Wastewater groups ask Supreme Court to reverse D.C. decision
By Bruce Geiselman

Aug. 28 -- Two wastewater associations are asking the U.S. Supreme Court to overturn an appeals court decision that could impact wastewater plants across the country.

The National Association of Clean Water Agencies and the Wet Weather Partnership filed a brief Aug. 25 asking to participate in an appeal brought by the Washington Water and Sewer Authority, or WASA. The D.C. sewer authority filed its petition in July asking the Supreme Court to hear its arguments.

The sewer authorities argue that a decision by the U.S. Court of Appeals for the District of Columbia would interfere with efforts to clean up the nation´s waters.

The D.C. appeals court ruled April 25 that the U.S. Environmental Protection Agency and WASA were improperly calculating releases of pollutants into the Anacostia River in Washington under the Clean Water Act´s total maximum daily loads program.

The D.C. appeals court ruled that total maximum daily load limits must literally be calculated on a daily basis. The EPA had agreed to allow WASA to use calculations based on seasonal and annual averages for dissolved oxygen and total suspended solids. The EPA found that using averages for calculating pollutants adequately protected water quality in the Anacostia River.

However, the appeals court, ruling in a matter brought by environmental advocacy groups, disagreed. "´Daily´ means ´every day,´" according to the appeals court decision. "Doctors making daily rounds would be of little use to their patients if they appeared seasonally or annually."

Friends of the Earth and Earthjustice, which filed the original complaint, heralded the D.C. appeals court decision. The EPA´s approach of using seasonal or annual averages allows for large short-term pollution peaks that can kill fish and harm the environment, they argued.

However, in announcing their decision to join WASA´s appeal to the Supreme Court, the National Association of Clean Water Agencies and the Wet Weather Partnership argued the decision would hurt their 80 member agencies that operate combined sewer overflow collection systems. Collectively, the communities have already spent $5 billion to develop and implement plans designed to help them meet the EPA´s existing criteria for calculating total maximum daily loads. Many communities would have to revise their plans if the appeals court decision stands, potentially wasting millions already spent to clean up their waters and delaying further water quality improvement, according to the associations.

"The impact of invalidating these TMDLs would not only have adverse regulatory consequences, but would also have adverse environmental consequences," the associations wrote in their brief to the Supreme Court.

The ramifications of the D.C. appeals court decision would "extend far beyond the Anacostia River in the District of Columbia," according to the associations´ brief.

NACWA represents nearly 300 of the nation´s publicly owned wastewater treatment systems. The Wet Water Partnership represents communities and businesses involved in wastewater and wet weather issues.