United States District Court, District of Columbia
Christopher R. Cooper United States District Judge.
Clean Water Act (“CWA” or “Act”) and
its implementing regulations create an intricate process in
which States and the Environmental Protection Agency
(“EPA”) share responsibility for monitoring and
limiting pollution in the nation's navigable waters. As
one part of that process, States must establish water quality
standards for bodies of water within their borders. If a
particular water body falls short of those standards, States
must develop what are known as total maximum daily loads
(“TMDLs”). TMDLs indicate the maximum daily
amount of a pollutant that may permissibly enter the water
body without violating the relevant quality standards. EPA
must approve or reject TMDLs established by States.
portions of the Anacostia and Potomac Rivers flowing through
the District of Columbia are sufficiently contaminated to
require the District to establish TMDLs for E. coli
bacteria in the rivers. It did so in 2014, and EPA approved
the TMDLs that same year before issuing a revised approval in
2017. Plaintiffs, organizations whose members use the rivers
for recreational activity, allege that EPA violated the CWA
when it approved these TMDLs.Specifically, they contend that
EPA failed to approve absolute maximum levels of E.
coli discharge into the District's waters on any
given day; improperly ignored certain water quality standards
that the discharge levels must address; and erroneously
concluded that the District's TMDL development process
had undergone sufficient public participation. They move for
summary judgment, asking the Court to vacate the TMDLs. EPA
and the D.C. Water and Sewer Authority, a regulated party
that has intervened as a Defendant, cross-move for summary
judgment, insisting that EPA's approval of the TMDLs
complied with the law.
Court sides largely with Plaintiffs. EPA violated the plain
text of the CWA when it approved “total maximum daily
loads” that did not establish daily maximum discharge
limits. Further, while EPA properly concluded that the TMDLs
need not achieve one of the water quality standards at issue
here, its reasoning regarding the others is flawed.
Consequently, the Court will grant in part and deny in part
each party's motion for summary judgment and vacate the
TMDLs, staying the vacatur to allow for the development of
new ones. Because the Court will vacate the TMDLs on
substantive grounds, it need not decide Plaintiffs'
challenge to the sufficiency of the public participation
Clean Water Act
Clean Water Act is a “complex statutory and regulatory
scheme . . . that implicates both federal and state
administrative responsibilities.” PUD No. 1 of
Jefferson Cty. v. Wash. Dep't of Ecology, 511 U.S.
700, 704 (1994). Congress enacted the law to “restore
and maintain the chemical, physical, and biological integrity
of the Nation's waters.” 33 U.S.C. § 1251(a).
Congress structured the Act to reflect principles of
cooperative federalism, explicitly “recogniz[ing],
preserv[ing], and protect[ing] the primary responsibilities
and rights of States to prevent, reduce, and eliminate
pollution, [and] to plan the development and use (including
restoration, preservation, and enhancement) of . . . water
resources.” Id. § 1251(b). To this end,
Congress vested substantial authority in the States while
giving EPA an oversight role. See Defs. of Wildlife v.
EPA, 415 F.3d 1121, 1124 (10th Cir. 2005). The Act
requires each State to develop water quality standards for
any interstate water body in its boundaries, and to submit
these standards to EPA for review and approval. Id.;
see 33 U.S.C. § 1313(a). EPA regulations
specify what the State's submissions must contain.
See 40 C.F.R. § 131.6. The “two primary
components” of water quality standards are designated
uses and water quality criteria. Am. Paper Inst., Inc. v.
EPA, 996 F.2d 346, 349 (D.C. Cir. 1993); see also
Anacostia Riverkeeper, Inc. v. Jackson
(“Jackson II”), 798 F.Supp.2d 210, 215
designated use, as the name suggests, reflects “the
manner in which each of [a State's] covered waters are to
be utilized by governments, persons, animals and
plants.” Jackson II, 798 F.Supp.2d at 215;
see also 40 C.F.R. § 131.10(a). For example, a
State might designate a water body for recreational use or
agricultural use. Water quality criteria, meanwhile,
“are measures of the conditions of a water body.”
Jackson II, 798 F.Supp.2d at 215. They “come
in two varieties: specific numeric limitations on the
concentration of a specific pollutant in the water . . . or
more general narrative statements applicable to a wide set of
pollutants.” Am. Paper, 996 F.2d at 349;
see also 40 C.F.R. § 131.3(b).
enforce pollutant limitations, the CWA created the National
Pollution Discharge Elimination System (“NPDES”).
