Judge Rebukes EPA for|Ignoring River Pollution

     (CN) – A federal judge blasted the Environmental Protection Agency, Maryland and District of Columbia for ignoring the impact of pollutants on the Anacostia River in approving a cleanup plan that was more than 30 years in the making.
     Chief U.S. District Judge Royce Lamberth lamented the trio’s failure to adhere to the letter and the spirit of the Clean Water Act in a decision granting summary judgment to Anacostia Riverkeeper Inc. and Friends of the Earth.
     The 67-page opinion forces the agency to reconsider the total daily maximum loads (TDML) of pollution that can be discharged into the river.
     “The CWA [Clean Water Act] was enacted in light of severe threats to the nation’s navigable waters, and it was intended to spur immediate action by both federal and state authorities,” Lamberth wrote. “Yes (sic) despite the act’s command that states identify and develop TMDLs for implemented waters, the district and EPA spent 20 years ignoring these obligations and fighting attempts to compel them to act. Then, despite the act’s unmistakable requirement to develop a total maximum daily load for each pollutant, EPA and the district spent the next 7 years insisting that they need only develop annual loads. And now, despite the act’s clear instruction that each TMDL set levels necessary to implement all applicable water quality standards, EPA and the District – now joined by Maryland-have spent the last 4 years arguing that they need only pay attention to some of those standards. The Court will not countenance such conduct.” (Italics in original.)
     Anacostia Riverkeeper and Friends of the Earth had claimed that, while Maryland and the District included recreational and aesthetic enjoyment in their list of essential uses for the river, the EPA approved a plan with TMDLs that fell far short of those necessary to support such uses.
     The approved plan expressly focuses on TMDL levels sufficient to support plant and animal life but -in the words of Friends of the Earth – “studiously avoids mentioning or otherwise addressing any other designated uses,” like swimming or boating.
     Lamberth also agreed that the EPA had failed to consider other designated uses, as it is required to do under the Clean Water Act.
     “EPA simply does not consider whether the final TMDL would protect designated uses or satisfy water quality criteria related to recreational or aesthetic uses in the Anacostia River,” he wrote. “The agency’s own words could not be clearer on this point: ‘[I]mpairment of other beneficial water uses such as primary recreation (swimming) and secondary (boating) contact recreation was neither the focus of the listed impairment nor the goal for these TMDLs.’
     “These omissions are fatal.”
     The EPA argued that Lamberth should defer to its expert judgment that because the approved plan was expected to reduce sediment by 85 percent and other designated uses would be incidental to approval of TMDL set for supporting aquatic plant and animal life.
     But Lamberth clucked that there was no evidence in the record demonstrating that the agency had looked at the other uses. “The problem is that the decision rationale does not explain what judgment EPA is exercising, the scientific basis for that judgment, or the reasonable conclusions of that exercise,” he wrote. “The court will not supply post-hoc rationales for action where the agency’s own decision rationale contains none.”
     Simply asserting that sediment reduction would benefit other uses without specifically showing how it would meet the standards for those uses is not sufficient to meet the requirements of the Clean Water Act, the decision states.
     “One need not possess PhDs in water management and hydro-physics to conclude that a reduction in water contamination – whatever the magnitude – will likely make the Anacostia’s waters ‘better’ for recreational and aesthetic enjoyment,” Lamberth wrote.
     “If this were all that were required, however, enforcement of the CWA could be left to 20-year old environmental studies majors,” he added. “The question posed by the CWA – the question that demands the agency’s expertise – is what level of reduction is necessary to safeguard all designated uses under state law. In this case, EPA does not even attempt to answer that question.”
     Lamberth will issue a separate order vacating the EPA’s approval of the TMDL and remanding the plan to the agency for consideration in light of his ruling.

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