Anacostia Riverkeeper, Inc. v. Wheeler

• Decision Date: 12 August 2019
• Docket Number: Case No. 16-cv-1651 (CRC)
• Parties: ANACOSTIA RIVERKEEPER, INC., et al., Plaintiffs, v. Andrew WHEELER, et al., Defendants District of Columbia Water and Sewer Authority, Intervenor Defendant
• Court: U.S. District Court — District of Columbia

404 F.Supp.3d 160

ANACOSTIA RIVERKEEPER, INC., et al., Plaintiffs,

v.Andrew WHEELER, et al., Defendants

District of Columbia Water and Sewer Authority, Intervenor Defendant

Case No. 16-cv-1651 (CRC)

United States District Court, District of Columbia.

Signed August 12, 2019

Seth L. Johnson, Jennifer C. Chavez, Earthjustice, Washington, DC, for Plaintiffs.

Sue Chen, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

The Clean Water Act ("CWA" or "Act") and its implementing regulations create an intricate process in which States and the Environmental Protection Agency ("EPA") share responsibility for monitoring and limiting pollution in the nation's navigable waters. As one part of that process, States must establish water quality standards for bodies of water within their borders. If a particular water body falls short of those standards, States must develop what are known as total maximum daily loads ("TMDLs"). TMDLs indicate the maximum daily amount of a pollutant that may permissibly enter the water body without violating the relevant quality standards. EPA must approve or reject TMDLs established by States.

The portions of the Anacostia and Potomac Rivers flowing through the District of Columbia are sufficiently contaminated to require the District to establish TMDLs for E. coli bacteria in the rivers. It did so in 2014, and EPA approved the TMDLs that same year before issuing a revised approval in 2017. Plaintiffs, organizations whose members use the rivers for recreational activity, allege that EPA violated the CWA when it approved these TMDLs.¹ Specifically, they contend that EPA failed to approve absolute maximum levels of E. coli discharge into the District's waters on any given day; improperly ignored certain water quality standards that the discharge levels must address; and erroneously concluded that the District's TMDL development process had undergone sufficient public participation. They move for summary judgment, asking the Court to vacate the TMDLs. EPA and the D.C. Water and Sewer Authority, a regulated party that has intervened as a Defendant, cross-move for summary judgment, insisting that EPA's approval of the TMDLs complied with the law.

The Court sides largely with Plaintiffs. EPA violated the plain text of the CWA when it approved "total maximum daily loads" that did not establish daily maximum discharge limits. Further, while EPA properly concluded that the TMDLs need not achieve one of the water quality standards at issue here, its reasoning regarding the others is flawed. Consequently, the Court will grant in part and deny in part each party's motion for summary judgment and vacate the TMDLs, staying the vacatur to allow for the development of new ones. Because the Court will vacate the TMDLs on substantive grounds, it need not decide Plaintiffs' challenge to the sufficiency of the public participation process.

I. Background

A. Clean Water Act

The Clean Water Act is a "complex statutory and regulatory scheme ... that implicates both federal and state administrative responsibilities." PUD No. 1 of Jefferson Cty. v. Wash. Dep't of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994). Congress enacted the law to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Congress structured the Act to reflect principles of cooperative federalism, explicitly "recogniz[ing], preserv[ing], and protect[ing] the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the development and use (including restoration, preservation, and enhancement) of ... water resources." Id. § 1251(b). To this end, Congress vested substantial authority in the States while giving EPA an oversight role. See Defs. of Wildlife v. EPA, 415 F.3d 1121, 1124 (10th Cir. 2005). The Act requires each State to develop water quality standards for any interstate water body in its boundaries, and to submit these standards to EPA for review and approval. Id.; see 33 U.S.C. § 1313(a). EPA regulations specify what the State's submissions must contain. See 40 C.F.R. § 131.6. The "two primary components" of water quality standards are designated uses and water quality criteria. Am. Paper Inst., Inc. v. EPA, 996 F.2d 346, 349 (D.C. Cir. 1993) ; see also Anacostia Riverkeeper, Inc. v. Jackson ("Jackson II"), 798 F. Supp. 2d 210, 215 (D.D.C. 2011).

A designated use, as the name suggests, reflects "the manner in which each of [a State's] covered waters are to be utilized by governments, persons, animals and plants." Jackson II, 798 F. Supp. 2d at 215 ; see also 40 C.F.R. § 131.10(a). For example, a State might designate a water body for recreational use or agricultural use. Water quality criteria, meanwhile, "are measures of the conditions of a water body." Jackson II, 798 F. Supp 2d at 215. They "come in two varieties: specific numeric limitations on the concentration of a specific pollutant in the water ... or more general narrative statements applicable to a wide set of pollutants." Am. Paper, 996 F. 2d at 349 ; see also 40 C.F.R. § 131.3(b).