The NPDES requires State and local wastewater authorities (as
well as other entities that release pollutants) to obtain
permits for pollutant discharges from a “point
source”-which is a “discernible, confined, and
discrete conveyance” such as a pipe or a drain. 33
U.S.C. § 1362(14). NPDES permits must include
“pollutant release limitations necessary for the
waterway receiving the pollutant to meet ‘water quality
standards'” established by the State. Am.
Paper, 996 F.2d at 349. Because “non-point
sources”-such as natural erosion, agricultural runoff,
or overflows from urban areas-create additional discharges
into the water, permitting of point sources alone does not
ensure that pollution levels satisfy water quality standards.
“EPA lacks the authority to control non-point source
discharges through a permitting process, ” Defs. of
Wildlife, 415 F.3d at 1124, the CWA requires States to
monitor their water bodies and identify when extant pollution
limitations “are not stringent enough to implement any
[applicable] water quality standard[.]” 33 U.S.C.
§ 1313(d)(1)(A). States must submit biennially to EPA
so-called “303(d) lists, ” which indicate which
of their water bodies do not, and based on existing pollution
limitations are not expected to, attain the applicable water
standards. 40 C.F.R. § 130.7(d). Once a State includes a
water body on the 303(d) list, it has a statutory obligation
to develop total maximum daily loads. 33 U.S.C. §
1313(d)(1)(C). TMDLs “specify the absolute amount of
particular pollutants the entire water body can take on while
still satisfying all water quality standards.”
Jackson II, 798 F.Supp.2d at 216 (citing 33 U.S.C.
are central to the Clean Water Act's water-quality
scheme” insofar as they “tie together
point-source and nonpoint-source pollution issues . . . [to]
address the whole health of the water.” Sierra
Club v. Meiburg, 296 F.3d 1021, 1025 (11th Cir. 2002). A
TMDL's overall cap is the sum of allotted pollutant
limitations to various sources: “wasteload
allocations” for point sources and “load
allocations” for non-point sources. 40 C.F.R.
§§ 130.2(g)-(h). In short, the TMDL process
requires States to account for the background pollution
caused by non-point sources and budget to each point source a
daily discharge limit that will ensure compliance with the
underlying water quality standards.
requires States to engage in a “continuing planning
process” to improve water body conditions, including by
implementing TMDLs, 33 U.S.C. § 1313(e)(3)(C), and to
consider TMDLs as part of water quality management plans to
improve water conditions, 40 C.F.R. § 130.6(c)(1). But
TMDLs themselves have no self-executing regulatory force.
Rather, they are informational tools used by State and
federal authorities to plan a coordinated effort to attain
water quality standards. See Jackson II, 798
F.Supp.2d at 216. NPDES permits must be “consistent
with the assumptions and requirements of any available
wasteload allocation” in a TMDL. 40 C.F.R. §
The District's Water Quality Standards
District of Columbia's water quality standards classify
all of its surface waters as “Class A” waters.
Class A refers to the “primary contact
recreation” designated use, which means “water
contact sports or activities that result in frequent whole
body immersion or involve significant risks of ingestion of
the water.” D.C. Mun. Reg. (“D.C.M.R.”) 21
§§ 1101, 1199. As relevant here, this designated
use includes two narrative and two numeric criteria. The
first narrative criterion provides that “[t]he surface
waters of the District shall be free from substances in
amounts or combinations that . . . [c]ause injury to, are
toxic to, or produce adverse physiological or behavioral
changes in humans[.]” Id. § 1104.1(d).
The second narrative criterion requires that “Class A
waters . . . be free of discharges of untreated sewage . . .
that would constitute a hazard to the users of Class A
waters.” Id. § 1104.3. In plain English:
The District's waters should not endanger those who
engage in activities that involve entering the water or that
create a high likelihood of swallowing the water.
other relevant criteria set numeric standards-a
“geometric mean” and a “single sample
value”-for E. coli concentration in the
District's waters. The first criterion is a maximum 126
MPN/100 mL geometric mean of five water samples taken over a
30-day period. Id. § 1104.8 tbl.1.
