ANACOSTIA RIVERKEEPER, INC. v. Jackson
798 F. Supp. 2d 210
D.D.C.2011Background
- Plaintiffs Anacostia Riverkeeper, Inc. and Friends of the Earth challenge EPA approval of a 2007 Final TMDL for sediment and TSS in the Anacostia River.
- The District of Columbia and Maryland jointly submitted the sediment/TSS TMDL under the Clean Water Act (CWA); EPA approved it in 2007.
- Plaintiffs sue under the CWA and the Administrative Procedure Act to invalidate EPA’s approval as arbitrary and capricious.
- The dispute centers on whether the Final TMDL adequately implements all applicable water quality standards and accounts for designated uses beyond aquatic life.
- A prior sequence includes Kingman Park and Friends I/II, which compelled state action and later rejected daily vs annual load formulations; this case remands for a comprehensive assessment of all applicable standards.
- EPA relies on models and Secchi-depth criteria to justify protection of aquatic life, while plaintiffs argue neglected recreational/aesthetic uses and insufficient margin of safety.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Final TMDL implements all applicable water quality standards | Riverkeeper/FOE contend it does not | EPA/DC/MD assert standards are met for aquatic life; selective focus acceptable | Partially granted; EPA’s reliance on Secchi-depth for recreational/aesthetic uses insufficient to show all standards met. |
| Whether MS4 WLAs may be system-wide rather than per outfall | Arguments for sub-outfall WLAs to ensure monitoring | System-wide WLAs are permissible to reflect permitting realities | Partially upheld; court finds system-wide WLAs permissible but requires adequate justification. |
| Whether the margin of safety is adequately demonstrated | Implicit margin of safety and conservative modeling insufficiently shown | implicit margin acceptable per EPA guidance | Held that implicit margin through modeling is permissible; EPA must show rational basis for sufficiency. |
| Whether reliance on Secchi depth as sole criterion for aquatic life is appropriate | NTU/Narrative criteria for recreational uses ignored | Secchi depth is a rational surrogate tied to aquatic life and NORC criteria | Not upheld; court finds EPA failed to link Secchi depth to all applicable uses; must address other criteria. |
| Whether a TMDL may be approved without addressing all designated uses | Final TMDL targeted aquatic life only; other uses ignored | CWA allows a holistic approach addressing designated uses via overall standards | Court rejects narrowing to subset of uses; requires protection of all applicable uses. |
Key Cases Cited
- PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700 (1994) (requires consistency with designated uses and water quality criteria under the CWA)
- Am. Paper Institute, Inc. v. EPA, 996 F.2d 346 (D.C. Cir. 1993) (explains point-source/Non-point-source framework and NPDES linkage)
- Friends I, 346 F.Supp.2d 182 (D.D.C. 2004) (upheld EPA’s approach to TMDLs for Anacostia, including daily loads)
- Friends II, 446 F.3d 140 (D.C. Cir. 2006) (held daily loads are required; remanded for reconsideration of issues, not all)
- NRDC v. EPA, 16 F.3d 1395 (4th Cir. 1993) (court addressing water quality standards and uses framework)