Ulliman Schutte Construction LLC D.C. wastewater agency wants supreme review.

Wastewater treatment utilities and environmentalists are battling each other over recent appellate court decisions with different interpretations of how frequently U.S. law requires reporting of maximum “loads” of pollutants in impaired waters and whether the U.S. Supreme Court should decide which side is right.

The issue revolves around whether the federal Clean Water Act requires “total maximum daily loads (TMDLs)” for pollutants to be expressed on a daily basis or as infrequently as weekly, seasonally or even annually. The District of Columbia Circuit Court of Appeals ruled in April that two Anacostia River TMDLs approved by the U.S. Environmental Protection Agency violated the act because they were not expressed as “daily” loads. But an earlier ruling by a federal appeals court in New York City held that “the term [TMDL] is susceptible to a broader range of meanings” than of loads calculated daily.

Related Links: EPA Brief to Supreme Court (109 KB) EPA TMDL Guidance ( 438 KB) Friends of the Earth Brief (56 KB)

Following the D.C. court’s decision, the District of Columbia Water and Sewer Authority filed a petition July 24 seeking high court review. The National Association of Clean Water Agencies (NACWA) supported the position in a separate high court filing. But on Nov. 24, environmental group Friends of the Earth asked the court not to take up the  case. Caught in the middle, EPA has tried to mitigate the controversy in a Nov. 15 guidance memo. Observers expect more litigation to come.

In its petition, Friends of the Earth sees need for further court guidance on the issue and says utility legal arguments over added compliance costs are flawed because EPA or the states “remain free to determine how much pollutant loading a TMDL should allow as long as [it]...be daily and...implement the applicable water quality standards.”

In a memo, EPA Assistant Administrator Benjamin H. Grumbles claims the Washington appellate decision does not need “any changes to existing policy...describing how a TMDL’s wasteload allocations are implemented” in state pollution permits. He says the agency still “recommends” expressing TMDLs “in terms of daily time increments” but that there is also “some flexibility” in the state interpretations. 

Adam Krantz, NACWA managing director of government and public affairs, believes high court justices will take the case. He says “it is important there be consistency, so utilities know what to expect.” Adds Sharon Thomas, regulatory affairs manager for the Water Environment Federation: “If the Supreme Court does not review the case, we will work with EPA to improve the [TMDL] program, but the EPA approach also opens the door for future litigation.”