The case of Anacostia Riverkeeper, Inc. v. EPA was brought by plaintiffs Anacostia Riverkeeper, Inc. and Friends of the Earth, Inc. to challenge U.S. Environmental Protection Agency’s (EPA) approval of a pollution control plan for the Anacostia River pursuant to the Clean Water Act (CWA).

Under the CWA, states, including Washington D.C., are required to develop water quality standards for each navigable water body within their jurisdictions. These standards generally consist of expected uses of the water body and criteria defining the maximum level of pollution allowable to protect such uses. Following the implementation of technology-based pollution controls, the CWA requires each state to monitor its waters for compliance with such standards. If it is determined that the water body is not meeting applicable standards, that finding triggers a state’s obligation to develop and submit for EPA approval total maximum daily loads (“TMDLs”) for the pollutants in that water body.

In Anacostia Riverkeeper, Inc. v. EPA, the Anacostia River was impaired for sediment and total suspended solids (TSS), and it was listed as impairing the designated use of aquatic life.  In 2007, EPA approved a TMDL that only addressed sediment levels in the river. The plaintiffs argued this was insufficient and the U.S. District Court for the District of Columbia agreed.

The D.C. Court ruled that where a water is impaired, requiring a TMDL, the TMDL must address all water quality parameters in that water body, and not just the parameter that caused the water body to be impaired. The Court stated, “The Clean Water Act requires a TMDL that sets load limits on a pollutant sufficient to reduce contamination to levels necessary to satisfy the narrative and numeric water quality criteria and protect all designated uses applicable to the water body.”  Because the Anacostia River was also designated for recreational use, the Court stated the CWA “expressly requires State water quality standards to protect the use and value of water for recreational purposes” and TMDLs must be set at levels intended to meet water quality standards derived from those uses.  Because the 2007 TMDL focused only on the use that was impaired—protection of plant and animal life—it was inadequate.

The D.C. Court gave EPA one year to revise the TMDL for the Anacostia River consistent with the ruling.

For more information about regulation under the Clean Water Act, please contact Steve O’Day (soday@sgrlaw.com), Andy Thompson (athompson@sgrlaw.com) or Phillip Hoover (pehoover@sgrlaw.com).