On July 25, 2011, the United States District Court for the District of Columbia set aside the final total maximum daily load (TMDL), or the "pollution diet" for the Anacostia River, finding that the TMDL was not adequate to ensure the water quality standards for all designated uses of the river. Anacostia Riverkeeper, Inc. v. Lisa Jackson, 2011 WL 3019922 (D. D.C. July 25, 2011). In the sweeping 67-page ruling, Judge Royce Lamberth described at length the long and disappointing history of federal and state efforts to clean up the Anacostia River which originates in Prince George's County, Maryland, and flows through the District of Columbia. "The Anacostia River is, in a word, dirty,"1 wrote Judge Lamberth, while chronicling over two decades of litigation and other failed efforts to clean up the river that eventually lead to the development of a TMDL for both Maryland and the District in 2007. The ruling delved into the details of that plan to make very strong findings that Maryland and the District essentially "took shortcuts" in meeting legal obligations under the Federal Water Pollution Control Act of 1972 (the "Clean Water Act" or CWA).
Environmental Groups Challenge the Scope of the TMDL
The suit involved a challenge by environmental groups to the TMDL for the Anacostia River that was developed by the District and Maryland; it was approved by the Environmental Protection Agency (EPA) in 2007. The TMDL called for an 85 percent reduction in sediments and total suspected solids (TSS) in the river. However, environmental groups argued that the TMDL was not designed to ensure water quality standards for all of the river's designated uses, which for both states include water contact recreation (e.g., swimming), secondary contact recreation (e.g., boating), aesthetic enjoyment, and protection of plant and animal life. Instead, the plaintiffs argued, the TMDL merely targeted submerged aquatic vegetation (SAV) and other plant and animal life. The court agreed and held that EPA's approval of a TMDL – that only expressly considered the effects of sediment and TSS pollution on plant and animal life and failed to consider the pollutant load level necessary to "safeguard all designated uses"2 – was arbitrary and capricious and in violation of the CWA and the Administrative Procedure Act (APA). In particular, the court found that "when developing a TMDL … the CWA and its implementing regulations require the State – in devising the TMDL – and EPA – in reviewing the proposed TMDL – to evaluate whether the load levels … will protect all applicable water quality standards, including all designated uses and all water quality criteria."3 The court also found that "partial-TMDLs" are not permitted under the CWA, rejecting an argument proffered by a group of local water authorities who had intervened in the case. The Anacostia "partial-TMDL," setting limits only for sediments and TSS to protect aquatic life, did not meet the legal requirement for protecting all designated uses. The court found that there was insufficient evidence on the record to support EPA's suggestion that the final TMDL protects all designated uses. Further, the court pointed out that EPA's own statement in its decision rationale that "impairment of other beneficial uses such as primary recreation (swimming) and secondary (boating) contact recreation was neither the focus of the listed impairment nor the goal of these TMDLs" clearly indicated that "EPA simply does not consider whether the TMDL would protect designated uses or satisfy water quality criteria related to recreational or aesthetic uses"; these omissions were described as "fatal."4
While the court set aside the TMDL, it upheld these jurisdictions' ability in their municipal separate storm sewer system (MS4) permits to aggregate discharges from all outfalls within that municipal system in order to meet TMDL limits on the theory that the "MS4 is regulated as a single entity and receives a single NPDES permit."5
Cleanup Will Cost Billions
Judge Lamberth gave the jurisdictions one year to revise the TMDL to correct these errors. It is likely that a more stringent TMDL for the Anacostia River will be developed for both jurisdictions that sets standards that will attain all applicable water quality standards and make the river fit for all designated uses. Undoubtedly, this will be a very expensive and resource-intensive effort. Both jurisdictions will face significant costs; this will be on top of the high costs that these jurisdictions are already facing from the implementation of the Chesapeake Bay TMDL. For example, DC Water estimates that its long term control plan to address combined stormwater and wastewater discharges will cost approximately $2.2 billion and its enhanced nitrogen removal program for the Blue Plains Treatment Plant will cost approximately $1.2 billion. The District Department of the Environment estimates that its rigorous stormwater program will cost approximately $13.2 million annually. (See Holland & Knight's January, 13, 2011 alert: EPA Issues Precedent-Setting "Pollution Diet" for the Chesapeake Bay Watershed.)
The implications of the development of a revised TMDL for the Anacostia River will be huge for local water and sewer authorities and private developers who hold National Pollutant Discharge Elimination System (NPDES) permits for discharges into the Anacostia and the development will be carefully monitored by the Anacostia Riverkeeper, environmental groups and other citizens committed to restoring this "dirty" water. Holland & Knight is prepared to assist clients that will be directly affected by the development and implementation of the revised Anacostia River TMDL.