Am. Waterways Operators v. Wheeler

Decision Date30 November 2020
Docket NumberCase No. 18-cv-02933 (APM)
Citation507 F.Supp.3d 47
Parties AMERICAN WATERWAYS OPERATORS, Plaintiff, v. Andrew WHEELER, Administrator of the United States Environmental Protection Agency, and United States Environmental Protection Agency, Defendants, and Washington Environmental Council, Puget Soundkeeper, Friends of the Earth, and Washington State Department of Ecology, Intervenor-Defendants.
CourtU.S. District Court — District of Columbia

Theodore Lawrence Kornobis, Barry M. Hartman, K & L Gates LLP, Washington, DC, for Plaintiff.

Sue Chen, U.S. Department of Justice, Washington, DC, for Defendants

Kristen L. Boyles, Pro Hac Vice, Jan Hasselman, Pro Hac Vice, Paulo Palugod, Pro Hac Vice, Earthjustice, Seattle, WA, for Intervenor-Defendants.

Ronald L. LaVigne, Office of the Attorney General, Olympia, WA, for Intervenor-Defendant.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Court Judge

I. INTRODUCTION

On January 19, 2017, the Environmental Protection Agency ("EPA"), acting pursuant to Section 312(f)(3) of the Clean Water Act, authorized the State of Washington to declare the Puget Sound a "No Discharge Zone" ("NDZ"). That designation cleared the way for the State of Washington to prohibit recreational and commercial vessels from discharging sewage into the Puget Sound. As a precondition to a state establishing an NDZ, Section 312(f)(3) requires EPA to "determine[ ] that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available" for the waters at issue. 33 U.S.C. § 1322(f)(3). EPA made such a "reasonable availability" finding for the waters of the Puget Sound.

American Waterways now seeks to overturn the agency's decision. Moving for summary judgment, it argues that EPA's "reasonable availability" determination was arbitrary and capricious and violated Section 312(f)(3) of the Clean Water Act for multiple reasons. EPA does not seek to defend its determination. Instead, EPA now confesses legal error on one challenged ground, conceding that it erred by authorizing the Puget Sound NDZ without considering the financial costs of the action. Instead of opposing summary judgment, EPA asks the court to reconsider its earlier denial of the agency's motion for voluntary remand. Intervenor-Defendants Washington Environmental Council, Puget Soundkeeper, Friends of the Earth, and Washington State Department of Ecology (collectively, "Intervenors") have stepped in for the agency. They deny that EPA committed any error, defend EPA's authorization of the Puget Sound NDZ, and cross-move for summary judgment.

For the reasons that follow, the court grants in part and denies in part American Waterways’ motion for summary judgment, grants in part and denies in part Intervenorsmotion for summary judgment, and denies as moot EPA's motion for reconsideration.

II. BACKGROUND
A. Legal Background

This case concerns the State of Washington's effort to prohibit recreational and commercial vessels from discharging sewage into the Puget Sound, an inlet of the Pacific Ocean along Washington's northwestern coast. Under the Clean Water Act, EPA is required to set national "standards of performance for marine sanitation devices" that are "designed to prevent the discharge of untreated or inadequately treated sewage into or upon the navigable waters." 33 U.S.C. § 1322(b)(1). Once EPA promulgates national standards, the standards serve as a floor, and no state is permitted to "adopt or enforce any statute or regulation" regarding marine sanitation devices that is less stringent than the national standards. See id. § 1322(f)(1).

In certain circumstances, however, a state may impose greater restrictions on vessel sewage discharge in the form of a No Discharge Zone, or NDZ. Under Section 312(f)(3), "if any State determines that the protection and enhancement of the quality of some or all of the waters within such State require greater environmental protection, such State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters." Id. § 1322(f)(3). There is, of course, a catch. Before a state can create an NDZ, it must obtain approval from EPA, which must "determine[ ] that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for such water to which such prohibition would apply." Id. After a state applies for permission to designate an NDZ, EPA has 90 days to make its determination on the reasonable availability of adequate facilities. Id.

