Amicus Curiae Brief — District of Columbia Water and Sewer Authority Authority Authority v. Friends of the Earth, Inc. (No. 06-119)

In The Fane

Supreme Court of the Uuniten “States

DISTRICT OF COLUMBIA

WATER AND SEWER AUTHORITY,

Petitioner,

Vv.

FRIENDS OF THE EARTH, INC.,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

AMICI CURIAE BRIEF OF THE

NATIONAL ASSOCIATION OF CLEAN

WATER AGENCIES AND THE WET

WEATHER PARTNERSHIP IN

SUPPORT OF PETITIONER

Alexandra Dapolito Dunn John A. Sheehan*

General Counsel F. Paul Calamita

- National Association of AquaLaw PLC

Clean Water Agencies 801 East Main Street

1816 Jefferson Place, N.W. Richmond, Virginia 23219

Washington, D.C. 20036-2505 (804) 716-9021

*Counsel of Record

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......ccssecsessesssessessesseeeeee ii

INTEREST OF AMICI CURIAE.......csccccesseeseeesesseeeees 1

SUMMARY OF ARGUMEDT............. Sched xy Geen 3

a eckcscadeceicesivsanincacsnss 5

I. An Intercircuit Conflict Exists Over the

Interpretation of a Fundamental Provision of the

Federal Clean Water Act That Affects Cleanup

Plans for Thousands of Impaired Waters

eaves icaxiendichasides baascanedesissessacens -

A. The Circuit Split Creates Uncertainty

Regarding the Correct Requirements For

Establishing Allowable Pollutant Loads to

I os sinc dsivayncvasekceccdescesevieesiunett 5

B. After Decades of Implementation by EPA

Based Upon the Interpretation of the CWA

Supported by the Second Circuit Decision, the

D.C. Circuit’s Ruling Now Undermines

Numerous Existing Water Quality Programs. 6

1. EPA and State Impaired Waters Programs.. 7

2. The Combined Sewer Overflow Program

Established in CWA Section 402(q). .............. 8

3. The Chesapeake Bay Program .................. 10

C. The D.C. Circuit Decision Could Exempt

Numerous Impaired Waters from the Cleanup

Plan Program, a Result Contrary to the

Primary Purpose of the Clean Water Act...... 11

II. The D.C. Circuit Decision Incorrectly Construed

SRN CCI, cv sininienscpeinecaavntedeeieresicaadiplabdentigndicuiie 13

A. The D.C. Circuit Decision Failed to Properly

Consider Other Provisions of the CWA That

Demonstrate Congress Did Not Mandate a

Daily Approach to Pollutant Loadings in All

Cc sncinsshnnciahsdiseschsnaves taneieasscdduetaks 13

B. Section 402(p) of the CWA Demonstrates

Congress’ Intent Not to Require Daily Loads in

Se N65 ho nese 15

C. The D.C. Circuit Incorrectly Dismissed A Key

Substantive CWA Amendment as Subsequent

Legislative History with No Relevance to the

Meaning of the Statute. ..............0c0ccccssteccees- 17

lil. The Court of Appeals Ignored a Critical Element

of EPA’s Governing Regulations, Deciding the Case

on an Unnecessary Statutory Analysis................ 18

Ee 5S os i i ao a ee 20

il

TABLE OF AUTHORITIES

CASES

Brown v. Gardner,

SES UG EAA, Fe OW ici casaieks iv ccvccdstssonvcncss 18

Church of the Holy Trinity v. United States,

eT ce FI ohh cence sebonedse vere dedguntncenss 12

Cobell v. Norton,

O20 F. Beh FOTO GRC, Car ZO ciccincccivenvocsisiveravevs 17

FDA v. Brown & Williamson Tobacco Corp.,

SAD ie Bay Bee Od I en vencdvcssessreesossosssveseses 18

Friends of the Earth, Inc. v. Environmental

Protection Agency,

346 F. Supp. 2d 182 (D.D.C. 2004) ....2, 4, 10, 14, 15

Friends of the Earth, Inc. v. Environmental

Protection Agency,

446 F. 3d 140 (D.C. Cir. 2006) ........... 3, 4, 14, 17, 19

Griffin v. Oceanic Contractors, Inc.,

SE Ui eg SOO a UE ssn kiss ch atadens peed icsedccewiws 12

Natural Resources Defense Council, Inc. v.

