Case 1:16-cv-01651-CRC Document 1 Filed 08/15/16 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANACOSTIA RIVERKEEPER, INC.,
515 M St SE, #218
Washington, DC 20003;
KINGMAN PARK CIVIC ASSOCIATION
1913 D Street, NE
Washington, DC 20002;
and
POTOMAC RIVERKEEPER NETWORK
1615 M St. NW, 2nd Floor
Washington, DC 20036;

Plaintiffs,
v.
GINA McCARTHY, Administrator, U.S.
Environmental Protection Agency, in her
official capacity,
1200 Pennsylvania Ave., NW
Washington, DC 20460;
and
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
1200 Pennsylvania Ave., NW
Washington, DC 20460,
Defendants.

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Civil Action No. ______________

COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF

INTRODUCTION
1.

This suit challenges the approval by the United States Environmental Protection

Agency and its Administrator (collectively, “EPA”), of total maximum daily loads for the fecal
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bacteria E. coli in the Anacostia River, the Potomac River, Rock Creek, and their tributaries
(“TMDLs”). EPA’s approval actions are contained in a series of letters from Jon M. Capacasa,
Director of the EPA Region 3 Water Protection Division, to Hamid Karimi, Deputy Director of
the Natural Resources Administration of the D.C. Department of the Environment, dated July 25,
2014 and December 31, 2014, respectively. See Ex. A - G.
2.

Particularly after rain storms, fecal bacteria levels in the waters in Washington,

D.C., rise high. Though water quality standards require the Potomac and Anacostia River, as
well as other waters like Rock Creek, to be safely usable for swimming, kayaking, rowing, and
wading, it is highly dangerous to do so when there is a spike in fecal bacteria levels. That is
because those activities put people in direct contact with the water (and the elevated levels of
fecal bacteria it contains), leading them to sometimes even swallow the water as it splashes on
their faces, and even brief exposures to high fecal bacteria levels can cause, for example,
gastroenteritis, with vomiting, indigestion, diarrhea, and fever, as well as earaches, pink eye,
rashes, and skin infections. One way the Clean Water Act is supposed to protect people like
Plaintiffs’ members against this harmful water pollution is through TMDLs, which must
implement water quality standards, with an adequate margin of safety. For the reasons detailed in
this complaint, each of the challenged TMDLs fails to implement all the applicable water quality
standards with an adequate margin of safety. In addition, certain elements of the Potomac River
TMDLs were adopted and approved absent compliance with public participation requirements.
3.

EPA’s approval of the TMDLs contravenes the agency’s authority and statutory

duties under the Clean Water Act, 33 U.S.C. § 1313(d), and is arbitrary and capricious and
subject to vacatur under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), (C), (D).

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4.

Plaintiffs’ injuries would be redressed by an order of this Court declaring EPA’s

approval action unlawful, vacating EPA’s approval of the fecal bacteria TMDLs, and staying the
effect of the vacatur for no more than one year to allow EPA to approve or promulgate legally
adequate TMDLs. Although Plaintiffs believe that the flaws in the TMDLs are so serious they
require vacatur, Plaintiffs oppose immediate vacatur of the TMDLs because leaving the
District’s surface waters without fecal bacteria TMDLs would have an immediate adverse impact
on the Plaintiffs’ ability to protect their health and recreational interests.
PARTIES
5.

Plaintiff Anacostia Riverkeeper, Inc. is a not-for-profit corporation existing under

the laws of the District of Columbia, with its principal place of business in Washington, D.C.
Anacostia Riverkeeper is dedicated to advocating for a clean and healthy Anacostia River,
engaging in efforts to protect and enhance water quality in the river, and enforcing existing
federal and state laws governing the water quality, and educating the public about issues
affecting the Anacostia River.
6.

Plaintiff Kingman Park Civic Association (“KPCA”) is a longstanding association

of residents who live in the Kingman Park neighborhood, which sits adjacent to the Anacostia
River. KPCA works to conserve and restore the environment in the Kingman Park neighborhood
for the benefit of its members, and to help its members feel connected to their environment.
7.

Plaintiff Potomac Riverkeeper Network is a not-for-profit corporation existing

under the laws of the State of Maryland. Potomac Riverkeeper Network is dedicated to
protecting, conserving, and restoring the Potomac River and its watershed, and ensuring public
access to a fishable, swimmable Potomac River. Potomac Riverkeeper Network engages in
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active scientific monitoring of water quality and works to ensure that the Potomac River and its
tributaries are being properly regulated and protected by applicable federal and state laws.
8.

