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
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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
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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
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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.
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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
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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
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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
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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.