Muszynski,

Bee. SOL, FO UR Ca, DOE ai a cao occcvibcsccceesecess 3

NRLB v. Bell Aerospace Co. Div. of Texatron, Inc,

EE Ec EES UAT nhc ness chee vioasiicuseeinas honk ieveoece 7

Stone v. INS,

R408 206,907 119908 2 4

STATUTES AND REGULATIONS

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33 U.S.C. §1281 through 1301 .....cccccccssssssessescsesee 15

MOSC PE. 7

SaSC BI 19

S506 CIZIIMOM.. 7

$50.46 #1 15

SOO Cid 2

WOCOR 61 Stl 16

MEP EEA a 10

MOCPR 05810 16

MISCELLANEOUS

43 Fed. Reg. 60,662, 60,665 (Dec. 28, 1978) .... 4, 19

30 Fed. Reg. 1779, 1776 (Jan. 11, 1985)................. ac

59 Fed. Reg. 18,688, 18,692 (April 19, 1994) .......... 9

64 Fed. Reg. 46031 (Aug. 23, 1999).......0......0. 7

64 Fed. Reg. 68,722, 68,765 (Dec. 8, 1999)........... 16

BNA Daily Environment Report, July 27, 2006.... 6, 7

http: / /www.deq.virginia.gov/tmdl/apptmd1............ 8

iv

http: / /www.epa.gov/npdes/pubs/memo_chesapeake

Ey Giekcccicsinics ck uasee ccasadudainte pciadsensuincassassesércesuie 10

http:/ /www.epa.gov/owow/tmdl/lawsuit1.html...... 6

http: / /www.epa.gov/regionO1/eco/lis/assets/pdfs/

I ai vais can cciguid ies nciectelais binipneteietateuaiain 11

http: / /www.epa.gov/reg3wapd/tmdl/D.C._tmdl/

MU IOI ii ai cncavoscsitcarcedsicnssdedeaniwandsserdeecsuseieeliied 7

http: //www.mde.state.md.us/Programs/ Water

Programs/TMDL/index.asp..............c.ccccecsceecesceeeeees 8

U.S. Environmental Protection Agency, Report to

Congress on Implementation and Enforcement of the

Combined Sewer Overflow Control Policy

CN IRIAN AE sic hichni ccs clisvaeabs cchaxsbereuecbasdetevascobiavncinceeesen 9

INTEREST OF THE AMICI CURIAE!

The National Association of Clean Water

Agencies (“NACWA”) represents the interests of the

nation’s publicly owned wastewater treatment

agencies.2 NACWA is comprised of nearly 300

municipal clean water agency members that provide

services to the majority of the United States’

population served by sewer systems. NACWA

members operate municipal publicly owned treatment

works (“POTWs”) under federal and state laws and

regulations in cities and towns across the United

States, and collectively treat and reclaim over 18

billion gallons of wastewater each day. In addition to

operating POTWs, eighty of NACWA’s member

agencies, including the District of Columbia Water

and Sewer Authority (“WASA”), also operate combined

sewer overflow (“CSO”) collection systems that serve

approximately 44.6 million people. Thirty-two states

have communities with combined sewer systems.

NACWA supports WASA’s petition for a writ of

certiorari seeking review of the decision by the D.C.

Circuit due to its broad and immediate impact on all

NACWA members, particularly those like WASA that

operate combined sewer collection systems. The

ramifications of the D.C. Circuit decision extend far

beyond the Anacostia River in the District of Columbia

and will significantly impact NACWA’s CSO member

communities nationwide. A recent survey of forty-

seven of NACWA’s CSO member communities revealed

1 Written consent for the filing of this brief was granted by all of

the parties pursuant to Supreme Court Rule 37. The signed

consent letters are being sent to the Court under separate cover

letter along with the brief.

2 The National Association of Clean Water Agencies (“NACWA”)

was formerly the Association of Metropolitan Sewerage Agencies

(“AMSA”). On May 2, 2005, AMSA, established in 1970, amended

its Articles of Incorporation to change its name to the National

Association of Clean Water Agencies.

that these cities collectively have spent $5.1 billion

(ranging from expenditures of $100,000 to $2.4

billion) in capital dollars and $39.6 million (ranging

from expenditures of $50,000 to $4.5 million) in

operation and maintenance dollars toward the

implementation of their Long Term Control Plans

(“LTCPs”) to comply with CSO requirements. The D.C.

Circuit decision undermines the implementation of

these LTCPs because these LTCPs have generally been

developed to meet seasonal or annual pollutant loads,

not the daily loads required by the D.C. Circuit

decision. The decision will undercut the efforts of

communities nationwide to implement the combined

sewer overflow policy contained in section 402(q) of

the federal Clean Water Act, 33 U.S.C. § 1251 et seq.

(“CWA”). Additionally, other NACWA members that do

not operate combined sewer systems but discharge to

impaired waters that require TMDLs (which ultimately

are incorporated in enforceable National Pollutant

Discharge Elimination System (“NPDES”) permits) are

impacted because the status of existing and future

TMDLs is now uncertain.

The Wet Weather Partnership (“the

Partnership”), until recently named the Combined

Sewer Overflow Partnership, is dedicated to

representing the interests of the approximately 800

communities with combined sewer systems

nationwide. The Partnership’s approximately 80

' members have invested hundreds of millions of dollars

in the planning, design, permitting and construction

of CSO control facilities in accordance with EPA’s CSO

Policy, incorporated by reference into CWA section

402(q). 33 U.S.C. §1342(q). As the district court in

this case recognized, CSO communities cannot comply

with the CSO Policy or CWA section 402(q) if TMDLs

must be based on a daily appreach. Friends of the

Earth, Inc. v. Environmental Protection Agency, 346 F.

Supp. 2d 182, 191, n. 4 (D.D.C. 2004).

