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Anacostia Riverkeeper, Inc. v. Wheeler

United States District Court, District of Columbia

August 12, 2019

ANACOSTIA RIVERKEEPER, INC., et al., Plaintiffs,
v.
ANDREW WHEELER, et al., Defendants DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Intervenor Defendant

          MEMORANDUM OPINION

          Christopher R. Cooper United States District Judge.

         The 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.

         The 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.[1]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.

         The 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 process.

         I. Background

         A. Clean Water Act

         The 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 (D.D.C. 2011).

         A 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).

         To 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.

         Because “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. § 1313(d)(1)(c)).

         “TMDLs 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.

         The Act 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. § 122.44(d)(1)(vii)(B).

         B. The District's Water Quality Standards

         The 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.

         The two 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:

         (Image Omitted)

         The 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.

         C. The TMDL Development Process

         In 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 EPA0010921-48.

         In 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).

         Following 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 comment.

         1. The 2014 TMDLs

         In 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.[2] 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. EPA0011832-33; EPA0011836-39.

         The 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.

         2. EPA Approval

         EPA 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 designated use.

         EPA's 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 daily.” EPA0011888.

         Finally, 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 Revision.” EPA0011889-90.

         3.D.C. Water Suit and Revised Rationale

         In 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. 15-2044 (D.D.C.).

         In 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 clarification.” EPA0013928.

         The 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.

         More generally, the revised rationale treats the daily load expressions differently than the previous rationale. It indicates that the daily expressions do not represent “‘never-to-be-exceeded-on-a-daily-basis' 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.

         The new 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.

         Upon 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.

         II. Standard of Review

         EPA's 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).

         An 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).

         III. Analysis

         Plaintiffs 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 ...


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