Tuesday, January 16, 2007

Supreme Court Denies Hearing TMDL "Daily" Case

Jan 16: The United States Supreme Court let stand a lower court ruling requiring limits on the amount of pollution allowed in the Anacostia River each day (See WIMS: 5/2/06, Friends of the Earth vs. EPA, in the U.S. Court of Appeals, D.C. Circuit, Case No. 05-5015, 4/25/06). Earthjustice on behalf of Friends of the Earth obtained a decision from the U.S. Court of Appeals last year requiring EPA to set the daily pollution caps, and the High Court's action rejected an attempt by the D.C. Water and Sewer Authority to overturn the Court of Appeals' decision. The Anacostia runs through the heart of our nation's capital from Maryland through the District of Columbia and eventually into the Potomac River. It has been described as one of the dirtiest rivers in the country.

Earthjustice attorney David Baron said, "Today the Supreme Court closed the final chapter in this long saga to require daily pollution caps for one of America's dirtiest rivers. The Anacostia River runs right through the backdoor of Congress, EPA and the White House. This decision will go a long way toward finally cleaning up the river so it will be safe for fishing and swimming once again."

In the Appeals Court ruling the Appeals Court said, the case poses the question whether the word, “daily,” as used in the Clean Water Act, is sufficiently pliant to mean a measure of time other than daily. Specifically, the Environmental Protection Agency (EPA) takes the position that Congress, in requiring the establishment of “total maximum daily loads” [TMDL] to cap effluent discharges of “suitable” pollutants into highly polluted waters, left room for EPA to establish seasonal or annual loads for those same pollutants. The Court ruled, "If EPA believes using daily loads for certain types of pollutants has undesirable consequences, then it must either amend its regulation designating all pollutants as 'suitable' for daily loads or take its concerns to Congress. We therefore reverse and remand with instructions to vacate the non-daily 'daily' loads."

Access a release from Earthjustice with links to background information (click here). Access the complete D.C. Circuit opinion (click here). Access the Supreme Court order document denying the appeal (click here, Search #06-119) [*Water]