These enormous public investments were not

designed to meet the new “daily” pollutant loading

regulatory requirement announced by the D.C.

Circuit. Such a daily loading requirement is likely to

trigger a reevaluation of most CSO control programs

and may well strand or limit the utility of CSO control

investments by Partnership members.

SUMMARY OF ARGUMENT

This case presents a direct conflict between two

decisions by circuit courts of appeals on the

interpretation of a fundamental Clean Water Act

provision that will affect cleanup plans for thousands

of impaired surface waters across the nation.

Decisions by the United States Court of Appeals for

the District of Columbia and the United States Court

of Appeals for the Second Circuit are in direct conflict

over the proper construction of section 303(d) of the

CWA. Construing the same statutory language (in

particular, the word “daily), the D.C. Circuit said “ [w]e

cannot imagine a clearer expression of intent” while

the Second Circuit found such an interpretation of the

statute to be “absurd.” Friends of the Earth, Inc. v.

Environmental Protection Agency, 446 F. 3d 140, 144

(D.C. Cir. 2006); Natural Resources Defense Council

Inc. v. Muszynski, 268 F. 3d 91, 99 ( 2d Cir. 2001).

This intercircuit conflict puts in doubt cleanup plans

currently in existence and those under development

for up to 40,000 impaired rivers, lakes, and streams

nationwide.

Beyond the intercircuit conflict, the D.C.

Circuit’s decision requires review because it (1)

reverses a long-standing agency interpretation that

has served as the basis for several national water

quality programs; (2) is based on a faulty statutory

analysis which led the circuit court to incorrectly

dismisses key substantive amendments to the Clean

Water Act as being merely “subsequent legislative

history” that the court held to have no “relevance;” 3

(3) creates regulatory uncertainty for a number of

important national water quality programs; and (4)

might trigger further litigation over the cleanup plans

at issue as well as for similar cleanup plans for waters

nationwide.

Review by this Court is warranted because the

D.C. Circuit’s ruling undermines the legal validity and

implementation of cleanup plans for waters

nationwide and the associated years of program

implementation by EPA and the states. The D.C.

Circuit Court acknowledged the immediate and

substantial impacts of its decision by suggesting in its

opinion ways to delay the loss of protection for the

Anacostia River that would result from an immediate

exercise of the court’s invalidation of the two

challenged cleanup plans before it. Friends of the

Earth, 446 F. 3d at 148. However, the court left in

legal limbo all other non-daily cleanup plans for

District of Columbia waters as well as other impaired

waters nationwide. This immediate and highly

significant adverse impact on impaired water cleanup

plans nationwide warrants a prompt review by this

Court.

Finally, review by this Court is necessary to

prevent long-standing and substantial EPA and state

water quality programs from being plunged into

uncertainty over the proper standards to use in

establishing cleanup plans. These programs were

3 Conversely, the District Court correctly construed the effect of

these amendments, recognizing “It needs hardly be said that when

Congress acts to amend a statute, [courts] presume it intends its

amendment to have real and substantial effect.” Friends of the

Earth, Inc. v. Environmental Protection Agency, 346 F. Supp. 2d

182, 191 n.4 (D.D.C. 2004), citing Stone v. INS, 514 U.S. 386, 397

(1995).

4 In the nearly four months since the decision, EPA has not

indicated an intention to follow the suggestion by the D.C. Circuit

to amend its regulation that declared all pollutants suitable for

daily loads. 43 Fed. Reg. 60,662, 60,665 (Dec. 28, 1978). In its

established on the basis that in many cases cleanup

plans and TMDLs are properly expressed in measures

other than daily parameters. That foundation, which

has been in place for decades, is now called into

question nationwide. Only review by the Court will

resolve this dispute and prevent the ¢c‘sruptions,

regulatory uncertainty and the loss of cleanup plan

protections for impaired waters that will - otherwise

follow.

ARGUMENT

I. An Intercircuit Conflict Exists Over the

Interpretation of a Fundamental Provision of

the Federal Clean Water Act That Affects

Cleanup Plans for Thousands of Impaired

Waters Nationwide.

A. The Circuit Split Creates Uncertainty

Regarding the Correct Requirements for

Establishing Allowable Pollutant Loads to

Impaired Waters.

The conflicting decisions by the D.C. Circuit

and the Second Circuit create uncertainty about

whether cleanup plans for impaired waters must be

expressed in daily terms or whether non-daily

expressions are permissible. This uncertainty will

likely result in conflicting regulatory requirements as

EPA, states, regulated entities and communities, and

various interest groups disagree as to which

interpretation of the Act to follow. This conflict will

create situations where a river or steam that runs

recent pleading after remand to the district court, EPA stated that

it is not the agency’s plan “at this time” to revise the 1978

regulation. EPA Motion to Stay Order of Vacatur, filed Aug. 8,

2006 at p. 4, n.2.

through different jurisdictions could subject

dischargers to conflicting regulatory requirements.

The Anacostia River is a prime example of this

situation as it begins in Maryland (Fourth Circuit) and

runs through the District of Columbia (D.C. Circuit).