“MPN/100 mL” refers to a statistical estimate of
the “most probable number” of bacteria colonies
in a 100-milliliter sample. Id § 1199.1. A
geometric mean is the nth root of the product of
n numbers; in this case, the fifth root of the
product of the five samples. In practice, this criterion
calls for measuring the amount of E. coli in 100 mL
of water five times over a 30-day period, multiplying those
five results by one another, and taking the fifth root of
that product. The result should not exceed 126 MPN/100 mL.
The criterion can be articulated as the following equation,
where the five samples are “A, ” “B,
” “C, ” “D, ” and “E,
” expressed in MPN/100 mL:
second numeric criterion in the District's water quality
standards for E. coli is a “single sample
value” of a maximum 410 MPN/100 mL-that is, no single
100-milliliter sample of water should have a most probable
number of E. coli colonies exceeding 410.
Id § 1104.8 tbl.1. Central to one aspect of
this case, however, is a footnote in the standards that
purports to limit the use of this criterion. The footnote
states: “The geometric mean criterion shall be used for
assessing water quality trends and for permitting, ”
while “[t]he single sample value criterion shall be
used for assessing water quality trends only.”
Id § 1104.8 tbl. 1 n.1. More on this later.
The TMDL Development Process
2004, the District for the first time developed TMDLs for
fecal bacteria. Those TMDLs established both average annual
loads and maximum monthly loads for fecal bacteria that
achieved the District's 30-day geometric mean water
quality standard. Consistent with EPA practice at the time,
it approved these TMDLs even though the loads did not express
the TMDLs in daily terms. See generally
2006, the D.C. Circuit struck down EPA's approval of a
separate set of TMDLs because the District had expressed
those TMDLs in annual or seasonal, rather than daily, terms.
The Circuit concluded that this approach violated the
CWA's directive to set total maximum daily loads
and thus EPA's approval contravened the plain text of the
law. See Friends of the Earth v. EPA, 446 F.3d 140
(D.C. Cir. 2006). In the aftermath of that decision, Judge
Bates vacated several EPA-approved TMDLs for the
District's water bodies that were not expressed in daily
terms, including those for fecal bacteria. But he stayed the
vacatur to allow the District to establish TMDLs that
expressed maximum pollutant discharge in daily terms to
conform to the CWA and the Circuit's Friends of the
Earth decision. See Anacostia Riverkeeper, Inc. v.
Jackson (“Jackson I”), 713
F.Supp.2d 50 (D.D.C. 2010).
Friends of the Earth and the subsequent vacatur of
many of its TMDLs, the District began to revise its TMDLs for
fecal bacteria. These TMDLs underwent several iterations,
each of which reflected different approaches to pollutant
outflows from the Blue Plains Advanced Wastewater Treatment
Plant, the world's largest advanced wastewater-treatment
facility. See generally EPA0008759-72;
EPA0009844-57. Blue Plains discharges treated sewage into the
Potomac River and is managed by D.C. Water. EPA0008904. The
first two drafts of the TMDL document were noticed for a
public comment period, during which Plaintiffs and Intervenor
Defendant submitted lengthy comments. See
EPA0008774-87; EPA0009810-22; EPA0008780-81; EPA0009859-83;
EPA0011802-26. A third iteration was adopted without public
The 2014 TMDLs
December 2014, the District submitted its final TMDL document
for EPA approval. The document expressed the TMDLs through
two sets of figures. First, it included annual load limits
based on the previous fecal bacteria TMDLs. EPA0011831-46.
Second, in an attempt to comply with Friends of the
Earth, the document included daily load expressions.
EPA0011836- 39. These daily figures take two forms. First,
for every source other than the point sources at Blue Plains,
there is a “Max daily” figure and an “Avg
daily” figure. EPA0011839. Blue Plains, in turn, was
divided into two point sources: Outfall 001 and Outfall 002.
Id. For each, the TMDLs include one “Max
daily” figure for wet weather conditions and one
“Max daily” figure for dry weather conditions,
reflecting that the two Outfalls operate differently
depending on weather conditions. Id. The TMDL
document indicates that the figures were calculated to attain
the 30-day geometric mean criterion water quality standard.
