Anacostia Riverkeeper, Inc. v. Jackson, 09–cv–97 (RCL).

• Court: United States District Courts. United States District Court (Columbia)
• Citation: 798 F.Supp.2d 210
• Docket Number: No. 09–cv–97 (RCL).,09–cv–97 (RCL).
• Parties: ANACOSTIA RIVERKEEPER, INC., et al., Plaintiffs, v. Lisa JACKSON, Administrator, United States Environmental Protection Agency, et al., Defendants.
• Decision Date: 25 July 2011

798 F.Supp.2d 210

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

v.Lisa JACKSON, Administrator, United States Environmental Protection Agency, et al., Defendants.

No. 09–cv–97 (RCL).

United States District Court, District of Columbia.

July 25, 2011.

Held Invalid

40 C.F.R. § 130.7(c)(1) Jennifer C. Chavez, David S. Baron, Earthjustice, Washington, DC, for Plaintiffs.

John David Gunter, II, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.I. INTRODUCTION

This action is brought by plaintiffs Anacostia Riverkeeper, Inc. and Friends of the Earth, Inc., two DC-based non-profit corporations, to challenge defendant Environmental Protection Agency's (“EPA” or the “Agency”) approval of a pollution control plan for the Anacostia River jointly submitted by the District of Columbia and Maryland in accordance with the Federal Water Pollution Control Amendments of 1972, commonly known as the Clean Water Act (“CWA” or the “Act”), 33 U.S.C. § 1251 et seq. Under the CWA, a State (including the District) is obligated to develop water quality standards for each navigable water body within its jurisdiction. These standards generally consist of expected uses of the water body and criteria defining the maximum level of pollution allowable to protect such uses. The CWA requires each State to monitor its waters for compliance with such standards following the implementation of technology-based pollution controls under separate provisions of the Act. A determination that a particular water body is not meeting applicable standards triggers a State's obligation to develop and submit for EPA approval total maximum daily loads (“TMDLs”) for the pollutants in that water body. Relying on limits set by these TMDLs, federal permit programs, along with state and local actors, implement water-pollution controls to achieve contamination levels necessary to attain and maintain water quality standards. This suit involves a challenge to a TMDL for the Anacostia River developed by the District and Maryland and approved by EPA in 2007.

The Anacostia River is, in a word, dirty. Its waters are frequently turbid, resulting in an opaque and muddy appearance. This condition results from an excess of sediments and total suspended solids (“TSS”) in the river. The polluted state of the Anacostia render it unfit for the uses that the District and Maryland have designated the watershed to support, including contact recreation ( e.g., swimming), secondary contact recreation ( e.g., boating), and the protection and propagation of plant and animal life. The sullied state of today's Anacostia is no surprise: Despite the existence of similarly turbid conditions since the inception of the CWA, neither the District nor the Agency lifted a finger to address any concerns, whether related to excess sediments and TSS or other contaminants, for nearly two decades—in contravention of statutory obligations to act as early as 1979. In plain disregard of its duties as set forth in the Act, the District did not begin to own up to its responsibilities under the CWA until being compelled by a district court ruling. Kingman Park Civic Ass'n v. EPA, 84 F.Supp.2d 1 (D.D.C.1999). And a few years later, the first attempt by the District and EPA to develop a sediment/TSS TMDL for the Anacostia was invalidated by the D.C. Circuit as contrary to the plain text of the CWA. Friends of the Earth, Inc. v. EPA, 446 F.3d 140 (D.C.Cir.2006) (“ Friends II ”). After this ruling, EPA coordinated a joint effort between the District and Maryland to develop a single TMDL for both jurisdictions to address excessive sediment and TSS pollution in the Anacostia River. The resulting sediment/TSS TMDL, which was submitted to EPA in June 2007 and approved one month later, is the subject of this suit. II. BACKGROUNDA. Statutory Framework

