Anacostia Pollution Limits Tightened
Wednesday, April 26, 2006
A federal appeals court ordered the Environmental Protection Agency yesterday to scrap its annual and seasonal pollution limits for the Anacostia River in favor of daily caps required by the Clean Water Act, a ruling with implications for cities across the nation.
Environmentalists hailed the decision as a move toward reducing the millions of gallons of raw sewage and other toxins that flow into the Anacostia each year, making it one of the nation's most polluted rivers.
But officials with the D.C. Water and Sewer Authority, known as WASA, warned that the ruling could force costly upgrades to the city's sewer system and undermine efforts to reduce pollutants.
"This leaves a huge question mark nationally, not just for WASA," said the authority's general manager, Jerry N. Johnson, who chairs the National Clean Water Partnership, which represents dozens of cities. The ruling also conflicts with a 2001 decision by the U.S. Court of Appeals for the 2nd Circuit, setting up a possible Supreme Court challenge.
WASA argued in pleadings before the U.S. Court of Appeals for the D.C. Circuit that a change to daily loads could force it to completely separate its sewage and storm drainage, a costly prospect that could mean tearing up streets across the city to lay pipes.
WASA and EPA officials said they have to examine the ruling further to determine its full effect. Although the decision applies only to the Anacostia, attorneys for both agencies said it could have broader implications for hundreds of communities that have combined sewer and storm systems.
The Anacostia flows south from Maryland into the District. With about 1 million residents, the 176-square-mile watershed is more than half-covered in hard surface. With every rainfall, car exhaust residue, fertilizers, chemicals and trash wash into the river.
A second major source of pollution stems from the city's sewage system, which uses the same pipes for sewage and storm runoff. Heavy rains can overwhelm the system, mixing storm water with untreated human waste and pouring both into the Anacostia. About 2 billion gallons of this toxic mix flow into the river each year, according to the Anacostia Watershed Society.
The EPA approved the city's annual and seasonal limits for certain pollutants about five years ago.
Earthjustice, representing Friends of the Earth, filed a lawsuit in 2002 arguing that the EPA's limits violated the language and intent of the Clean Water Act, which requires states and the District to establish a "total maximum daily load" for pollutants flowing into rivers.
The seasonal and yearly averages "allow more pollutants into the water over a year than a daily load allocation would, and that's a fact," said James Connolly, executive director of the watershed society, which is not a party to the suit.
After a big storm, daily bacteria levels can surge to many times the legal standard, violating the Clean Water Act. Under a daily enforcement scenario, a local jurisdiction would be cited each day it exceeded the standard. But when the load is averaged, "they'd only have to meet it occasionally," Connolly said.
Jon Capacasa, director of the EPA's water protection division for the mid-Atlantic region, said the long-term averages were the result of sound science. "Obviously, we'll take heed of the court's ruling and adjust these pollution budgets as necessary," Capacasa said. "But . . . these budgets the EPA has already approved are very thorough and protective of the Anacostia."
A lower court agreed with the EPA's contention that the word "daily" in the act was flexible enough to include seasonal or annual limits. But a three-judge panel with the Court of Appeals said "daily" is unambiguous.
"Daily means daily, nothing else," Judge David S. Tatel wrote in a 14-page decision. "Doctors making daily rounds would be of little use to their patients if they appeared seasonally or annually."