United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 2, 2006 Decided April 25, 2006
No. 05-5015
FRIENDS OF THE EARTH, INC.,
APPELLANT
v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 04cv00092)
Howard I. Fox argued the cause and filed the briefs for
appellant.
John A. Bryson, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
were Greer S. Goldman, Attorney, and James H. Curtin and
Stefania D. Shamet, Counsels, U.S. Environmental Protection
Agency.
David E. Evans argued the cause for appellee District of
Columbia Water and Sewer Authority. With him on the brief
was Stewart T. Leeth.
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F. Paul Calamita, John A. Sheehan, and Alexandra
Dapolito Dunn were on the brief for amici curiae Combined
Sewer Overflow Partnership and National Association of Clean
Water Act Agencies in support of appellees.
Before: TATEL, BROWN, and GRIFFITH, Circuit Judges.
TATEL, Circuit Judge: This case poses the question whether
the word “daily,” as used in the Clean Water Act, is sufficiently
pliant to mean a measure of time other than daily. Specifically,
the Environmental Protection Agency (EPA) takes the position
that Congress, in requiring the establishment of “total maximum
daily loads” to cap effluent discharges of “suitable” pollutants
into highly polluted waters, left room for EPA to establish
seasonal or annual loads for those same pollutants. The district
court found EPA’s contextual and policy arguments sufficiently
persuasive to disregard the plain meaning of “daily,” but we do
not. Daily means daily, nothing else. If EPA believes using
daily loads for certain types of pollutants has undesirable
consequences, then it must either amend its regulation
designating all pollutants as “suitable” for daily loads or take its
concerns to Congress. We therefore reverse and remand with
instructions to vacate the non-daily “daily” loads.
I.
Flowing from Maryland through the northeast and southeast
quadrants of Washington, D.C. and a stone’s throw away from
the site for the Washington Nationals’ new stadium, the
Anacostia River has “the dubious distinction of being one of the
ten most polluted rivers in the country.” Kingman Park Civic
Ass’n v. EPA, 84 F. Supp. 2d 1, 4 (D.D.C. 1999). As such, it
falls far short of meeting water quality standards set pursuant to
the Clean Water Act (CWA) and designed to protect designated
recreational uses like fishing and swimming. 33 U.S.C.
§ 1311(b)(1)(C) (mandating the achievement of water quality
3
standards); 47 D.C. Reg. 284, 284-85 (Jan. 21, 2000) (to be
codified at D.C. Mun. Regs., tit. 21, § 1101.1) (establishing
water quality standards based on uses including “primary
contact recreation” and “consumption of fish & shellfish”).
For bodies of water, like the Anacostia River, that fail to
meet applicable water quality standards, the CWA requires
states (defined by the Act to include the District of Columbia, 33
U.S.C. § 1362(3)) to establish a “total maximum daily load,” or
TMDL,
for those pollutants which the Administrator identifies
. . . as suitable for such calculation. Such load shall be
established at a level necessary to implement the
applicable water quality standards with seasonal
variations and a margin of safety which takes into
account any lack of knowledge concerning the
relationship between effluent limitations and water
quality.
Id. § 1313(d)(1)(C). In 1978, EPA issued a regulation deeming
“[a]ll pollutants . . . suitable for the calculation of total
maximum daily loads.” Total Maximum Daily Loads Under
Clean Water Act, 43 Fed. Reg. 60,662, 60,665 (Dec. 28, 1978)
(emphasis added). This regulation remains unchanged today.
Once approved by EPA, TMDLs must be incorporated into
permits allocating effluent discharges among all pollution
sources, including point sources (like factories) and non-point
sources (like storm-water run-off). See 33 U.S.C. § 1342(a)(1)
(authorizing EPA to issue effluent discharge permits “upon
condition that such discharge will meet . . . [among other
requirements] all applicable requirements under section[]
1311”); id. § 1311(b)(1)(C) (mandating the achievement of
“any more stringent limitation, including those necessary to
4
meet water quality standards”); see also 40 C.F.R.
§ 122.44(d)(1)(vii)(B) (requiring permitting authority to set
effluent limits “consistent with the assumptions and
requirements of any available wasteload allocation for the
discharge prepared by the State and approved by EPA”). If
pollution loads stay below the applicable TMDLs for a given
body of water, then in theory the body of water should achieve
its water quality standards.
