Earlier this week, Judge Christopher Cooper of the District Court for the District of the Columbia, struck down EPA’s approval of Total Maximum Daily Loads established by the District of Columbia for the Anacostia and Potomac Rivers. Why?
Because the District’s TMDLs did not conform to the plain meaning of the words “Maximum” or “Daily.” The decision is lengthy and complicated, because the statutory framework is complicated. What it boils down to is this: TMDLs are not directly utilized in setting permit limits and longer term maxima might be better suited to guiding permit decisions. Nonetheless, the statute requires that states and the District of Columbia must establish total maximum daily loads.
Here’s the Judge’s nice Article III take on the issue:
Readers could be forgiven for finding all this all somewhat bizarre. If the maximum load does not have immediate regulatory effect and EPA has put out sensible guidance that ensures that daily figures best assist those efforts that do have regulatory effect, what’s wrong with that? In this context, forcing the District to articulate a daily maximum may be especially odd because the 30-day geometric mean is designed to tolerate high daily spikes. Why, then, force the District to identify what will presumably be an astronomically high figure as the maximum load, when that load can only be reached in the rarest of circumstances? Why not simply allow the District, pursuant to EPA guidance, to establish a lower figure that articulates an upper target—something of a warning guidepost—that can better allow regulators and other stakeholders to monitor progress? The simple answer is that Congress said so. (Emphasis added.)
In other words, the statute is stupid, but there’s nothing I can do about it. As Judge Cooper put it, it may be bizarre, but it’s not legally “absurd.”
If Congress were a functioning legislative body, this might get fixed. Don’t hold your breath.