The United States District Court for the D.C. Circuit has denied an environmental advocacy group’s motion to reconsider the Court’s 2018 ruling giving Environmental Protection Agency’s (EPA) discretion as to how to establish a new “total maximum daily load” (“TMDL”) for trash in the Anacostia River. Plaintiff Natural Resources Defense Council (“NRDC”) argued little progress had been made since the Court’s 2018 ruling and that EPA should be required to establish a TMDL within one year.
The case stems from EPA approval of a “total maximum daily load” for trash in the Anacostia river submitted by Maryland and Washington in 2010. NRDC filed suit in September 2016, challenging EPA’s approval of the TMDL under the Administrative Procedure Act. NRDC eventually moved for summary judgment, arguing that by setting a minimum amount of trash that must be removed, instead of setting a maximum daily amount of trash that can enter the river, the TMDL violated the Act’s requirement that States set a TMDL for the river.
On March 30, 2018, the Court agreed and granted NRDC’s motion, concluding that the TMDL did “not establish a ‘maximum daily load’ within the plain meaning of that phrase.” The Court vacated and remanded EPA’s approval of the TMDL, staying vacatur until such time as the EPA approves a replacement TMDL. But the Court declined to grant NRDC’s request that a specific deadline be imposed on EPA for the establishment of a new TMDL.
Refusing to set aside its previous ruling, the Court noted the only concrete new fact that NRDC had put forward in support of its motion for reconsideration was the passage of time, or about 2 ½ years since the existing TMDL was vacated. No new TMDL had been submitted for approval by the States. While the Court shared NRDC’s displeasure with the pace of development of the replacement TMDL, the Court stated it “… will not now do what the Clean Water Act does not itself do – establish a firm timeline for the submission of a TMDL by the States to EPA.”
The Court also refused to apply the constructive submission doctrine because both states had submitted the existing (albeit deficient) TMDL, which remains in effect due to the Court’s stay of vacatur. As such, there existed no “failure to submit” any TMDLs. Moreover, the Court ruled, Maryland and D.C. have not “clearly and unambiguously decided” not to submit a TMDL. The Court further held that even leaving aside the TMDL the states already submitted, EPA has put forth substantial documentation demonstrating that Maryland and D.C. have been reaching out to stakeholders, analyzing data, soliciting advice from authorities in other regions of the country, and working to settle on a final approach for the TMDL.
The Court urged EPA, Maryland, and D.C. to develop a TMDL “diligently” and as quickly as possible, consistent with the scientific method and practical standards. The Court put EPA on notice that the Court does not foresee permitting the process to drag on indefinitely, and may at some point in the not-too-distant future look more favorably upon a motion like this one.