This case arises from the violation of two of the Anacostia’s
key water quality standards. First, because the river contains
many biochemical pollutants that consume oxygen, its dissolved
oxygen level has sunk below the applicable water quality
standard, putting the river’s aquatic life at risk of suffocation.
Second, the river is murkier than the applicable turbidity
standard allows, stunting the growth of plants that rely on
sunlight and impairing recreational use.
To remedy these violations, EPA approved one TMDL
limiting the annual discharge of oxygen-depleting pollutants,
and a second limiting the seasonal discharge of pollutants
contributing to turbidity. See Letter from Rebecca Hanmer,
Dir., Water Prot. Div., EPA, to James R. Collier, Chief, Bureau
of Envtl. Quality (Dec. 14, 2001) (oxygen-depleting substances);
EPA, Total Suspended Solids, Total Maximum Daily Loads for
the Anacostia River, D.C. (Mar. 2002) (total suspended solids).
Neither TMDL limited daily discharges.
Appellant Friends of the Earth (FoE) petitioned this court
for review of the TMDL approvals, arguing (among other
things) that the CWA requires the establishment of “total
maximum daily loads,” not seasonal or annual loads.
Concluding that we lacked subject matter jurisdiction, we
transferred the case to the U.S. District Court, Friends of the
Earth v. EPA, 333 F.3d 184 (D.C. Cir. 2003), which granted
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EPA’s motion for summary judgment, Friends of the Earth v.
EPA, 346 F. Supp. 2d 182 (D.D.C. 2004). The court held that
“the text of the CWA does not reveal a clear congressional
intent to require EPA to calculate only daily TMDLs,” id. at
189, found EPA’s resolution of the resulting ambiguity
reasonable, and concluded that the TMDL approvals were
neither arbitrary nor capricious. This appeal followed.
II.
Because Congress has charged EPA with the CWA’s
implementation, we review the agency’s interpretation of the
phrase “total maximum daily load” under Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-
43 (1984). See Natural Res. Def. Council, Inc. v. EPA, 859 F.2d
156, 202 (D.C. Cir. 1988) (applying Chevron to EPA’s
interpretation of the CWA). Critically, if “Congress has
directly spoken to the precise question at issue . . . , that is the
end of the matter.” Chevron, 467 U.S. at 842-43. So here.
We begin, as always, with the statute’s language. For
waters that fail to achieve water quality standards, see 33 U.S.C.
§ 1313(d)(1)(A), the CWA provides that “[e]ach state shall
establish . . . the total maximum daily load, for those pollutants
which the Administrator identifies . . . as suitable for such
calculation,” id. § 1313(d)(1)(C) (emphasis added). Because
EPA has found “[a]ll pollutants . . . suitable for the calculation
of total maximum daily loads,” 43 Fed. Reg. at 60,665, it
follows that the CWA requires the District of Columbia to
establish a “total maximum daily load” for each pollutant that
contributes to the Anacostia’s violation of the dissolved oxygen
and turbidity standards.
Nothing in this language even hints at the possibility that
EPA can approve total maximum “seasonal” or “annual” loads.
The law says “daily.” We see nothing ambiguous about this
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command. “Daily” connotes “every day.” See Webster’s Third
New International Dictionary 570 (1993) (defining “daily” to
mean “occurring or being made, done, or acted upon every
day”). Doctors making daily rounds would be of little use to
their patients if they appeared seasonally or annually. And no
one thinks of “[g]ive us this day our daily bread” as a prayer for
sustenance on a seasonal or annual basis. Matthew 6:11 (King
James).
When asked at oral argument how Congress could have
spoken more clearly, EPA’s counsel responded that “one way it
could do that . . . is to say that the . . . total maximum daily load
shall be expressed as a quantity per day or average per day or
something like that.” Tr. of Oral Arg. at 19. But a load
expressed as a quantity per day is no different from a daily load,
and we have never held that Congress must repeat itself or use
extraneous words before we acknowledge its unambiguous
intent. See New York v. EPA, No. 03-1380, 2006 WL 662746,
at *4 (D.C. Cir. Mar. 17, 2006) (refusing to require Congress “to
use superfluous words”). If Congress wanted seasonal or annual
loads, it could easily have authorized them by calling for “total
maximum daily, seasonal, or annual loads.” Or by providing for
the establishment of “total maximum loads,” Congress could
have left a gap for EPA to fill. Instead, Congress specified
“total maximum daily loads.” We cannot imagine a clearer
expression of intent.