Plaintiffs are membership organizations with members and staff who use and

enjoy the Anacostia River, Potomac River, and their tributaries for recreation that involves them
contacting the water, such as kayaking and canoeing, wading, and swimming, as well as wildlife
watching and other means of aesthetic enjoyment. Plaintiffs Anacostia Riverkeeper and Potomac
Riverkeeper Network actively participated in the development of the TMDLs through the
submission of public comment, and Plaintiff Kingman Park Civic Association (along with
others) has long fought to ensure that protective TMDLs for these waters be established, see,
e.g., Kingman Park Civic Ass’n v. EPA, 84 F. Supp. 2d 1 (D.D.C. 1999); see also Anacostia
Riverkeeper v. Jackson, 798 F. Supp. 2d 210, 218 (D.D.C. 2011) (explaining how Kingman Park
Civic Association decision led to District of Columbia beginning to develop TMDLs). Plaintiffs’
members suffer recreational and aesthetic injury from fecal bacteria pollution afflicting the
waters of the District of Columbia, which will be prolonged because of the substantive and
procedural defects in the EPA-approved TMDLs.
9.

Defendant United States Environmental Protection Agency is the federal agency

responsible for supervising the implementation of the Clean Water Act’s requirements in the
District of Columbia.
10.

Defendant Gina McCarthy is the Administrator of the United States

Environmental Protection Agency. She is charged with the supervision and management of all
decisions and actions of that agency, including those taken pursuant to the Clean Water Act with
respect to the District of Columbia. She is being sued in her official capacity only.

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JURISDICTION AND RIGHT OF ACTION
11.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

§§ 1331 and 1361. Friends of the Earth v. EPA, 333 F.3d 184, 189 (D.C. Cir. 2003) (“original
jurisdiction over EPA actions not expressly listed in section 1369(b)(1) lies… with the district
court”).
12.

This Court can issue a declaratory judgment and grant further relief pursuant to 5

U.S.C. §§ 702 and 706 and 28 U.S.C. §§ 2201 and 2202. Plaintiffs have a right to bring this
action pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701 through 706.
13.

Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because

Defendants’ official residence is in the District of Columbia.
LEGAL FRAMEWORK
Legal Requirements For TMDLs
14.

Congress enacted the Clean Water Act in 1972 to “restore and maintain the

chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The
goal of the Clean Water Act is to eliminate “the discharge of pollutants into the navigable
waters,” and in the interim, to attain “water quality which provides for the protection and
propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.” 33
U.S.C. § 1251(a)(1) and (2).
15.

To achieve these ends, the Clean Water Act requires each state and the District of

Columbia to establish and implement water quality standards, subject to review and approval by
EPA. 33 U.S.C. § 1313(a) to (c); see also id. § 1362(3) (defining “state” to include District of
Columbia).
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16.

Water quality standards consist of the “designated uses” of a state’s waters (such

as drinking water, swimming, and wildlife habitat) and “the water quality criteria for such waters
based upon such uses,” and “shall be such as to protect the public health or welfare, enhance the
quality of water and serve the purposes of [the Clean Water Act].” 33 U.S.C. § 1313(c)(2)(A); 40
C.F.R. § 130.2(d). Water quality criteria can be expressed numerically or narratively, 40 C.F.R.
§ 131.11(b), meaning that water quality standards can themselves be numerical or narrative.
17.

Though the Clean Water Act depends in part on technology-based effluent

limitations issued under Section 1311(b)(1)(A)-(B) to help states achieve water quality standards,
the Act further requires each State to “identify those waters within its boundaries for which”
those technology-based effluent limitations “are not stringent enough to implement any water
quality standard applicable to such waters.” 33 U.S.C. § 1313(d)(1)(A).
18.

For the waters thus identified, “[e]ach State shall establish… the total maximum

daily load, for those pollutants which the Administrator identifies under section 1314(a)(2) … as
suitable for such calculation.” 33 U.S.C. § 1313(d)(1)(C).
19.

Pursuant to Section 1314(a)(2), EPA has identified “[a]ll pollutants” as being

suitable for TMDLs. 43 Fed. Reg. 60665 (Dec. 28, 1978).
20.

