District of Columbia Water and Sewer Auth. v. Friends of the Earth - Opposition

No. 06-119

In the Supreme Court of the United States

DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, PETITIONER

v.

FRIENDS OF THE EARTH, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

SUE ELLEN WOOLDRIDGE
Assistant Attorney General

JOHN A. BRYSON
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether, under Section 303(d) of the Clean Water Act, 33 U.S.C. 1313(d), the Environmental Protection Agency and the District of Columbia are required to express maximum pollutant loads for impaired water bodies on a daily basis.

In the Supreme Court of the United States

No. 06-119

DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, PETITIONER

v.

FRIENDS OF THE EARTH, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-13a) is reported at 446 F.3d 140. The opinion of the district court (Pet. App. 1b-37b) is reported at 346 F. Supp. 2d 182.

JURISDICTION

The judgment of the court of appeals (Pet. App. 1c- 2c) was entered on April 25, 2006. The petition for a writ of certiorari was filed on July 21, 2006. The juris diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Congress enacted the Clean Water Act (CWA or Act), 33 U.S.C. 1251 et seq., "to restore and maintain the chemical, physical, and biological integrity of the Na tion's waters." 33 U.S.C. 1251(a). Section 303 of the CWA requires each State (as well as the District of Co lumbia, 33 U.S.C. 1362(3)) to adopt water quality stan dards applicable to its waters. 33 U.S.C. 1313(a)-(c).

The CWA prohibits the unauthorized discharge of a pollutant from a point source into a water of the United States. 33 U.S.C. 1311(a), 1362(12).1 A discharger may comply with the Act by obtaining and adhering to the terms of a National Pollutant Discharge Elimination System (NPDES) permit issued pursuant to 33 U.S.C. 1342. NPDES permits contain technology-based efflu ent limitations that reflect the pollution reduction achievable based on particular equipment or process changes, without reference to the effect on the receiving water. Where necessary, they also include more strin gent effluent limitations (known as "water quality-based effluent limitations") necessary to ensure that the re ceiving waters achieve applicable water quality stan dards. See 33 U.S.C. 1311(b).

Congress also required States to establish "total maximum daily loads" (TMDLs) for "those waters within its boundaries for which the effluent limitations * * * are not stringent enough to implement any water quality standard applicable to such waters." 33 U.S.C. 1313(d)(1)(A) and (C). States must establish a priority ranking for such waters, and then, in accordance with that priority ranking, develop for each water body a TMDL for each pollutant that the Environmental Pro tection Agency (EPA) has determined to be suitable for a TMDL. Ibid. EPA has determined that "[a]ll pollut ants, under the proper technical conditions, are suitable for the calculation of total maximum daily loads." 43 Fed. Reg. 60,665 (1978) (emphasis omitted). States must submit their TMDLs to EPA for approval. 33 U.S.C. 1313(d)(2).

A TMDL "shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety." 33 U.S.C. 1313(d)(1)(C). The term "total maximum daily load" is not further defined in the CWA. EPA's regula tions define a TMDL to be the sum of (1) the "waste load allocations" allocated to point sources; (2) the "load allocations" attributed to nonpoint sources or natural background; and (3) a margin of safety. 40 C.F.R. 130.2(g)-(i).

TMDLs are not self-executing. Like water quality standards, wasteload allocations for point sources are implemented through NPDES permits issued pursuant to 33 U.S.C. 1342. See 40 C.F.R. 122.44(d)(1)(vii)(B).2 Load allocations for nonpoint sources are implemented through voluntary or cooperative approaches, or by State or local law. See generally Pronsolino v. Nastri, 291 F.3d 1123, 1126-1127 (9th Cir. 2002), cert. denied, 539 U.S. 926 (2003).

2. The Anacostia River originates in Maryland and flows through the District of Columbia before joining the Potomac River. C.A. App. 665. Pursuant to 33 U.S.C. 1313(d)(1)(A), the District identified the portion of the river that flows through the District as not meet ing its water quality standards for dissolved oxygen and turbidity (muddy or cloudy conditions). C.A. App. 390, 666, 724-725. The two TMDLs at issue here address those impairments.