Annual pollutant loadings could be permissible in one

part of the river, while daily loading could be required

in another part. Notably, numerous non-daily TMDLs

have been developed within the Fourth Circuit,

including several accepted by district courts pursuant

to federal TMDL consent decrees.5

A patchwork of conflicting approaches, rules

and methods is likely to emerge as states outside the

D.C. Circuit and Second Circuit develop cleanup plans

and TMDLs and decide which approach to adopt.

This confusion and uncertainty will increase costs for

the regulated community and ratepayers and make

the mission of maintaining and improving water

quality in our nations’ waters more difficult. In

addition to the reguiatory uncertainty, this situation

potentially strands billions of dollars in investments in

CSO programs and other water quality programs in

communities nationwide, as communities must decide

whether to continue to fund programs where the

requirements and standards are not certain. These

impacts and costs are discussed below.

B. After Decades of Implementation by EPA

Based Upon the Interpretation of the CWA

Supported by the Second Circuit Decision,

5 A listing of EPA’s TMDL-related consent decrees by states is

available at: http: / /www.epa.gov/owow/tmdl/lawsuit1.html.

¢ EPA has added to this uncertainty in the months since the D.C.

Circuit decision by circulating a draft “policy” in response to the D.

C. Circuit decision to some stakeholders for comments. This

policy acknowledges the impact of the D.C. Circuit ruling by

stating that TMDLs must be written in daily terms, but does not

require that permits implementing those TMDLs have daily limits.

BNA Daily Environment Report, July 27, 2006, p. A-12.

the D.C. Circuit’s Ruling Now Undermines

Numerous Existing Water Quality Programs.

The D.C. Circuit’s decision undermines the

longstanding EPA interpretation that maximum

pollutant loads may be expressed in non-daily terms,

and casts doubt on many regulatory programs

premised upon this interpretation.? EPA regulations

since 1985 have been based upon the interpretation

that TMDLs may be expressed in periods longer than a

twenty-four hour period. 50 Fed. Reg. 1779, 1776

(Jan. 11, 1985); 64 Fed. Reg. 46031 (Aug. 23, 1999).

The decision by the D.C. Circuit invalidating this

interpretation could undermine this progress and chill

the development of future TMDLs. The following are

some of the programs and actions premised upon the

validity of cleanup plans expressed in non-daily terms.

1. EPA and State Impaired Waters Programs.

Section 303(d) of the CWA requires states to

identify impaired waters and then prepare cleanup

plans (TMDLs) for those waters. States must then

submit the TMDLs to EPA for approval. 33 U.S.C. §§

1311(b)(1)(C); 1313(e}(3)(A).

If EPA follows the D.C. Circuit view that all

cleanup plans must impose daily loads (in spite of the

fact that EPA’s current regulations state otherwise),

the pace of TMDL development will be disrupted and

numerous existing plans based on _ non-daily

approaches already approved by EPA and the states

may be invalidated.? In the District of Columbia, EPA

7 The D.C. Circuit Court ignored the argument that a

longstanding interpretation placed on a statute by an agency

charged with its administration is entitled to “great weight.” NLRB

v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 275

(1974).

8 As noted in footnote 6, EPA has circulated a draft policy

memorandum stating its view that all TMDLs now should be

has approved other TMDLs beyond those at issue in

this case which use non-daily loads.? EPA Region III

has also approved numerous TMDLs in Maryland and

Virginia that rely upon annual loads.!° These TMDLs

are subject to challenge based upon the D.C. Circuit’s

decision. The impact of invalidating these TMDLs

would not only have adverse regulatory consequences

but ~ would also have adverse environmental

consequences. As Friends of the Earth conceded in its

brief to the D.C. Circuit, “adverse environmental

implications would result from vacating the TMDLs” in

this case. FoE Br. at 47. Requiring daily loads for all

TMDLs would stall - or completely undermine -

implementation of numerous non-daily TMDLs.

Enormous public and private resources have

already been invested in the development and

implementation of these TMDLs. These investments

will be diminished, disrupted, or wasted if these

TMDLs must be redone based on daily loadings.

2. The Combined Sewer Overflow Program

Established in Section 402(q).

Communities across the country with combined

sewer collection systems have been designing and

constructing sewer sysiem improvements _ to

implement the Combined Sewer Overflow Policy (the

“CSO Policy”) adopted by EPA in 1994 and

incorporated into Section 402(q) CWA in 2000.

expressed in daily terms in light of the D.C. Circuit’s decision.

BNA Daily Environment Report, July 27, 2006, p. A-12.

9 See, e.g., District of Columbia TMDLs available at:

http: //www.epa.gov/reg3wapd/tmd1/D.C._tmdl/index.htm.

10 = See, e.g., Maryland TMDLs available at:

http: / /www.mde.state.md.us/Programs/WaterPrograms/TMDL/i

ndex.asp.

See also, Virginia TMDLs available at:

http: / /www.deq. virginia.gov/tmdl/apptmd.

Numerous communities have signed federal consent

decrees committing to massive public works projects,

often costing billions of dollars in the larger systems,

in order to comply with the CSO Policy.!!