The Clean Water Act thus requires that “TMDLs shall be established for all

pollutants preventing or expected to prevent attainment of water quality standards.” 40 C.F.R.
§ 130.7(c)(1)(ii); see also 33 U.S.C. § 1313(d)(1)(C).
21.

Section 1313(d) further provides that TMDLs “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.” 33 U.S.C. § 1313(d)(1)(C).
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22.

EPA’s regulations likewise provide that “TMDLs shall be established at levels

necessary to attain and maintain the applicable narrative and numerical [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. Determinations of
TMDLs shall take into account critical conditions for stream flow, loading, and water quality
parameters.” 40 C.F.R. § 130.7(c)(1).
23.

Under EPA’s regulations, a TMDL is “[t]he sum of the individual [wasteload

allocations] for point sources and [load allocations] for nonpoint sources and natural
background.” 40 C.F.R. § 130.2(i).
24.

A “point source” is a discharge through a discrete pipe or conveyance, such as

from industrial and sewage plants. 33 U.S.C. § 1362(14).
25.

“Nonpoint source” pollution results from diffuse sources that deliver pollution to

surface waters via overland runoff or subsurface drainage.
26.

A wasteload allocation is “[t]he portion of a receiving water’s loading capacity

that is allocated to one of its existing or future point sources of pollution.” 40 C.F.R. § 130.2(h).
“Loading capacity” means the “greatest amount of loading that a water can receive without
violating water quality standards,” and “loading” means “to introduce matter … into a receiving
water.” Id. § 130.2(e)-(f).
27.

A load allocation is “[t]he portion of a receiving water’s loading capacity that is

attributed either to one of its existing or future nonpoint sources of pollution or to natural
background sources.” Id. § 130.2(g).
28.

As the wasteload allocations established by TMDLs constitute a type of water

quality-based effluent limitation,” id. § 130.2(h), they are implemented through point source
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discharge permits required by Section 1342. The load allocations established by TMDLs are
implemented through water quality management plans required by Section 1313(e)(3)(C).
29.

TMDLs are thus a crucial component of the framework established by the Clean

Water Act to protect the nation’s waters. In waters with ongoing water quality impairments,
TMDLs provide an important technical basis for determining adequate effluent limits in Clean
Water Act permits for point sources to ensure that discharges do not contribute to violation of
water quality standards.
30.

In addition to the daily loads themselves, the TMDL development process

generates crucial information about an impaired water body’s baseline and projected future
conditions, enabling advocacy groups and members of the public to understand the particular
local needs and challenges involved in implementing the TMDLs and improving water quality.
TMDLs serve as an essential tool for coordinating state efforts to reduce pollution from
unregulated “nonpoint” sources. TMDLs also provide a tool for independent third parties to
monitor the status of water quality restoration efforts and to check compliance with Clean Water
Act-mandated water quality standards.
Applicable Water Quality Standards For Fecal Bacteria In The District Of Columbia
31.

The District’s regulations include several water quality standards that apply to

fecal bacteria.
32.

All of the water bodies covered by the bacteria TMDLs are designated as Class A,

meaning they are intended to be clean enough for primary contact recreational uses. 21 DCMR
§ 1101.1, 1101.2. Primary contact recreation includes “those water contact sports or activities
that result in frequent whole body immersion or involve significant risks of ingestion of the

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water.” Id. § 1199.1. As noted above, designated uses are a type of water quality standard that
must be implemented through TMDLs.
33.

All surface waters of the District are also subject to a narrative prohibition against

“substances in amounts or combinations that... [c]ause injury to, are toxic to, or produce adverse
physiological or behavioral changes in humans, plants, or animals.” Id. § 1104.1(d).
34.

The narrative prohibition applies for fecal bacteria because even brief exposure to

significant concentrations of fecal bacteria and associated pathogens is associated with illness or
injury to humans, including vomiting, indigestion, diarrhea, and fever associated with
gastroenteritis, as well as earaches, pink eye, rash, infected cuts, and respiratory symptoms.
35.