The District's dissolved oxygen water quality stan dard seeks to protect water quality by requiring a mini mum level of dissolved oxygen upon which aquatic or ganisms rely. Certain pollutants consume dissolved oxy gen. One measure of the rate at which dissolved oxygen is consumed is a parameter called "biochemical oxygen demand" (BOD). The District established the BOD TMDL using a computer model that projected how a given percentage reduction in pollutant loads would af fect dissolved oxygen levels. C.A. App. 146, 152-214, 269-272. The TMDL sets an annual average load reduc tion for BOD from storm water loads and combined sewer overflows (CSOs) based on the results of the mod eling and the application of best professional judgment. Id. at 396-400, 402, 408-442, 678-679, 684-685. The Dis trict concluded, and EPA agreed, that expressing the BOD TMDL in terms of annual average loads of BOD was appropriate because the undesirable increases in BOD were attributable to the aggregate accumulation of oxygen-demanding materials over an annual cycle. Id. at 395-396, 398, 684.

The Anacostia River also fails to meet the District's water quality standard for turbidity. See C.A. App. 745. Excessive levels of total suspended solids (TSS) were identified as the main cause of these violations. Id. at 55. EPA developed a TMDL to protect fish, shellfish, and wildlife by setting TSS loads at a seasonal median average concentration of less than 15 mg/l for the period from April l through October 31, which assures water clarity sufficient for the growth of the aquatic vegetation necessary to sustain aquatic wildlife. Id. at 94, 107, 745- 749, 803, 806. EPA also concluded that the required load was appropriately expressed as a seasonal load. While submerged aquatic vegetation provides essential food and habitat for aquatic organisms every day throughout the year, EPA concluded that TSS concen trations in the water column do not substantially impact the submerged aquatic vegetation community on a daily basis or outside the growing season of April 1 to October 31. Id. at 94, 113, 775, 803-806.

3. Respondent Friends of the Earth brought this action against EPA for judicial review of the TMDLs, and petitioner Water and Sewer Authority (WASA) in tervened as a defendant. Respondent contended, inter alia, that TMDLs must be expressed as "daily" loads. C.A. App. 808-825.

The district court granted EPA's motion for sum mary judgment. Pet. App. 1b-37b. In light of the com plexity of the statutory scheme and the function of TMDLs as an intermediate tool for achieving compliance with water quality standards, the court concluded that Congress had not expressed an unambiguous intent that every TMDL must be set on a daily basis, "when certain pollutants are more amenable to regulation through sea sonal or annual calculations." Id. at 12b. Accordingly, the court determined that under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), it was required to defer to EPA's reasonable interpretation and application of the statute. Pet. App. 19b-22b. Here, the court found that EPA had reasonably established annual and seasonal loads because of the specific nature of the pollution problems being addressed. Ibid.

4. The court of appeals reversed. Pet. App. 1a-13a. It concluded that the CWA unambiguously requires daily loads for all TMDLs. Id. at 5a-13a. The court therefore rejected EPA's reliance on its judgment that the limits for some pollutants, such as BOD and TSS, are more appropriately expressed with non-daily load allocations. Id. at 6a-8a. In doing so, the court declined to follow a decision of the Second Circuit holding that TMDLs may be expressed in terms other than daily load allocations. Id. at 9a (discussing NRDC v. Muszynski, 268 F.3d 91, 99 (2001)).

The court also rejected petitioner's argument that Congress's enactment of subsequent legislation address ing combined sewer overflows indicates that EPA has flexibility in interpreting the TMDL requirements. Pet. App. 9a-12a. The court held that the CSO policy en dorsed by Congress requires full compliance with the other provisions of the CWA, and stated that petitioner could not rely on subsequent legislation to establish the intent of an earlier Congress. Id. at 11a. The court re manded for the district court to vacate EPA's approval of the TMDLs, but allowed the parties to seek a stay pending the establishment of new TMDLs. Id. at 12a- 13a.3

ARGUMENT

The court of appeals erred in holding that the CWA requires EPA to establish TMDLs as daily load alloca tions. Nevertheless, the court's decision does not war rant this Court's review. The judgment will have only limited effect because it is controlling law only in the District of Columbia. Moreover, EPA recently issued nationwide guidance for expressing TMDLs as daily loads. As a result, future controversies about the mean ing of the CWA's provisions for TMDLs will likely arise in significantly different contexts.

