Am. Farm Bureau Fed'n v. U.S. Envtl. Prot. Agency

• Decision Date: 13 September 2013
• Docket Number: Civil No. 1:11–CV–0067.
• Parties: AMERICAN FARM BUREAU FEDERATION, et al., Plaintiffs v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

984 F.Supp.2d 289

AMERICAN FARM BUREAU FEDERATION, et al., Plaintiffs

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

Civil No. 1:11–CV–0067.

United States District Court, M.D. Pennsylvania.

Sept. 13, 2013.

David P. Ross, Kirsten L. Nathanson, Richard E. Schwartz, Crowell & Moring LLP, Washington, DC, Amanda J. Lavis, Paul J. Bruder, Jr., Robert J. Tribeck, Rhoads & Sinon LLP, Harrisburg, PA, for Plaintiffs.

Kent E. Hanson, U.S. Department of Justice, Washington, DC, Stephen R. Cerutti, II, United States Attorney's Office, Harrisburg, PA, for Defendants.

MEMORANDUM

SYLVIA H. RAMBO, District Judge.

Presently before the court are several motions for summary judgment related to an administrative review of the issuance of the Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus, and Sediment (“TMDL”, “Bay TMDL”, or “Final TMDL”). Plaintiffs filed a joint motion for summary judgment (Doc. 95) and Defendant United States Environmental Protection Agency (“EPA”) filed a cross-motion for summary judgment (Doc. 99). Some Defendant–Intervenors filed briefs in support of EPA's cross-motion (Docs. 102 & 108), and other Defendant–Intervenors filed a separate cross-motion for summary judgment and brief in support (Docs. 103 & 104) that largely supplemented EPA's motion. For the reasons that follow, Plaintiffs' motion will be denied, and EPA's and Defendant–Intervenors' cross-motions will be granted.

I. Background

Plaintiffs are seeking a declaratory judgment and injunctive relief against EPA, asking the court to vacate the Final TMDL for the Chesapeake Bay. Plaintiffs allege that EPA lacked authority under the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq., to issue the TMDL; the TMDL is ultra vires; the TMDL is arbitrary and capricious; and EPA failed to provide adequate public notice and comment, in violation of the Administrative Procedures Act (“APA”), 5 U.S.C. § 500 et seq. ( See Doc. 16, Am. Compl.)

Understanding the legal, procedural, historical, and scientific complexities of this case requires a detailed recitation of the extensive relevant background information, including information regarding the parties to this suit, the complex legal framework established under the CWA, the historical efforts to improve water quality in the Chesapeake Bay, and the scientific modeling and calculations utilized by EPA in promulgating the final TMDL. The court will address each topic ad seriatum before turning to Plaintiffs' substantive arguments.

A. The Parties

EPA is the federal agency charged with the administration and enforcement of the CWA, in accordance with the delegations of authority from Congress contained in that statute. (Doc. 16 ¶ 18.) On December 29, 2010, EPA promulgated the Final TMDL for the Chesapeake Bay, which is the subject of this suit. ( Id. ¶ 70.)

The original complaint (Doc. 1) was filed by Plaintiffs American Farm Bureau Federation and the Pennsylvania Farm Bureau. The American Farm Bureau Federation is a voluntary general farm organization formed in 1919 to protect, promote, and represent the business, economic, social, and educational interests of American farms. (Doc. 16 ¶ 7.) The American Farm Bureau Federation represents more than 6.2 million member families through member organizations, some of which are located in the 64,000–square mile Chesapeake Bay watershed. ( Id. ¶¶ 7, 8.) The Pennsylvania Farm Bureau is a general farm organization that has provided legislative support, information, and services to Pennsylvania's farmers and rural families since 1950. ( Id. ¶ 11.) Some of the Pennsylvania Farm Bureau members have farms located within the Chesapeake Bay watershed. ( Id.)

On April 4, 2011, an amended complaint was filed, which also named as Plaintiffs The Fertilizer Institute, a group that represents the nation's fertilizer industry, as well as several non-profit trade associations, to wit: the National Pork Producers Council, the National Corn Growers Association, the National Chicken Council, the U.S. Poultry and Egg Association, and the National Turkey Federation. ( Id. ¶¶ 12–17.)