Class A waters are subject to two numeric criteria. The first is a maximum 30-day

geometric mean value of 126 MPN/100 mL, to be based on five samples taken within the 30-day
period. Id. § 1104.8, Table 1. “MPN” is “a statistically derived estimate of the “Most Probable
Number” of bacteria colonies in a volume of one hundred milliliters (100 mL) water sample.” Id.
§ 1199.1. A geometric mean is a type of mean or average and is defined as the nth root of the
product of n numbers. For example, the product of five samples measuring 50, 50, 50, 50, and
5,000 respectively (50 x 50 x 50 x 50 x 5,000) is 31,250,000,000, and the fifth root of that figure
is 125.59. As this example illustrates, an enormous concentration of fecal bacteria can be present
in a single sample without causing an exceedance of the 30-day geometric mean criterion.
36.

The second numeric criterion applicable to Class A waters is a single sample

value of 410 MPN/100 mL. Id. § 1104.8 tbl.1. 1
1

The single sample value is followed by a footnote stating that “[t]he geometric mean criterion
shall be used for assessing water quality trends and for permitting. The single sample value
criterion shall be used for assessing water quality trends only.”
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37.

Since at least 1986, EPA guidance documents have consistently recognized that a

30-day geometric mean alone is not sensitive to short-term spikes in bacteria concentrations.
Therefore, particularly for heavily-used aquatic recreation areas, EPA recommends that water
quality criteria include a second (usually higher) concentration level to address short-term
exposures. EPA has provided clear direction on how to calculate criteria that achieve the same
level of protection (i.e. the same chance of human illness) as the 30-day geometric mean
criterion.
GENERAL ALLEGATIONS
Sources and Effects of Bacteria in District of Columbia Surface Waters
38.

As of 2014, the most recent year for which there is a water quality report, the

District’s rivers and streams used for human-contact recreation frequently violate the criteria for
fecal bacteria. The District’s 2014 water quality report to Congress and EPA includes data
showing that fecal bacteria concentrations in some District waters exceed the criteria between
approximately 4 and 42 percent of the time.
Segment 2
Anacostia River 01
Anacostia River 02
Watts Branch of Anacostia R.
Chesapeake & Ohio Canal
Potomac River 01

Percent of time water quality violated
E. coli criteria
19.23%
29.17%
41.80%
11.69%
10.42%

2

The data in this table come from the District Department of the Environment’s 2014 Integrated
Report to the U.S. EPA and Congress Pursuant to Sections 305(b) and 303(d) of the Clean Water
Act, available online at: http://doee.dc.gov/publication/integrated-report-epa-and-us-congressregarding-dcs-water-quality (last visited 8/6/16). Although not specified, the data appears to
reflect exceedances of the 30-day geometric mean criterion; the single sample value is not
mentioned or discussed in the report.
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Potomac River 02
Potomac River 03
Rock Creek 01
Rock Creek 02
Tidal Basin

39.

12.50%
6.52%
41.18%
40.00%
4.35%

Some of the primary sources of fecal bacteria in District waters are the municipal

separate storm sewer system (“MS4”), the Blue Plains waste water treatment plant, and the
associated combined sewer overflow system, which is connected with Blue Plains.
40.

Fecal bacteria discharges from all of these sources are largely driven by

precipitation. When rain falls or snow melts, fecal bacteria from pet waste and wildlife is washed
off streets and fields and collected by the District’s MS4 system, to be discharged directly into
streams via hundreds of outfalls located throughout the District. Such precipitation events also
cause untreated human waste flushed from office and residential buildings to be discharged
directly into streams through a series of combined sewer outfalls located within the Anacostia
River, Potomac River, and Rock Creek watersheds.
41.

In addition, during both dry weather and wet weather conditions, the Blue Plains

wastewater treatment plant regularly discharges fecal bacteria in its treated effluent.
42.

Because periods of prolonged or intense precipitation in the District largely

coincide with the outdoor recreational season, District residents and visitors are frequently at risk
of moderate to severe illness when they use and enjoy the District’s waters for kayaking,
canoeing, and other such popular aquatic recreational activities.
43.

The District’s combined sewer overflow system is subject to a Long Term Control

Plan (“LTCP”) as required by the Clean Water Act, 33 U.S.C. § 1342(q), and EPA’s 1994 CSO
Control Policy, 59 Fed. Reg. 18,688 (Apr. 19, 1994).
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The Predecessor TMDLs
44.

In 1996 the District formally recognized that its surface waters were not suitable

for human-contact recreation due to the presence of dangerous concentrations of fecal bacteria.
Today, due in large part to the regular and ongoing presence of high fecal bacteria
concentrations, none of these waters meet the District’s water quality standards for the protection
of human health.
45.