TMDL document states that “[t]he approach used to
calculate daily loads in this TMDL identifies a
representative maximum daily or average daily load for the
annual TMDL for each source identified in the original”
TMDLs. EPA0011839. It further explains that the Max daily
figure for each source “could not be reached every day
and still achieve the underlying water quality
standards.” Id. Rather, the “Max
daily” figure “represents a value which when
exceeded indicates [a] likelihood that water quality criteria
will not be attained.” Id. It depicts the
figures as “illustrating the variability in loading
that can occur under a TMDL, ” but makes clear that the
annual average load figures also had to be met to comply with
the TMDL document. Id.
approved the District's TMDLs and issued a decision
rationale in December 2014. See EPA0011877-90. The
rationale concluded that the TMDLs achieved all of the
applicable water quality standards. EPA0011882-86. With
regard to the numerical criteria, EPA relied on the
aforementioned footnote in the District's water quality
standards to conclude that the TMDLs need not achieve the
single sample value. EPA0011883. Therefore, because the
figures achieved the 30-day geometric mean, the numeric
criteria were satisfied. Id. As for the two
narrative criteria, EPA explained that “[w]here there
is an existing numeric criterion applicable to a particular
pollutant, it is reasonable to use that criterion as the
quantitative implementation of the narrative standard and
designated uses.” EPA0011886. In other words, EPA
concluded that attainment of the geometric mean criterion
sufficed to satisfy the two narrative standards and the
rationale treated the “Max daily” figures akin to
how they were presented in the District's TMDL document.
It explained that “[t]he approach used to calculate
daily loads in these revised TMDLs identifies a
representative maximum daily or average daily load for the
annual TMDL for each source represented in the original
report.” EPA0011888. It noted as “an assumption
and requirement of the 2014 TMDL Revisions that both the
annual and daily loads must be achieved in order to ensure
that the applicable water quality standards will be
met.” EPA0011882. Similarly, it indicated that
“all bacteria loads discharged to the Potomac and its
tributaries must be consistent with all of the stated loading
limits in the TMDL-annual average, daily average, and maximum
EPA described the public review and comment process,
concluding “that there has been adequate opportunity
for public participation in the development of the 2014 TMDL
Water Suit and Revised Rationale
2015, D.C. Water filed a lawsuit challenging EPA's
approval of the District's revised TMDLs, which was
assigned to Judge Bates. D.C. Water alleged that the approved
TMDLs set the allocations for the Blue Plains Outfalls too
low. They did so, D.C. Water argued, because the loads were
derived from calculations that misinterpreted certain data.
One such calculation set Outfall 002's allocation based
on its average design flow rate rather than its permitted
maximum flow rate. Put simply, the more water flowing through
Blue Plains, the more bacteria discharged into the Potomac.
Thus, by using the average rather than maximum rate, the
calculation yielded a maximum load that was less than what
could be discharged without exceeding water quality
standards. As a result, D.C. Water contended, the daily
expressions in the TMDLs were more stringent than what was
necessary to implement the water quality standards and
jeopardized D.C. Water's NPDES permit. See
generally Compl., D.C. Water v. EPA, No.
response, EPA withdrew its initial decision rationale and
issued a revised version, EPA0013928-40, prompting D.C. Water
to dismiss its suit. Without explicitly admitting error, EPA
acknowledged in a letter accompanying the revised rationale
that it “ha[d] identified some ambiguities in [its]
December 2014 decision rationale that would benefit from
subsequent 2017 rationale did not alter EPA's position
that the TMDLs achieved all necessary water quality
standards, EPA0013932-35, or its view that there had been
sufficient public participation in the approval process,
EPA0013940. It did, however, include several changes that are
key to this case. First, with regard to Blue Plains Outfall
002's dry weather “Max daily” load, the
rationale acknowledged that the figure was calculated based
on the average flow rate of the Outfall on dry weather days,
rather than its maximum permitted flow rate. EPA0013938.
Consequently, EPA explained that the “Max daily”
load “is not intended- despite its label-to function as
a ceiling or limit applicable to discharges . . . . [b]ut
represents an average of the daily maximum loadings expected
to occur . . . and still achieve the applicable water quality
standard.” Id. Put another way, the figure did
not represent the amount of pollutant that would enter the
water on the highest-flow (and most pollutant-heavy) day, but
the average amount that would enter the water on a given day.
generally, the revised rationale treats the daily load
expressions differently than the previous rationale. It
indicates that the daily expressions do not represent
targets or values.” EPA0013939. Rather, they
“express on a ‘daily' basis the modeled loads
of E. coli predicted to meet” the 30-day
geometric mean. Id. Similarly, it explains that
permitting decisions should be based on allocations “as
properly understood in light of the [30-day geometric mean] .
