Envtl. Law & Policy Ctr. v. U.S. Envtl. Agency, Case No. 3:17CV1514

• Decision Date: 03 October 2018
• Docket Number: Case No. 3:17CV1514
• Citation: 349 F.Supp.3d 703
• Parties: ENVIRONMENTAL LAW AND POLICY CENTER, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL AGENCY, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

349 F.Supp.3d 703

ENVIRONMENTAL LAW AND POLICY CENTER, et al., Plaintiffs,

v.UNITED STATES ENVIRONMENTAL AGENCY, et al., Defendants.

Case No. 3:17CV1514

United States District Court, N.D. Ohio, Western Division.

Filed October 3, 2018

Michael R. Barsa, Northwestern Pritzker School of Law, Jean-Luc Kreitner, Pro Hac Vice, Lindsay P. Dubin, Chicago, IL, Madeline P. Fleisher, Columbus, OH, for Plaintiffs.

Daniel R. Dertke, U.S. Department of Justice, Washington, DC, Jody L. King, Office of the U.S. Attorney, Toledo, OH, for Defendants.

ORDER

James G. Carr, Sr. U.S. District Judge

This case concerns the Clean Water Act (CWA) 33 U.S.C. § 1251 et seq. , and Ohio's long-standing, persistent reluctance and, on occasion, refusal, to comply with the CWA. As a result of the State's inattention to the need, too long manifest, to take effective steps to ensure that Lake Erie (the Lake) will dependably provide clean, healthful water, the risk remains that sometime in the future, upwards of 500,000 Northwest Ohio residents will again, as they did in August 2014, be deprived of clean, safe water for drinking, bathing, and other normal and necessary uses.

The principal problem is that for years, with varying degrees of intensity, summertime Harmful Algae Blooms (HABs) have afflicted the Lake's Western Basin. There is no dispute – not even on the part of Ohio's elected and appointed officials – that HABs result from unregulated and uncontrolled phosphorus-containing runoff from farmland in the watersheds of the Lake's northwestern tributaries.

HABs present a significant threat to public safety because they can produce microcystin– a "cyanotoxin" hazardous to "humans, animals, and ecosystems." (Doc. 29, ID 9001). The effects of the ongoing phosphorus pollution and annual HABs has not been limited to the August 2014 Toledo Water Crisis. Those effects, albeit to a lesser degree, have also impacted everyone who relies on the Lake not just for drinking water, but for recreation and their livelihoods.

That crisis and those effects notwithstanding, the Ohio Environmental Protection Agency (Ohio EPA) failed in 2014 and again in 2016, to determine, as the CWA requires, whether Lake Erie's open waters met the State's own water quality standards. See 33 U.S.C. § 1313(d).

Ohio's failure in 2016 to list Ohio's Lake Erie open waters as "impaired" led the plaintiffs, the Environmental Law and Policy Center, Advocates for a Clean Lake Erie, and private citizens Michael Ferner and Susan Matz, to file this suit against the United States Environmental Protection Agency (U.S. EPA or the Agency), acting Administrator Andrew Wheeler, and Regional Administrator Cathy Stepp.¹ Their suit sought reversal of the U.S. EPA's decision to approve, despite the omission of Lake Erie's open waters, Ohio's impaired waters list.

Three motions are pending: defendants' counter-motion for summary judgment (Doc. 38); plaintiffs' motion for leave to supplement their initial complaint (Doc. 36); and intervenor the Lucas County Board of Commissioners' motion to join the case as a party plaintiff (Doc. 56).

For the reasons that follow, I grant defendants' counter-motion for summary judgment, deny leave to plaintiffs to supplement the complaint, and deny leave to the Lucas County Board of Commissioners to intervene.²

Background

1. Ohio's 2012, 2014, and 2016 Reports, the U.S. EPA Responses, and Ohio's Inaction

The CWA's biennial reporting provision (the § 303(d) list) requires the states to submit to the U.S. EPA a "listing of the state's impaired waters" i.e. , "a list of waters that do not currently attain, and based on current pollution controls are not expected to attain, applicable water quality standards." Anacostia Riverkeeper, Inc. v. Jackson , 798 F.Supp.2d 210, 215 (D. D.C. 2011) (citing 40 C.F.R. § 130.7(b)(3) & (d) ); see also e.g. , Hayes v. Whitman , 264 F.3d 1017, 1021 (10th Cir. 2001) (describing the duty to create an impaired waters, or § 303(d), list) (citing 33 U.S.C. § 1313(d)(2) ).

In 2012, the U.S. EPA provided Ohio with "water quality-related" data from Lake Erie's open waters in a direct effort to encourage Ohio to engage in water quality assessment. (Doc. 29, ID 9006). Ohio nonetheless declined to evaluate the area for that year's § 303(d) list.

In 2014, the year of the Toledo Water Crisis, the Ohio EPA designated assessment units in Lake Erie's shoreline as impaired. But, once again, the Ohio EPA did not include the waters beyond the shoreline, i.e. , the Lake's open waters, on that list. The State did so despite alarming test results from Toledo and Oregon's water intake points – results that, not surprisingly, exceeded Ohio's own threshold limit for microsystin. (Id. ).