EPA urges us to read the phrase in context, emphasizing
that TMDLs must “be established at a level necessary to
implement the applicable water quality standards.” 33 U.S.C.
§ 1313(d)(1)(C). According to EPA, “[t]hat Congress took the
step of elaborating on what a TMDL should be is a strong
indication that it was not using the word ‘daily’ as the exclusive
expression of its intent on the question of how a TMDL should
be established.” Fed. Appellees’ Br. 26-27. This cannot be
7
right. As written, the statute requires states to establish daily
loads that also meet applicable water quality standards. The
existence of two conditions does not authorize EPA to disregard
one of them.
As additional context—albeit context appearing nowhere in
the TMDL approvals themselves—EPA tells us that some
pollutants are poorly suited to daily load regulation. Discharges
of such pollutants, EPA explains, might not immediately affect
water quality, but could instead inflict environmental damage
over a longer period. For example, oxygen-demanding
pollutants could deplete dissolved oxygen quite slowly, perhaps
over the course of an entire year. Similarly, turbidity-increasing
pollutants could impede plant growth if they block sunlight over
the course of a growing season. In EPA’s view, bodies of water
can therefore sometimes tolerate large one-day discharges of
certain pollutants without violating water quality standards or
causing undue environmental harm, so long as seasonal or
annual discharges remain relatively low. According to EPA, the
many ways in which pollutants damage the environment call for
a more flexible understanding of “daily.”
Even if we assume the validity of this argument, EPA must
address it to Congress, which, by using the word “daily,” settled
the question of what period a “total maximum load” should
cover. EPA may not “avoid the Congressional intent clearly
expressed in the text simply by asserting that its preferred
approach would be better policy.” Engine Mfrs. Ass’n v. EPA,
88 F.3d 1075, 1089 (D.C. Cir. 1996). The agency’s claim might
have more force if, for some class of pollutants, daily load limits
conflicted with the requirement that TMDLs “implement the
applicable water quality standards.” 33 U.S.C. § 1313(d)(1)(C).
But all water bodies can achieve water quality standards if their
TMDLs are set low enough—if all else fails, they can be set to
8
zero—and the two requirements therefore never conflict with
each other.
Nor can we set aside a statute’s plain language simply
because the agency thinks it leads to undesirable consequences
in some applications. We made this abundantly clear in Sierra
Club v. EPA, 294 F.3d 155 (D.C. Cir. 2002), where EPA took a
strikingly similar position to the one it advances here. There, we
considered a challenge to EPA’s extension of the District of
Columbia’s attainment deadline for achieving the Clean Air
Act’s ozone standards. Id. at 158. Justifying the extension,
EPA asserted that because the District’s ozone pollution came
entirely from upwind states, holding the District to a strict
statutory deadline would be unnecessarily punitive and run
counter to the Act’s purposes. Id. at 160. “[A]s a matter of
logic and statutory structure,” EPA argued, “Congress almost
surely could not have meant to require the Agency to treat the
Washington Area as one of severe nonattainment merely
because its attainment has been temporarily stalled due to
transported pollution.” Id. at 161 (internal quotation marks and
citations omitted).
Roundly rejecting this argument, we explained:
The most reliable guide to congressional intent is the
legislation the Congress enacted and, as we have seen,
the Act itself reveals no intention to allow for an
extension in circumstances like those affecting the
Washington Area. Similarly, it is of no moment that the
extension may be, as the Agency claims, “a reasonable
accommodation of . . . the statutory attainment date and
interstate transport provisions”; it is not the
accommodation the Congress made.
9
Id. (omission in original). Here, as in Sierra Club, EPA
advances a reasonable policy justification for deviating from an
environmental statute’s plain language. Our answer is the same:
“[t]he most reliable guide to congressional intent is the
legislation the Congress enacted.” Id. Just as EPA may not
extend a deadline in contravention of a plain congressional
mandate, the agency may not fulfill its obligation to establish
daily loads by approving non-daily loads, whatever the wisdom
of that “accommodation.”