On October 13, 2011, the court granted three motions to intervene. (Doc. 87.) In those motions, two different groups of intervenors and a separate municipal association, sought leave to intervene as Defendants in this action. The first group includes various environmental and public interest groups, to wit: the Chesapeake Bay Foundation, Inc.; Citizens for Pennsylvania's Future; Defenders of Wildlife; Jefferson County Public Service District; Midshore Riverkeeper Conservancy; and the National Wildlife Federation (collectively, the “CBF Group”). The second group includes several municipal clean water associations, to wit: the National Associations of Clean Water Agencies (“NACWA”); the Maryland Association of Municipal Wastewater Agencies, Inc. (“MAMWA”); and the Virginia Association of Municipal Wastewater Agencies, Inc. (“VAMWA”) (collectively, the “Municipal Associations Group”). The final movant was the Pennsylvania Municipal Authorities Association (“PMAA”). The court granted the motions, finding that the intervenors have a legally cognizable interest in this litigation that could be adversely affected by the outcome of this litigation. ( Id.; Am. Farm Bureau Fed'n v. EPA, 278 F.R.D. 98 (M.D.Pa.2011).)

B. Statutory Framework

In addition to the alleged procedural shortcomings of the TMDL under the APA, this dispute, at its core, raises questions regarding the proper division of duties between the states and the federal government under the applicable CWA statutory framework. Thus, to properly understand the parties' respective arguments, it is necessary to provide the framework upon which these claims rest. This framework will provide context for later analysis of the legal issues surrounding the Bay TMDL.

The CWA is a comprehensive water quality statute designed “to restore and maintain the chemical, physical and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a); PUD No. 1 of Jefferson Cty. v. Wash. Dep't of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994). “A core element of the CWA is a two-step approach to improving water quality, which delegates certain responsibilities to EPA and others to the states in furtherance of the Act's stated purpose of promoting cooperation between federal and state governments.” Anacostia Riverkeeper, Inc. v. Jackson, 798 F.Supp.2d 210, 214 (D.D.C.2011) (citing 33 U.S.C. § 1251(b)). Thus, water quality restoration and maintenance efforts, as envisioned by the CWA, demand cooperative federalism and require significant levels of communication and coordination between EPA and the state environmental agencies in the six states ¹ and the District of Columbia(collectively, “Bay Jurisdictions”).²

Generally, efforts to improve water quality first focus on the establishment of technology-based limitations on individual discharges into navigable waters from point sources. 33 U.S.C. § 1311. Point sources are “any discernable, confined and discreet conveyance ... from which pollutants are or may be discharged,” such as any pipe, ditch, channel, or tunnel. 33 U.S.C. § 1362(14). These sources represent a logical starting point for monitoring and regulating water contamination because they are easily identifiable sources of contamination. See Anacostia Riverkeeper, 798 F.Supp.2d at 214. Pursuant to Section 301 of the CWA, EPA is to develop effluent limitations based upon “the best available technology economically achievable” that cap the maximum allowable discharge at each individual point source. 33 U.S.C. § 1311(b)(1). The primary method used to implement these limitations is the National Pollution Discharge Elimination System (“NPDES”). Id. The NPDES is a permit program through which individual entities that discharge point source pollutants receive permits setting the maximum discharge levels of a particular contaminant. See id.; see also Sierra Club v. Meiburg, 296 F.3d 1021, 1024 (11th Cir.2002) (“The statute gives EPA the authority to issue permits for point sources, and those permits are to establish technology-based effluent limitations that incorporate increasingly stringent levels of pollution control technology over time.”); Anacostia Riverkeeper, 798 F.Supp.2d at 214.

In addition to regulating point sources, non-point sources are also regulated under the CWA. The distinction between point and non-point sources of pollution is critical to understanding the primary issue in this case, as is evident from the analysis below. As stated, point sources of pollution emanate from a discrete conveyance. Non-point sources, meanwhile, are non-discrete sources such as sediment run-off from agriculture fields or from timber harvesting. See Pronsolino v. Nastri, 291 F.3d 1123, 1129 (9th Cir.2002). Unlike point source pollution, EPA lacks the authority to control non-point source discharges through a permitting process. Anacostia Riverkeeper, 798 F.Supp.2d at 214–15 (citing Defenders of Wildlife v. EPA, 415 F.3d 1121, 1124 (10th Cir.2005)). Thus, in order to address water quality concerns from all sources of pollution, the CWA requires each state to develop water quality standards for interstate waters within its border. See33 U.S.C. § 1313(c). These standards supplement the NPDES permitting process. As stated in PUD No. 1, “these state water quality standards provide ‘a supplementary basis ... so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels.’ ” 511 U.S. at 704, 114 S.Ct. 1900 (quoting EPA v. Cal. ex rel. State Water Res. Control Bd., 426 U.S. 200, 205 n. 2, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976)). Today, “nonpoint source pollution has become the dominant water quality problem in the United States, dwarfing all other sources of volume....” Pronsolino v. Marcus (“ Pronsolino I ”), 91...