court, Friends of the Earth v. EPA, 333 F.3d 184 (D.C.Cir.2003), which granted EPA's motion for summary judgment, Friends of the Earth v. EPA, 346 F.Supp.2d 182 (D.D.C.2004). The court held that "the text of the CWA does not reveal a clear congressional intent to require EPA to calculate only daily TMDLs," id. at 189, found EPA's resolution of the resulting ambiguity reasonable, and concluded that the TMDL approvals were neither arbitrary nor capricious. This appeal followed.

II.

Because Congress has charged EPA with the CWA's implementation, we review the agency's interpretation of the phrase "total maximum daily load" under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Natural Res. Def. Council, Inc. v. EPA, 859 F.2d 156, 202 (D.C.Cir.1988) (applying Chevron to EPA's interpretation of the CWA). Critically, if "Congress has directly spoken to the precise question at issue . . ., that is the end of the matter." Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. So here.

We begin, as always, with the statute's language. For waters that fail to achieve water quality standards, see 33 U.S.C. § 1313(d)(1)(A), the CWA provides that "[e]ach state shall establish . . . the total maximum daily load, for those pollutants which the Administrator identifies. . . as suitable for such calculation," id. § 1313(d)(1)(C) (emphasis added). Because EPA has found "[a]ll pollutants . . . suitable for the calculation of total maximum daily loads," 43 Fed.Reg. at 60,665, it follows that the CWA requires the District of Columbia to establish a "total maximum daily load" for each pollutant that contributes to the Anacostia's violation of the dissolved oxygen and turbidity standards.

Nothing in this language even hints at the possibility that EPA can approve total maximum "seasonal" or "annual" loads. The law says "daily." We see nothing ambiguous about this command. "Daily" connotes "every day." See Webster's Third New International Dictionary 570 (1993) (defining "daily" to mean "occurring or being made, done, or acted upon every day"). Doctors making daily rounds would be of little use to their patients if they appeared seasonally or annually. And no one thinks of "[g]ive us this day our daily bread" as a prayer for sustenance on a seasonal or annual basis. Matthew 6:11 (King James).

When asked at oral argument how Congress could have spoken more clearly, EPA's counsel responded that "one way it could do that . . . is to say that the . . . total maximum daily load shall be expressed as a quantity per day or average per day or something like that." Tr. of Oral Arg. at 19. But a load expressed as a quantity per day is no different from a daily load, and we have never held that Congress must repeat itself or use extraneous words before we acknowledge its unambiguous intent. See New York v. EPA, 443 F.3d 880, 883 (D.C.Cir.2006) (refusing to require Congress "to use superfluous words"). If Congress wanted seasonal or annual loads, it could easily have authorized them by calling for "total maximum daily, seasonal, or annual loads." Or by providing for the establishment of "total maximum loads," Congress could have left a gap for EPA to fill. Instead, Congress specified "total maximum daily loads." We cannot imagine a clearer expression of intent.

EPA urges us to read the phrase in context, emphasizing that TMDLs must "be established at a level necessary to implement the applicable water quality standards." 33 U.S.C. § 1313(d)(1)(C). According to EPA, "[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." Fed. Appellees' Br. 26-27. This cannot be right. As written, the statute...