We have even less sympathy for EPA’s argument given that
the agency’s predicament is largely of its own creation. The
CWA requires the establishment of TMDLs only for “suitable”
pollutants, 33 U.S.C. § 1313(d)(1)(C), and although a 1978 EPA
regulation provides that “[a]ll pollutants . . . are suitable for the
calculation of total maximum daily loads,” 43 Fed. Reg. at
60,665, EPA conceded at oral argument that nothing forecloses
the agency from reconsidering that position. Given that EPA’s
entire justification for establishing non-daily loads is that certain
pollutants are unsuitable for daily load limits, we are at a loss as
to why it neglected this straightforward regulatory fix in favor
of the tortured argument that “daily” means something other
than daily. At any rate, EPA can change its regulation; we
cannot rewrite the Clean Water Act.
As a fallback, EPA asks us to adopt the reasoning in
Natural Resources Defense Council, Inc. v. Muszynski, 268 F.3d
91 (2d Cir. 2001), in which the Second Circuit held that reading
“daily” to mean daily would be “absurd, especially given that
for some pollutants, effective regulation may best occur by some
other periodic measure than a diurnal one.” Id. at 99. In this
circuit, however, agencies seeking to demonstrate absurdity
have an exceptionally high burden: “for the EPA to avoid a
literal interpretation . . . , it must show either that, as a matter of
historical fact, Congress did not mean what it appears to have
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said, or that, as a matter of logic and statutory structure, it
almost surely could not have meant it.” Engine Mfrs. Ass’n, 88
F.3d at 1089. Here, EPA has failed to make such a showing for
a simple reason: as counsel conceded at oral argument,
establishing daily loads makes perfect sense for many pollutants.
Given this concession, we see no way to conclude that “as a
matter of logic and statutory structure, [Congress] almost surely
could not have meant” to require daily loads.
We next consider the argument raised by intervenor District
of Columbia Water and Sewer Authority (WASA), which
operates sewers and wastewater treatment facilities in the
District. As background, WASA explains that, as in many older
municipalities, part of the District has a “combined sewer
system” in which stormwater and sewage travel through the
same pipes to the same treatment plants. While this system
effectively minimizes pollution discharges most of the time,
heavy storms cause it to overflow. When that happens, as it
does with some regularity in the District, raw sewage spills from
the overtaxed sewer system into nearby waters, including the
Anacostia River.
Acknowledging that combined sewer systems pose delicate
water quality problems, Congress amended the CWA in 2000 to
provide that every permit issued “for a discharge from a
municipal combined storm and sanitary sewer shall conform to
the Combined Sewer Overflow Control Policy [CSO Policy]
signed by the Administrator on April 11, 1994.” Consolidated
Appropriations Act, 2001, Pub. L. No. 106-554, app. D § 112(a)
(2000), 114 Stat. 2763, 2763A-224 (codified at 33 U.S.C.
§ 1342(q)). The CSO Policy, in turn, represents EPA’s effort to
guide municipalities seeking to minimize effluent discharge
from their existing sewage infrastructure. To that end, the CSO
Policy requires municipalities with combined sewer systems to
develop long-term control plans reflecting hard-nosed
11
assessments of cost-effective ways to regulate overflow
discharges. Combined Sewer Overflow (CSO) Control Policy,
59 Fed. Reg. 18,688, 18,691-94 (Apr. 19, 1994). The CSO
Policy explicitly “recognizes the site-specific nature of
[combined sewer overflows] and their impacts and provides the
necessary flexibility to tailor controls to local situations. Major
elements of the Policy ensure that CSO controls are cost
effective and meet the objectives and requirements of the
CWA.” Id. at 18,688.
As WASA sees it, the tension between the CSO Policy’s
flexible approach and the rigid mandates imposed by daily loads
forms part of the context within which we must interpret the
word “daily.” Indeed, WASA asserts, insisting on daily loads
would require the “complete separation” of the sewer
system—that is, the prohibitively expensive construction of
independent stormwater and sewage pipes. WASA Br. 22
(emphasis omitted). It is for this reason that WASA, like EPA,
urges us to interpret the word “daily” more flexibly than
normally permitted in the English language.