While the U.S. EPA expressed concern at the omission, it approved Ohio's 2014 § 303(d) list with one caveat: based on Ohio's promise for the 2016 listing cycle to "expand coverage to all drinking water intakes in the Western Lake Erie Basin," the U.S. EPA deferred its final decision on whether waters beyond the shoreline should also be listed as impaired. (Id. at 9007).

In hindsight, even this conditional approval reflected an undue measure of confidence in Ohio's willingness to evaluate the condition of Lake Erie's open waters. Indeed, in preparing its 2016 impaired waters list, Ohio, despite its promise, gave no heed to the U.S. EPA's expectations.

Ohio's 2016 § 303(d) list identified more impaired shoreline assessment units, but explicitly declined "to pursue development of the open water assessment units and methods at this time." (Id. at 9009). When the U.S. EPA again reminded the State of its statutory obligations – pointing to the 2014 Toledo Water Crisis as a reason to be more proactive – Ohio refused. Instead, in derogation of its CWA-imposed duty to assess all the waters within its boundaries, Ohio reiterated its "firm and consistent position" that the U.S. EPA, rather than Ohio, should itself "develop a coordinated response" for Lake Erie. Ohio's EPA dismissed the Agency's instruction to fulfill its CWA obligations as "absurd." (Id. ).

After failing to respond for seven months, and following plaintiffs' initial lawsuit against the U.S. EPA demanding that it, in accordance with the CWA, either approve or disapprove Ohio's 2016 § 303(d) list, the Agency issued a letter approving the State's 2016 § 303(d) list.

Plaintiffs then filed this, their second suit, challenging the substance of the Agency's approval decision. They argued the U.S. EPA's approval was untenable due to the Ohio EPA's express refusal to "assemble and evaluate all existing and readily available water-quality related data and information" relating to Lake Erie's open waters. 40 C.F.R. § 130.7(b)(5).

Rather than defending or reversing outright its approval of Ohio's 2016 impaired waters list, the U.S. EPA withdrew its approval for further consideration. In doing so, the Agency cited the very failing that had provoked plaintiffs' lawsuit: "Specifically, the State's submission does not demonstrate that the State has satisfied its statutory and regulatory obligations to assemble and evaluate all existing and readily available data and information regarding nutrients in the open waters of Lake Erie within the State's boundaries." (Id. at 9012).³

The Agency's withdrawal of its approval meant that it had no longer taken final agency action on Ohio's deficient 2016 § 303(d) list. Consequently, the Administrative Procedure Act (APA), 5 U.S.C. § 704, compelled me to conclude that plaintiffs could not maintain their claim challenging that revoked decision. Thus, on April 11, 2018, I denied their motion for summary judgment. (Doc. 29). Envt'l Law and Policy Ctr. v. United States Envt'l Protection Agency, 2018 WL 1740146 (N.D. Ohio).

I remanded the case to the Agency for "further action consistent with the correct legal standards" within thirty days of that order and retained jurisdiction. I also withheld ruling on defendants' counter-motion for summary judgment – which I address in this order. (Id. at 9019).

2. Events Following The April 11, 2018 Order

Since April 11, 2018, the Ohio EPA has submitted an amended 2016 § 303(d) list, adding three new assessment units for Lake Erie's open waters, and declaring all three impaired. The U.S. EPA approved Ohio's amended 2016 submission (the Amended Submission) on May 10, 2018, just within the thirty-day deadline imposed in my order.⁴

While Ohio had hoped its Amended Submission would "resolve the pending litigation" (Doc. 30-2, ID 9027), the U.S. EPA's approval prompted plaintiffs to seek leave under Fed. R. Civ. P. 15(d) to supplement their complaint.

In support of that request, plaintiffs point out that although the Ohio EPA at last declared its new open waters assessment units impaired, it also "refused to develop ... a ‘Total Maximum Daily Load’ [TMDL] for the phosphorus pollution that causes" HABs in Lake Erie. (Doc. 36, ID 9220).

Developing a TMDL is a bedrock obligation under the CWA. TMDLs "establish[ ] a maximum daily discharge of pollutants into waterway" and serve as "an important aspect of the federal scheme of water pollution control." Scott v. City of Hammond , 741 F.2d 992, 996–97 (7th Cir. 1984) (per curiam). States must establish a TMDL for certain pollutants "[f]or each impaired waterbody" they name on a § 303(d) list. Hayes, supra , 264 F.3d at 1021 (citing 33 U.S.C. § 1313(d)(1)(C) ).

Creating TDMLs is, moreover, not optional. "Each State shall establish" TMDLs for particular pollutants identified by the Administrator under the CWA. 33 U.S.C. § 1313(d)(1)(C) (emphasis added). See Scott , supra , 741 F.2d at 998 n.13 ; Alaska Ctr. for the Env't v. Reilly , 762 F.Supp. 1422, 1427 (W.D. Wash. 1991) ("Congress' repeated use of the term ‘shall’...clearly places a mandatory duty upon the EPA to take affirmative action after disapproving a state's unacceptable submission.").

Nonetheless, Ohio has affirmatively stated that it is not going to develop a TMDL for phosphorus runoff in Lake...