To enforce pollutant limitations, the CWA created the National Pollution Discharge Elimination System ("NPDES"). The NPDES requires State and local wastewater authorities (as well as other entities that release pollutants) to obtain permits for pollutant discharges from a "point source"—which is a "discernible, confined, and discrete conveyance" such as a pipe or a drain. 33 U.S.C. § 1362(14). NPDES permits must include "pollutant release limitations necessary for the waterway receiving the pollutant to meet ‘water quality standards’ " established by the State. Am. Paper, 996 F.2d at 349. Because "non-point sources"—such as natural erosion, agricultural runoff, or overflows from urban areas—create additional discharges into the water, permitting of point sources alone does not ensure that pollution levels satisfy water quality standards.

Because "EPA lacks the authority to control non-point source discharges through a permitting process," Defs. of Wildlife, 415 F.3d at 1124, the CWA requires States to monitor their water bodies and identify when extant pollution limitations "are not stringent enough to implement any [applicable] water quality standard[.]" 33 U.S.C. § 1313(d)(1)(A). States must submit biennially to EPA so-called "303(d) lists," which indicate which of their water bodies do not, and based on existing pollution limitations are not expected to, attain the applicable water standards. 40 C.F.R. § 130.7(d). Once a State includes a water body on the 303(d) list, it has a statutory obligation to develop total maximum daily loads. 33 U.S.C. § 1313(d)(1)(C). TMDLs "specify the absolute amount of particular pollutants the entire water body can take on while still satisfying all water quality standards." Jackson II, 798 F. Supp. 2d at 216 (citing 33 U.S.C. § 1313(d)(1)(c) ).

"TMDLs are central to the Clean Water Act's water-quality scheme" insofar as they "tie together point-source and nonpoint-source pollution issues ... [to] address[ ] the whole health of the water." Sierra Club v. Meiburg, 296 F.3d 1021, 1025 (11th Cir. 2002). A TMDL's overall cap is the sum of allotted pollutant limitations to various sources: "wasteload allocations" for point sources and "load allocations" for non-point sources. 40 C.F.R. §§ 130.2(g) – (h). In short, the TMDL process requires States to account for the background pollution caused by non-point sources and budget to each point source a daily discharge limit that will ensure compliance with the underlying water quality standards.

The Act requires States to engage in a "continuing planning process" to improve water body conditions, including by implementing TMDLs, 33 U.S.C. § 1313(e)(3)(C), and to consider TMDLs as part of water quality management plans to improve water conditions, 40 C.F.R. § 130.6(c)(1). But TMDLs themselves have no self-executing regulatory force. Rather, they are informational tools used by State and federal authorities to plan a coordinated effort to attain water quality standards. See Jackson II, 798 F. Supp. 2d at 216. NPDES permits must be "consistent with the assumptions and requirements of any available wasteload allocation" in a TMDL. 40 C.F.R. § 122.44(d)(1)(vii)(B).

B. The District's Water Quality Standards

The District of Columbia's water quality standards classify all of its surface waters as "Class A" waters. Class A refers to the "primary contact recreation" designated use, which means "water contact sports or activities that result in frequent whole body immersion or involve significant risks of ingestion of the water." D.C. Mun. Reg. ("D.C.M.R.") 21 §§ 1101, 1199. As relevant here, this designated use includes two narrative and two numeric criteria. The first narrative criterion provides that "[t]he surface waters of the District shall be free from substances in amounts or combinations that ... [c]ause injury to, are toxic to, or produce adverse physiological or behavioral changes in humans[.]" Id. § 1104.1(d). The second narrative criterion requires that "Class A waters ... be free of discharges of untreated sewage ... that would constitute a hazard to the users of Class A waters." Id. § 1104.3. In plain English: The District's waters should not endanger those who engage in activities that involve entering the water or that create a high likelihood of swallowing the water.

The two other relevant criteria set numeric standards—a "geometric mean" and a "single sample value"—for E. coli concentration in the District's waters. The first criterion is a maximum 126 MPN/100 mL geometric mean of five water samples taken over a 30-day period. Id. § 1104.8 tbl.1. "MPN/100 mL" refers to a statistical estimate of the "most probable number" of bacteria colonies in a 100-milliliter sample. Id. § 1199.1. A geometric mean is the nth root of the...