The Clean Water Act “is a comprehensive water quality statute designed to ‘restore and maintain the chemical, physical, and biological integrity of the Nation's waters.’ ” 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) (quoting 33 U.S.C. § 1251(a)). A core element of the CWA is its two-step approach to improving water quality, which delegates certain responsibilities to EPA and others to the States in furtherance of the Act's stated purpose of promoting cooperation between federal and state governments. 33 U.S.C. § 1251(b). ¹ The first step requires EPA, “among other things, to establish and enforce technology-based limitations on individual discharges into the country's navigable waters from point sources.” PUD No. 1, 511 U.S. at 704, 114 S.Ct. 1900 (citing 33 U.S.C. §§ 1311 & 1314). A point source is “any discernable, confined and discrete conveyance ... from which pollutants are or may be discharged,” 33 U.S.C. § 1362(14), such as an industrial pipe or sewage drain. Am. Paper Institute, Inc. v. EPA, 996 F.2d 346, 348–49 (D.C.Cir.1993). Because point sources are identifiable locations where pollutants enter a water body, they constitute ideal starting points for the monitoring and regulation of water contamination. Section 301 of the CWA directs EPA to develop effluent limitations that cap the maximum allowable discharge at each individual point source. 33 U.S.C. § 1311(b)(1). Such restrictions incorporate “the best available technology economically achievable for a particular class of waters,” id. at § 1311(b)(2), and evolve over time with the growth of technological means to limit contamination. Once promulgated, the effluent limitations are incorporated into the National Pollutant Discharge Elimination System (“NPDES”). The NPDES is a permit program through which individual entities responsible for covered point sources receive permits setting the maximum discharges of particular contaminants via these sources. See generally id.; see also Sierra Club v. Meiburg, 296 F.3d 1021, 1024 (11th Cir.2002) (“The statute gives EPA the authority to issue permits for point sources, and those permits are to establish technology-based effluent limitations that incorporate increasingly stringent levels of pollution control technology over time.”).

Point sources, however, are not the only manner in which pollutants enter a water system. Sediments and other biological materials can easily accumulate in rivers through normal ecological processes, such as drainage from wooded areas or erosion of the river bank. Many toxins are also capable of entering water systems through run-off from agricultural land. And overflows from insufficiently drained urban areas—particularly during extreme weather—often lead to a massive influx of sediments, TSS and other pollutants. To capture these and similar effects—all of which are difficult to monitor or regulate—the CWA aggregates large-scale sources of water contamination into categories of “non-point source” pollution. At the most general level, non-point source pollution is the entry of contaminants into the water body by any means other than a discrete point source.

Non-point source pollution is often so extensive that it continues to impair water bodies even after technology-based effluent limitations have been fully implemented. But “[u]nlike point source pollution, EPA lacks the authority to control non-point source discharges through a permitting process.” Defenders of Wildlife v. EPA, 415 F.3d 1121, 1124 (10th Cir.2005). To address water quality concerns that linger after implementation of effluent limitations, the CWA's second step in its approach to water cleanup requires each State to develop water quality standards for interstate waters within its borders. Id. In keeping with the interactive process envisioned in the CWA, a State must submit these standards to EPA for review and approval. Meiburg, 296 F.3d at 1025. Under EPA regulations, these submissions must contain (1) designated uses for the water body, (2) information concerning the methodology for choosing these uses, (3) water quality criteria sufficient to protect the designated uses, (4) an antidegradation policy to prevent clean waters from slipping below applicable standards, (5) a certification that the water quality standards were properly adopted in a manner consistent with state law and (6) general information useful in aiding the Agency's review. 40 C.F.R. § 131.6(a)-(f). The “designated uses of the navigable waters involved and the water quality criteria for such waters” are the heart of these water quality standards. 33 U.S.C. § 1313(c)(2)(A); see also 40 C.F.R. § 130.2(d) (defining water quality standard as “a designated use or uses for the waters ... and water quality criteria for such waters”).

A designated use is exactly as it sounds: after considering “the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and other purposes including navigation,” 40 C.F.R. § 131.10(a), a State must catalogue the manner in which each of its covered waters are to be utilized by governments, persons, animals and plants.² Examples of designated uses include drinking or reservoir purposes, primary ( e.g., swimming) or secondary ( e.g., boating) recreation, and the preservation and support of plant and animal life. Id. § 131.3(f).

Water quality criteria, on the other hand, are measures of the conditions of a water body and “come in two varieties: specific numerical 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. Numeric criteria articulate specific, measurable quantities of pollutants that can be readily monitored, while narrative criteria are general descriptions of water quality, such as “free from visible waste” or “sufficient clarity for aesthetic purposes.” Whether numeric or narrative,...