WASA’s argument suffers from at least three defects. First,
we fail to see the relevance of the 106th Congress’s opinion
about what the 92nd Congress meant by “daily.” While we
agree that we must read the phrase “total maximum daily load”
in context, see FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 132-33 (2000), the context here is the Clean Water Act
Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816, not
amendments enacted almost three decades later.
“[P]ost-enactment legislative history,” after all, “is not only
oxymoronic but inherently entitled to little weight.” Cobell v.
Norton, 428 F.3d 1070, 1075 (D.C. Cir. 2005); see also United
States v. Price, 361 U.S. 304, 313 (1960) (holding that “the
views of a subsequent Congress form a hazardous basis for
inferring the intent of an earlier one”). Second, the tension
12
between the CSO Policy’s flexibility and the perceived rigidity
of daily loads exists only if daily loads must of necessity be set
so low that any storm-event discharge would violate them—a
premise unsupported anywhere in the record. And third, even
if the record did support the premise, nothing in the CSO Policy
validates interpreting “daily” to mean something other than
daily. Quite to the contrary, the policy expressly states that
following it must “ultimately result in compliance with the
requirements of the CWA,” 59 Fed. Reg. at 18,691, and one of
those requirements is establishing daily loads for waters failing
to meet water quality standards.
We come next to EPA’s last-ditch contention—raised only
the day before oral argument—that the District of Columbia’s
recent revisions to the Anacostia’s water quality standards moot
this case. See 52 D.C. Reg. 9621, 9628-29 (Oct. 28, 2005) (to
be codified at D.C. Mun. Regs., tit. 21, § 1104.8). Both WASA
and FoE disagree, as do we. The TMDLs at issue here have
never been repealed or superseded, and EPA regulations require
discharge permits to incorporate effluent limitations “consistent
with the assumptions and requirements of any available
wasteload allocation for the discharge prepared by the State and
approved by EPA” pursuant to its authority to approve TMDLs.
40 C.F.R. § 122.44(d)(1)(vii)(B) (emphasis added). Because we
assume agencies follow their own regulations, see Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971)
(agencies are “entitled to a presumption of regularity”), the case
is hardly moot.
III.
For the foregoing reasons, we remand to the district court
with instructions to vacate EPA’s approvals. See 5 U.S.C.
§ 706(2) (providing that “the reviewing court shall . . . hold
unlawful and set aside agency action, findings, and conclusions
found to be . . . arbitrary, capricious, an abuse of discretion, or
13
otherwise not in accordance with law”). In doing so, we
recognize that neither FoE nor EPA wants the Anacostia River
to go without dissolved oxygen and turbidity TMDLs. The
district court retains some remedial discretion, however, and the
parties may move to stay the district court’s order on remand to
give either the District of Columbia a reasonable opportunity to
establish daily load limits or EPA a chance to amend its
regulation declaring “all pollutants . . . suitable” for daily loads.
See Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 872
(D.C. Cir. 2001) (“Because this decision leaves EPA without
standards regulating [hazardous waste conductor] emissions,
EPA . . . may file a motion to delay issuance of the mandate to
request either that the current standards remain in place or that
EPA be allowed reasonable time to develop interim standards.”);
Nat’l Treasury Employees Union v. Horner, 854 F.2d 490, 501
(D.C. Cir. 1988) (“Because we are not in the best position to
determine the shortest reasonable timetable . . . , we remand the
case for [the] district court to establish, in consultation with the
parties, an expedited schedule for further rulemaking
proceedings consistent with this opinion.”); Kristina Daugirdas,
Note, Evaluating Remand Without Vacatur, 80 N.Y.U. L. Rev.
278, 307 & n.141 (2005) (recommending as a remedial option
“vacating the agency rules upon remand, but delaying issuance
of the mandate for a limited period of time”). The merits of any
such motion are of course the district court’s to evaluate.
IV.
To sum up, nothing in this record tempts us to substitute
EPA’s policy preference for the CWA’s plain language. While
Congress almost assuredly never considered combined sewer
systems when enacting the CWA, it spoke unambiguously in
requiring daily loads. If adherence to this mandate leads to
unintended consequences for water quality or for municipal
pocketbooks, interested parties should direct their concerns to
EPA or to Congress, either of which can take steps to mitigate
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any fallout from the CWA’s unambiguous directive. We,
however, have no such authority.
So ordered.