268 F.3d 91 (2nd Cir. 2001), 00-6232, Natural Res. Defense Council v Muszynski

Docket Nº:Docket No. 00-6232
Citation:268 F.3d 91
Party Name:NATURAL RESOURCES DEFENSE COUNCIL, INC., ENVIRONMENTAL DEFENSE FUND, INC. & ALAN G. HEVESI, PLAINTIFFS-APPELLANTS, v. WILLIAM J. MUSZYNSKI[*], ACTING REGIONAL ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION II, CHRISTINE TODD WHITMAN[**], ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY & UNITED STATES ENVIRONMENTAL
Case Date:October 11, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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268 F.3d 91 (2nd Cir. 2001)

NATURAL RESOURCES DEFENSE COUNCIL, INC., ENVIRONMENTAL DEFENSE FUND, INC. & ALAN G. HEVESI, PLAINTIFFS-APPELLANTS,

v.

WILLIAM J. MUSZYNSKI[*], ACTING REGIONAL ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION II, CHRISTINE TODD WHITMAN[**], ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY & UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS-APPELLEES.

Docket No. 00-6232

United States Court of Appeals, Second Circuit

October 11, 2001

Argued: February 26, 2001

Appeal from that part of a judgment of the United States District Court for the Southern District of New York (Peter K. Leisure, Judge) dismissing plaintiffs' claims alleging violations of the Clean Water Act ("CWA"), 33 U.S.C. § 1251, et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 500, et seq., resulting from defendants' approval of the State of New York's total maximum daily loads for phosphorus in eight New York reservoirs. Affirmed in part, vacated and remanded in part.

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[Copyrighted Material Omitted]

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Mark A. Izeman (eric A. Goldstein) New York, New York, for Plaintiffs-Appellants Natural Resources Defense Counsel, Inc. and Environmental Defense Fund, Inc.;

Alan G. Hevesi, pro se, New York, New York.

Andrew W. Schilling (jeffrey Oestericher) Assistant United States Attorneys, of Counsel, New York, New York, for Defendants-Appellees.

Before: Winter, McLAUGHLIN, and Pooler, Circuit Judges.

Pooler, Circuit Judge

Plaintiffs-Appellants Natural Resources Defense Council, Inc., Environmental Defense Fund, Inc., and Alan G. Hevesi (collectively "NRDC") appeal from a May 30, 2000, judgment of the United States District Court for the Southern District of New York (Peter K. Leisure, Judge), entered upon a May 2, 2000, Opinion and Order. NRDC challenges only the district court's dismissal of its claim brought under the APA seeking judicial review of the Environmental Protection Agency's ("EPA") decision to approve total maximum daily loads ("TMDLs") for phosphorous for eight New York reservoirs. The TMDLs were submitted to EPA by the State of New York pursuant to the CWA,

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33 U.S.C. § 1313. We affirm the district court's holding that the CWA does not require TMDLs to be expressed in terms of daily loads, but remand to the district court for remand to EPA for further explanation of why annual loads are appropriate in the case of New York's phosphorus TMDLs.

BACKGROUND

We presume familiarity with the district court's thorough decisions leading up to this appeal. See Natural Resources Defense Council, Inc. v. Fox, 909 F.Supp. 153 (S.D.N.Y. 1995) ("Fox I"); Natural Resources Defense Council, Inc. v. Fox, 30 F.Supp.2d 369 (S.D.N.Y. 1998) ("Fox II"); and Natural Resources Defense Council, Inc. v. Fox, 93 F.Supp.2d 531 (S.D.N.Y. 2000) ("Fox III").