1. Contrary to the holding of the court of appeals, the use of the word "daily" in the term "total maximum daily load" is not an unambiguous direction that TMDLs must be stated in the form of a uniformly applicable 24-hour load. "In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning-or am biguity-of certain words or phrases may only become evident when placed in context." FDA v. Brown & Wil liamson Tobacco Corp., 529 U.S. 120, 132 (2000).

The CWA neither defines the term "total maximum daily load" nor specifies how a TMDL should be ex pressed. Instead, the Act explains that TMDLs are in tended "to implement * * * water quality standard[s]," and therefore:

shall be established at a level necessary to imple ment the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and wa ter quality.

33 U.S.C. 1313(d)(1)(A) and (C) (emphasis added). Thus, the crucial hallmark and function of a TMDL is not that it is expressed in daily terms, but that it is set at a "level necessary to implement the applicable water quality standards with seasonal variations." 33 U.S.C. 1313(d)(1)(C).

Because the "necessary" level can vary, especially "with seasonal variations," 33 U.S.C. 1313(d)(1)(C), the term "daily" should not be read in isolation to require that every TMDL be established on an inflexible 24-hour basis. In some circumstances, TMDLs with non-daily allocations best reflect the levels necessary to meet a water quality standard for a particular pollutant in a particular water body (be it a river, stream, pond, lake, or reservoir). While many TMDLs can easily be ex pressed in terms of a 24-hour time period, such as those for some pollutants discharged from point sources in a predictable and continuous manner, other TMDLs may more appropriately use a non-daily load, such as an hourly, weekly, monthly, seasonal, or annual load.

In this case, for example, the pollutants of con cern-BOD and TSS-primarily enter the Anacostia River during rainstorms. Thus, discharges of BOD and TSS will vary widely from one day to the next. In addi tion, BOD affects water quality indirectly by fueling a variety of biological and chemical reactions that reduce dissolved oxygen in the water. These reactions are de pendent on such factors as temperature, biological activ ity, sunlight, tides, and the volume and speed of flow of water in the river. C.A. App. 183-214. This variable reaction rate means that the BOD discharged today may not cause a problem today, but can accumulate and un der certain conditions affect dissolved oxygen levels in the Anacostia River in the future. Id. at 221.

Similarly, TSS can have a negative physical effect by blocking sunlight from reaching submerged aquatic veg etation, which prevents or slows photosynthesis and thus affects the growth and survival of such vegetation. For this reason, TSS discharges are not significant if they occur on any given day, but rather when they re duce water clarity overall within the growing season to the extent that the reduced sunlight affects the growth and survival of submerged aquatic vegetation. C.A. App. 777.

The varied and complex circumstances of water pol lution underscore that Congress's direction that TMDLs be "established at a level necessary to implement the applicable water quality standards with seasonal varia tions," 33 U.S.C. 1313(d)(1)(C), does not unambiguously impose a rigid one-size-fits-all requirement that every TMDL be expressed as a 24-hour load. The court of ap peals' contrary reading "loses sight of the overall struc ture and purpose of the CWA." NRDC v. Muszynski, 268 F.3d 91, 98 (2d Cir. 2001). It is also contrary to longstanding EPA regulations and guidance entitled to deference under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). See 40 C.F.R. 130.2(i) ("TMDLs can be ex pressed in terms of either mass per time, toxicity or other appropriate measure."); 50 Fed. Reg. 1776 (1985) ("TMDLs * * * may be expressed in terms of an ap propriate averaging period, such as weekly or monthly, as long as compliance with applicable [water quality standards] is assured.").

2. The Second Circuit correctly upheld non-daily TMDLs in Muszynski, 268 F.3d at 98-99. There, the court approved TMDLs that were expressed as seasonal and annual loads and declined to ascribe to Congress the irrational intent to impose a strict requirement of daily loads, "given that for some pollutants, effective regula tion may best occur by some other periodic measure than a diurnal one." Id. at 99.

The conflict between Muszynski and the decision be low does not, however, warrant this Court's review. The decision below is controlling law only in the District of Columbia. TMDLs are written by the States and ap proved by EPA Regional Administrators, or generated by EPA, and they are generally reviewed under the Ad ministrative Procedure Act in federal district courts in the States where the impaired water bodies are located.