Despite the recognition that many of its surface waters were failing to meet water

quality standards in 1996, the District failed to submit any TMDLs to EPA until compelled to do
so by a citizen suit and the resulting consent decree. See Kingman Park Civic Ass’n. v. EPA, 84
F. Supp. 2d 1 (D.D.C. 1999).
46.

In 2003, draft fecal bacteria TMDLs were released for public comment by the

District Department of Health, a predecessor agency to the District Department of the
Environment (“DDOE”). 3 Following public comment, in 2004 the District finalized and EPA
approved fecal bacteria TMDLs.
47.

At that time, the District’s numeric water quality criteria was based on fecal

coliform. Fecal coliform, like E. coli, is a fecal indicator bacteria used to estimate the presence of
human pathogens commonly present with fecal contamination.
48.

Among other problems, the 2004 bacteria TMDLs contained only average annual

loads rather than daily loads. For this and other reasons, the 2004 TMDLs failed to protect the
designated recreational use in connection with short-term recreational exposures.
3

After EPA approved the TMDLs at issue in this case, DDOE was renamed the District
Department of Energy & Environment. Because all of the documents in the administrative record
were developed prior to this change, this complaint will use “DDOE” to refer to the Department.

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49.

In 2006 the D.C. Circuit ruled that EPA’s approval of TMDLs containing only

annual or seasonal loads violated the Clean Water Act requirement for “total maximum daily
loads.” Friends of the Earth v. EPA, 446 F.3d 140 (D.C. Cir. 2006). At issue in that case were
TMDLs for biochemical oxygen demand and total suspended solids for the Anacostia River.
50.

By 2009 neither the District nor EPA had developed or approved daily loads to

replace fifteen additional annual or seasonal TMDLs that EPA had approved for District waters
after the Friends of the Earth case was filed but prior to the D.C. Circuit’s ruling. In a
memorandum opinion and order dated May 25, 2010, the District Court for the District of
Columbia vacated EPA’s approval of the 2004 bacteria TMDL on the basis that the TMDL
lacked daily loads, staying the effect of the vacatur until December 2014 to allow the District and
EPA time to develop and approve revised TMDLs.
Revised TMDLs Calculated To Meet Only The 30-Day Geometric Mean Criterion
51.

As discussed in paragraphs 31-36 above, the District’s regulations include four

distinct but related water quality standards that apply to fecal bacteria: the designated use for
primary contact recreation; the narrative prohibition against substances in amounts or
combinations that cause injury or other harm to humans; the 30-day geometric mean value of
126 MPN/100 mL E. coli; and the single sample value of 410 MPN/100 mL E. coli.
52.

Of these four, the proposed TMDLs were only designed to meet the 30-day

geometric mean criterion for E. coli. See, e.g. Ex. A, Decision Rationale at 3, 5; Ex. B, Decision
Rationale at 3, 5.
53.

Body contact recreational activities like kayaking, paddle boarding, and

swimming typically occur for periods of less than an hour to several hours, and people become

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ill from even very brief direct contact with water containing high concentrations of fecal bacteria
and associated pathogens.
54.

EPA has acknowledged that short-term spikes in bacteria concentrations that

significantly increase the chances of human illness can occur without causing an exceedance of
the 30-day geometric mean criterion. EPA, 2012 Recreational Water Quality Criteria (Oct. 27,
2014), Ex. H at 39 (stating that “[u]sing the [geometric mean] alone would not reflect spikes in
water quality because the [geometric mean] alone is not sensitive to them.”).
55.

Despite this, the TMDLs do not include wasteload allocations calculated to attain

the District’s single sample value criterion, 21 DCMR § 1104.8 tbl.1.
56.

EPA in its approval document cited the footnote in the District’s regulations

stating that the single sample value criterion “shall be used for assessing water quality trends
only.” See, e.g., Ex. A at 3, n.1. Apparently on this basis, EPA stated that the agency “does not
believe that the 410 MPN for a single sample value constitutes an applicable water quality
standard for purposes of this TMDL” and thus declined to calculate wasteload allocations to
meet it. Id.
57.

But the TMDL development process requires the assessment of water quality

trends, and the TMDL implementation process facilitates the assessment of water quality. The
District’s regulations give no indication that implementing the single sample value through
TMDLs would be inconsistent with the goal of assessing water quality trends. See 21 DCMR
§ 1104.
58.