The CSO Policy, however, is at odds with the

D.C. Circuit’s decision mandating daily loads in

TMDLs, as WASA explained in its petition for

certiorari. DC WASA Pet. for Certiorari, at 12-15. The

CSO Policy promotes a flexible, site-specific approach

to CSO control, which is contrary to the daily loading

approach required in the D.C. Circuit decision.

Section IJI.C.4.a of the CSO Policy lays out three

“presumptive” levels of CSO control that are presumed

to achieve water quality standards. 59 Fed. Reg.

18,688, 18,692 (April 19, 1994). The first option, for

example, is “no more than an average of four overflow

events per year, provided that the permitting authority

may allow up to two additional overflow events per

year.” The other two options are 85 percent capture of

wet weather flows for treatment either on a volume or

mass basis. These three options for CSO control,

outlined in EPA’s CSO Policy, and endorsed by

Congress in CWA Section 402(q), are fundamentally

inconsistent with the D.C. Circuit’s daily load position.

For example, the four to six untreated annual average

overflows approach is fundamentally inconsistent with

a daily pollutant-loading requirement for bacteria, for

example. Thus, any CSO community that has

developed and is implementing its CSO program

around one of the three “presumptive” criteria

established in the CSO Policy could have to completely

reevaluate their approach if a daily loading approach

is required. This could cause significant disruption

and cost billions of dollars in stranded public

infrastructure as well as additional future control

costs not intended by Congress.

1! U.S. Environmental Protection Agency, Report to Congress on

Implementation and Enforcement of the Combined Sewer Overflow

Control Policy, (Dec. 2001).

The district court recognized this problem,

stating that “if municipalities cannot calculate non-

daily TMDLs for their sewage overflow programs, they

cannot implement EPA’s CSO Policy.” Friends of the

Earth, 346 F. Supp. 2d at 191, n 4. Thus, the

intercircuit conflict casts doubt on the validity of

much of EPA’s CSO Policy and the investments made

in reliance on it.

3. The Chesapeake Bay Program

The cleanup plan for the Chesapeake Bay,

which involves billions of dollars in investments by

governments, utilities, and private companies in

Maryland, Virginia, the District of Columbia,

Delaware, Pennsylvania, West Virginia and New York,

is premised upon an EPA decision concluding that

annual permits limits are legal, necessary and

appropriate in permits in the Chesapeake Bay

watershed. EPA memorandum dated March 3,

2004.'2 The EPA memorandum considered the issue

of whether EPA may express effluent limits for

nitrogen and phosphorous for hundreds of permits

designed to protect the Chesapeake Bay as an annual

limit, or whether EPA must express the limits as a

daily maximum, weekly average, or monthly average

effluent limitations due to the language in section

303(d). In the memo, EPA considered the legal,

scientific and policy rationales for deciding whether it

may select annual limits instead of imposing limits on

a daily, weekly, or monthly basis. EPA concluded that

as a legal matter its regulations allow it to impose

annual limits where the other limitations such as

daily limitation would be “impracticable.” 40 C.F.R. §

122.45(d). EPA then determined that the

characteristics of nitrogen and phosphorous, when

combined with the unique characteristics of the

12 See http:/ /www.epa.gov/npdes/pubs/

memo_chesapeakebay.pdf.

10

Chesapeake Bay, make the imposition of daily, weekly

or monthly limits impracticable. March 4, 2004

memorandum at 3-5. EPA describes why daily,

weekly or monthly limits would be virtually impossible

to calculate; nutrients react differently than toxics and

conventional pollutants in the Bay ecosystem.

The entire cleanup of the Chesapeake Bay is

premised upon the approach in this EPA

memorandum. All of the commitments to date by

EPA, the states (including extensive legislative funding

and regulatory enactments), public utilities and

private companies, are founded upon this non-daily

approach. Requiring daily loads will undermine the

fundamental approach of the Bay Program restoration

effort and several billions of public dollars being

invested toward compliance with the annual average

loading approach for the Bay Program. Moreover,

requiring a daily loading approach rather than an

annual loads approach would increase the Bay

Program costs by billions of dollars on top of the tens

of billions already estimated.'3

C. The D.C. Circuit Decision Invites EPA to

Exempt Numerous Impaired Waters from the

Cleanup Plan Program, a Result Contrary to

the Primary Purpose of the Clean Water Act.

The fundamental purpose of the CWA is to

restore impaired waters and prevent the future

degradation of existing water quality. 33 U.S.C. §

1251. The D.C. Circuit decision construes the statute

to require cleanup plans for impaired waters where

13 The same is true for other regional waterbodies such as the

Long Island Sound program, in which EPA Region II developed a

TMDL for nitrogen that imposes annual loads as the compliance

measure for dozens of regulated entities discharging to the Long

Island Sound. See http://www.epa.gov/region0O1 /eco/lis/assets

/pdfs/Tmdl.pdf

daily load allocations are possible but where the

pollutant in question is not suitable for daily load

allocations, the court says EPA can simply exclude

such pollutants from the program and no cleanup

plan would be developed for waters receiving such

pollutants. This construction effectively abandons the

goal of restoring the water in question.

