United States of America
This action is brought by plaintiffs Anacostia Riverkeeper, Inc. and Friends of the Earth, Inc., two DC- based non-profit corporations, to challenge defendant Environmental Protection Agency's ("EPA" or the "Agency") approval of a pollution control plan for the Anacostia River jointly submitted by the District of Columbia and Maryland in accordance with the Federal Water Pollution Control Amendments of 1972, commonly known as the Clean Water Act ("CWA" or the "Act"), 33 U.S.C. § 1251 et seq. DC and Maryland both: (1) designated a variety of uses for the Anacostia River, including water contact recreation (e.g., swimming), aesthetic enjoyment, and protection of aquatic life; (2) included the Anacostia River on their “303(d) list” submissions to EPA, which require states to list all waters within their boundaries that do not currently attain, and based on current pollution controls are not expected to attain, water quality standards applicable to the designated uses; and (3) as a result of that listing, promulgated sediment-related total maximum daily loads (TMDLs), primarily designed to protect submerged aquatic vegetation as well as other plant and animal life. Environmental groups challenged them, primarily on the basis that the TMDLs were not designed to attain and maintain water quality standards applicable to all designated uses, but were solely designed to protect submerged aquatic vegetation. The District Court held that the obligation to develop TMDLs for the Anacostia River arose as a result of the placement of the waterway on DC and Marylands 303(d) lists. Although DC and Marylands 303(d) lists only identified sediment and TSS pollution as detrimental to plant and animal life, the court held that the requirement “to develop a TMDL protective of water quality is an instruction to determine the pollutant load level necessary to safeguard all designated uses.” As DC and Marylands designated uses for the Anacostia River included swimming, recreation and aesthetic enjoyment, EPAs approval of a sediment/TSS TMDL that only expressly considered the effects of sediment and TSS pollution on plant and animal life was held to be arbitrary and capricious and in violation of the Clean Water Act. In so finding, the court rejected the suggestion that EPA could approve “partial-TMDLs,” which focus on one designated use (or less than all designated uses) at a time. The court also rejected EPAs argument that consideration of recreational and aesthetic uses was implied and/or contained within the complexities of its analysis of safeguarding aquatic plant and animal uses of the Anacostia River.