In response to Plaintiffs’ concerns about the failure to calculate TMDLs that meet

the single sample value, EPA claimed that DDOE “has provided an analysis demonstrating that

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the allocations in the TMDL would satisfy the single sample value at least 90% of the time.” Ex.
A at 3, n.1. EPA did not state whether it independently assessed or verified this claim.
59.

However, the District’s single sample value contains no allowance for periodic

exceedance, much less for allowing exceedances up to 10% of the time.
60.

Even if EPA were correct that the single sample criterion allowed exceedances,

EPA did not explain how allowing exceedances of the single sample value for up to three days in
a 30-day period is consistent with the District’s designated use or narrative criteria for protection
of human health during body-contact recreation, given that such recreation occurs over
comparatively brief periods of time and that even brief exposures to fecal bacteria cause illness.
61.

The TMDLs also fail to adequately protect against short-term spikes in bacteria

levels, which diminish or interfere with the designated use for primary contact recreation, and
prevent attainment of the District’s narrative criteria prohibiting substances in amounts or
combinations that “[c]ause injury to, are toxic to, or produce adverse physiological or behavioral
changes in humans.” 21 DCMR § 1104.1(d).
62.

EPA claimed that attainment of the 30-day criterion means that the designated use

and narrative criteria are also attained. E.g., Ex. A at 6. But EPA nowhere explained why that is
the case, citing only a statement in the District’s regulations that links attainment of numeric
criteria (one of which is the single sample value) with attainment of the designated use. E.g., id.
(citing 21 DCMR § 1104.8).
Use of Event Mean Concentrations
63.

Discharges from the District’s combined sewer system and Blue Plains

wastewater treatment plant together comprise a major portion of the existing fecal bacteria loads
in the District’s surface waters.
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64.

Data underlying the TMDL development demonstrate that there are substantial

variations in bacteria concentrations in the effluent discharged by these sources, from one storm
event to another, from one portion of a storm event to another, and from one location to another.
65.

Given that the District’s water quality standards aim to protect humans from

dangerous pathogens during recreational contact with surface water and that the TMDLs must be
total maximum daily loads, it is appropriate and necessary for the TMDLs to reflect the highest
predicted concentrations that are likely to occur under critical future conditions.
66.

The TMDLs do not reflect the peak or maximum bacteria concentrations that will

occur under some conditions. Instead they employed a method of averaging bacteria
concentrations found in monitored sewage discharges. In particular, for combined sewer
overflow outfalls and the Blue Plains wastewater treatment plant, the TMDLs rely on the “Event
Mean Concentration,” which means the “total mass of pollutants discharged divided by the total
flow volume for a monitored storm event.” Ex. A at 6.
67.

DDOE explained that it calculated the annual load allocations for all combined

sewer overflows as follows:
[a.]
Obtained the predicted flow volumes from the Potomac
[combined sewer overflows] for 1988-1990 under the [long-term
control plan] implementation scenario.
[b.]
Multiplied the flow volumes by the [long-term control
plan]-based E. coli [Event Mean Concentration] value of 686,429
MPN/100 mL to derive the daily [combined sewer overflows]
loads.
[c.]. Calculated the average by summing the loads and dividing
by three to derive the annual [combined sewer overflows]
allocation for the modeled three year period.
DDOE, Appendix C, E. coli Bacteria Allocations and Daily Loads for the Potomac River and
Tributaries (Dec. 2014), Ex. I at 4-5; DDOE, Appendix C, E. coli Bacteria Allocations and Daily
Loads for the Anacostia River and Tributaries (Feb. 2013), Ex. J at 4-5.
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68.

DDOE said it used the Event Mean Concentration to develop a “daily load time

series” for combined sewer outflows, which it then used to establish daily loads. Ex. A at 8.
69.

DDOE further explained that it calculated the annual wasteload allocations for the

two outfalls that discharge effluent from the Blue Plains wastewater treatment plant as follows:
[a.] Obtained the predicted flow volumes from Outfall 001 and
Outfall 002 for 1988-1990 under the [long-term control plan]
implementation scenario.
[b.] Multiplied the flow volumes by the [long-term control plan]based E. coli [Event Mean Concentration] value of 51,250
MPN/100 mL and 126 MPN/100 mL to derive the daily loads from
Outfall 001 and Outfall 002, respectively.
[c.] Calculated the average by summing the loads and dividing by
three to derive the annual allocation for Outfall 001 and Outfall
002 for the modeled three year period.
Ex. I at 6.
70.