The D.C. Circuit’s interpr: © tion that all TMDLs

must be expressed in terms of daily loads will result in

only certain impaired waters being restored while

other waters will be abandoned. This is nonsensical

when cleanup plans expressing non-daily loads can be

readily developed and would fulfill the primary

purpose of the statute in restoring rather than

abandoning these impaired waters. Thus, the D.C.

Circuit’s holding would absurdly and impermissibly

conflict with the overall purpose of the Act. See,

Church of the Holy Trinity v. United States, 143 U.S.

457, 460 (1892); Gniffin v. Oceanic Contractors, Inc.,

458 U.S. 564, 575 (1982) (interpretation of statute

which would produce absurd results are to be avoided

if alternative interpretations consistent with the

legislative purpose are available).

Because of this statutory conflict, the Second

Circuit found the Act to be ambiguous and deferred to

EPA’s interpretation that it could specify non-daily

cleanup plans for such waters. This Court should

follow the Second Circuit’s ruling which provides a

consistent and integrated reading to the Act rather

than the _ internally’ conflicting interpretation

necessarily resulting from the D.C. Circuit’s ruling.

The Chesapeake Bay presents a _ potential

example of how the D.C. Circuit’s decision could be

applied to create a situation clearly not intended by

Congress. The Bay is impaired by nitrogen and

phosphorous discharges from hundreds of point

sources and thousands of non-point sources from six

states. EPA has found that nutrient loadings to the

Bay are not suitable for daily load calculation and,

instead, has taken an annual approach. See fn.12

12

infra. The D.C. Circuit’s decision would preclude that

annual approach and because nutrient discharges to

the Bay are not suitable for daily load limits, require

no cleanup plan be developed for the Bay. This is the

very absurd statutory dead end that the Second

Circuit and several district courts have avoided by an

interpretation of the Act viewing its provisions together

rather than isolating the word “daily” in section

303(d).

Moreover, the D.C. Circuit’s decision is

practically unworkable because in the example of the

Chesapeake Bay, EPA and the states must allocate

nitrogen and phosphorous discharges to the Bay

among hundreds of point sources and thousands of

non-point sources across six states in order to ensure

that water quality standards will be met in the Bay. If

EPA and the states cannot do this using a non-daily

TMDL/cleanup plan (for example through the

proposed ansiual average approach) they can never

ensure all of these discharges collectively will result in

the attainment of water quality standards. There is no

other way other than through a comprehensive

allocation/cleanup plan. The D.C. Circuit’s holding

that TMDLs must impose (‘daily” loadings

impermissibly conflicts with the structure and

purpose of the CWA.

Il. The D.C. Circuit Decision Improperly

Construed the CWA.

A. The D.C. Circuit Decision Failed to Properly

Consider Other Provisions of the CWA That

Demonstrate Congress Did Not Mandate a

Daily Approach in All Contexts.

The statutory analysis of the Clean Water Act

by the D.C. Circuit failed to properly consider the

context of section 303(d) in the CWA and too narrowly

focused oc» only one word in the statute. The court

essentially stopped its analysis at the word “daily” in

13

the undefined term “total maximum daily load,” saying

that it saw “nothing ambiguous about this command,”

citing to Webster’s Dictionary and the Bible as its

authority for its simple conclusion that “daily

connotes every day.” Friends of the Earth, 446 F. 3d

at 144. The court then brushed aside all other

arguments, including the contention that when

considering the context of the word “daily” in the

Clean Water Act, its meaning becomes less certain.

The D.C. Circuit reached its conclusion that the

statute is clear on its face even though three previous

courts, the United States District Court for the

Southern District of New York, the United States

Court of Appeals for the Second Circuit and the

United States District Court for the District of

Columbia, all concluded that section 303(d) was

ambiguous in light of the overall CWA structure.

Accordingly, those courts deferred to EPA’s

interpretation that it can develop non-daily TMDLs.

As the D.C. Circuit correctly noted, “the

question for the court is not whether Congress

understood the meaning of the word ‘daily’ when it

inserted it into the CWA, but whether Congress had

an intent regarding the applicability of the daily load

concept to the CWA.” Friends of the Earth, 346 F.

Supp. 2d at 189. The district court then held that the

text of the CWA does not reveal clear congressional

intent to require EPA to calculate only daily TMDLs

and exclude all other possible calculations. Id. In

reaching its conclusion that the meaning of section

303(d) was ambiguous in some contexts, the district

court correctly relied on the context supplied by both

sections 402(p) and 402(q) of the CWA.

The D.C. Circuit, by contrast, only considered the

argument that the meaning of 303(d) is ambiguous

when viewed in the context of 402(q), and failed to

consider the whether section 402(p) demonstrated

Congressional intent on the meaning of section 303(d).