Moreover, EPA recently issued a guidance memoran dum for the States and EPA Regions "recommend[ing] that all future TMDLs * * * be expressed in daily time increments," even in States within the Second Circuit. App., infra, 2a, 3a n.1. The guidance explains, however, that there is flexibility in how the daily loads may be expressed. Id. at 3a-5a. For example, in some circum stances TMDLs may be "expressed in terms of differing maximum daily values depending on the season of the year, stream flow (e.g., wet v. dry weather conditions) or other factors." Id. at 4a.

As a result of EPA's new guidance, the current dis agreement between the D.C. and Second Circuits will have only limited prospective effect, because new TMDLs will likely be drafted in a way that is consistent with the D.C. Circuit's decision but that also provides the necessary flexibility. Because any future controver sies concerning TMDLs will likely arise in the signifi cantly different context of the approach outlined in EPA's new guidance, this Court's review is not war ranted at this time.

3. Finally, there is no merit to petitioner's argument that requiring TMDLs to be expressed on a daily basis "directly conflicts" with Section 402(q) of the Act, which concerns combined sewer overflows. As EPA's new guidance explains, expressing TMDLs on a daily basis does not require that permits be expressed on that ba sis. See App., infra, 7a-11a.

Section 402(q) states that discharge permits, orders, and decrees "shall conform" to EPA's Combined Sewer Overflow Control Policy (CSO Control Policy), 59 Fed. Reg. 18,688 (1994). 33 U.S.C. 1342(q)(1). Petitioner correctly describes (Pet. 13-14) that policy as promoting a flexible, site-specific approach for achieving compli ance with CWA requirements. See 59 Fed. Reg. at 18,688.

Consistent with the CSO Control Policy's call for a flexible, site-specific approach, and with the flexibility provided by the NPDES provisions, the permitting au thority may establish water quality-based effluent limi tations in an NPDES permit that are not expressed as daily limitations. The statute and regulations provide flexibility in the manner in which effluent limitations for non-continuous discharges such as CSOs are expressed. See 33 U.S.C. 1342; 40 C.F.R 122.45(e). While water quality-based effluent limitations must be consistent with the assumptions and requirements of available wasteload allocations in TMDLs approved by EPA (40 C.F.R. 130.7), those assumptions may include irregular ity in the volume and frequency of storm water flows. See App., infra, 5a-6a, 9a-10a. Thus, as EPA's new guidance explains, a TMDL expressed as a daily load can be implemented in an NPDES permit authorizing discharges of overflows from a combined sewer system consistent with EPA's CSO Control Policy and Section 402(q) of the CWA. See App., infra, 7a-10a; cf. Pet. App. 11a ("[T]he tension between the CSO Policy's flexibility and the perceived rigidity of daily loads exists only if daily loads must of necessity be set so low that any storm-event discharge would violate them-a premise unsupported anywhere in the record.").

Because expressing a TMDL as a daily load does not interfere with a permit writer's authority under the reg ulations to translate that daily load into the appropriate permit limitation, which in turn could be expressed as an hourly, weekly, monthly, or other measure as appropri ate, petitioner's concern is misplaced. No court of ap peals has rejected that approach to reconciling TMDLs expressed as daily loads with the CSO provisions.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

SUE ELLEN WOOLDRIDGE
Assistant Attorney General

JOHN A. BRYSON
Attorney

NOVEMBER 2006

1 A "point source" is "any discernible, confined and discrete conveyance * * * from which pollutants are or may be discharged." 33 U.S.C. 1362(14). "Nonpoint sources" are sources of pollution that are not "point sources," such as runoff from agricultural activities.

2 Even in the absence of TMDLs, permits must include effluent limitations as stringent as necessary to meet water quality standards. 33 U.S.C. 1311(b)(1)(C). A TMDL is simply one tool for establishing such limitations.

3 The court also rejected EPA's claim that the case had become moot because the District had, while the case was on appeal, revised the water quality standards for dissolved oxygen and turbidity that apply to the Anacostia. Pet. App. 11a-12a. The court explained that because "[t]he TMDLs at issue here have never been repealed or superseded," they continue to be relevant to the NPDES permitting process. Ibid. On further reflection, the government agrees that the case is not moot.