Summary of a Recent
Judicial Development in
Environmental Law

Court Holds that 'D' in TMDL Means Daily and not Annually
for Purposes of the Clean Water Act's Pollution Limitations

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Friends of Earth, Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006), the United States Court of Appeals for the District of Columbia reversed the decision of the district court, which granted the Environmental Protection Agency's (EPA) motion for summary judgment. Plaintiff, an environmental group, sought review of EPA's decision to approve a pollution discharge regime, which plaintiff alleged was in violation of the federal Clean Water Act (CWA). The instant court dismissed the petitions and transferred the case.

Background

In 1978, the EPA issued a regulation deeming that all pollutants were suitable to be measured in total maximum daily loads (TMDL). Id. at 143 (citing 43 Fed. Reg. 60,662, 60,665 (Dec. 28, 1978)). Once a TMDL is approved by the EPA, the load must be distributed between point and non-point sources of pollution. Id.

In December 2001, the EPA approved one TMDL limiting the annual discharge of pollutants into the Anacostia River, but it did not limit daily discharges. Id. Friends of the Earth (FoE) petitioned the instant court for review of the TMDL approval, arguing that the CWA required the agency to establish total maximum daily loads, not total maximum annual loads. Id. Because the court concluded that it lacked subject matter jurisdiction, it transferred the case to the United States District Court for the District of Washington, which granted the EPA's motion for summary judgment. Id. The district court held that the text of the CWA did not reveal a clear congressional intent to calculate TMDLs on a daily basis. Id. at 143-44. FoE appealed. Id.

Arguments

The EPA argued that the phrase "total maximum daily load" needed to be read in context. Id. at 144. It reasoned that by elaborating on what constituted a TMDL, Congress was not using the word "daily" as the exclusive expression of its intent on the question of how a TMDL should be established. Id. at 144-45.

FoE argued that when Congress used the word "daily" in "total maximum daily load," it meant daily loads not annual loads. Id.

Analysis and Holdings

The court held that there was nothing ambiguous with Congress's use of the word "daily" in the CWA. Id. at 144. It refused to set aside the plain meaning of the CWA simply because the EPA thought it would lead to undesirable consequences in some applications. Id. at 145. The court reversed and remanded the case to the district court with instructions to vacate the EPA's approvals. Id. at 147.

The case was decided on April 25, 2006.