Earthjustice, representing Friends of the Earth, brought litigation challenging EPA's approach to setting Anacostia River pollution caps. Though the Clean Water Act requires the "total maximum daily load," EPA nonetheless set loads as long-term annual and seasonal averages. The agency's approach is not only unlawful, but also allows large short-term pollution peaks that harm the River and its users. Such pollution peaks cause fish kills, create unsafe bacteria levels, and produce murky, unsightly water unsuitable for boating and other recreation.
The court wrote in its opinion that, "'Daily' connotes 'every day'…Doctors making daily rounds would be of little use to their patients if the 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." A copy of the opinion is available here.
"This Court decision is a wake-up call to EPA and the District, who wanted to give up on the goal of making the Anacostia suitable for fishing, swimming, and boating," said Earthjustice attorney Howard Fox. "As we enter the 21st century, it's inexcusable that boaters in our Nation's capital still encounter raw sewage and dead fish."
The Anacostia River, which runs from Maryland through the District of Columbia and eventually into the Potomac River, has been classified as one of the dirtiest rivers in the country. Urban runoff, and an antiquated sewer system that releases untreated sewage water directly into the river during heavy rainfall events, have killed fish and harmed recreational activities in and around the river. Fishing and swimming in the Anacostia are not recommended due to high pollution levels.
"This is a victory for the Anacostia River and the people of the District," said Chris Weiss with Friends of the Earth. "This river has for years been forsaken with unhealthy levels of pollution. Now that the court has spoken, EPA must do a better job of restoring this river so that we can all once again enjoy fishing and swimming in the Anacostia River."
The Clean Water Act requires EPA to approve pollution caps for pollutants that are impairing rivers, streams, lakes and creeks. Once approved, EPA must incorporate these pollution caps into permits from point sources such as sewer outfalls.
Listen to Howard Fox comment on the ruling (mp3 file courtesy WAMU 88.5 American University Radio)
Howard Fox, Earthjustice, (202) 667-4500
Chris Weiss, Friends of the Earth, (202) 222-0746