In general, the Clean Water Act protects waterbodies by limiting discharges of pollutants into them through technology based controls. See 33 U.S.C. § 1311(b)(2)(A). As the district court noted, this "effluent limitation approach focuses on regulating, through the issuance of permits and required technology-based abatement methods, the amount of pollutants discharged by a pollution source." Fox I, 909 F.Supp. at 156. The Act also requires states to adopt water quality standards for their waterbodies based upon the uses of the waterbodies. See 33 U.S.C. § 1313(a)-(c). Where effluent limitations are not "stringent enough to implement any water quality standard applicable" to a waterbody, the CWA requires that the "State shall establish a priority ranking for such waters." 33 U.S.C. § 1313(d)(1)(A). For such waterbodies, the state is required to establish a "total maximum daily load, for those pollutants which the [EPA] Administrator identifies." Id. at § 1313(d)(1)(C). Each total maximum daily load ("TMDL") "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. In effect, a TMDL posts a limit on the total amount of a pollutant a waterbody may receive over a period of time. See 40 C.F.R. § 130.2(i). The TMDL encompasses discharges into the water from specific sites (like factories located along a river) known as point sources, as well as from nonpoint sources, which can consist of, for example, runoff due to the agricultural use of land adjoining a river, as well as, finally, the natural occurrence of the pollutant in the waterbody (i.e., "natural background"). See id.; 33 U.S.C. § 1362(14) (defining "point source"); Trustees for Alaska v. EPA, 749 F.2d 549, 558 (9th Cir. 1984) (defining "nonpoint source"). The TMDLs the state establishes to limit the loading (or release) of pollutants into a waterbody must in turn be approved by the EPA. See 33 U.S.C. § 1313(2).

In recent years, the nineteen upstate water reservoirs which supply New York City its drinking water have suffered increasing phosphorus pollution, due both to discharges of sewage into them and runoff from nonpoint sources. The increasing quantity of phosphorus in these reservoirs has the propensity to make the reservoirs eutrophic: a state which, as one expert explained in the administrative record before us, arises from "the accumulation of phosphorus in... reservoirs [which] has caused excessive growth or nuisance `blooms' of algae and aquatic macrophytes which are harmful to a waterbody." Eutrophication "can have adverse effects on drinking water quality, ranging from aesthetic changes to potential public health risks such as the increased production of

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organic material which, after disinfection, leads to by- products."

In 1994, NRDC filed an environmental citizen suit in the United States District Court for the Southern District of New York, claiming, in pertinent part, that the State of New York had a non-discretionary duty under the CWA to promulgate TMDLs for the nineteen reservoirs providing New York City drinking water, and that its failure to do so amounted to a constructive submission of no TMDLs, leaving EPA with the non-discretionary duty to promulgate the TMDLs itself. See Fox I, 909 F.Supp. at 155. The district court refused NRDC summary judgment on this claim, holding there was a genuine issue of fact concerning whether New York had submitted TMDLs for the reservoirs. See id. at 158.

In January 1995, New York placed the nineteen reservoirs on a list submitted to EPA naming waterbodies for which technology-based pollution controls were "not stringent enough to attain or maintain compliance with applicable state water quality standards," which, for the reservoirs, is "water supply." The waterbodies on the list were given priority in the development of TMDLs for pollutants impairing water quality. In 1996, New York published a report explaining the methodology for calculating the phosphorus TMDLs for the reservoirs. The report explained that developing TMDLs "for a large watershed can be data intensive and a phased approach is often used to protect the water body while additional information is collected," and noted that initial phosphorus TMDLs (the "Phase I TMDLs") would be "based on the best available data and utilize[] simplified models." The Phase I TMDLs were to be supplemented in 1998 by a second set of TMDLS ("Phase II TMDLs") taking into account "improved data."1 The Phase I TMDLs were established, and after a public comment period during which NRDC offered criticisms, the TMDLs were submitted to EPA for eighteen of the nineteen reservoirs on January 31, 1997. On April 2, 1997, EPA approved the submission for eight of the reservoirs. It also declined to approve the submitted TMDLs for the remaining ten reservoirs because it concluded that pollution levels in those reservoirs did not exceed the level that required resort to TMDLs under the CWA.

In response, NRDC amended its complaint, claiming that the TMDLs submitted by New York were facially inadequate under the CWA and therefore EPA violated a non-discretionary duty under the CWA in approving TMDLs for the eight reservoirs, as well as violating the Administrative Procedure Act, 5 U.S.C. § 706 ("APA"). EPA moved, in pertinent part, for summary judgment based on New York's submission, EPA's approval of the Phase I TMDLs, and an agreement between the State and the agency establishing a schedule for submission and approval of additional TMDLs. See Fox II, 30 F.Supp.2d at 379. In an Opinion and Order, the district court rejected EPA's motion with regard to the APA claim because "there [were] genuine issues of material fact as to whether EPA...

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