Natural Resources Defense Council, Inc. v. Environmental Protection Agency et al

MOTION for Summary Judgment

D.D.C.April 6, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________________________ ) NATURAL RESOURCES DEFENSE ) COUNCIL, INC., ) ) Plaintiff, ) ) v. ) ) Civil Action No. 1:16-cv-01861-JDB UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, et al., ) ) Defendants. ) __________________________________________) PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT DATED: April 6, 2017 Peter DeMarco, Staff Attorney (D.C. Bar No. 1029471) Hope Babcock, Director (Fed/D.C. Bar No. 14639) Institute for Public Representation Georgetown University Law Center 600 New Jersey Avenue, N.W. Washington, DC 20001 Phone: 202-662-9535 Fax: 202-662-9634 Attorneys for Plaintiff NRDC Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 1 of 38 i TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii LIST OF SHORT NAMES AND ACRONYMS ......................................................................... vii INDEX OF EXHIBITS ................................................................................................................ viii MOTION ..........................................................................................................................................1 INTRODUCTION ...........................................................................................................................1 BACKGROUND .............................................................................................................................3 I. Total Maximum Daily Loads Under the Clean Water Act ..................................................3 II. Factual Background .............................................................................................................7 A. The Anacostia River ......................................................................................................7 B. The Anacostia River Trash TMDL ................................................................................9 STANDING ...................................................................................................................................11 STANDARD OF REVIEW ...........................................................................................................13 ARGUMENT .................................................................................................................................15 I. EPA Violated the Clean Water Act and Its Regulations by Approving a TMDL Without a Maximum Load ..................................................................................15 A. The Clean Water Act Requires TMDLs to Set Maximum Loads ................................16 B. EPA’s Regulations Require TMDLs to Include Maximum Loads ..............................18 C. EPA’s Approval of the Anacostia River Trash TMDL Violates the Clean Water Act and EPA’s Regulations Because the TMDL Does Not Include a Maximum Load ...............................................................19 II. EPA’s Conclusion That the Anacostia River Trash TMDL Implements Water Quality Standards Is Arbitrary and Capricious ...................................22 A. EPA Arbitrarily Concluded That a Removal-Based Trash TMDL Would Ensure Compliance with Water Quality Standards .............................23 Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 2 of 38 ii B. EPA’s Conclusion That This TMDL Will Implement Water Quality Standards Is Arbitrary Because EPA Has Not Shown That the Baseline Load Is a Reliable Estimate of Average Annual Trash Loading ...................................................................................25 CONCLUSION ..............................................................................................................................28 Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 3 of 38 iii TABLE OF AUTHORITIES Cases Alaska Ctr. for Env’t v. Browner, 20 F.3d 981 (9th Cir. 1994) .....................................................13 Al-Aulaqi v. Panetta, 35 F. Supp. 3d 56 (D.D.C. 2014) ................................................................12 Am. Farm Bureau Fed’n v. EPA, 792 F.3d 281 (3d Cir. 2015) .................................................6, 17 Am. Fed’n of Gov’t Emps. v. Fed. Labor Relations Auth., 803 F.2d 737 (D.C. Cir. 1986) ...........22 *Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210 (D.D.C. 2011) .........................4, 24 Auer v. Robbins, 519 U.S. 452 (1997) .....................................................................................14, 22 Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) ..............................................................14, 16 Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) ...............................................................22 Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102 (1980) ..............................16 Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517 (9th Cir. 1995) ...........................................17 Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275 (D.C. Cir. 1981) ...............................................5, 17 Exportal Ltda. v. United States, 902 F.2d 45 (D.C. Cir. 1990) .....................................................21 *Friends of the Earth, Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006) ......................15, 16, 17, 20, 21 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) .....................................12 Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1970) ................................................12 In re City of Moscow, 10 E.A.D. 135, 2001 WL 988721 (EAB 2001) ..........................................17 McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d 1182 (D.C. Cir. 2004) .........................................................................................14, 23 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ...................................................................................................................14 North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008) ..............................................................15 Reuters Ltd. v. Fed. Commc’ns Comm’n, 781 F.2d 946 (D.C. Cir. 1986) ...............................14, 19 Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 4 of 38 iv Schering Corp. v. Shalala, 995 F.2d 1103 (D.C. Cir. 1993) ..........................................................19 Sierra Club v. Morton, 405 U.S. 727 (1972) .................................................................................12 Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203 (D.D.C. 2007) ...................................13 United States v. Menasche, 348 U.S. 528 (1955) ..........................................................................20 U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) ............................................................14 Statutes 5 U.S.C. § 706(2)(A) ................................................................................................................13, 14 33 U.S.C. § 1251(a) .........................................................................................................................3 33 U.S.C. § 1251(a)(1) .....................................................................................................................3 33 U.S.C. § 1251(a)(2) .....................................................................................................................3 33 U.S.C. § 1311(a) .........................................................................................................................4 33 U.S.C. § 1311(b) .........................................................................................................................4 33 U.S.C. § 1311(b)(1)(A) ...............................................................................................................4 33 U.S.C. § 1311(b)(1)(B) ...............................................................................................................4 33 U.S.C. § 1313(a) .........................................................................................................................3 33 U.S.C. § 1313(b) .........................................................................................................................3 33 U.S.C. § 1313(c) .........................................................................................................................3 33 U.S.C. § 1313(c)(2)(A) ...............................................................................................................3 33 U.S.C. § 1313(d) ...................................................................................................................9, 14 33 U.S.C. § 1313(d)(1)(A) ...............................................................................................................5 33 U.S.C. § 1313(d)(1)(C) .......................................................................................5, 16, 17, 19, 23 33 U.S.C. § 1313(d)(2) ..............................................................................................................6, 15 33 U.S.C. § 1313(e)(3)(C) ...............................................................................................................6 Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 5 of 38 v 33 U.S.C. § 1314(a)(2) .....................................................................................................................5 33 U.S.C. § 1342(a)(1) .....................................................................................................................4 33 U.S.C. § 1362(3) .........................................................................................................................3 33 U.S.C. § 1362(12) .......................................................................................................................4 33 U.S.C. § 1362(14) .......................................................................................................................4 Other Authorities 43 Fed. Reg. 60,662 (Dec. 28, 1978) ...............................................................................................5 D.C. Mun. Regs. tit. 21, § 1104.3 ................................................................................................4, 8 D.C. Mun. Regs. tit. 21, § 1199.1 ....................................................................................................8 Fed. R. Civ. P. 56 ...........................................................................................................................13 Md. Code Regs. § 26.08.02.03(B)(2) ...............................................................................................8 Webster’s Third New International Dictionary (3d ed. 1981) .......................................................17 Regulations 40 C.F.R. § 122.44(d)(1)(vii)(B) .....................................................................................................6 40 C.F.R. § 130.2 ...........................................................................................................................19 40 C.F.R. § 130.2(e).......................................................................................................5, 17, 18, 21 40 C.F.R. § 130.2(f) .......................................................................................................5, 18, 21, 23 40 C.F.R. § 130.2(g) ................................................................................................6, 11, 18, 21, 23 40 C.F.R. § 130.2(h) ................................................................................................6, 11, 18, 21, 23 40 C.F.R. § 130.2(i) .................................................................................................6, 18, 21, 22, 23 40 C.F.R. § 130.7(b) ........................................................................................................................5 40 C.F.R. § 130.7(d) ........................................................................................................................5 Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 6 of 38 vi 40 C.F.R. § 131.2 .............................................................................................................................4 40 C.F.R. § 131.3 .............................................................................................................................4 40 C.F.R. § 131.11(a).......................................................................................................................4 40 C.F.R. § 131.11(b) ......................................................................................................................4 Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 7 of 38 vii LIST OF SHORT NAMES AND ACRONYMS CSO Combined Sewer Overflow DOEE District of Columbia Department of Energy and the Environment EPA Environmental Protection Agency LA Load Allocation MDE Maryland Department of the Environment MS4 Municipal Separate Storm Sewer System NRDC Natural Resources Defense Council TMDL Total Maximum Daily Load WLA Wasteload Allocation Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 8 of 38 viii INDEX OF EXHIBITS EXHIBIT 1 Declaration of Gina Trujillo EXHIBIT 2 Declaration of Rebecca Hammer EXHIBIT 3 Affidavit of Benjamin Owen EXHIBIT 4 Affidavit of Allyson Shaw EXHIBIT 5 Affidavit of Bethany Martin Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 9 of 38 1 MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7(h), Plaintiff Natural Resources Defense Council respectfully moves for summary judgment in its favor.1 The motion is based on the following memorandum and supporting exhibits, as well as any subsequently filed reply memorandum. INTRODUCTION This case is about a body of water that is heavily polluted with trash and a federal agency that failed to follow statutory and regulatory requirements to take action against the trash pollution. The Anacostia River’s watershed spans more than 170 square miles of the District of Columbia and Maryland. Each year, hundreds of tons of bottles, bags, bricks, tires, and all other manner of garbage are washed, dumped, and blown into the Anacostia River and its tributaries. The river is so polluted with trash that the District of Columbia and Maryland decided in 2006 and 2008, respectively, that the river fails to meet water quality standards those governments established to protect people’s ability to use and enjoy the river. This finding triggered an obligation under the Clean Water Act for the District of Columbia and Maryland to create a total maximum daily load (TMDL)—a pollution diet for the river that sets the highest amount of trash that can be discharged into the river without violating water quality standards. 1 Pursuant to Federal Rule of Civil Procedure 25(d), defendants Scott Pruitt, in his official capacity as Administrator of the Environmental Protection Agency, and Cecil A. Rodrigues, in his official capacity as Administrator of EPA Region III, are substituted automatically for their predecessors in interest. Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 10 of 38 2 The TMDL crafted by the District of Columbia Department of Energy and the Environment2 (DOEE) and the Maryland Department of the Environment (MDE), and submitted to the Environmental Protection Agency (EPA) for approval in September 2010, does not fulfill the most basic function of a TMDL: it does not set an upper limit on trash pollution in the Anacostia River. It is a total maximum daily load without a maximum load. As such, DOEE and MDE’s proposed trash TMDL does not comply with the Clean Water Act’s requirement to set a maximum load. Moreover, it violates EPA’s regulations for TMDLs. Those regulations specify that a TMDL must establish a waterbody’s “loading capacity,” which is another term for the highest amount of pollution a waterbody can bear without violating water quality standards. Yet, DOEE and MDE admit that, when developing the Anacostia River Trash TMDL, they chose not to calculate the river’s loading capacity. Presented with a TMDL that did not comply with the Clean Water Act or its own regulations, EPA had a legal obligation to disapprove the Anacostia River Trash TMDL. Nevertheless, on September 21, 2010, EPA approved it. Instead of designating the amount of trash that the Anacostia River can receive while still meeting water quality standards, the TMDL establishes a fixed amount of trash that should be removed or prevented from entering the river each year. Not only does this removal-based approach violate the Clean Water Act and EPA’s regulations, it also fails to ensure compliance with water quality standards because the amount of trash discharged to the river varies widely from year to year, depending on the volume, intensity, and timing of rainfall and on the whims of illicit dumpers. Removing a fixed amount of trash from the river each year regardless of the 2 Until August 2015, DOEE was known as the District of Columbia Department of the Environment (DDOE). For convenience, this brief refers to the agency by its current name even when describing actions it took before August 2015. Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 11 of 38 3 amount of trash discharged, as this TMDL proposes, does not protect the river in years with above-average trash discharges. Thus, this TMDL allows trash pollution to continue to burden the river. A trash TMDL containing the maximum load required by statute and regulation would implement water quality standards in years with above-average trash discharges, not just in hypothetical “average” years. EPA’s approval of a TMDL that does not implement water quality standards was arbitrary and capricious. Because EPA’s approval of the Anacostia River Trash TMDL was both contrary to law and arbitrary and capricious, the Court should vacate that approval. The Court should also remand the matter to EPA to promulgate, within a reasonable time, a trash TMDL for the Anacostia River that complies with the Clean Water Act. BACKGROUND I. Total Maximum Daily Loads Under the Clean Water Act In 1972, Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The Clean Water Act establishes the goal of eliminating “the discharge of pollutants into the navigable waters,” and, in the interim, of attaining “water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.” Id. § 1251(a)(1), (2). To reach these objectives, the Clean Water Act requires each state and the District of Columbia to enact water quality standards, which EPA reviews and approves. 33 U.S.C. § 1313(a)-(c); see also id. § 1362(3) (defining “State” to include the District of Columbia). Water quality standards consist of “designated uses” and “water quality criteria.” Id. § 1313(c)(2)(A). A state must first identify the designated uses for the waterbody, such as Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 12 of 38 4 drinking water, boating, and wildlife habitat. 40 C.F.R. § 131.2. Second, the state must identify the water quality criteria, which are the “constituent concentrations, levels, or narrative statements[] representing a quality of water” necessary to protect the water’s designated uses. Id. §§ 131.3, 131.11(a). Water quality criteria can be expressed numerically (e.g., a maximum pollutant concentration) or narratively (e.g., a requirement that the water possess a particular aesthetic characteristic, such as being litter-free). Id. § 131.11(b); see, e.g., D.C. Mun. Regs. tit. 21, § 1104.3 (District of Columbia narrative water quality standard requiring that surface waters be free of litter). Pollution resulting in violations of water quality standards can come from point sources—“discernible, confined and discrete conveyance[s]” such as storm sewers that empty into rivers—and from nonpoint sources—any other unconfined route pollution takes to water, such as litter dropped off a bridge. 33 U.S.C. § 1362(14); Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210, 214 (D.D.C. 2011). The Clean Water Act prohibits point sources from discharging pollution into navigable waters without a permit. 33 U.S.C. § 1311(a); id. § 1362(12). Clean Water Act permits, also called National Pollutant Discharge Elimination System (NPDES) permits, impose effluent limitations on point sources, requiring them to reduce pollution levels in their discharges. See id. §§ 1311(b), 1342(a)(1). Nonpoint sources do not require permits under the Act. Anacostia Riverkeeper, 798 F. Supp. 2d at 214-15. Certain effluent limitations for point sources are established based on the pollution reduction capability of available technologies. 33 U.S.C. § 1311(b)(1)(A)-(B). At times, these effluent limits do not reduce pollution in local receiving waters enough to meet water quality standards. See Anacostia Riverkeeper, 798 F. Supp. 2d at 214. The Clean Water Act requires each state to “identify those waters within its boundaries for which” effluent limitations Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 13 of 38 5 mandated by the Act “are not stringent enough to implement any water quality standard applicable to such waters.” 33 U.S.C. § 1313(d)(1)(A). These waters are “impaired” by the pollutants that prevent them from attaining water quality standards. See 40 C.F.R. § 130.7(d). Each state must compile a list of its impaired waters, called a “303(d) list,” and submit this list to EPA every two years. Id. § 130.7(b), (d). When a state identifies a waterbody as impaired and places it on the 303(d) list, the state must then create a “total maximum daily load for those pollutants” causing the impairment. 33 U.S.C. § 1313(d)(1)(C). A TMDL sets “the maximum amount of a pollutant which can be contributed into a stream segment without causing a violation of the water quality standards.” Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 294 (D.C. Cir. 1981). A TMDL must be “established at a level necessary to implement 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 water quality.” 33 U.S.C. § 1313(d)(1)(C). The Clean Water Act vests EPA’s Administrator with the discretion to identify pollutants “suitable” for the calculation of TMDLs. Id. §§ 1313(d)(1)(C), 1314(a)(2). In 1978, the Administrator determined that all pollutants are suitable for the calculation of TMDLs. 43 Fed. Reg. 60,662, 60,665 (Dec. 28, 1978). EPA’s regulations, implementing section 303(d)(1)(C), provide a detailed framework for the creation of TMDLs. Those regulations define the terms “load” and “loading” as “an amount of matter or thermal energy that is introduced into a receiving water” from human or natural sources. 40 C.F.R. § 130.2(e). The foundation of a TMDL is the waterbody’s “loading capacity,” which is the “greatest amount of loading that a water can receive without violating water quality standards.” Id. § 130.2(f). To ensure that pollution loading to the waterbody does not exceed the Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 14 of 38 6 loading capacity and, by extension, water quality standards, a TMDL divvies up the loading capacity among all of the sources of pollution to the waterbody. Id. § 130.2(g)-(i). Portions of the loading capacity allotted to point sources are called wasteload allocations (WLAs). Id. § 130.2(h). Portions allotted to nonpoint sources and natural background sources are called load allocations (LAs). Id. § 130.2(g). EPA’s regulations define a TMDL as the sum of WLAs and LAs with an incorporated margin of safety. Id. § 130.2(i). A TMDL can be expressed as “mass per time” (e.g., pounds of pollutant discharged per day), “toxicity” (e.g., the concentration of an effluent having no adverse effect on organisms in the receiving water), or “other appropriate measure.” Id. To summarize, a TMDL establishes the total amount of a pollutant that a waterbody can receive without violating water quality standards, and distributes this amount of pollution among point and nonpoint sources discharging into that waterbody. States must submit TMDLs to EPA for approval. 33 U.S.C. § 1313(d)(2). The EPA Administrator must then approve or disapprove the TMDL within thirty days of submission. Id. If EPA disapproves a TMDL, then within thirty days EPA must establish a TMDL that it “determines necessary to implement the water quality standards applicable to such waters.” Id. Although TMDLs are not self-executing, they serve “as the cornerstones for pollution- reduction plans that do create enforceable rights and obligations.” Am. Farm Bureau Fed’n v. EPA, 792 F.3d 281, 291 (3d Cir. 2015). Once EPA either approves a state TMDL or establishes a TMDL, the state must incorporate WLAs as enforceable effluent limitations in the Clean Water Act permits for point sources discharging to the waterbody covered by the TMDL. 40 C.F.R. § 122.44(d)(1)(vii)(B). States must implement LAs through water quality management plans. 33 U.S.C. § 1313(e)(3)(C). Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 15 of 38 7 II. Factual Background A. The Anacostia River The Anacostia River flows from its headwaters in Prince George’s and Montgomery Counties in Maryland through the District of Columbia, where it joins the Potomac River. AR0003006.3 The river’s watershed, which spans more than 170 square miles, is inhabited by more than 800,000 people. AR0003006-07. The Anacostia is a short river with a long history of pollution, including impairment from oil and grease, fecal coliform bacteria, sedimentation and silt, low dissolved oxygen, nutrients, polychlorinated biphenyls, and legacy pesticides like heptachlor epoxide. AR0003006. The dramatic urbanization of the Anacostia’s watershed has led to the river’s most visible pollution problem: trash. See id. Plastic bags, glass bottles, aluminum cans, food wrappers, used tires, shopping carts, folding chairs, Styrofoam containers, yard waste, carpeting, construction materials, and countless other types of rubbish float in the river, clutter its banks, or rest on its bed. AR0003010-11; AR0005054. Hundreds of tons of trash are discharged into the river annually. A single cleanup program, operated by the District’s Water and Sewer Authority, uses skimmer boats to remove 400 tons of floating trash per year from the Anacostia’s mainstem. AR0003054. Trash enters the Anacostia River through point sources when stormwater runoff carries litter to storm drains in the District of Columbia and Maryland that empty into the river. AR0003032. The District of Columbia’s combined sewer system, another point source of pollution, overflows during heavy rain, spilling both sewage and trash into the river. 3 “AR0003006” refers to the Administrative Record. Pursuant to Local Rule 7(n), NRDC will file an appendix containing all cited record material within 14 days following the final memorandum on the subject motion. Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 16 of 38 8 AR0003033. Trash also enters the river through nonpoint sources when individuals dump trash directly into the river and when windborne litter wends its way to the water. Id. Trash loading in the river is highly variable from year to year and season to season because the amount of trash discharged to the river depends upon the volume, intensity, and timing of precipitation and the actions of illicit dumpers and litterbugs. See AR0003011; AR0003016; AR0003093; AR0005035. Both the District of Columbia and Maryland have established water quality standards applicable to trash for their respective portions of the Anacostia River. The District of Columbia designates its portions of the Anacostia River and all but two of its tributaries as “Class A” waters for primary contact recreation. AR0003014. Primary contact recreation includes “water contact sports or activities that result in frequent whole body immersion or involve significant risks of ingestion of the water.” D.C. Mun. Regs. tit. 21, § 1199.1. Narrative water quality standards for the District’s Class A waters require the waters to “be free of discharges of untreated sewage, litter and unmarked submerged or partially submerged man-made structures that would constitute a hazard to the users.” Id. § 1104.3. All surface waters in Maryland are protected for water contact recreation, fishing, and protection of aquatic life and wildlife. AR0003015. Maryland’s narrative water quality criteria for surface waters provide that “water of this State may not be polluted by . . . [a]ny material, including floating debris, oil, grease, scum, [and] sludge . . . in amounts sufficient to . . . [b]e unsightly;” produce taste, odor, or aesthetically objectionable color; “[c]reate a nuisance;” or “[i]nterfere directly or indirectly with designated uses.” Md. Code Regs. § 26.08.02.03(B)(2). Significant trash pollution in the Anacostia River and its tributaries causes violations of these water quality standards. For instance, under the District of Columbia’s water quality Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 17 of 38 9 standards, Watts Branch, a tributary to the Anacostia River, should be suitable for wading. AR0003012. However, trash monitoring at Watts Branch in 2007 and 2008 found one plastic bag per 1.2 feet of stream and up to five pieces of glass per square foot of stream bottom. AR0003011-12. This trash pollution makes Watts Branch unsuitable for wading. In 2006, the District of Columbia added the Anacostia River and its tributaries to its 303(d) list as impaired by trash pollution. AR0003013. In 2008, Maryland followed suit. Id. Listing the Anacostia River as impaired triggered the District and Maryland’s obligation to create a TMDL for trash in the river. See 33 U.S.C. § 1313(d). B. The Anacostia River Trash TMDL On April 19, 2010, the District of Columbia and Maryland released the draft Anacostia River Trash TMDL for public comment. AR0005380. On May 18, 2010, NRDC submitted comments on the draft TMDL, arguing that the TMDL did not comply with the Clean Water Act and EPA’s implementing regulations because DOEE and MDE did not set a maximum load for trash or calculate the river’s trash loading capacity. AR0003300-02. NRDC also contended that the TMDL’s unlawful approach would not lead to attainment of applicable water quality standards. AR0003302-04. On September 8, 2010, DOEE and MDE submitted the Anacostia River Trash TMDL to EPA for review. AR0005090. EPA issued a final decision approving the TMDL on September 21, 2010. AR0003108-11. In creating the TMDL, DOEE and MDE did not set a maximum load for trash pollution in the Anacostia River, nor did they calculate the river’s loading capacity for trash. See AR0003016. The TMDL states that, “[w]hile there might be a quantity of trash that could be discharged to the Anacostia River before being deemed by the general public as objectionable, it is not necessary to calculate that quantity for purposes of this TMDL.” Id. Instead, the TMDL Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 18 of 38 10 designates as its “endpoint” an amount of trash, 631 tons, that should be removed or prevented from entering the river each year. AR0003044. The amount of trash to be removed in the TMDL is equal to the “baseline load”—DOEE and MDE’s estimate of the amount of trash discharged to the river in an average year—plus an additional 5% of the baseline load to incorporate a margin of safety. AR0003049. DOEE and MDE acknowledged that, although they estimated average annual trash loading at about 600 tons, the actual amount discharged in any given year is likely to vary widely above or below this estimate. See AR0003093. DOEE and MDE did not estimate the extent of this annual variation. See id. Despite not having calculated the river’s loading capacity and having acknowledged the high degree of uncertainty regarding annual trash loading, DOEE and MDE still concluded that removal of the baseline load would implement their respective water quality standards. AR0003016. DOEE and MDE calculated the baseline load by gathering information about trash loading at particular points in the watershed and then extrapolating from those points to estimate trash loading in the rest of the watershed. AR0003018-29. To estimate trash loading from point sources, DOEE and MDE gathered data on the amount of trash