Appeal of Pollution Limits Rejected

The new limits probably will most affect the District's sewer system, which spews raw sewage during storms.
The new limits probably will most affect the District's sewer system, which spews raw sewage during storms. (By Gerald Martineau -- The Washington Post)
By David A. Fahrenthold
Washington Post Staff Writer
Wednesday, January 17, 2007

The U.S. Supreme Court let stand yesterday a lower court's ruling that would set stricter pollution limits for the Anacostia River, giving environmentalists a victory in a long-running battle over the river's gluts of raw sewage.

The court's decision means that there will be daily caps on the amounts of various pollutants dumped into the Anacostia, although federal officials said it could take until next year for the details to be worked out.

Previously, the Environmental Protection Agency had required only annual or seasonal pollution caps, which can be easier to meet. A panel of the U.S. Court of Appeals for the D.C. Circuit rejected that approach in April, and yesterday the Supreme Court declined to hear an appeal from the EPA and the D.C. Water and Sewer Authority.

The river has fecal bacteria, trash and toxic chemicals that make it one of the most unhealthy streams in the region.

The most significant effect of the decision probably will be on the District's antiquated sewer system, which dumps out raw sewage and rainwater during storms. Environmentalists had argued that the damage done by each one of these "overflows" was so severe that an annual limit was not adequate.

"If you have these big slugs of pollution, over a day or two days, the oxygen level goes down [in the river] and fish die," said David Baron, an attorney for Earthjustice, which filed the suit on behalf of a group called Friends of the Earth. "It doesn't help the fish that, a week or two weeks later, the water's clean again."

Although the environmental groups celebrated yesterday's decision as a victory, it was unclear what the immediate impact on the river's pollution would be. Participants in the case said the EPA might not have the details of the daily limits ready until next year.

If the standards are violated after that, polluters could be fined, Baron said. But he said environmental groups acknowledge that it could take years for that to happen. The EPA had fought for less stringent standards in this case on the grounds that they were more obtainable and easier to measure.

The head of the D.C. sewer authority, which is responsible for the damaging sewage "overflows," said he believed the ruling might actually slow down the pace of the river's cleanup.

He said the agency might have to put some or all of its $2 billion, 20-year cleanup plan on hold while it waits for the EPA to issue details on the daily limits. General Manager Jerry N. Johnson said the agency was concerned that the EPA might call for different alterations at that point than the ones WASA had planned.

"The net effect is that we'd have to slow down the long-term control plan," Johnson said. "Because we don't know what we're designing to.

"I really think that this is not the best outcome for the river," he added. The agency's plan involves digging massive tunnels under the city, where water can be stored during a storm and afterward pumped to a sewage plant for treatment.

The lawsuit itself turned on an unusual semantic argument. The Clean Water Act requires states to determine "total maximum daily loads" of various pollutants, determining how much of each a water body can take without becoming too polluted.

Environmental groups used that language to justify their call for a daily pollution cap. The EPA had argued that the law should be construed to allow annual or seasonal limits in some cases.

In the April ruling, Judge David S. Tatel -- writing for the appeals court panel -- sided with the environmentalists.

"The law says 'daily.' We see nothing ambiguous about this command," Tatel wrote. " 'Daily' connotes 'every day.' "

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