. . rather than on the assumption that the TMDLs'
[allocations] set a maximum or ceiling on E. coli
loads during any given 24-hour period.” Id.
rationale also treats Blue Plains differently than other
sources. In describing other sources, the rationale points
out that there are two daily expressions-a maximum and an
average-with the maximum “reflect[ing] the highest
predicted daily load” based on a simulation period.
Id. For Blue Plains, meanwhile, the rationale
explains that “there are separate daily load
expressions for wet weather and dry weather conditions
calculated using conditions described in [the existing NPDES
permit], ” which is “based upon the prediction
that discharges from Outfalls 001 and 002 will not preclude
attainment” of the water quality standard. Id.
dismissal of D.C. Water's case, Plaintiffs amended their
complaint in this case- which had been filed in the
meantime-to reflect changes in EPA's decision rationale.
Their Amended Complaint alleges that EPA violated the CWA by
(1) approving TMDLs that fail to establish true maximum loads
and that fail to achieve all applicable water quality
standards, and (2) improperly concluding that the
District's TMDL development process allowed for
sufficient public participation. D.C. Water intervened as
Defendants. Additionally, the Wet Weather Partnership and
National Association of Clean Water Agencies filed a brief as
amici curiae to present the perspective of local
governments and waste water agencies from across the country.
Each party to the case moved for summary judgment, and the
Court held a hearing on their motions.
Standard of Review
approval of the TMDLs is subject to review under the
Administrative Procedure Act, which provides that a reviewing
court shall “hold unlawful and set aside agency action,
findings, and conclusions found to be arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
the law[.]” 5 U.S.C. § 706(2)(A). Arbitrary and
capricious review is “narrow, ” Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971), precluding the Court from “substitut[ing] its
judgment for that of the agency, ” Motor Vehicle
Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983). The Court's role is to
determine whether the agency “examine[d] the relevant
data and articulate[d] a satisfactory explanation for its
action including a rational connection between the facts
found and the choice made.” Id. (internal
quotation marks omitted). Even if the agency did not fully
explain its decision, the Court may uphold it “if the
agency's path may reasonably be discerned.”
Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,
Inc., 419 U.S. 281, 286 (1974). The Court's review
is limited to the administrative record, Holy Land Found.
for Relief & Dev. v. Ashcroft, 333 F.3d 156, 160
(D.C. Cir. 2003), and the party challenging an agency's
action bears the burden of proof, City of Olmsted Falls
v. FAA, 292 F.3d 261, 271 (D.C. Cir. 2002).
agency's interpretation of a statute it administers is
entitled to deference under Chevron, U.S.A., Inc. v.
NRDC, 467 U.S. 837 (1984). In reviewing that
interpretation, a Court must first consider whether the
statute directly addresses the “precise question at
issue.” Id. at 842-43. If so, Congress's
directive controls. Id. If the statute is silent or
ambiguous regarding the issue, “the question for the
court is whether the agency's interpretation is based on
a permissible construction of the statute in light of its
language, structure, and purpose.” Nat'l
Treasury Emps. Union v. Fed. Labor Relations Auth., 754
F.3d 1031, 1042 (D.C. Cir. 2014) (quoting AFL-CIO v.
Chao, 409 F.3d 377, 384 (D.C. Cir. 2005)). The court
must defer to any reasonable agency interpretation,
Loving v. IRS, 742 F.3d 1013, 1016 (D.C. Cir. 2014),
which need not be the one “deemed most reasonable by
the courts[, ]” Entergy Corp. v. Riverkeeper,
Inc., 556 U.S. 208, 218 (2009).
levy three substantive challenges and one procedural
challenge to the EPA-approved TMDLs. Substantively, they
contend first that the TMDLs fail to set true maximum daily
loads as the CWA requires. Second, they assert that the TMDLs
improperly fail to account for the single sample value
criterion. Third, they argue that the TMDLs fail to achieve
the District's narrative criteria designed to protect
human health. On the procedural front, Plaintiffs contend
that EPA unreasonably concluded ...