ELR Citation: ELR 20149
No(s). 09-0098 (D.D.C. May 25, 2010)

A district court vacates certain TMDLs promulgated by EPA for the waters of the District of Columbia, but issued a stay of vacatur in order to permit EPA an opportunity to correct the deficient TMDLs. Although EPA is correct that a district court has discretion to order a remand without vacatur, that remedy is unavailable given the deficiencies in the TMDLs here. EPA's erroneous conclusion that it could express TMDLs in terms of annual or seasonal pollutant limits is unquestionably a material deficiency in the regulation. As EPA acknowledges, the error requires it to develop entirely new TMDLs, based on several years of new data collection. The court then concluded it will stay vacatur of the tier one TMDL until May 31, 2011; the tier two TMDLs until December 31, 2014; and the tier three and four TMDLs until January 1, 2017. Although the length of the stays of vacatur is somewhat out of the ordinary, neither the Court, nor the parties, wants the District of Columbia waters at issue in this action to go without pollutant limits while EPA develops new pollutant limits, which will take some time.