DDOE said that the daily loads for Blue Plains’ two outfalls “were calculated

using the LTCP-based event mean[] concentration (EMC) for E. coli and the WQS,
respectively.” Ex. A at 9. For Outfall 001, DDOE said the “maximum daily load” was
“calculated using the EMC” and the design flow of a treatment facility at Blue Plains. Id. For
Outfall 002, DDOE said it set the “maximum daily load” for wet weather as “a time-weighted
average.” Id.
71.

Because the risk of human injury or illness from bacteria and associated

pathogens increases as bacteria concentrations increase, Plaintiffs in their public comments on
the draft TMDLs criticized DDOE’s use of average Event Mean Concentrations, which by their
nature can hide very high concentrations of fecal bacteria discharges from the combined sewage
system and Blue Plains wastewater treatment plant.
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72.

EPA failed to analyze how the spikes in bacteria concentrations that are hidden by

the use of Event Mean Concentrations can be allowed without causing exceedances of the 30-day
geometric mean criterion.
73.

EPA also failed to analyze how the spikes in bacteria concentrations that are

hidden by the use of Event Mean Concentrations can be allowed without causing exceedances of
the single sample value.
74.

EPA likewise failed to analyze how the spikes in bacteria concentrations that are

hidden by the use of Event Mean Concentrations can be allowed without violating the District’s
narrative prohibition in 21 DCMR § 1104.1(d).
75.

Despite this, the TMDLs do not include an additional margin of safety to account

for the resulting lack of knowledge concerning the relationship between effluent limitations
based on Event Mean Concentrations and the resulting water quality.
76.

In response to these concerns, DDOE claimed that the use of Event Mean

Concentrations enables the TMDLs to “capture” variable bacteria concentrations “[g]iven the
natural variability in storm events.” Ex. L at 15.
77.

EPA acknowledged that the TMDLs employ Event Mean Concentrations, rather

than peak or maximum daily concentrations, to develop the E. coli allocations for combined
sewer overflow outfalls and for the Blue Plains Outfall 001. Ex. A at 5-6.
78.

However, EPA did not explain why the use of Event Mean Concentrations is

consistent with the goals or legal requirements of the TMDLs, which must represent maximum
daily loads while taking into account critical conditions. EPA claimed only that “the approach
for calculating the E. coli annual allocations is consistent with the underlying data, assumptions,
and modeling of the 2004 TMDL.” Id. at 5.
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Blue Plains Final Wasteload Allocations Adopted Without Public Notice
79.

The first draft of the TMDLs for the Potomac River included proposed wasteload

allocations for the Blue Plains wastewater treatment plant that were calculated using a statistical
multiplier (rather than modeling) based on recommendations in an EPA guidance document.
80.

Based on that approach, the first draft TMDLs included a proposed maximum

daily load for Blue Plains of 2.21E+12 MPN, and an average daily load of 1.77E+12 MPN.
81.

DDOE later published a revised draft of the Potomac River TMDLs that took an

entirely different approach, this time stating that “[f]or discharges from Blue Plains (outfalls 001
and 002), the wasteload allocation and the maximum daily discharge shall not cause or
contribute to an in-stream exceedance of the E. coli standard of 126 cfu/100ml determined by a
rolling 30-day E. coli geometric mean.” DDOE, Appendix C, E. coli Bacteria Allocations and
Daily Loads for the Potomac River and Tributaries (May 2014), Ex. M at 9.
82.

Plaintiffs objected to this approach because, among other problems, it does not

specify a total maximum daily load as required by the Clean Water Act.
83.

The final TMDL took yet another approach, which had not been provided for

public comment. The final approved TMDLs include maximum daily loads of MPN expressed as
follows:
a.

Outfall 001: 4.37E+14 (On days when flows exceed operationally

allowable influent limits to Outfall 002);
c.

Outfall 001: 0.00E+00 (On days when no discharge is allowable);

d.

Outfall 002: 2.47E+12 (On days when wet weather conditions exist); and

e.

Outfall 992: 1.76E+12 (On days when dry weather conditions exist).

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84.

The methodology used to calculate the final approved TMDLs for Blue Plains

employed Event Mean Concentrations.
85.