The D.C. Circuit oddly and incorrectly dismissed

402(q) as being “subsequent legislative history” with

14

no “relevance” to Congress’ intent and incorrectly

overlooked 402(p). The D.C. Circuit should have

considered what these sections reveal about the intent

of Congress because, as the district court found, the

402 sections “reveal an ambiguity in the intent of

Congress.” Friends of the Earth, 346 F. Supp. 2d at

191. Sections 402{q) and 402(p) are part of the fabric

of the Clean Water Act and should have been given

their place in the statutory scheme by the court. The

CWA should be interpreted as it is now written, not as

it existed in 1972.

B. Section 402(p) of the CWA Demonstrates

Congress’ Intent Not to Require Daily Loads

in all Contexts.

While neither EPA nor WASA argued in their

briefs before the D.C. Circuit that section 402(p) of the

CWA demonstrates that Congress did not intend to

impose a strict daily approach in all contexts, the

provision, dealing with industrial and municipal

discharges of storm water, does show that Congress

understood the difference between daily and non-daily

approaches and did not require daily approaches in all

contexts. Section 402(p)(3)(A) — industrial discharges

— requires permits to meet the stricter often daily

permitting requirements while in the very next section,

402(p)(3)(B) dealing with permits for discharges from

municipal separate storm sewer systems (“MS4s’),

Congress chose a different approach based on a

system or jurisdiction-wide basis requiring controls to

reduce pollutants to the maximum extent practicable,

including practices, control techniques and system

design and engineering methods.” 33 U.S.C. §

1342(p)(3)(B).'* Thus, in enacting CWA 402(p)(3) in

!4 Other CWA provisions also conflict with the D.C. Circuit’s

interpretation reading of the statute. See, e.g., Subchapter II -

Grants for Construction of Treatment Works - CWA Sections 1281

through 1301. These sections authorized federal grant funding to

15

1987, Congress recognized that different control

strategies are needed for different pollutant sources,

and recognized that storm sewer discharges are

different from discharges from industrial or municipal

treatment plants.'5 EPA elaborated on Congress’

authorization in the preamble to its rulemaking

establishing the regulations for MS4s, noting that the

CWA authorizes a storm water pollutant control

program in the form of a “management” control

program rather than the “end-of-pipe numeric effluent

limits.” 64 Fed. Reg. 68,722, 68,765 (Dec. 8, 1999)

(the “Phase II” storm water regulations). Like Section

402(q), the storm water management control program

created by Congress in CWA Section 402(p) is also

inconsistent with the daily loading arguments

advanced by FoE. CWA Section 402(p)(3) recognizes

that the best form of effluent limitation for these types

of permits (due to the fact that the discharges are

caused by intermittent rainfall events) are flexible,

site-specific approaches. See 40 C.F.R. § 122.34(a)

(“narrative effluent limitations requiring

implementation of best management practices are

generally the most appropriate form of effluent

limitations when designed to satisfy technology

requirements including reductions of pollutants to the

maximum extent practicable and to protect water

quality.”). These narrative effluent limitations cannot

be expressed as daily pollutant loads.

install secondary treatment technology at approximately 15,000

publicly owned treatment works nationwide. Congress invested

billions of federal taxpayer dollars on these installations.

Secondary treatment is defined as “monthly” and “weekly”

requirements for certain pollutants, including Total Suspended

Solids (TSS) and Biochemical Oxygen Demand (BOD) - the

pollutants at issue in this case. See 40 C.F.R. § 133.102.

1S Storm water discharges are the result of periodic rain events,

while discharges from industrial and municipal treatment plants

(not associated with combined sewer systems) occur on a

continuous, largely predictable and controlled basis.

16

Accordingly, the D.C. Circuit’s conclusion that

daily loads must be developed for and imposed on the

District’s storm water discharges of BOD and TSS to

the Anacostia River runs counter to the express

language of section 402(p)(3)(B). Where different

sections of the statute cannot be read together, an

ambiguity exists and EPA’s interpretation must be

reviewed under a Chevron Step II analysis.

C. The D.C. Circuit Incorrectly Dismissed A

Key Substantive CWA Amendment as

Subsequent Legislative History with No

Relevance to the Meaning of the Statute.

In dismissing the argument that the CWA

amendments in 2000 adding section 402(q) to the Act

shed light on the meaning of section 303(d), the court

mistakenly called the addition of 402(q) to the Act

“post-enactment legislative history” and said it had no

“relevance” in determining the meaning of other

provisions in the Act. Friends of the Earth, 446 F. 3d

at 147. A key substantive amendment to the Act,

however, is not legislative history, but rather is a part

of the Act and its provisions must be given considered

when interpreting other parts of the Act.

The court incorrectly dismissed section 402(q)

as subsequently legislative history. The court’s

reliance on Cobell v. Norton for the proposition that

amendments to an act are only “post-enactment

legislative history” was misplaced. Cobell v. Norton,

428 F.3d 1070 (D.C. Cir. 2005). In Cobell, the court

considered whether appropriation bills in 1994 and

2004 and the legislative history of the bills (referring

to a quotation from one Senator’ shed light on the

government’s obligation to accoun: for funds held in

trust for American Indians based on the trust

relationship first established in the General Allotment

Act of 1887. The facts and statutory issues in Cobell

have no bearing on the issues in this case, where

subsequent Congressional amendments to the CWA

17

added important substantive provisions which are

clearly pertinent to understanding Congressional

intent.

