United States District Court, District of Columbia
D. BATES, UNITED STATES DISTRICT JUDGE
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).
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.
Statutory and Regulatory Background
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 (1994); see 33 U.S.C. §
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).
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).
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).
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, ” 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
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).
Factual and Procedural Background
The Anacostia River
Anacostia River flows from Maryland to the District of
Columbia and spans more than 170 square miles. AR
3006. 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.
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)).
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).
The Anacostia River Trash TMDL
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