DDOE did not provide an opportunity for the public to review or comment on the

final approved wasteload allocations, or the methodology used to calculate them.
CLAIMS FOR RELIEF
First Claim For Relief:
Violation of the Requirements for TMDLs Under the Clean Water Act
86.

All preceding paragraphs are hereby incorporated by reference as if fully set forth

87.

The TMDLs are designed only to meet the District’s 30-day geometric mean

below.

criterion, and expressly omitted loads needed to attain the District’s single sample value
criterion, which is an applicable water quality standard. 21 DCMR § 1104.8.
88.

The TMDLs fail to protect the designated use for primary contact recreation. 21

DCMR §§ 1101.1, 1101.2, 1199.1.
89.

The TMDLs fail to implement the District’s narrative prohibition against

“substances in amounts or combinations that... [c]ause injury to, are toxic to, or produce adverse
physiological or behavioral changes in humans, plants, or animals.” 21 DCMR § 1104.1(d).
90.

Because of their use of Event Mean Concentrations, the TMDLs fail to take into

account critical conditions for stream flow, loading, and water quality parameters.” 40 C.F.R.
§ 130.7(c)(1).
91.

The TMDLs lack an adequate margin of safety to account for lack of knowledge

concerning the relationship between effluent limitations based on Event Mean Concentrations
and resulting water quality.
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92.

EPA therefore approved the bacteria TMDLs in contravention of Clean Water

Act, 33 U.S.C. § 1313(d).
Second Claim For Relief:
Arbitrary and Capricious Action
93.

All preceding paragraphs are hereby incorporated by reference as if fully set forth

94.

EPA failed to state a non-arbitrary and capricious basis for its contention that the

below.

District’s single sample value criterion is not an applicable water quality standard for which EPA
must establish a TMDL.
95.

EPA failed to state a non-arbitrary and capricious basis for its contention that

TMDLs designed to attain the 30-day geometric mean water quality standard satisfies the
designated use and narrative water quality standards.
96.

EPA failed to state a non-arbitrary and capricious basis for using Event Mean

Concentrations to represent bacteria concentrations from combined sewer overflows and the
Blue Plains wastewater treatment plant.
97.

EPA failed to state a non-arbitrary and capricious basis for declining to include an

additional margin of safety to account for lack of knowledge concerning the relationship between
effluent limitations based on Event Mean Concentrations and resulting water quality.
98.

For all the foregoing reasons, EPA’s approval of the fecal bacteria TMDLs is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and is “in
excess of statutory jurisdiction, authority, or limitations, or short of statutory right” within the
meaning of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) and (C).

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Third Claim for Relief:
Failure to Provide Notice and Opportunity to Comment
99.

All preceding paragraphs are hereby incorporated by reference as if fully set forth

100.

The Clean Water Act requires that EPA and the states (including the District)

below.

provide for, encourage, and assist public participation in the development, revision, and
enforcement of any regulation, standard, effluent limitation, plan, or program. 33 U.S.C.
§ 1251(e).
101.

For the Blue Plains wastewater treatment plant outfalls, DDOE developed and

EPA approved the final wasteload allocations, and the methodology for calculating them,
without publishing notice or providing an opportunity for public comment.
102.

The final wasteload allocations for the Blue Plains outfalls were not a logical

outgrowth of the draft TMDLs provided for public comment.
103.

As a result, Plaintiffs were deprived of the opportunity to examine the

methodology and rationale underlying the final Blue Plains wasteload allocations, or to object
the resulting loads, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) and
(D).
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court:
104.

Declare that EPA’s decision approving the bacteria TMDLs is unlawful and

arbitrary for the reasons alleged herein;

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105.

Enter an order vacating EPA’s approval action in light of the Court’s decision,

staying that order for one year, and directing that EPA approve or promulgate legally-adequate
TMDLs within one year of the Court’s order;
106.

Retain jurisdiction over this action to ensure compliance with the Court’s decree.

107.

Award plaintiffs their costs of litigation (including attorneys’ and expert witness

fees); and
108.

Grant such other relief as the Court deems necessary and proper.

DATED: August 15, 2016

/s/ Jennifer C. Chavez
JENNIFER C. CHAVEZ
DC Bar No. 493421
SETH L. JOHNSON
DC Bar No. 1001654
Earthjustice
1625 Massachusetts Avenue, N.W.
Suite 702
Washington, D.C. 20036
202-667-4500
jchavez@earthustice.org
sjohnson@earthustice.org
Attorneys for Plaintiffs

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