To facilitate EPA's decision, agency regulations require that a state's application to create an NDZ include the following:

(1) A certification that the protection and enhancement of the waters described in the petition require greater environmental protection than the applicable Federal standard;
(2) A map showing the location of commercial and recreational pump-out facilities;
(3) A description of the location of pump-out facilities within waters designated for no discharge;
(4) The general schedule of operating hours of the pump-out facilities;
(5) The draught requirements on vessels that may be excluded because of insufficient water depth adjacent to the facility;
(6) Information indicating that treatment of wastes from such pump-out facilities is in conformance with Federal law; and
(7) Information on vessel population and vessel usage of the subject waters.

40 C.F.R. § 140.4(a). Additionally, EPA has published extensive guidance for state and local officials that are interested in establishing NDZs under Section 312(f)(3). See A.R. at 2326–623.1

B. Factual Background
1. Application for a Puget Sound NDZ

Prior to petitioning EPA for an NDZ, the State of Washington, acting through its Department of Ecology ("Ecology"), and its partner organizations studied water quality in the Puget Sound for four years. See A.R. at 57. These studies led Ecology to conclude that federal marine discharge requirements were insufficient to protect the Puget Sound's water quality, primarily because vessels were discharging treated sewage near shellfish beds and swimming beaches. See id. at 66. The Puget Sound was already facing serious degradation from pollution: some of the waters of the Puget Sound were "designated as impaired waters under the Clean Water Act" because of poor water quality indicators, including "high concentrations of fecal indicator bacteria." Id. at 67. The Washington Department of Health ultimately closed some public swimming beaches and shut down 36,000 acres of commercial shellfish harvest beds in the Sound due to poor water quality. Id. Ecology hoped that securing an NDZ would "complement[ ] other, more substantive investments in sewage treatment, onsite systems, stormwater management, industrial treatment, and agricultural runoff control" that would revitalize the Puget Sound. Id. at 66.

In July 2016, Ecology requested EPA's permission to designate the Puget Sound as an NDZ, submitting a petition that reflected water quality studies, outreach to vessel operators, and an analysis of the costs and benefits of creating an NDZ. Id. at 57, 68. Ecology also submitted a supplement to its petition in October 2016, after EPA asked for more information on the availability of "pumpout" facilities. See id. at 127; id. at 128–45 (Ecology's October 2016 supplement titled "Commercial Vessel Pumpout Availability in Puget Sound"). As the name implies, a pumpout facility removes, or "pumps out," sewage from a vessel.

On November 7, 2016, EPA published notice of its preliminary determination that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels were reasonably available in the Puget Sound. 81 Fed. Reg. 78,141 -02. The notice sought public comment, with the original deadline for comments set for December 7, 2016. Id. at 78,141. On December 7, after receiving stakeholder requests for additional time, EPA announced that it would extend the deadline for comments to December 23, 2016. A.R. at 55541.

2. EPA's Determination

On January 19, 2017, after receiving more than 40,000 comments on Ecology's application, id. at 33, EPA published notice of its final determination. It found that "adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available" in the Puget Sound, id. at 1–31.

In its determination, EPA considered separately the availability of sewage pumpout facilities for recreational and commercial vessels. As to recreational vessels, EPA found that there were at most 171 recreational vessels per pumpout facility in the Puget Sound. Id. at 5–6. EPA concluded that this ratio was well below the minimum ratio of 600 recreational vessels per pumpout facility that the Fish and Wildlife Service recommended was reasonable under the Clean Vessel Act, id. at 727, and therefore determined that adequate pumpout facilities were reasonably available in the Puget Sound for recreational vessels. Id. at 6.

As for commercial vessels, EPA estimated that there were 709 such vessels operating in the Puget Sound based on a study conducted by the Puget Sound Maritime Air Forum and information provided by commenters. Id. at 7. In reaching this total, EPA excluded "large, oceangoing transient commercial vessels that are only in Puget Sound for a short period of time." Id. The agency did so after finding that such vessels "have large enough holding tanks to hold their waste during the time they are in Puget Sound, with some exceptions[,] ... [and therefore] do not have a need to pumpout." Id. EPA then subtracted additional commercial vessels, including the fleets of the Washington State Ferries, the U.S. military, and the Victoria Clipper, because they have "dedicated pumpout facilities" and would not use other facilities. Id. at 7, 9. EPA ultimately determined that there were 631 commercial vessels operating in the Puget Sound that would require pumpout...

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