CSOs and TMDLs Friends Of The Earth v. EPA Does daily mean daily

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CSOs and TMDLsFriends Of The Earth v.
EPADoes daily mean daily?

• John Sheehan
• AquaLaw

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Overview

• How courts treated this issue prior to the DC
  Circuit decision
• The decision by the DC Circuit Court
• The implications and impacts of the decision
• Where will this end up?

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History of the Issue

• EPA interpretations
• 1985 rulemaking broadly defining TMDL to include
  non-daily expressions
• Hundreds of non-daily TMDLs
• Programs based on annual averages, like the
  Chesapeake Bay

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The History of the Issue

• Prior to the DC Circuit decision three other
  courts considered this issue
• Federal District Court Southern District of NY
  (May, 2000)
• US Court of Appeals Second Circuit (October,
  2001) argument that daily means daily is
  absurd given the structure of the CWA
• Federal District Court the District of Columbia
  (November, 2004)

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Enter Friends of the Earth (FOE)

• The Anacostia River in the District of Columbia
• Washington Nationals new baseball stadium to sit
  on the river
• The parties EPA, DC WASA
• Amici NACWA and the Wet Weather Partnership

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The District Court Case - Background

• FOE challenged two TMDLs
• BOD and TSS developed by the District and
  approved by EPA
• Primary regulated sources DC CSOs and
  stormwater
• FOE argued -- the TMDLs violate the CWA because
  they did not set daily loads, but rather set
  seasonal (TSS) and annual (BOD) loads. 

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The District Court Decision

• Wet Weather Partnership along with NACWA and WASA
  came up with the winning argument
• - daily may be clear within Section 303(d),
  but not when 303(d) is considered with
• 402(p)(stormwater MEP) and
• 402(q)(annual average approach for CSO)
•  

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The District Court Decision

• Court recognized
• If municipalities cannot calculate non-daily
  TMDLs for their sewage overflow programs, they
  cannot implement EPAs CSO Policy.

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The District Court Decision

• Court lectured the plaintiffs
• decision-making process does not have to yield
  to the unlikely aquatic enthusiast who will not
  tolerate anything less than immediate enjoyment
  of river waters after disruptive storm events.
•  
•  

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The District Court Decision

• Great language for CSO/storm water interests
  even a federal judge understood that people
  should not expect perfect WQS compliance after
  disruptive storm events
• Opinion shows that federal judges may well be
  more reasonable on level of control issues than
  special interest groups or certain agency
  personnel
•  

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The District Court Decision

• Was the first decision to interpret Wet Weather
  Water Quality Act (402(q))
• It need hardly be said that when Congress acts
  to amend a statute, courts presume it intends
  its amendment to have real and substantive
  effect.
• This supported the view that the Policy
  comprehensively addresses CSO requirements to the
  exclusion of general provisions elsewhere in the
  Statute (such as section 303(d) for TMDLs)

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• DC Court of Appeals Steps up to Bat.

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The Decision

• The oral argument within minutes what
  happens if we vacate?
• First paragraph of opinion
• - Daily means daily, nothing else
• Doctors make daily rounds
• Give us this day our daily bread
• Matthew 611 (King James)

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The Decision

• Court -- no sympathy for EPA because the problem
  is of their own making
• 1978 regulation All pollutants are suitable
  for the calculation of TMDLs
• Court noted that EPA now argues that TSS, BOD and
  nutrients are not suitable
• straightforward regulatory solution to amend
  EPAs reg and take these pollutants out of the
  TMDL program

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Analysis of the Decision

• Next day editorial in Washington Post More
  Lawlessness at EPA
• Does this fit a pattern for EPA?
• Did the Court get it right?
• Subsequent Congressional action no weight given
• 402s not addressed only CSO Policy

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What Does This Mean?

• Nothing? (The work-around)
• Just change calculations all statistical work
  already implicitly done
• Less stringent? Daily limits will be higher than
  annual, seasonal, monthly?
• Confusion
• Big trouble?

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What Did Enviros Get?

• Killed two TMDLs for the Anacostia River
• May force EPA to remove numerous pollutants from
  TMDL program
• May result in daily loads being LESS stringent
  than annual, monthly, seasonal
• Undermines all non-daily TMDLs out there
• Is that a win?

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Impacts of Decision

• TMDLs affecting CSOs and stormwater
• Chesapeake Bay Nutrient requirements
• Annual average program
• Gulf of Mexico
• Same
• Nutrient criteria implementation
• Non-daily TMDLs and State TMDL programs

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What does EPA think?

• Thinks continued legal options in this case are
  not likely to succeed
• Considering issuing guidance that proposes a
  work-around

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• Potential Solutions

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Options

• Judicial Options Rehearing Certiorari
• Legislative Options
• Regulatory Options
• Live with the decision

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Legislative Fix Option A

• Amendment to the CWA to have TMLs instead of
  TMDLs
• Remove daily from TMDL
• Now have it say TML

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Option A Continued Add New Language

• Such loads shall be determined using an
  appropriate duration taking into account the (1)
  nature and sources of the pollutant and (2) the
  site-specific circumstances of the water of
  concern. Potential durations include but are not
  limited to daily, weekly, monthly, seasonal, and
  annually. 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.

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Legislative Option B

• Add five words to the Clean Water Act
• After daily add
• weekly, monthly, seasonal or annual

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Legislative Fix Option B

• (C) Each State shall establish for the waters
  identified in paragraph (1)(A) of this
  subsection, and in accordance with the priority
  ranking, the total maximum daily, weekly,
  monthly, seasonal or annual loads, for those
  pollutants which the Administrator identifies
  under section 1314(a)(2) of this title 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.

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Judicial Option

• Petition for rehearing to the DC Circuit
• Petition for certiorari to the Supreme Court

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Regulatory Options

• Petition to EPA to amend its regulations
• Request declare that these pollutants are not
  suitable for TMDLs
• If EPA declines, go back to Court of Appeals
  where EPA extensively argued that daily loads are
  not possible.

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Live with the Decision

• Embrace EPAs view that daily loads are less
  stringent

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Questions?