Another case cited by the D.C. Circuit on this

issue, but not followed, FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 132-33 (2000), is

directly on point and the D.C. Circuit should have

followed the approach to statutory construction set

forth by the Supreme Court in that case. This Court,

in construing the Food, Drug, and Cosmetic Act

(FDCA) of 1914 and subsequent legislation on tobacco

products, set forth the applicable principles for

statutory construction, stating that “a reviewing court

should not confine itself to examining a particular

statutory provision in isolation” and “ambiguity is a

creature not of definitional possibilities but of

statutory context.” FDA at 132-133, citing Brown v.

Gardner, 513 U.S. 115, 118 (1994). The Court closely

examined Congressional legislation after the passage

of the FDCA in 1914 to determine the intent of

Congress on the issue of whether Congress intended

the FDA to regulate tobacco products. Subsequent

legislation was relied on heavily by this Court in

determining Congressional intent. FDA, 513 U.S. at

161. Thus, the D.C. Circuit was incorrect to dismiss

subsequent CWA amendments as having no relevance

to whether TMDLs can only impose daily loads. Had

the court construed section 303(d) in light of

Congress’ intent in enacting section 402(q) rather than

simply dismissing 402(q) as having no relevance, it

would have concluded that 303(d) did not evidence a

clear Congressional intent.

Ill, The Court of Appeals Ignored a Critical

Element of EPA’s Governing Regulations to

Avoid Reviewing EPA’s Determination

Regarding the TMDLs at Issue in this Case and

Instead Decided the Case Based on a

Statutory Analysis that was Not Required.

18

The CWA requires EPA to identify all pollutants

suitable for the development of Total Maximum Daily

Loads (“TMDLs”) and then develop TMDLs for waters

impaired by those pollutants. 33 U.S.C. § 1313(d).

Congress explicitly gave EPA the discretion to decide

for which pollutants TMDLs must be developed. In

the exercise of that discretion, EPA determined in

1978 that "all pollutants, under the proper technical

conditions, are suitable for the calculation of total

maximum daily loads.” 43 Fed. Reg. At 60,665

(emphasis added}. Thus, EPA properly reserved the

ability to determine, on a case-by-case basis, that the

proper technical conditions do not exist to support

development of a TMDL imposing daily loads for a

particular pollutant discharged to a particular water

or segment thereof.

EPA applied this discretion in this case by

finding that the proper technical conditions did not

exist to support the development of TMDLs expressing

daily loadings for BOD and TSS for the Anacostia

River. The district court properly deferred to EPA’s

discretion and upheld EPA’s determination that daily

loadings were not technically appropriate for BOD and

TSS discharges to the Anacostia River. The district

court concluded that a TMDL with daily loadings was

not mandated under these circumstances under

Section 303(d) of the Act. While not required to do so,

the district court then held that EPA had the

discretion to develop a TMDL imposing non-daily

loadings.

The D.C. Circuit committed error by misstating

EPA’s determination that the proper technical

conditions do not exist to make daily loadings suitable

for BOD and TSS discharges to the Anacostia River.

The court cited in its decision to EPA’s regulation in

question but omitted the key language “under the

proper technical conditions.” 446 F. 3d at 144. The

court then incorrectly attributed to EPA an

unqualified regulatory determination that all

pollutants are suitable for daily TMDL loads.

19

Having attributed to EPA a finding that all

pollutants are suitable for daily loads, a finding that is

flatly contradicted by the full regulatory citation and

in direct contrast to the actual EPA and district court

positions in this case, the court of appeals then

conducted a statutory analysis which it should never

have reached. The court then compounded the error

by reaching a different conclusion from the Second

Circuit, creating a direct intercircuit conflict that

should have been avoided.

This Court should remand this case to the D.C.

Circuit with instructions for the D.C. Circuit to decide

whether EPA’s determination that the pollutants at

issue are not suitable for daily load limits in this case

is valid. If valid, the case should be dismissed, as no

TMDL is required under CWA Section 303(d) for these

pollutants being discharged to the Anacostia.

IV. Conclusion

The intercircuit conflict (“absurd” versus

“clear”) creates untenable uncertainty over CWA

programs and cleanup plans for thousands of

impaired rivers, lakes and streams nationwide. This

conflict undermines the validity of these programs and

many existing and prospective cleanup plans. Review

by this Court now is necessary to resolve this circuit

split and, thereby, facilitate continued progress toward

restoring impaired waters nationwide -_ the

fundamental goal of the Clean Water Act.

20

Dated: August 24, 2006

Respectfully submitted,

John A. Sheehan

F. Paul Calamita

AquaLaw, PLC

801 E. Main Street

Suite 1002 |

Richmond, Virginia 23219

804-7 16-9021

Alexandra Dapolito Dunn

General Counsel

National Association of

Clean Water Agencies

1816 Jefferson Place, N.W.

Washington, D.C.

20036-2505

202-533-1803