(August 21, 2019) – A federal district court in Washington, DC issued a decision last week in Anacostia Riverkeeper, et al. v. EPA, et al. addressing critical Total Maximum Daily Load (TMDL) and permitting issues. Of particular importance, the decision addressed whether daily bacteria limits identified in an EPA-approved TMDL supersede state water quality standards (WQS) and whether the daily limits must be included in subsequently-renewed POTW National Pollutant Discharge Elimination System (NPDES) permits.
In a ruling that could have national legal implications for clean water utilities, the court held that EPA erred in failing to require daily maximum discharge limits for E. coli. The court relied on the 2006 DC Circuit’s Friends of the Earth decision, which prompted EPA to issue guidance requiring that all TMDLs express a “daily” maximum load, even if the underlying WQS is expressed as a weekly/monthly/seasonal/annual average. The court’s ruling also included concerning language on how permitting authorities set TMDL’s to meet narrative WQS.
NACWA joined the Wet Weather Partnership in filing an amicus brief in December 2017 in support of Association member agency DC Water, arguing that daily load expressions in TMDLs are not intended to override state WQS expressed on a non-daily basis (such as DC’s monthly geometric mean for E. coli) and the daily wasteload allocations expressed in TMDLs are not intended to serve as maximum daily permit limits on individual dischargers.
The Association is disappointed with the Court’s ruling and is concerned that if it stands, TMDLs across the country may be challenged on the grounds that they are not stringent enough to implement designated uses or narrative criteria. TMDLs developed for water quality standards expressed as weekly/monthly/seasonal/annual averages could be challenged on the basis that they fail to include theoretical daily maximum loads. This framework is confusing and impractical.
The parties to the litigation have 60 days from the date of the decision to appeal. NACWA is tracking this closely and will report any developments. A more detailed description and analysis of the case is available on NACWA’s Litigation Tracking page.