Natural Res. Def. Council, Inc. v. Envtl. Prot. Agency

301 F.Supp.3d 133

NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff,

v.ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

Civil Action No. 16–1861 (JDB)

United States District Court, District of Columbia.

Signed March 30, 2018

Hope Madeline Babcock, Peter J. De Marco, Washington, DC, for Plaintiff

Justin D. Heminger, U.S. Department of Justice, Washington, DC, for Defendants.

James B. Slaughter, Richard Davis, Beveridge & Diamond, Washington, DC, for Defendant-Intervenor District of Columbia Water and Sewer Authority (DC Water).

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

When a body of water becomes sufficiently polluted, the Clean Water Act ("CWA") requires the state responsible for that waterbody to develop a plan to return it to acceptable pollution levels. See 33 U.S.C. § 1313(d) – (e). As part of this exercise, the state must calculate the "total maximum daily load" of the offending pollutant that the waterbody can bear before "applicable water quality standards" are breached. Id. § 1313(d)(1)(C).

In 2009 and 2010, pursuant to these provisions, Maryland and the District of Columbia jointly developed a plan to limit the amount of trash that makes its way into the Anacostia River. But instead of setting a maximum amount of trash that could enter the river before it failed to meet its water quality standards, the two jurisdictions set a minimum amount of trash that would have to be removed from the river (or prevented from entering it) for those standards to be satisfied. In this action, plaintiff Natural Resources Defense Council ("NRDC") challenges the Environmental Protection Agency's ("EPA") decision to approve the plan, arguing that its removal-based approach is inconsistent with the plain language of the CWA. For the reasons given below, the Court agrees with NRDC. EPA's approval of the plan will be vacated and remanded to the agency, but the vacatur will be stayed to allow time to develop a new plan.

BACKGROUND

I. STATUTORY AND REGULATORY BACKGROUND

The CWA is a comprehensive water quality statute enacted by Congress "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). It ultimately seeks to eliminate "the discharge of pollutants into the [nation's] navigable waters" and, in the interim, to attain "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on water." Id. § 1251(a)(1)–(2). To achieve these goals, the statute requires that each state and the District of Columbia "institute comprehensive water quality standards establishing water quality goals for all intrastate waters." PUD No. 1 of Jefferson Cnty. v. Wash. Dep't of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994) ; see 33 U.S.C. § 1313(a) – (c).

"A water quality standard defines the water quality goals of a water body ... by designating the use or uses to be made of the water and by setting criteria that protect the designated uses." 40 C.F.R. § 131.2. Thus, to set water quality standards for a particular waterbody, a state first identifies its "designated uses," 33 U.S.C. § 1313(c)(2)(A), which might include drinking water, recreation, wildlife preservation, navigation, agriculture, or industry, see 40 C.F.R. § 131.2 ; Anacostia Riverkeeper, Inc. v. Jackson, 798 F.Supp.2d 210, 215 (D.D.C. 2011) (" Anacostia Riverkeeper I"). The state then sets "water quality criteria" that represent the "quality of water that supports" each use and are "expressed as constituent concentrations, levels, or narrative statements." 40 C.F.R. § 131.3(b).

Once a state establishes water quality standards for its navigable waters, EPA must approve them. 33 U.S.C. § 1313(c)(3). The state must then "identify those waters within its boundaries" that do not meet applicable water quality standards, which are known as impaired waters. Id. § 1313(d)(1)(A). Each state must compile a list of its impaired waters—a "303(d) list"—and submit it to EPA on a biennial basis. 40 C.F.R. § 130.7(b)(3), (d).

When a state identifies a waterbody as impaired, it must establish a "total maximum daily load" ("TMDL") for the pollutants causing the impairment. 33 U.S.C. § 1313(d)(1)(C). While the phrase "total maximum daily load" is not defined in the CWA, see id. § 1362 (defining certain terms), the statute states that "[s]uch 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).