discharged from 18 of the 3,225 stormwater outfalls discharging to the Anacostia River. See AR0003010 (noting that Maryland has 2,033 outfalls in Prince George’s County and 976 outfalls in Montgomery County, and the District has 216 outfalls); AR0003018-22; AR0003034-35. DOEE monitored 10 stormwater outfalls in the District between March and August 2009. AR0003018. MDE collected data from 8 stormwater outfalls in Prince George’s and Montgomery Counties between October 2008 and July 2009. AR0003021-22. During heavy rains, the District of Columbia’s combined sewer system also discharges trash to the Anacostia River from its 17 combined sewer overflow (CSO) outfalls. AR0003033. To account for CSO trash loading, DOEE used data from a report that Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 19 of 38 11 monitored trash discharged from one CSO outfall from August 2000 to April 2001. AR0003035. Neither DOEE nor MDE monitored any individual stormwater or CSO outfall over multiple years. To estimate trash loading for nonpoint sources, the District and Maryland conducted in- stream monitoring, by counting visible items of trash in the river. AR0003025-31. DOEE conducted this monitoring once a season between August 2007 and June 2008 at 46 transects along the river and its tributaries. AR003025-28. MDE monitored 30 sites between June 2008 and August 2009. AR0003029. The TMDL allots portions of the baseline load to what it calls WLAs and LAs. It assigns WLAs to each municipal separate storm sewer system (MS4) in the watershed, the District of Columbia’s combined sewer system, the Maryland State Highway Administration, federal facilities, and other smaller point sources. AR0003045. The TMDL allots LAs for nonpoint source trash loading to Montgomery County, Prince George’s County, and areas of the District of Columbia draining to the upper and lower segments of the Anacostia. Id. Although the TMDL uses the terms WLA and LA, EPA regulations define WLAs and LAs as portions of a waterbody’s loading capacity, 40 C.F.R. § 130.2(g)-(h), and DOEE and MDE never calculated the trash loading capacity of the Anacostia River, AR0003016. Instead, the Anacostia Trash TMDL’s WLAs and LAs are amounts of trash that various sources should remove, capture, or prevent from entering the water. AR0003044-48. STANDING The Natural Resources Defense Council (NRDC) has standing to bring suit on behalf of its members because its members have standing to sue in their own right, the environmental and public health interests this suit seeks to protect are germane to NRDC’s purpose, and neither the Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 20 of 38 12 claims asserted nor the relief requested requires the participation of individual members in the lawsuit. See Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1970). NRDC is a not-for-profit environmental and public health organization with several hundred thousand members, including over 10,500 members who reside in the District of Columbia and Maryland. Decl. of Gina Trujillo ¶ 5 (Ex. 1). NRDC engages in research, advocacy, media, and litigation to protect public health and the environment. NRDC has worked for years to address pollution in the nation’s rivers, including the Anacostia River. Id. ¶ 7. NRDC submitted comments on the draft Anacostia River Trash TMDL in 2010. AR0003300. In 2015, NRDC submitted a petition to the District and Maryland requesting revision of the TMDL to comply with the law. Decl. of Rebecca Hammer ¶ 2 (Ex. 2).4 The District and Maryland denied that petition. Id. ¶¶ 2-3. NRDC’s members have standing because they suffer injuries in fact that are traceable to EPA’s approval of the Anacostia River Trash TMDL, and those injuries would be redressed by a favorable decision of this Court setting aside EPA’s unlawful and arbitrary action. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-84 (2000). Many NRDC members live in the vicinity of the Anacostia River and have suffered recreational and aesthetic injuries from trash pollution in the river. See Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (recognizing recreational and aesthetic injuries as grounds for Article III standing). Members frequently kayak in the river and bike, walk, and run along its banks. See Aff. of Benjamin Owen ¶¶ 4-5 (Ex. 3); Aff. of Allyson Shaw ¶ 4 (Ex. 4); Aff. of Bethany Martin ¶¶ 4-5 (Ex. 5). The frequent visibility of trash along the riverbanks and in the water greatly impairs their enjoyment 4 NRDC respectfully asks the Court to take judicial notice of the documents attached to Exhibit 2, NRDC’s petition to revise the TMDL and the denial of that petition by the District and Maryland, because they are public records and government documents of undisputed authenticity. See Fed. R. Evid. 201(b)(2); Al-Aulaqi v. Panetta, 35 F. Supp. 3d 56, 67 (D.D.C. 2014). Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 21 of 38 13 of the river, causing members to spend less time in and around the river. See Owen Aff. ¶ 10; Shaw Aff. ¶ 9; Martin Aff. ¶ 9. NRDC’s members also come in direct contact with trash through their participation in clean up events. See Owen Aff. ¶ 6; Shaw Aff. ¶ 5; Martin Aff. ¶ 9. EPA’s approval of an unlawful and ineffective trash TMDL exacerbates and prolongs NRDC’s members’ recreational and aesthetic injuries from trash pollution. See Alaska Ctr. for Env’t v. Browner, 20 F.3d 981, 985-86 (9th Cir. 1994) (holding that EPA’s failure to issue TMDLs for polluted waterbodies caused injuries in fact to the plaintiffs). A favorable decision by this Court would redress these injuries by requiring EPA to ensure that the Anacostia River Trash TMDL complies with the Clean Water Act and provides a roadmap for securing attainment of applicable water quality standards. See id. at 985 (holding that plaintiffs’ injury from EPA’s failure to issue TMDLs was redressable because “Congress and the EPA have already determined that establishing TMDLs is an effective tool for achieving water quality standards in waters impacted by nonpoint source pollution”). STANDARD OF REVIEW NRDC moves for summary judgment on its claims that EPA’s approval of the Anacostia River Trash TMDL was not in accordance with Clean Water Act § 303(d) and EPA’s regulations and was arbitrary and capricious. 5 U.S.C. § 706(2)(A). Resolution of this case is appropriate on summary judgment because, under the Administrative Procedure Act, review of final agency action is based on the administrative record, leaving no genuine dispute of material fact. See id. § 706; Fed. R. Civ. P. 56; Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007). NRDC challenges EPA’s approval of the Anacostia River Trash TMDL as contrary to law. 5 U.S.C. § 706(2)(A). EPA’s defense rests in part on the agency’s interpretation of Clean Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 22 of 38 14 Water Act § 303(d), 33 U.S.C. § 1313(d). When evaluating an agency’s interpretation of a statute, courts first consider whether Congress has directly addressed the question at issue. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842 (1984). If, using the traditional tools of statutory interpretation, a court finds that Congress has directly addressed the question at issue, then “that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. If a court determines that the statute is ambiguous, then “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843. NRDC argues that EPA also violated the agency’s regulations pertaining to TMDLs. An “agency must adhere to its own rules and regulations.” Reuters Ltd. v. Fed. Commc’ns Comm’n, 781 F.2d 946, 950 (D.C. Cir. 1986); U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265-67 (1954). Agencies receive deference in interpreting their own regulations unless their interpretation is “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)). NRDC also contends that EPA’s approval of the TMDL was arbitrary and capricious. 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious unless the agency has “examine[d] the relevant data and [has] articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). An agency’s “conclusory or unsupported suppositions” merit no deference. McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004). Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 23 of 38 15 ARGUMENT EPA’s approval of the Anacostia River Trash TMDL violates the Clean Water Act and EPA’s regulations because the TMDL does not include a maximum load for trash entering the Anacostia River. Additionally, EPA’s approval of the TMDL was arbitrary and capricious because the agency failed to offer a reasoned explanation for its conclusion that removing a fixed amount of trash from the river each year, rather than capping trash pollution, will achieve water quality standards. Accordingly, EPA’s approval should be vacated, and the matter should be remanded to EPA to promulgate within a reasonable time a new trash TMDL for the Anacostia River that complies with § 303(d)(2) of the Clean Water Act. See 33 U.S.C. § 1313(d)(2). The Court should stay the vacatur until a new trash TMDL is promulgated because the river’s water quality problems would worsen with no trash TMDL in place. See North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008) (allowing flawed rule to “remain in effect until it is replaced by a rule consistent with [the court’s] opinion” to “at least temporarily preserve the environmental values covered by [the rule]”); Friends of the Earth, Inc. v. EPA, 446 F.3d 140, 148 (D.C. Cir. 2006) (vacating EPA’s unlawful approval of a TMDL and recognizing the district court’s authority to stay the order of vacatur until a new TMDL is promulgated). I. EPA Violated the Clean Water Act and Its Regulations by Approving a TMDL Without a Maximum Load. This case presents a straightforward question of statutory and regulatory interpretation. The Clean Water Act and EPA’s implementing regulations both require TMDLs to include maximum loads. The Anacostia River Trash TMDL does not set a maximum load for trash. Rather than designating a maximum load of trash that can enter the river, the Anacostia River Trash TMDL sets the minimum amount of trash that should be removed or prevented from entering the river. Moreover, in direct contravention of EPA regulations requiring a TMDL to be Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 24 of 38 16 based on a waterbody’s loading capacity, the District and Maryland never calculated the trash loading capacity for the Anacostia River. The absence of a maximum load and the failure to calculate a loading capacity mean that the Anacostia River Trash TMDL fails to accomplish the core purpose of a TMDL: to designate the highest amount of a pollutant that can enter a waterbody without violating applicable water quality standards. A TMDL is supposed to create a pollution cap, a water quality target to work towards. Because the Anacostia River Trash TMDL is missing that pollution cap, it not only violates the Clean Water Act and EPA’s regulations, it also allows too much trash to be discharged to the river. A. The Clean Water Act Requires TMDLs to Set Maximum Loads. The Clean Water Act unambiguously requires each TMDL to establish a maximum load, or the highest amount of pollution that can be discharged daily into a waterbody without violating water quality standards. 33 U.S.C. § 1313(d)(1)(C). Because Congress has “directly spoken” to the question of whether TMDLs must include maximum loads, EPA cannot approve TMDLs lacking maximum loads without violating Clean Water Act § 303(d). See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984). The plain language of the Clean Water Act requires TMDLs to include maximum loads. See Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) (“[T]he starting point for interpreting a statute is the language of the statute itself.”). Clean Water Act § 303(d) instructs states to establish “the total maximum daily load . . . at a level necessary to implement the applicable water quality standards.” 33 U.S.C. § 1313(d)(1)(C). The four words that make up the phrase “total maximum daily load” each contribute meaning to the phrase, and EPA must give effect to the meaning of each word when interpreting § 303(d). See Friends of the Earth, 446 F.3d at 144 (holding that the term “daily” required EPA to ensure that TMDLs Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 25 of 38 17 contain daily loads); Am. Farm Bureau Fed’n v. EPA, 792 F.3d 281, 297 (3d Cir. 2015) (holding that the term “total” authorized EPA to require a TMDL to include not just the maximum load necessary to implement water quality standards, but also the WLAs and LAs that make up that maximum load). The terms at issue in this case are “maximum” and “load.” “Maximum” has an ordinary meaning. Cf. Friends of the Earth, 446 F.3d at 144 (finding that the term “daily” in the phrase “total maximum daily load” has an unambiguous ordinary meaning). “Maximum” is defined as “an upper limit allowed by law or other authority.” Maximum, Webster’s Third New International Dictionary (3d ed. 1981). For example, the maximum occupancy of a room designates the highest number of people allowed in the room. EPA defines “load” as an amount of matter introduced into a receiving water. 40 C.F.R. § 130.2(e). Therefore, the plain meaning of the words “maximum load” in the phrase “total maximum daily load” is the highest amount of pollution that can be added to a waterbody while still “implement[ing] the applicable water quality standards.” 33 U.S.C. § 1313(d)(1)(C). Although no court has been called upon to interpret the words “maximum load” in § 303(d), numerous courts and EPA’s Environmental Appeals Board have articulated the Act’s requirement that TMDLs must include maximum loads. See, e.g., Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 294 (D.C. Cir. 1981) (“The TMDL’s [sic] set the maximum amount of a pollutant which can be contributed into a stream segment without causing a violation of the water quality standards.”); Am. Farm Bureau Fed’n, 792 F.3d at 299; Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1520 (9th Cir. 1995); In re City of Moscow, 10 E.A.D. 135, 2001 WL 988721, at *4 (EAB 2001). Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 26 of 38 18 The plain meaning of Clean Water Act § 303(d) prohibits EPA from approving a TMDL without a maximum load. B. EPA’s Regulations Require TMDLs to Include Maximum Loads. In accord with the plain meaning of the Clean Water Act, EPA’s implementing regulations also require a TMDL to include a maximum load, which the regulations refer to as a waterbody’s loading capacity. EPA’s regulations define a TMDL as the sum of individual WLAs and LAs with an incorporated margin of safety. 40 C.F.R. § 130.2(i). Both WLAs and LAs are portions of a “receiving water’s loading capacity.” Id. § 130.2(g), (h). The loading capacity is “the greatest amount of loading that a water can receive without violating water quality standards.” Id. § 130.2(f). A TMDL requires WLAs and LAs, and establishing WLAs and LAs requires knowing the loading capacity. The calculation of the waterbody’s loading capacity, therefore, is the foundation of a TMDL. A TMDL without a loading capacity does not meet EPA’s definition of a TMDL.5 Additionally, EPA’s regulations require TMDLs to be expressed as an amount of pollution that can be discharged into a waterbody. EPA defines load and loading as “an amount of matter or thermal energy that is introduced into a receiving water” from human or natural sources. Id. § 130.2(e) (emphasis added). EPA’s regulations, therefore, foreclose a TMDL from being expressed as an amount of pollution that must be removed from a waterbody. Even if the Clean Water Act did not require TMDLs to include maximum loads, EPA has constrained its discretion through regulations defining TMDLs in terms of a waterbody’s loading 5 EPA guidance also identifies calculation of the loading capacity as a necessary step in the creation of a TMDL. AR0000947 (“A TMDL must identify the loading capacity of a waterbody for the applicable pollutant.”); AR0001304 (stating that calculating the loading capacity is a step common to all TMDLs). Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 27 of 38 19 capacity, which is the maximum load of pollution a waterbody can receive without violating water quality standards. EPA may not approve TMDLs that do not satisfy this definition. See Reuters Ltd. v. Fed. Commc’ns Comm’n, 781 F.2d 946, 950-51 (D.C. Cir. 1986); Schering Corp. v. Shalala, 995 F.2d 1103, 1105 (D.C. Cir. 1993) (“Having adopted a definition of [the statutory term] ‘bioequivalence’ in its regulations, the FDA is not free to adopt” a different definition.). C. EPA’s Approval of the Anacostia River Trash TMDL Violates the Clean Water Act and EPA’s Regulations Because the TMDL Does Not Include a Maximum Load. The Anacostia River Trash TMDL does not establish a maximum load for trash because its endpoint is a fixed amount of trash to be removed from the river. Although DOEE and MDE recite the correct definition of a TMDL in the Anacostia River Trash TMDL, AR0003006; AR0003044, they do not follow it. DOEE and MDE refused to set a maximum load, stating that “[w]hile there might be a quantity of trash that could be discharged to the Anacostia River before being deemed by the general public as objectionable, it is not necessary to calculate that quantity for purposes of this TMDL.” AR0003016. But calculating the maximum load is necessary. The Clean Water Act and EPA’s regulations require TMDLs to include maximum loads. 33 U.S.C. § 1313(d)(1)(C); 40 C.F.R. § 130.2. This TMDL should have been no exception. EPA’s approval of the Anacostia River Trash TMDL, which was missing a maximum load, was contrary to law, violating both the statute and agency regulations. The TMDL’s “endpoint” or goal of 100 percent yearly removal of an amount of trash equal to the baseline load is not a maximum load within the meaning of the Clean Water Act. See AR0003044. First, the TMDL’s endpoint is not a maximum amount. It does not establish an upper limit on trash discharges. Instead, it designates the minimum amount of trash that must be removed from the river. Further, the District and Maryland confirm that removal of the baseline Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 28 of 38 20 load is not an implicit maximum load of zero trash in the river. AR0003016 (“A TMDL target equal to 100 percent removal of the baseline load is not the same as zero (0) trash in the waterway.”). Contrary to § 303(d), the TMDL never identifies, directly or indirectly, the maximum load of trash in the Anacostia River necessary to meet water quality standards. EPA approved the Anacostia River Trash TMDL based upon an interpretation of Clean Water Act § 303(d) that renders the word “maximum” in “total maximum daily load” meaningless. This interpretation must be rejected because each word and phrase in the statute must be given effect. See United States v. Menasche, 348 U.S. 528, 538-39 (1955) (“It is our duty to give effect, if possible, to every clause and word of a statute.”) (internal quotation marks omitted). In Friends of the Earth, Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006), EPA argued that the Act did not require TMDLs to include daily loads and that seasonal and annual loads were more appropriate for some pollutants. Id. at 142. The D.C. Circuit, however, refused to read the word “daily” out of the phrase “total maximum daily load.” See id. With its approval of the Anacostia River Trash TMDL, EPA now attempts to excise the word “maximum” from the statute. But just as § 303(d)’s use of the term “daily” requires TMDLs to include daily loads, id., the Act’s use of the term “maximum” requires TMDLs to include maximum loads. Estimating the annual pollutant load to a waterbody, as the District and Maryland did for this TMDL, is not an unusual step in the creation of a TMDL. AR0000275 (identifying “[e]stimation of the pollution from all sources to the waterbody” as a step in the process of developing a TMDL). Doing so helps the TMDL writer to understand existing conditions in the waterbody and to identify sources of pollution. But to comply with the Clean Water Act and EPA’s regulations, the TMDL must also calculate the waterbody’s loading capacity and must establish WLAs and LAs based on that capacity. 40 C.F.R. § 130.2(f)-(i); see supra § I.B. Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 29 of 38 21 Because the District and Maryland did not calculate a loading capacity, what the trash TMDL calls “WLAs” and “LAs” are not WLAs and LAs within the meaning of EPA’s regulations. Additionally, WLAs and LAs are “load allocations,” and so they must be expressed as “loads,” or amounts of matter added to the water. See 40 C.F.R. § 130.2(e)-(h). However, contrary to EPA regulations, the “WLAs” and “LAs” in the Anacostia River Trash TMDL are not expressed as loads, but as pounds of trash to be removed from the river. AR0003044-48. In EPA’s Decision Rationale for the Anacostia River Trash TMDL, EPA justified using a removal-based approach based on “how trash is transported to the river” and the need for agency “gap-filling” due to the “subjective” nature of the river’s narrative water quality standards, which the District and Maryland needed to translate into numeric water quality targets for this TMDL. AR0003013; AR0003114; AR0003120. EPA, however, cannot violate the Clean Water Act and its regulations just because the agency believes that a different approach is appropriate. See Friends of the Earth, 446 F.3d at 145-46; Exportal Ltda. v. United States, 902 F.2d 45, 50 (D.C. Cir. 1990) (“[I]f permitted to adopt unforeseen interpretations, agencies could constructively amend their regulations while evading their duty to engage in notice and comment procedures.”). The D.C. Circuit rejected a similar policy argument in Friends of the Earth. In that case, EPA argued that seasonal and annual loads were better suited than daily loads for some pollutants. Friends of the Earth, 446 F.3d at 145-46. But “a reasonable policy justification” is not grounds “for deviating from an environmental statute’s plain language.” Id. at 146. EPA’s Decision Rationale also claims that removal of the baseline load is an “appropriate measure” for a TMDL under 40 C.F.R. § 130.2(i). AR0003120-21. EPA’s regulations do afford EPA and states some flexibility in selecting the metrics used to express TMDLs, allowing maximum loads to be expressed as “either mass per time, toxicity, or other appropriate measure.” Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 30 of 38 22 40 C.F.R. § 130.2(i). But a provision regarding the form in which maximum loads may be expressed does not authorize EPA to ignore the underlying statutory and regulatory requirement that TMDLs include maximum loads. See Am. Fed’n of Gov’t Emps. v. Fed. Labor Relations Auth., 803 F.2d 737, 740 (D.C. Cir. 1986) (“It is a generally accepted precept of interpretation that statutes or regulations are to be read as a whole, with ‘each part or section . . . construed in connection with every other part or section.’”). EPA’s interpretation of the phrase “other appropriate measure” conflicts with the plain meaning of Clean Water Act § 303(d) and the regulatory definition of a TMDL, and is thus not entitled to deference.6 See Auer, 519 U.S. at 461. In conclusion, the Clean Water Act and EPA’s regulations require the Anacostia River Trash TMDL to include a maximum load for trash pollution. DOEE and MDE chose not to establish a maximum load, and EPA approved the legally defective TMDL. In doing so, EPA acted contrary to law, further perpetuating the river’s trash impairment. II. EPA’s Conclusion That the Anacostia River Trash TMDL Implements Water Quality Standards Is Arbitrary and Capricious. EPA adopted DOEE and MDE’s conclusion that “removal of 100 percent of the baseline load would achieve the applicable narrative water quality criteria” and “would be sufficient to avoid interference with designated uses.” AR0003044. However, EPA failed to offer a reasoned explanation as to how removal of the baseline load will result in attainment of water quality 6 EPA’s interpretation also violates the interpretive canon that general words following more specific terms “are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001). In 40 C.F.R. § 130.2(i), the general phrase “other appropriate measure” follows two other measures, “mass per time” and “toxicity,” which are both metrics used to express the maximum amount of a pollutant added to receiving waters. It is thus impermissible to interpret “other appropriate measure” as authorizing the use of measures other than maximum loads. Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 31 of 38 23 standards, given that the agency did not determine the amount of trash that could be added to the Anacostia River without violating water quality standards. EPA’s finding that trash loading in some years will greatly exceed the baseline load also undermines its conclusion that removing the baseline load alone will implement water quality standards. Additionally, EPA failed to demonstrate in the record that the estimate of the baseline load was accurate. Consequently, EPA’s conclusion that the Anacostia River Trash TMDL was established at a level necessary to implement applicable water quality standards was arbitrary and capricious. A. EPA Arbitrarily Concluded That a Removal-Based Trash TMDL Would Ensure Compliance with Water Quality Standards. EPA cannot reasonably conclude that the TMDL is established at a “level necessary to implement the applicable water quality standards,” 33 U.S.C. § 1313(d)(1)(C), because EPA never determined what that “level” is. Determining the level of pollutant loading necessary to implement water quality standards requires calculation of the receiving water’s loading capacity. 40 C.F.R. § 130.2(f)-(i). The Anacostia River Trash TMDL never makes that calculation. AR0003016. When DOEE and MDE received comments on the Draft TMDL challenging their assertion that removing the baseline load would implement water quality standards, the agencies did not respond with analysis of facts in the record. Instead, the agencies insisted that they had used their “best professional judgment” to determine that the TMDL endpoint “will result in compliance with water quality standards.” AR0003077. But the agencies’ hollow invocation of their best professional judgment is no substitute for the reasoned explanation required by the Administrative Procedure Act. See McDonnell Douglas Corp. v. U.S. Dep’t of the Air Force, 375 F.3d 1182, 1186-87 (D.C. Cir. 2004) (stating that, when a court determines whether an agency’s Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 32 of 38 24 action is arbitrary and capricious, it does “not defer to the agency’s conclusory or unsupported suppositions”). In Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210 (D.D.C. 2011), the court found EPA’s approval of a TMDL to be arbitrary because EPA did not attempt to quantify the pollutant load necessary to meet certain applicable water quality standards, nor did EPA offer any other explanation, apart from invoking its best professional judgment, as to why it believed the TMDL would implement those water quality standards. Id. at 237-39. Likewise, in this case, EPA never quantified the maximum trash load necessary to meet water quality standards. The only support for EPA’s conclusion that this TMDL will ensure compliance with those water quality standards is MDE and DOEE’s unsupported assertion that the TMDL is set at an appropriate level. EPA cannot assert that removing the baseline load will achieve the statutory goal of implementing water quality standards without providing supporting evidence or even articulating what the goal is. See id. at 239 (stating that “the Clean Water Act and its implementing regulations demand more than imprecise guesses and hopeful utterances; they require that pollutant load limits be set at levels necessary ‘to implement,’ or ‘to attain and maintain,’ water quality standards”). EPA’s unsupported conclusion that removing a fixed amount of trash each year will implement water quality standards also runs counter to its factual finding that trash loading to the Anacostia is highly variable from year to year. AR0003016. Because of this variability, in some years, trash loading will exceed the baseline load significantly. Even in those above-average years, the TMDL still only calls for the removal of an amount of trash equal to the baseline load. Trash discharged above the baseline load will remain in the river. How much trash? Neither EPA Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 33 of 38 25 nor MDE or DOEE attempted to answer the question.7 For example, if 1200 tons of trash are discharged into the river in a year, and the TMDL’s baseline load of about 600 tons is removed, then about 600 tons of trash will remain in the river after the baseline load is removed. This is an obvious impairment of the river, yet implementing the current Anacostia River Trash TMDL will not prevent it. Because EPA made no assessment of the amount of trash left in the river after removal of the baseline load, EPA has not offered a reasoned explanation for its conclusion that the TMDL is set at a level necessary to implement water quality standards. B. EPA’s Conclusion That This TMDL Will Implement Water Quality Standards Is Arbitrary Because EPA Has Not Shown That the Baseline Load Is a Reliable Estimate of Average Annual Trash Loading. Even assuming that a removal-based TMDL could ensure compliance with water quality standards in some instances, the Anacostia River Trash TMDL does not do this because EPA’s own factual findings fail to show that the TMDL’s baseline load is a reliable estimate of the amount of trash that enters the Anacostia River, even in an average year. EPA does not know the amount of trash that would remain in the river after the baseline load is removed because the actual amount of trash that enters the river annually is unknown. It is, therefore, arbitrary and capricious for EPA to conclude that removal of the baseline load would protect the Anacostia River’s water quality standards. Trash loading to the Anacostia is highly variable from year to year. AR0003016. The baseline load purports to capture the average of that highly variable loading. To estimate annual 7 Just as a TMDL establishes the highest amount of pollution that can be added to a waterbody without violating water quality standards, the maximum capacity of a room sets the highest number of people who can enter a room without the room becoming overcrowded. If the maximum capacity of a room was expressed not as a maximum value, but as the number of people to be removed from the room every hour regardless of the number of people entering the room, then the requirement would not ensure that the room does not become overcrowded because there would be no upper limit on the number of people in the room. Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 34 of 38 26 variations in trash discharges from stormwater outfalls, the same outfalls would have to be monitored in multiple years. However, to estimate trash loading from municipal separate storm sewer systems in the watershed, the District only measured trash discharges from stormwater outfalls between March and August 2009, and Maryland only collected these data between October 2008 and July 2009. AR0003018-22. Similarly, data on trash discharges from the District’s Combined Sewer System were collected between August 2000 and April 2001. AR0003035. Since neither the District nor Maryland monitored any individual MS4 or CSO outfall in more than one year, the monitoring data do not account for the high annual variability of trash loading that EPA itself acknowledged. See AR0003016. Additionally, DOEE and MDE gathered data from only 18 of the 3,225 stormwater outfalls that discharge to the Anacostia River and 1 of the District’s 17 CSO outfalls. AR0003010; AR0003018-21; AR0003035. EPA does not provide any evidence in the record to support the conclusion that data gathered from only 0.6% of all stormwater outfalls and 5.8% of all CSO outfalls can generate a reliable estimate of trash loading from all of the point sources in the watershed. The limitations of the monitoring data are also exposed by the TMDL’s calculations of what are referred to as land use loading rates, or the expected amount of trash resulting from different land uses in the watershed. DOEE used the monitoring data from the 10 stormwater outfalls in its jurisdiction to estimate trash loading rates by land use type for the other 206 unmonitored stormwater outfalls in the District of Columbia discharging to the river. To estimate trash loading from the 3,009 stormwater outfalls in Montgomery and Prince George’s Counties, MDE extrapolated from monitoring data from eight of those outfalls. DOEE and MDE’s calculations resulted in radically different loading rates for similar land use types in the two jurisdictions, a strong indicator that the resulting baseline load is not a reliable calculation of the Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 35 of 38 27 amount of trash that enters the Anacostia River each year. For example, the District’s loading rate for low-density residential areas is 4.52 pounds per acre per year, which is 278% higher than Maryland’s low-density residential loading rate of 1.19 pounds per acre per year.8 AR0003035; AR0003039. The District and Maryland state that the dramatic differences in these estimates are “likely explained by the inherent differences in the jurisdictions.” AR0003091. But they also observe that “TMDL loading rates across jurisdictions are highly variable from location to location and among land uses.” AR0003089. This admission that loading rates vary widely from location to location further undermines EPA’s unsupported assertion that monitoring less than one percent of stormwater outfalls yielded an accurate calculation of the total amount of trash discharged from MS4s. Lastly, neither DOEE nor MDE disputes NRDC’s observation in comments to EPA that, if population in the watershed increases, then trash pollution is likely to increase as a result. AR0003093. Rather, DOEE and MDE opted to kick the can down the road by conceding the need to revise the TMDL at an unspecified later date if, based on unspecified criteria, they deem it necessary. Id. Even if EPA could have concluded that the baseline load reflected an accurate estimate of trash loading in 2010, it had no evidence to suggest that it would be an accurate estimate going forward. EPA failed to consider an important aspect of the problem when it failed to consider population growth. 8 Additionally, the District’s estimates for institutional, commercial, and industrial areas are 25.45, 22.08, and 18.90 pounds per acre per year; whereas Maryland estimated the same loading rate for all three categories as 2.22 pounds per acre per year. AR0003035; AR0003040. The District and Maryland offer no explanation for why institutional, commercial, and industrial sites in Maryland would generate trash at one-tenth the rate of these same land uses in the District. Also, Maryland’s extractive, transportation, and bare ground areas’ loading rates were not monitored and are based on the commercial/industrial/institutional rate of 2.22 pounds per acre per year. However, the transportation loading rate in the District of Columbia is estimated to be 31.12 pounds per acre per year. AR0003040; AR0003035. Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 36 of 38 28 In sum, the record does not show that the baseline load is a reliable estimate of the average amount of trash entering the river, rendering arbitrary and capricious EPA’s conclusion that removing this amount of trash will implement water quality standards. The challenging task of calculating an accurate estimate of average annual trash loading to the Anacostia River from a 170-square-mile watershed is a problem of DOEE, MDE, and EPA’s own making. If the agencies had structured the TMDL as the Clean Water Act and EPA’s regulations require, the TMDL would contain a maximum load for trash entering the Anacostia. That maximum load would remain the same, regardless of population growth or the whims of weather and litterbugs. By requiring the calculation of a fixed number—an upper limit on the amount of a pollutant that can be discharged into a body of water—the Clean Water Act and EPA’s regulations avoid the practical problems inherent in a removal-based TMDL. By approving a TMDL that does not set maximum load, EPA acted arbitrarily and capriciously and contrary to law. CONCLUSION For the foregoing reasons, NRDC respectfully requests that this Court grant its Motion for Summary Judgment and declare EPA’s approval of the Anacostia River Trash TMDL in violation of the Clean Water Act and EPA’s regulations. NRDC further requests that the Court vacate EPA’s approval of the TMDL, remand the matter to EPA to promulgate a trash TMDL for the Anacostia River within a reasonable amount of time that complies with the Clean Water Act, and stay the order of vacatur until a trash TMDL that complies with the Act is in effect. Dated: April 6, 2017 Respectfully submitted, /s/ Peter DeMarco _ Peter DeMarco, Staff Attorney (D.C. Bar No. 1029471) Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 37 of 38 29 Hope Babcock, Director (Fed/D.C. Bar No. 14639) Institute for Public Representation Georgetown University Law Center 600 New Jersey Avenue, N.W. Washington, DC 20001 Phone: 202-662-9535 Fax: 202-662-9634 Attorneys for Plaintiff NRDC Case 1:16-cv-01861-JDB Document 10 Filed 04/06/17 Page 38 of 38 EXHIBIT 1 Case 1:16-cv-01861-JDB Document 10-1 Filed 04/06/17 Page 1 of 3 Case 1:16-cv-01861-JDB Document 10-1 Filed 04/06/17 Page 2 of 3 Case 1:16-cv-01861-JDB Document 10-1 Filed 04/06/17 Page 3 of 3 EXHIBIT 2 Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 1 of 27 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF'COLUMBIA ) NATURALRESOURCESDEFENSE ) COUNCIL. INC.. Plaintiff, UNITED STATES ENVIRONMENTAL ) ) ) ) ) ) ) Civil Action No. l: l6-cv-01 861-JDB ) ) ) ) PROTECTION AGENCY. et al., Defendants. DECLARATION OF REBECCA HAMMER I, Rebecca Hammer, hereby declare nnder penaltv of perjury pursuant to 28 U.S.C. $ 1746: I . I am an attomey at the Naturai Resources Defense Council (NRDC), plaintiff in this case. This declaration is based on my personal knowledge. 2. Attached as Exhibit A is a petition tiled by NRDC and other environrnental groups on October 8. 2015, requesting the District of Columbia and Maryland to revise the Anacostia River Trash Total Maximunr Dailv Load (TN{DL). 3. In my capacity as an attorrrey at NRDC, I submitted this petition to the District of Columbia and Maryland. 4. Attached as Exhibit B is the District of Columbia's denial of NRDC's petition. 5. Attached as Exhibit C is Maryland's denial of NRDC's petition. Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 2 of 27 I declare under penalty of per.fury that the foregoing is true and correct. Erecuted April 3, 2017. Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 3 of 27 EXHIBIT A Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 4 of 27 1 ANACOSTIA RIVERKEEPER · ANACOSTIA WATERSHED SOCIETY AUDUBON NATURALIST SOCIETY · DC ENVIRONMENTAL NETWORK MARYLAND MILESTONES/ANACOSTIA TRAILS HERITAGE AREA NATURAL RESOURCES DEFENSE COUNCIL SIERRA CLUB, WASHINGTON DC CHAPTER · TRASH FREE MARYLAND WASHINGTON ROWING SCHOOL October 8, 2015 Hamid Karimi, Ph.D., Deputy Director Natural Resources Administration, Water Quality Division District Department of Energy and Environment 1200 First Street NE Washington, DC 20002 via email to hamid.karimi@dc.gov D. Lee Currey, Director Science Services Administration Maryland Department of the Environment 1800 Washington Boulevard, Suite 540 Baltimore, MD 21230 via email to lcurrey@mde.state.md.us Petition to Revise the Anacostia River Trash Total Maximum Daily Load (TMDL) Dear Dr. Karimi and Mr. Currey: Pursuant to Section 2-505(b) of the D.C. Administrative Procedure Act1 and Section 10- 123 of the Maryland Administrative Procedure Act,2 the undersigned organizations hereby petition the District Department of Energy and Environment (DOEE) and the Maryland Department of the Environment (MDE) to revise the total maximum daily load (TMDL) for trash in the Anacostia River watershed.3 The TMDL, which was adopted in 2010, was intended to 1 DC Code § 2-505(b) (“Any interested person may petition the Mayor or an independent agency requesting the promulgation, amendment, or repeal of any rule”); see also DC Code § 2-502(6)(A) (defining “rule” broadly to include “the whole or any part of any Mayor’s or agency’s statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the organization, procedure, or practice requirements of the Mayor or of any agency”). 2 Md. Code § 10-123(a) (“An interested person may submit to a unit a petition for the adoption of a regulation.”); see also Md. Code § 10-101(g)(1) (defining “regulation” broadly to include “a statement or an amendment or repeal of a statement that: (i) has general application; (ii) has future effect; (iii) is adopted by a unit to: 1. detail or carry out a law that the unit administers; 2. govern organization of the unit; 3. govern the procedure of the unit; or 4. govern practice before the unit; and (iv) is in any form, including: 1. a guideline; 2. a rule; 3. a standard; 4. a statement of interpretation; or 5. a statement of policy.”). 3 Maryland Dep’t of the Environment & District Dep’t of the Environment, Total Maximum Daily Loads of Trash for the Anacostia River Watershed, Montgomery and Prince George’s Counties, Maryland and the District of Columbia (Aug. 2010), available at Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 5 of 27 2 establish a plan to eliminate trash pollution from the Anacostia River. However, the TMDL is both ineffective and unlawful as written, and it must be revised. In the past five years, it has become clear that the TMDL’s unconventional approach is fundamentally flawed, and the implementing jurisdictions in the watershed – the District of Columbia, Montgomery County, and Prince George’s County – will not have the framework and the tools they need to succeed at achieving a trash-free river until the TMDL is replaced with a more workable alternative. DOEE’s and MDE’s decision rationale document for the TMDL explicitly anticipated that the TMDL might need to be reworked at some point in the future if new information indicated it was necessary.4 Because the TMDL was unlawfully structured when it was first adopted, and moreover because the jurisdictions’ practical difficulties with implementation have shown that the TMDL is insufficient to ensure compliance with water quality standards, now is the time to revise it. This is particularly true in light of the fact that the TMDL is already being used as a model in other jurisdictions seeking to remedy their own trash pollution problems.5 The flaws in the TMDL must be corrected before they are replicated in even more watersheds. Specifically, the TMDL must be revised to set maximum loadings for trash. These loadings should presumptively be set at zero unless evidence shows that a greater amount of trash can be discharged consistent with the attainment of water quality standards. I. Because it does not establish a maximum trash load that the Anacostia can tolerate, the TMDL is inconsistent with the plain language of the Clean Water Act and its implementing regulations. The Clean Water Act requires states and the District of Columbia to adopt a “total maximum daily load” of pollutants for waters for which existing effluent limitations are not stringent enough to implement any applicable water quality standard.6 Consistent with this, federal regulations require that TMDLs be expressed as a maximum load: the greatest amount of pollution that can enter the waterway without violating water quality standards. Yet the Anacostia trash TMDL contains neither an upper limit on trash discharges nor even an analysis of the maximum amount of trash pollution that the Anacostia can handle consistent with meeting water quality standards. Consequently, the TMDL violates legal mandates and must be revised. http://green.dc.gov/sites/default/files/dc/sites/ddoe/publication/attachments/Final_Anacostia_Trash_TMDL.pdf (hereinafter “TMDL”). 4 EPA Region III, Decision Rationale: Total Maximum Daily Loads of Trash for the Anacostia River Watershed – Montgomery and Prince George’s Counties, Maryland and the District of Columbia at 5 (Sept. 21. 2010), available at http://green.dc.gov/sites/default/files/dc/sites/ddoe/publication/attachments/The_TMDL_Decision_Rationale.pdf. 5 See MDE, Total Maximum Daily Loads of Trash and Debris for the Middle Branch and Northwest Branch Portions of the Patapsco River Mesohaline Tidal Chesapeake Bay Segment, Baltimore City and County, Maryland (Dec. 2014), available at http://www.mde.state.md.us/programs/Water/TMDL/ApprovedFinalTMDLs/Documents/Baltimore_Harbor_Trash/ Harbor_Trash_120314_final.pdf. 6 33 U.S.C. § 1313(d)(1)(C). Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 6 of 27 3 The TMDL acknowledges that it is premised on a methodology unlike that which is used for the typical TMDL. It says: “It is important to note that, unlike most TMDLs, which are expressed in terms of the loads of a pollutant that may be added to a waterbody, these trash TMDLs are expressed in the negative, i.e., in terms of quantities of trash that must be removed or prevented from entering the waterbody.”7 For the TMDL, the quantity of trash that must be prevented from entering the waterways was derived from the estimated baseline load, which was based on analyses of the amount of trash in the river by the District Department of the Environment (DOEE), in collaboration with the Anacostia Watershed Society, and by the Metropolitan Washington Council of Governments (MWCOG). Based on these efforts, the TMDL document assumes that a certain portion of the trash pollution is discharged by several permitted point sources (mostly consisting of a variety of municipal separate storm sewer systems (MS4s) and the combined sewer system in the District), assuming that smaller items were discharged via point sources and that larger items were not.8 After attempting to quantify the baseline load and assigning it to point and non-point sources, the document then says that the wasteload allocation (WLA) will be set equal to 100 percent removal of the baseline load from point sources, and the load allocation (LA) will be set equal to 100 percent removal of the baseline load from non-point sources.9 Under EPA regulations, a TMDL is supposed to reflect the waterbody’s “loading capacity,” which is defined as “[t]he greatest amount of loading that a water can receive without violating water quality standards.”10 Similarly, the sum of all wasteload allocations for point sources, load allocations for nonpoint sources, plus natural background is supposed to reflect the “portion[s] of a receiving water’s loading capacity” that, when added together (with a margin of safety), comprise the TMDL. In other words, the rules require this TMDL to be expressed as a number that represents the highest amount of trash pollution that is allowed to enter the river in compliance with water quality standards. EPA guidance confirms this regulatory intent. In the words of the agency: “The objective of a TMDL is to allocate allowable loads among different pollutant sources so that the appropriate control actions can be taken and water quality standards achieved.”11 Moreover, courts have been unanimous in reading the regulations to require that TMDLs designate a maximum loading. To list a few examples: • “A TMDL is the ‘total maximum daily load’ of a given pollutant that can be added into a navigable water of the United States on a given day. It essentially identifies the 7 TMDL at ix. 8 TMDL at 27-28. 9 TMDL at ix, 11, 39. 10 40 C.F.R. § 130.2(f) (emphasis added). 11 U.S. EPA, Office of Water, “Guidance for Water Quality-Based Decisions: The TMDL Process” at Chapter 3 (1991), http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/dec3.cfm (emphasis added). Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 7 of 27 4 maximum amount of a pollutant that can be added to a body of water consistent with attaining applicable water quality standards.”12 • “As set forth by EPA in its regulations, a TMDL defines the maximum amount of a pollutant that a body of water can receive from point sources, or waste load allocations (“WLAs”), and non-point sources, or load allocations (‘LAs’). Thus, a total TMDL is the ‘sum of the individual WLAs for point sources and LAs for any nonpoint sources and natural background.’”13 • “A core requirement of any TMDL is to divide sources of contamination along the water body by specifying load allocations, or LAs, to predict inflows of pollution from particular non-point sources; and to then setting wasteload allocations, or WLAs, to allocate daily caps among each point source of pollution.”14 • “A TMDL defines the specified maximum amount of a pollutant which can be discharged or ‘loaded’ into the waters at issue from all combined sources. Thus a TMDL represents the cumulative total of all ‘load allocations’ which are in turn best estimates of the discrete loading attributed to nonpoint sources, natural background sources, and individual wasteload allocations (‘WLAs’), that is, specific portions of the total load allocated to individual point sources.”15 • “TMDLs set the maximum amount of pollution a water body can absorb before violating applicable water quality standards.”16 EPA’s regulations do give agencies some flexibility in selecting the metrics that they use to express this maximum cap, stating that “TMDLs can be expressed in terms of either mass per time, toxicity, or other appropriate measure.”17 However, this provision is fully consistent with the fundamental definition of a TMDL as a “maximum . . . load.” It simply clarifies the options for quantifying the maximum load in a measure that is appropriate for the pollutant and the applicable water quality standards. There is no maximum loading number in the Anacostia trash TMDL document. To the contrary, the TMDL document clearly states that the “TMDL target equal to 100 percent removal 12 Food & Water Watch v. EPA, 2013 WL 6513826 (D.D.C. Dec. 13, 2013) (internal citations omitted; emphasis added). 13 Am. Farm Bureau Fed'n v. EPA, 984 F. Supp. 2d 289, 297 (M.D. Pa. 2013) (internal citations omitted; emphasis added). 14 Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210, 248-49 (D.D.C. 2011) (emphasis added). 15 Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1520 (9th Cir. 1995). 16 American Farm Bureau Federation v. EPA, No. 13-4079, 2015 WL 4069224, at *13 (3rd Cir. July 6, 2015) (emphasis added). The court agreed that a TMDL includes at least “an allowable sum of pollutants (i.e., the most nitrogen, phosphorus, and sediment the Bay can safely absorb per day),” while considering and ultimately rejecting plaintiffs’ claims that other elements (such as wasteload and load allocations, attainment deadlines, and reasonable assurances) may not be included in a TMDL in addition to the core element of a maximum load. 17 40 C.F.R. § 130.2(i). Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 8 of 27 5 of the baseline load is not the same as zero (0) trash in the waterway,”18 and does not otherwise attempt to quantify the amount of trash that could be added to the Anacostia without violating water quality standards.19 At various places, the trash TMDL document itself implicitly acknowledges that its approach is not truly a TMDL, insofar as it describes what a TMDL is supposed to be: • “A TMDL establishes the amount of a pollutant that a waterbody can assimilate without exceeding its water quality standard for that pollutant.”20 • “A TMDL is the total amount of pollutant that can be assimilated by the receiving waterbody while still achieving water quality standards or goals.”21 • “TMDLs represent an attempt to quantify the pollutant load that can be present in a waterbody and still ensure attainment and maintenance of water quality standards.”22 These restatements of the law are consistent with the regulations quoted above and, critically, with the plain meaning of the phrase “total maximum daily load” in the Clean Water Act.23 Congress’s use of that term – which clearly contemplates an upper limit on loading – cannot be ignored. In 2006, the U.S. Court of Appeals for the D.C. Circuit decided a challenge to TMDLs developed for the Anacostia.24 In holding that TMDLs expressed as annual and seasonal loads were improper, the court excoriated EPA for interpreting “daily” not to mean “daily” within the context of the TMDL program. The court wrote: “Nothing in this language even hints at the possibility that EPA can approve total maximum ‘seasonal’ or “annual’ loads. The law says ‘daily.’ We see nothing ambiguous about this command. ‘Daily’ connotes ‘every day.’ See Webster’s Third New International Dictionary 570 (1993) (defining ‘daily’ to mean ‘occurring or being made, done, or acted upon every day’).”25 Given that “maximum,” like “daily,” has an accepted, plain-language definition – “the greatest quantity or value attainable or attained,” or “an upper limit allowed (as by a legal authority) or allowable (as by the circumstances of a particular case),” according to Webster’s26 – it is hard to imagine that a court would be inclined to accept an interpretation of the term that does not actually include a maximum load. 18 TMDL at 11. 19 The document does assert, in a number of places, that compliance with the baseline load removal approach would lead to water quality standards being met, see, e.g., id. at 39 (“the District and Maryland have concluded that removal of 100 percent of the baseline load would achieve the applicable narrative water quality criteria”), but those statements are simply unsupported assertions. 20 TMDL at viii & 1. 21 TMDL at 39. 22 TMDL at 47. 23 See 33 U.S.C. 1313(d)(1)(C) (emphasis added). 24 Friends of the Earth, Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006). 25 Id. at 144. 26 Merriam-Webster, “Maximum,” http://www.merriam-webster.com/dictionary/maximum. Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 9 of 27 6 The D.C. Circuit further noted in its 2006 ruling that just because a pollutant is “poorly suited” to the type of regulation the law requires, an agency “may not avoid the Congressional intent clearly expressed in the text simply by asserting that its preferred approach would be better policy.”27 A statute’s plain language may not be set aside simply because the agency thinks it leads to undesirable consequences in some applications.28 DOEE and MDE must revise the TMDL in order to conform to the letter of the law. II. The TMDL’s backwards approach is also causing practical problems, making implementation and compliance verification more difficult and rendering the TMDL insufficient to ensure compliance with water quality standards. In comments on the draft TMDL, certain petitioner organizations warned that the TMDL’s backwards, removal-based approach would be unworkable, and now that prediction is bearing out in practice. The practical problems caused by the TMDL are threefold. First, the agencies that have begun implementing the TMDL are finding it difficult and time-consuming to estimate the removal efficiencies of their selected management practices, diverting resources away from actual implementation and generating substantial uncertainty about their compliance with the TMDL’s requirements. Second, the baseline surveys that led to the establishment of the TMDL were likely inaccurate, undermining any assurance that the Anacostia jurisdictions will actually have attained water quality standards after satisfying their TMDL obligations. Unless both the removal efficiencies and the baseline pollutant load are 100% accurate, implementation of the TMDL’s removal requirements will not result in a trash-free river. Yet experience suggests that achieving total precision for either element is virtually impossible, leading to the conclusion that a removal-based TMDL is unlikely to succeed in eliminating trash from the Anacostia. This is why Congress directed TMDLs to be expressed as maximum loads, as discussed above. In addition to these two fundamental flaws, the use of weight as a metric is creating a third problem: it establishes environmentally perverse incentives and is more difficult to measure than other metrics, like volume or visual presence of trash. Together, these three practical problems render the TMDL insufficient to ensure that dischargers “attain and maintain the applicable narrative and numerical WQS” as required by federal regulations.29 Difficulty of estimating removal efficiencies The Anacostia watershed jurisdictions have all experienced difficulty in attempting to accurately estimate the removal efficiencies of their selected management practices. The District of Columbia, Montgomery County, and Prince George’s County are expending a significant amount of time and resources on this task. Many of those resources could be dedicated to actual 27 Friends of the Earth, Inc., 446 F.3d at 145 (internal citations omitted). 28 Id. 29 40 C.F.R. § 130.7(c)(1). Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 10 of 27 7 trash reduction efforts if the TMDL were lawfully expressed as a maximum load. While the jurisdictions are doing the best they can under the circumstances, the TMDL’s structure works against them by setting them an impossible task; precisely accurate removal efficiencies are simply not available for many of the trash reduction practices that are effective in this watershed. The jurisdictions’ difficulties have created uncertainty about how much trash their management practices are removing (or preventing from entering the waterway), and how much their future practices will remove. If the jurisdictions’ estimated efficiencies are inaccurate, there will be no way to verify whether they are in fact meeting their removal obligations. This compliance problem would not exist if they were required to meet a maximum loading cap that was verified by monitoring. o The District of Columbia As evidenced by the District Department of the Environment (DOEE) draft implementation strategy,30 as well as a presentation given at a trash TMDL stakeholder meeting in December 2013, it is clear that DOEE has struggled – understandably so – to estimate trash removal efficiencies. While it is fairly straightforward to calculate trash removal by structural strategies like litter traps, DOEE has had to engage in a significant amount of guesswork to calculate the efficiencies of nonstructural practices. In the District, such practices include strategies such as the fee on plastic bags, street sweeping, and public education. The estimated efficiencies for all of these practices rely on speculation and presumption. As a result, the confidence in the accuracy of these estimates is low. For example, consider DOEE’s estimated methodology for street sweeping removal efficiencies.31 In estimating the amount of trash removed by sweeping environmental hotspots, DOEE had to estimate both the amount of road surface that is able to be swept, accounting for cars being parked in some areas, and the miles of road that are actually swept on any given sweeping day. This already uncertain estimate of street sweeping area is then multiplied by the TMDL’s trash loading coefficient for roads, and as discussed in more detail below, we have significant doubts about the accuracies of the TMDL’s loading rates. It is not difficult to imagine that the number DOEE arrives at from this calculation may vary significantly from the actual amount of trash being swept from District roads. DOEE’s guesswork is also evident in its calculated removal efficiency for the District’s bag law.32 Several factors critical to the calculation are based on estimates: the weight of the average plastic bag; the baseline number of plastic bags in the river; the reduction in bag use, as self-reported by local businesses, who have an incentive to report high reductions in order to 30 District Department of the Environment, Anacostia River Watershed Trash TMDL Implementation Strategy (Dec. 2013), available at http://ddoe.dc.gov/sites/default/files/dc/sites/ddoe/page_content/attachments/Draft_Strategy_For_Public_Input.pdf. 31 Id. at 5. 32 Id. at 6. Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 11 of 27 8 verify their own compliance with the law; and how much of that reduction is occurring in the Anacostia portion of the MS4. If the estimate for even one of these factors is inaccurate, DOEE’s removal efficiency will not reflect the actual amount of plastic bag trash being removed. Finally, in its 2013 draft implementation strategy, DOEE did not even begin to attempt calculating efficiencies for education and outreach campaigns. DOEE spent years developing its TMDL implementation methodologies; the fact that they are still not finalized is itself proof of the unnecessary effort the TMDL’s structure is forcing DOEE to expend. o Montgomery County The problems that DOEE is facing, described above, are compounded in Montgomery County because easier-to-quantify structural approaches are not an option there. According to the Alice Ferguson Foundation, because Montgomery County is the jurisdiction farthest upstream, it has very few direct and substantial outfalls to the Anacostia and its tributaries.33 Trash pollution in the county comes predominantly from non-point sources. As a result, Montgomery County Department of Environmental Protection (DEP) cannot simply install structural trash traps and nets and remove large quantities of trash at once. Even where structural devices could be used to capture large amounts of trash within tributaries, DEP engineers are uncertain that those devices could be installed without causing an obstruction that might cause flooding after rain events. Because of this, Montgomery County’s management practices are mostly dispersed and non-structural, and DEP must rely heavily on modeling to determine the amount of trash these practices capture, as opposed to measuring the amount of trash that is physically removed from local waterways. DEP is using many of the same nonstructural strategies being deployed in the District of Columbia, and it is facing many of the same difficulties in quantifying removal. Like DOEE, Montgomery County is forced to estimate removal efficiencies based on assumptions with potentially significant degrees of uncertainty. The county’s plan for attaining wasteload allocations for all stormwater-related TMDLs, including trash, says that school-based anti-litter programs reduce trash from 12 percent of residential land use, based on an assumption that “half of residential land use is influenced by school age kids, effectiveness of messaging is 40% and willingness to participate is 60% or .5 x .4 x .6 = .12.”34 The plan does not explain how DEP staff arrived at these numbers. Likewise, littering and illegal dumping enforcement are estimated to reduce trash from 5 percent of commercial and industrial land use because of assumptions that “100% of industrial and commercial hot areas are targeted and 8% awareness and 60% 33 Alice Ferguson Foundation, Trash Policy and Regulation Implementation Partnership: Final Grant Report at 4 (Dec. 13, 2013) [attached as Exhibit A]. 34 Montgomery County Department of Environmental Protection, Anacostia Watershed Implementation Plan at 42 (Jan. 2012), available at http://www.montgomerycountymd.gov/DEP/Resources/Files/ReportsandPublications/Water/Watershed%20studies/ Anacostia/AnacostiaRiverWIP_FINAL.pdf. Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 12 of 27 9 effectiveness, or 1.0 x .08 x .6 = .05.”35 Again, the plan provides no explanation of how these particular assumptions were made, or what degree of confidence DEP staff have in their accuracy. Because of these difficulties, DEP staff have indicated that they are not even taking credit for the trash reduced through many of these programs. During interviews with the Alice Ferguson Foundation, DEP staff stated that they were hesitant to attempt quantifying the county’s reductions thus far because of the high risk of inaccuracy inherent in its modeling and monitoring efforts. When a jurisdiction is unwilling even to guess at what its efforts are accomplishing for fear that the modeling numbers will not reflect reality, it is clear that the chosen approach is not working. Ultimately, for Montgomery County, as for the District of Columbia, this convoluted and imprecise calculation of removal efficiencies is undermining confidence in assessments of the county’s compliance. This problem would not exist if the TMDL were properly, lawfully structured as a maximum load. Establishing a maximum load and assessing real-world results through monitoring would also empower the county to rely more on trash reduction measures that are effective but difficult to quantify through hypothetical formulas. o Prince George’s County Similar to the other two jurisdictions’ plans, Prince George’s County’s draft trash reduction strategy relies heavily on estimated removal efficiencies based in large part on assumptions. As the Anacostia Watershed Society noted in its comments on the draft strategy, the county’s plan centers around efforts that are difficult to measure, such as education and outreach.36 In the words of the county’s Department of the Environment (DOE), “For some programs (i.e., cleanup events and trash BMPs), the amounts of trash reported from survey results are summarized and converted into annual values with care to avoid duplication when more than one group reported results for the same program. For other programs (i.e., education programs and street sweeping), best estimates were made using the data available, estimation methods found in the literature, and reasonable assumptions.”37 The draft strategy’s approach to calculating the efficiency of street sweeping programs demonstrates the uncertainty inherent in implementing a reduction-based requirement. The strategy states that street sweeping effectiveness was computed using “the estimated trash load on roadways, the acres of roads swept, the frequency of sweeping, and a method from the literature to determine effectiveness based on frequency of sweeping compared to rainfall 35 Id. 36 Anacostia Watershed Society, Comments on the Draft Implementation Plan for the Anacostia River Watershed Trash Total Maximum Daily Load in Prince George’s County (Dec. 24, 2014) [attached as Exhibit B]. 37 Prince George’s County Department of the Environment, Implementation Plan for the Anacostia River Watershed Trash Total Maximum Daily Load in Prince George’s County (Draft) at 17 (Nov. 2014), available at http://www.princegeorgescountymd.gov/sites/Sustainable/Documents/AnacTrash_IP_Draft_25Nov2014.pdf (emphasis added). Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 13 of 27 10 events.”38 While some of these factors are relatively easy to calculate – such as the geographic extent and frequency of sweeping – the literature-based method of determining effectiveness is explicitly based on assumptions acknowledged to be incorrect. The study from which DOE borrowed this method “found that the maximum expected efficiency of street sweeping decreased with the ratio of street sweeping frequency to significant storm frequency. This approach assumes that street sweeping is 100% effective at removing trash, and that storms are 100% effective at washing trash off the roadway and into the piped MS4. In reality, this is rarely the case but the general approach is useful for reference and benchmarking.”39 The estimated effectiveness of trash clean-up programs is also admittedly inexact (“The number of pounds of trash collected was not compiled for all cleanup events, therefore, the amount of trash collected from cleanup programs in the Anacostia watershed is an estimate”40), and the projected efficiency for the posting of “No Dumping” signs is based on a single statistic from Texas (“In an evaluation of the effectiveness of ‘No Dumping’ signs, a task force in central Texas found a reduction in dumping incidents of approximately 70% after appropriate signs (i.e., metal, large, strategically placed) were installed”41). The Anacostia Watershed Society’s comments on the draft strategy discuss the likely inaccuracy of these estimates in further detail.42 Information provided by Anacostia Riverkeeper casts additional doubt on the county’s removal efficiency for clean-up programs.43 Data from clean-ups held from April 2012 through November 2014 reveal that per-person and per-hour trash removal rates vary widely from event to event and thus are not a good predictor of future clean-up event results. Moreover, the county’s estimate of 1,400 pounds of trash removed during a single community clean-up is a highly optimistic estimate given that only a few events in Anacostia Riverkeeper’s database removed that quantity of trash; each of those events involved a massive outlay of marketing and publicity effort and took place at a known illegal dumping hotspot. The most recent, at Kenilworth Park, required 160 volunteers performing 480 hours of labor, supported by 46 hours of paid staff time. This clean-up removed 2,061 pounds of trash, but only 828 pounds of that total counted toward TMDL wasteload allocations; the rest consisted of large items that fell into the load allocation category.44 This information suggests that not only is Prince George’s County’s estimated efficiency highly imprecise, but also that it may in fact be impossible to develop an estimate that is sufficiently accurate for purposes of assessing TMDL compliance. For some practices, DOE adopted the efficiency calculation methodologies used by DOEE and/or Montgomery County DEP. Prince George’s County’s approach to calculating reductions from education programs was copied exactly from DEP’s plans, and the estimated 38 Id. at 21. 39 Id. at 22 (emphasis added). 40 Id. at 19. 41 Id. at 33. 42 Anacostia Watershed Society, Comments on the Draft Implementation Plan [Exhibit B], at 3-4, 5-6. 43 Anacostia Riverkeeper, Clean-Up Event Data (unpublished spreadsheet) [attached as Exhibit C]. 44 Id.; Personal communication from Mike Bolinder, Anacostia Riverkeeper, Apr. 2, 2015. Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 14 of 27 11 success rate of plastic bag fees was also borrowed without any additional analysis.45 As discussed above, those other jurisdictions had difficulty deriving these methodologies with the needed precision; they are no more likely to be accurate when applied in Prince George’s. In conclusion, the Prince George’s County draft trash reduction strategy – like the plans being developed and implemented in the District of Columbia and Montgomery County – demonstrates the practical pitfalls inherent in the TMDL’s backwards approach. All three jurisdictions are developing removal efficiencies that are almost certainly inaccurate to some degree; assessing their compliance with the TMDL based on these efficiencies inspires little confidence in the implementation process leading to the intended result. To be clear, the problem is not that the jurisdictions have done a poor job developing their efficiencies. The problem is that the task itself is unachievable. For most trash reduction practices, efficiencies simply cannot be estimated accurately enough to assess compliance with a requirement to reduce a specific amount of trash. It is unfortunate that the TMDL’s reliance on removal efficiencies is preventing some of the watershed jurisdictions from taking credit for their trash removal efforts, and in some cases causing them to shy away from harder-to-quantify approaches in favor of ones with better-established removal rates. In essence, the TMDL has turned trash reduction into a math exercise and diverted necessary attention away from implementation of strategies that are actually successful on the ground. It is important to note that the jurisdictions would still need to estimate the removal efficiencies of trash reduction practices for planning purposes, even if the TMDL were properly structured as a maximum loading cap, so that they could prospectively determine the necessary level of effort and appropriately design their policies and programs. For that reason, their work estimating removal efficiencies will not have been wasted effort if the TMDL is revised. However, these approximated removal efficiencies are not, and cannot be, sufficiently accurate to form the sole basis for assessing legal compliance with wasteload allocations. The experience in all three jurisdictions shows that the necessary precision is not possible to achieve. For this reason, the structure of the TMDL has made implementation unnecessarily difficult and compliance nearly impossible to verify as a practical matter. Accuracy of the baseline Not only are the jurisdictions expending significant time and resources to implement this TMDL, but they cannot even be confident that once they remove the required amount of trash, they will have achieved a trash-free Anacostia. This is because the integrity of a removal- focused TMDL depends entirely on the accuracy of the baseline estimate. The TMDL contemplates that dischargers will be in compliance with wasteload allocations as long as they show that they have eliminated the requisite amount of trash from their discharges (pegged to their estimated “baseline” discharge) – even if they are still in fact contributing trash to local 45 Prince George’s County, Implementation Plan, at 18, 34. Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 15 of 27 12 waterways. The only way that this scheme even approaches a zero discharge standard is if the surveys that were done were precisely correct. We have significant concerns about the precision of the trash surveys conducted, for the following reasons. Because of these potential inaccuracies, the jurisdictions may find that they have spent many years and scarce resources implementing this TMDL, without actually achieving the intended results. First, the surveys were based on snapshots of trash discharges combined with information about regional land uses. For both Maryland and the District, as we understand the effort, a total of 18 stormwater outfalls were monitored.46 Following these surveys, areas throughout the watershed were assigned trash loading rates based on the land use type draining to the MS4, on the assumption that areas with similar land uses to those areas that were monitored would have similar loading rates. While we do not mean to understate the effort involved with monitoring 18 sites – indeed, it strikes us as difficult and time-consuming – we note that it only covered a miniscule fraction of the Anacostia watershed’s MS4 outfalls, of which there are 3,225.47 As such, the potential variability of loading rates from the 99.4 percent of the outfalls that were not monitored is an important reason to be concerned that the surveys did not accurately reflect actual trash pollution rates. Second, the design of the monitoring effort itself appeared to be subject to under- counting trash items. For instance, in DC, the TMDL document explains that “[i]t was determined that the large amount of organic debris moving through the storm sewer system during the fall and winter would overwhelm the trash traps; therefore, monitoring was not conducted during those seasons.”48 In Maryland, “[t]o reduce the likelihood of major blowouts during larger, more intense rainfall events, the six trash fences had a maximum operational/working height of approximately 2 feet above the invert of the channel.”49 In both DC and Maryland, smaller trash items could pass through the traps, as the DC effort used one- inch diameter mesh, and the MWCOG effort used two-inch fencing plus some additional sub- sampling using a one-inch sub-sampler.50 Third, some of the loading rates for different land uses were troubling. For example, in Maryland, the low-density residential rate was based on a single site, and was set at 1.195 pounds per acre per year,51 whereas the low-density loading rate in the District was 4.52 46 See TMDL at 13 (discussing DC monitoring of 10 outfalls) & 16 (discussing Montgomery & Prince George’s County monitoring of eight outfalls). 47 Id. at 5. 48 Id. at 13. 49 Id. at 16. It is unclear from the document whether (and, if so, how frequently) such events may have occurred during the monitoring period. 50 Id. at 13 & 16. In fairness, we acknowledge that MWCOG staff informed us during the development of the TMDL that the sampling would not let all smaller items through, because the traps would get blocked by other debris, rendering the openings functionally smaller. However, we simply lack information about how comprehensive the sampling was with respect to smaller items. 51 Id. at 34. Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 16 of 27 13 lb/ac/yr;52 no explanation was offered for a 278% higher loading rate in the District. Similarly, for Maryland, loading rates for commercial, industrial, and institutional areas were based on a single site and set at 2.22 lb/ac/yr,53 whereas the District has far higher rates – 22.08 lb/ac/yr for commercial areas, 18.90 lb/ac/yr for industrial areas, and 25.45 lb/ac/yr for institutional areas.54 These dramatic differences were not discussed. Finally, Maryland’s extractive, transportation, and bare ground areas’ loading rates were not monitored and were based on the commercial/industrial/institutional rate of 2.22 lb/ac/yr,55 even though the transportation and similar areas’ loading rate in the District was 31.12 lb/ac/yr.56 Fourth, the total estimate of trash being added to the watershed was significantly lower than the one prior estimate that was widely publicized. It was previously reported that an estimated 20,000 tons of trash enter the river annually.57 Staff involved with the development of the TMDL indicated that this prior estimate was based on an estimate from outside our region, and of uncertain reliability. Maybe so – however, it bears reflecting that this prior, generally accepted, estimate is 3,170% higher than the estimate contained in the TMDL, which is approximately 631 tons/year.58 Fifth, the results of trash collection programs already underway in the District provide another reason to doubt the baseline’s accuracy. For example, the TMDL’s 631 ton/year estimate appears preposterous in light of the statement elsewhere in the TMDL that DC Water’s Floatable Debris Removal Program alone recovers around 400 tons/year.59 Finally, and critically, the TMDL contains no mechanism for adjusting the baseline to reflect population growth in the Anacostia watershed. Even if the baseline were accurate when the TMDL was developed, it has already grown out-of-date with the recent addition of new District and Maryland residents, given that each person living in the Anacostia watershed generates trash. The District of Columbia’s population has grown by over 53,000,60 52 Id. at 30. 53 Id. at 35. 54 Id. at 30. 55 Id. at 35. 56 Id. at 30. Even if one were to combine the District’s transportation, etc. rate with its 0.32 lb/ac/yr rate for parks and open spaces in order to approximate the category used for Maryland (extractive, transportation, and bare ground uses), it would be significantly higher than the rate used for Maryland. 57 See, e.g., National Oceanic and Atmospheric Administration et al., Anacostia Watershed Project: Marine Debris Cleanup and Prevention, at 1 (May 2005), available at http://www.darrp.noaa.gov/partner/anacostia/pdf/marine_debris_proposal_revised_final_web.pdf; Anacostia Watershed Restoration Partnership, Metropolitan Washington Council of Governments, Anacostia Watershed Trash Reduction Strategy, at 1 (Apr. 2007), available at http://www.anacostia.net/Archives/download/AnaTrashStrategy_final.pdf. 58 See TMDL at 44-45, Tables 25, 27, 29, & 31 (annual TMDLs for Montgomery County, Prince George’s County, Upper Anacostia in DC, and Lower Anacostia in DC of 324,660 lbs., 695,114 lbs., 176,922 lbs., and 65,794 lbs., respectively). 59 TMDL at 49. 60 DC Office of the Chief Financial Officer, DC Economic Indicators: July 2015, available at http://cfo.dc.gov/sites/default/files/dc/sites/ocfo/publication/attachments/EIJuly2015.pdf. Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 17 of 27 14 Montgomery County’s population by over 58,000,61 and Prince George’s County’s population by over 40,00062 since the TMDL was adopted in 2010. While not all of these 150,000 new residents live in the Anacostia watershed, it is clear that the TMDL baseline no longer reflects the actual amount of trash generated by the watershed’s inhabitants. Because of these uncertainties surrounding the baseline’s accuracy, the jurisdictions can have little confidence that their current efforts will actually result in the goal of zero trash in the river. This problem only exists because the TMDL relies exclusively on an estimated baseline to determine the jurisdictions’ removal obligations. Establishing a maximum load would eliminate the direct linkage between the estimated baseline and the dischargers’ legal duties. Instead, those obligations would be oriented more appropriately toward achieving the ultimate loading target. Use of trash’s weight as the relevant metric The TMDL’s use of weight as a metric has caused practical problems with implementation as well. First, the emphasis on weight creates perverse incentives because it leads the implementing jurisdictions to focus their efforts on removing the heaviest items of trash from the watershed, like glass bottles, rather than the items which are most environmentally harmful, like lightweight but damaging plastic bags. (An Anacostia Watershed Society survey found that plastic bags make up 45% of the trash in regional streams.63 But because each individual bag weighs very little, the TMDL creates less of an incentive to eliminate them from the watershed.) At a stakeholder meeting on its trash TMDL implementation strategy in 2013, DOEE staff agreed that the structure of the TMDL creates this incentive. Additionally, the use of weight as a metric complicates efforts to verify compliance. Weights are difficult to measure for source reduction and prevention strategies, not well suited to volunteer monitoring, and require formulas and assumptions to calculate trash totals among other debris collected in structural devices.64 In fact, measuring the weight of trash physically removed from local waterways may not even be accurate if the trash is weighed while still wet; this inaccuracy may over-count the effectiveness of stream clean-up programs and structural trash removal measures.65 The District discounts the weight of trash it collects by skimmer boat 61 U.S. Census Bureau, “State & County Quick Facts – Montgomery County, Maryland,” http://quickfacts.census.gov/qfd/states/24/24031.html. 62 U.S. Census Bureau, “State & County Quick Facts – Prince George’s County, Maryland,” http://quickfacts.census.gov/qfd/states/24/24033.html. 63 TMDL at 33. 64 Alice Ferguson Foundation at 6. 65 See Prince George’s County, Implementation Plan, at 1 (“To determine the TMDL point source baseline loading rate (WLA), trash traps (fences) were placed at storm drain outfalls and the captured trash was weighed. While not completely dry, the trash weight value is considered dry because after the trash was taken from the fences, organic matter was removed and excess free water was poured/shook from the trash.”). Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 18 of 27 15 and in the Hickey Run BMP by 20% to account for water remaining in glass and plastic bottles, but it is unclear how this reduction factor was selected.66 A spatial or volumetric measure would be a more commonsense approach: it can be used to measure the success of both prevention and removal efforts, it is easier for volunteers to use because it can be assessed visually, and it is how Anacostia watershed residents will ultimately judge the cleanliness of the river. A measure that reflects the visible appearance of trash would also be more relevant to assessing whether the Anacostia is attaining its designated use for recreational activities. It is not the weight of trash but its visual impact that matters to recreational users of the watershed. The use of the waterway is impaired for rowers, kayakers, boaters, and other users due to the visual presence of floating bottles, or tires and television sets washed up on riverbanks. Visual blight, regardless of how much the litter weighs, is what depresses property values, undermines community pride, and exacerbates crime.67 Finally, focusing efforts more directly on visual metrics could help reduce the incidence of littering in the first place. The presence of litter in communities encourages more people to litter; this is the basis of the Broken Window Theory.68 Conversely, reducing the visual impact of litter would make future littering less likely, resulting in a virtuous cycle or positive feedback loop and decreasing the amount of trash generated in the watershed. Conclusion MDE and DOEE must revise the TMDL to establish a maximum trash load, which should presumptively be set at zero unless evidence proves that the Anacostia can handle a greater amount of trash and still meet water quality standards.69 Washington, DC’s standards require that “[t]he surface waters of the District shall be free from substances attributable to point or nonpoint sources discharged in amounts that . . . [s]ettle to form objectionable deposits [or] [f]loat as debris, scum, oil or other matter to form nuisances. . . .”70 Further, waters such as the Anacostia that are designated Class A waters “shall be free of discharges of untreated sewage, litter and unmarked, submerged or partially submerged, man-made structures which would constitute a hazard to the users.”71 Maryland’s water quality standards similarly provide that waters in the state “may not be polluted by… [a]ny material, including floating debris,… in amounts sufficient to… [b]e unsightly;… [c]reate a nuisance; or… [i]nterfere directly or 66 District Department of the Environment, Anacostia River Watershed Trash TMDL Implementation Strategy at 4-5. 67 See Andy Coghlan, “Graffiti and Litter Lead to More Street Crime,” New Scientist, Nov. 21, 2008, available at http://www.newscientist.com/article/dn16096-graffiti-and-litter-lead-to-more-street-crime. 68 See Kees Keizer et al., “The Spreading of Disorder,” Science, Vol. 322 (Dec. 12, 2008), available at http://www.influenceatwork.com/wp-content/uploads/2012/02/BrokenWindowsArticle.pdf (discussing empirical evidence for theory that signs of disorderly behavior, such as littering, cause the behavior to spread and also results in a general decline in compliance with laws and rules). 69 We request that the existing TMDL remain in place pending the adoption of a revised TMDL so that implementation efforts can continue uninterrupted. 70 21 D.C.M.R. § 1104.3. 71 Id. § 1104.1(a)-(b). Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 19 of 27 16 indirectly with designated uses….”72 These standards suggest that a zero trash load is necessary. Indeed, the current TMDL presumes that this is the case, as a zero trash load is what it purports to achieve. However, DOEE and MDE must analyze the amount of trash pollution that the Anacostia can handle consistent with meeting water quality standards in order to determine the maximum load that would be appropriate. Precedent exists for establishing a zero trash load in a TMDL. For example, the Los Angeles River trash TMDL states explicitly, “The numeric target for this TMDL is 0 (zero) trash in the water.”73 The California Regional Water Quality Control Board justified this target based on the need to achieve narrative water quality objectives, and based on the lack of any “information … to justify any other number for the final TMDL target that would fully support the designated beneficial uses.”74 This more straightforward approach of establishing a maximum load would both comply with federal regulations and increase the likelihood of achieving a trash-free river, by divorcing assessments of compliance with the TMDL from the uncertainty inherent in the implementing jurisdictions’ estimated removal efficiencies and the TMDL’s baseline. Ultimately, under federal regulations, permit terms that translate TMDL limits into enforceable requirements must be “consistent with the assumptions and requirements of available [wasteload allocations],” a standard that allows the permit writer to exercise some discretion in crafting permit conditions.75 The TMDL itself, however, must set forth an objective statement of the loadings necessary to achieve water quality standards. We look forward to receiving a timely response to this petition.76 Please do not hesitate to contact us with any questions or concerns. 72 COMAR § 26.08.02.03(B)(2). 73 California Regional Water Quality Control Board, Los Angeles Region, Trash Total Maximum Daily Loads for the Los Angeles River Watershed at 20 (July 27, 2007), available at http://www.epa.gov/waters/tmdldocs/34863- RevisedStaffReport2v2.pdf. 74 Id. 75 40 C.F.R. § 122.44(d)(1)(vii)(B). 76 MDE must respond to this petition within 60 days. Md. Code § 10-123(b) (“Within 60 days after the petition is submitted, the unit shall: (1) in writing, deny the petition and state the reasons for the denial; or (2) initiate the procedures for adoption of the regulation.”). The District of Columbia has no analogous regulatory deadline. Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 20 of 27 17 Anacostia Riverkeeper Suzanne Kelly, Vice Chair 515 M Street SE, Suite 218 Washington, DC 20003 (202) 863-0158 suzykelly@anacostiariverkeeper.org Anacostia Watershed Society James Foster, President 4302 Baltimore Avenue Bladensburg, MD 20710 (301) 699-6204 jfoster@anacostiaws.org Audubon Naturalist Society Diane Cameron, Conservation Director 8940 Jones Mill Road Chevy Chase, MD 20815 (301) 652-9188 x22 diane.cameron@anshome.org DC Environmental Network Chris Weiss, Executive Director 322 Fourth Street NE Washington, DC 20002 (202) 380-3440 cweiss@dcen.net Maryland Milestones/Anacostia Trails Heritage Area Aaron Marcavitch, Executive Director 4310 Gallatin Street Hyattsville, MD 20781 (301) 887-0777 aaron@anacostiatrails.org Natural Resources Defense Council Rebecca Hammer, Staff Attorney 1152 15th Street NW, Suite 300 Washington, DC 20005 (202) 513-6254 rhammer@nrdc.org Sierra Club, Washington DC Chapter Matthew Gravatt, Chair 50 F Street NW, 8th Floor Washington, DC 20001 (202) 695-3266 mbgravatt@gmail.com Trash Free Maryland Julie Lawson, Director 3002 Laurel Avenue Cheverly, MD 20785 (410) 861-0412 julie@trashfreemaryland.org Washington Rowing School Cindy Cole, Founder 4601 Annapolis Road Bladensburg, MD 20710 (202) 344-0886 cindy@washingtonrowingschool.com Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 21 of 27 EXHIBITS SUBMITTED TO THE DISTRICT OF COLUMBIA AND MARYLAND ALONG WITH THE PETITION OMITTED Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 22 of 27 EXHIBIT B Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 23 of 27 Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 24 of 27 Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 25 of 27 EXHIBIT C Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 26 of 27 Case 1:16-cv-01861-JDB Document 10-2 Filed 04/06/17 Page 27 of 27 EXHIBIT 3 Case 1:16-cv-01861-JDB Document 10-3 Filed 04/06/17 Page 1 of 3 Case 1:16-cv-01861-JDB Document 10-3 Filed 04/06/17 Page 2 of 3 Case 1:16-cv-01861-JDB Document 10-3 Filed 04/06/17 Page 3 of 3 EXHIBIT 4 Case 1:16-cv-01861-JDB Document 10-4 Filed 04/06/17 Page 1 of 3 Case 1:16-cv-01861-JDB Document 10-4 Filed 04/06/17 Page 2 of 3 Case 1:16-cv-01861-JDB Document 10-4 Filed 04/06/17 Page 3 of 3 EXHIBIT 5 Case 1:16-cv-01861-JDB Document 10-5 Filed 04/06/17 Page 1 of 3 AFFIDAVIT OF BETHANY MARTIN 1. My name is Bethany Lambright Martin. I reside at 1833 Burke Street Southeast, Washington, DC. 2. My home is located two blocks, or about a quarter of a mile, from the Anacostia River. 3. I joined the Natural Resources Defense Council (NRDC) as a member in November 2016. 4. My husband and I are avid nmners and frequently run along the Anacostia River. We nm on the trail past the RFK Stadium parking lot, across the two islands in the river (Kingman Island and Heritage Island), and up to the Langston Golf Course on Benning Road, which abuts the river. We have run along the river about twice a week since we moved to the area two years ago . 5. My husband and I also own a kayak and like to go kayaking on local waterways, including the Anacostia River. We use the floating dock between Kingman Island and Heritage Island. From there we paddle down to the area near the District Yacht Club. We have kayaked on the Ana cos ti a about a half-dozen times since the spring of 2015. 6. I am very concerned about trash pollution in the Anacostia. I understand that Maryland and the District of Columbia are undertaking efforts to reduce trash, but I am concerned that the trash reduction plan they developed will not result in a clean river. 7. I frequently notice trash while I am nmning with my husband near the river. The most common types of trash I see are plastic bags and Styrofoam cups. If it has rained recently, trash gets caught in the restored aquatic vegetation in the river and along the riverbanks. Sometimes we find ourselves running through trash debris littered on the ground near the water. 8. I also notice trash in and around the river while kayaking. There is frequently litter around the area that we use to put our kayak in the water. In the past we have gone out with a trash bag to clean it up because it is so disgusting. Due to the trash and other pollution, we usually kayak on the Potomac River, even though we would prefer to use the Anacostia because it is closer to our home. 9. Seeing all this ugly pollution negatively affects my experiences running and kayaking, and it impairs my enjoyment of the water. Case 1:16-cv-01861-JDB Document 10-5 Filed 04/06/17 Page 2 of 3 10. I would definitely spend more time near the Anacostia if it were cleaner. My husband and I would use the river more often for kayaking instead of going across town to the Potomac. 11 . I want a better trash clean-up plan for the Anacostia River that holds our local governments accountable for reducing trash to an acceptable limit, so that the river and my neighborhood will be less polluted. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and coITect. Executed on: 3/'2-/ .2-U {-:+ ' I (date) ~~~ Bethan;Maft- Case 1:16-cv-01861-JDB Document 10-5 Filed 04/06/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________________________ ) NATURAL RESOURCES DEFENSE ) COUNCIL, INC., ) ) Plaintiff, ) ) v. ) ) Civil Action No. 1:16-cv-01861-JDB UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, et al., ) ) Defendants. ) __________________________________________) [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Upon consideration of Plaintiff Natural Resources Defense Council’s Motion for Summary Judgment and the entire record of this case, it is hereby ORDERED that the Plaintiff’s Motion for Summary Judgment is granted; DECLARED that the Environmental Protection Agency’s (EPA’s) approval of the Anacostia River Trash Total Maximum Daily Load (TMDL) issued September 21, 2010 is contrary to law and arbitrary; ORDERED that EPA’s approval of the Anacostia River Trash TMDL issued September 21, 2010 is vacated, with this order of vacatur stayed until a new trash TMDL for the Anacostia River that complies with the Clean Water Act is in effect; Case 1:16-cv-01861-JDB Document 10-6 Filed 04/06/17 Page 1 of 2 ORDERED that the matter be remanded to EPA to promulgate, within a reasonable time, a new trash TMDL for the Anacostia River that complies with the Clean Water Act, pursuant to 33 U.S.C. § 1313(d)(2); ORDERED that the Court will retain jurisdiction over this action until a trash TMDL for the Anacostia River that complies with the Clean Water Act is in effect; ORDERED that EPA shall file quarterly status reports with the Court during the remand, to advise on the progress of its development of a new trash TMDL for the Anacostia River; and it is further ORDERED that Plaintiff’s attorneys’ fees, costs, and other expenses as provided by applicable law be awarded. Dated: ____________________________ The Honorable John D. Bates United States District Court Judge Case 1:16-cv-01861-JDB Document 10-6 Filed 04/06/17 Page 2 of 2