301 F. Supp. 3d 133
D.C. Cir.2018Background
- The Anacostia River (shared by Maryland and D.C.) was listed as impaired for trash under the Clean Water Act (CWA) narrative water quality standards; states must adopt TMDLs for impaired waters.
- Maryland and D.C., with EPA involvement, developed a joint Trash TMDL (2010) expressed as the amount of trash that must be captured/removed or prevented from entering the river (ca. 1.3 million pounds/year; ~3,458.9 lbs/day).
- EPA approved the Trash TMDL despite its being framed as a removal/prevention requirement rather than a cap on how much trash may enter the water.
- NRDC sued under the Administrative Procedure Act, arguing the TMDL violates the CWA and EPA regulations because it sets a minimum removal target rather than a "total maximum daily load."
- The core legal dispute centers on whether "total maximum daily load" unambiguously requires setting an upper bound on pollutant input (a ‘‘maximum load’’) rather than a required removal/prevention quantity.
- The court reviewed the administrative record and applied Chevron/Auer principles to decide whether EPA’s approval was lawful.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Trash TMDL lawfully qualifies as a "total maximum daily load" under 33 U.S.C. § 1313(d)(1)(C) and 40 C.F.R. § 130.2 | NRDC: "TMDL" requires a maximum allowable pollutant load into the water; the removal-based TMDL fails to set that upper limit and is therefore contrary to statute and regs. | EPA/D.C. Water: "TMDL" can be expressed in other appropriate measures; trash is uniquely hard to measure entering the river so expressing the TMDL as removal/prevention is permissible and accomplishes the statute's aims. | Held for NRDC: "total maximum daily load" unambiguously means the greatest quantity the water can receive without violating standards; a removal-based minimum does not set a maximum load and EPA's approval was unlawful. |
| Whether EPA's regulatory phrase "other appropriate measure" allows expressing a TMDL as an amount removed/prevented rather than an input cap | NRDC: "other appropriate measure" refers to alternative units of measurement (mass/time, toxicity) not to reversing the substantive direction (from input cap to removal). | EPA: The regulation permits flexible measures; removal/prevention is an appropriate measure for trash. | Held for NRDC: Context and ejusdem generis support that "other appropriate measure" means another unit of measure, not a substantively different formulation that makes "maximum" mean "minimum." |
| Whether practical measurement difficulties (character of trash) make the statutory language ambiguous or justify deference to EPA | NRDC: Practical issues do not render the statutory terms ambiguous; D.C. Circuit precedent (Friends of the Earth) rejects agency attempts to override plain statutory terms due to inconvenience. | EPA: Trash’s unique transport and measurement challenges justify a pragmatic construction of TMDL expression. | Held for NRDC: Practical difficulties do not overcome the plain meaning; the D.C. Circuit’s approach controls and rejects such pragmatic redefinitions. |
| Appropriate remedy for unlawful approval | NRDC: Vacatur and remand; stay vacatur until a replacement TMDL is adopted within a reasonable time. | EPA: Remand without vacatur; no court-imposed time limit. | Held: Court vacated EPA approval but stayed vacatur so the existing TMDL remains in force until EPA approves a replacement; declined to set a specific deadline for EPA. |
Key Cases Cited
- Friends of the Earth, Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006) (statutory word "daily" is plain; agency cannot rewrite plain statutory terms based on perceived practical problems)
- Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275 (D.C. Cir. 1981) (TMDLs set the maximum amount of a pollutant that can be added without violating water quality standards)
- American Farm Bureau Federation v. EPA, 792 F.3d 281 (3d Cir. 2015) (describes TMDLs as setting the maximum pollution a waterbody can absorb before violating standards)
- Anacostia Riverkeeper, Inc. v. Jackson, 713 F. Supp. 2d 50 (D.D.C. 2010) (discussion of TMDL purpose and meaning)
- Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commission, 988 F.2d 146 (D.C. Cir. 1993) (vacatur/remand remedy framework balancing seriousness of error against disruptive consequences)
- Sierra Club v. Meiburg, 296 F.3d 1021 (11th Cir. 2002) (implementation of TMDLs largely rests with states)