EPA regulations further specify the process for creating a TMDL. First, the agency's regulations define a waterbody's "loading capacity" as the "greatest amount of loading [i.e., introduction of a pollutant] that a water can receive without violating water quality standards." 40 C.F.R. § 130.2(e)–(f). The regulations then distinguish between "wasteload allocation[s]," which represent "[t]he portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources,"¹ id. § 130.2(h), and "[l]oad allocation[s]," which represent "[t]he portion of a receiving water's loading capacity that is attributed either to one of its existing or future nonpoint sources of pollution or to natural background sources," id. § 130.2(g). A waterbody's TMDL for a particular pollutant is defined as "[t]he sum of the individual [wasteload allocations] for point sources and [load allocations] for nonpoint sources and natural background." Id. § 130.2(i). A TMDL "can be expressed in terms of either mass per time, toxicity, or other appropriate measure." Id.

Once a state establishes a TMDL, it must submit that TMDL to EPA for approval. 33 U.S.C. § 1313(d)(2). If EPA disapproves a TMDL, it must establish a TMDL that it "determines necessary to implement the water quality standards applicable to such waters." Id. Once EPA either approves a state's TMDL or establishes a TMDL that it determines will satisfy the relevant water quality standards, the implementation of the TMDL rests largely with the state. See Sierra Club v. Meiburg, 296 F.3d 1021, 1031 (11th Cir. 2002). The CWA requires states to engage in a "continuing planning process" to implement their TMDLs, however, 33 U.S.C. § 1313(e)(3)(C), and pollution permits must be "consistent with the assumptions and requirements of any available wasteload allocation" in an applicable TMDL, 40 C.F.R. § 122.44(d)(1)(vii)(B).

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Anacostia River

The Anacostia River flows from Maryland to the District of Columbia and spans more than 170 square miles. AR 3006.² Its watershed is highly urbanized and is home to over 800,000 people, AR 3007; as a result, a significant amount of trash makes its way into the river each year, see Compl. [ECF No. 1] ¶ 42 (alleging that the river is polluted by "plastic bags, glass bottles, aluminum cans, used tires, shopping carts, Styrofoam containers, yard waste, carpeting, construction materials, and innumerable other types of rubbish"). Trash enters the river from both point sources, such as storm drains and sewer systems, and nonpoint sources, such as litter that is deposited directly into the river. AR 3032–33.

Maryland and the District of Columbia have each established designated uses and water quality standards applicable to their portions of the Anacostia River. AR 3013–16. The District designated its portions of the river for recreational, aesthetic, and navigational uses (among others), while Maryland's waters are designated for recreation, fishing, and protection of aquatic life. AR 3014–15. Maryland and the District's water quality standards are expressed as narrative descriptions, which set "unacceptable levels of trash in subjective terms." AR 3075. According to the District's water quality standards, waters are required to "be free of discharges of untreated sewage, litter and unmarked submerged or partially submerged man-made structures that would constitute a hazard to ... users." AR 3014 (quoting D.C. Mun. Regs. tit. 21, § 1104.3 ). Maryland's water quality standards state that water may not be polluted by any material in amounts sufficient to be "unsightly" or a "nuisance" or to "[i]nterfere directly or indirectly with designated uses." AR 3015 (quoting Md. Code Regs. 26.08.02.03(B)(2) ).

Based on the interpretations of their water quality standards' narrative criteria, both Maryland and the District determined that the Anacostia River was impaired by trash pollution and, accordingly, added the river to their 303(d) lists. AR 3013. This required the District and Maryland to create a trash TMDL for the river. See 33 U.S.C. § 1313(d).

B. The Anacostia River Trash TMDL

Following the river's designation as impaired, the District of Columbia Department of Energy and the Environment ("DOEE") and the Maryland Department of the Environment ("MDE"), in collaboration with EPA and a number of environmental groups, developed a joint TMDL for the shared waterbody. The agencies began by collecting data using two methods: monitoring trash from stormwater outfalls and counting trash in streams.

DOEE monitored ten stormwater outfalls in the District whenever there was a rainfall of at least 0.25 inches between March and August 2009. AR 3018. DOEE then installed trash traps with one-inch diameter netting to collect trash that flowed through the outfalls. Id. According to EPA, "[r]ainfall played an important role in monitoring trash pollution because rain increases the transportation of trash to and through streams and sewer systems." EPA's Cross–Mot. for Summ. J. [ECF No. 15] at 12 ("EPA MSJ") (citing AR 3051). Similarly, MDE monitored eight stormwater outfalls between October 2008 and July 2009. AR 3021–22.

In addition to the stormwater outfall monitoring, both DOEE and MDE conducted...