American Canoe Ass'n, Inc. v. U.S. E.P.A.

• Decision Date: 09 April 2001
• Docket Number: No. CIV. A. 98-979-A.,CIV. A. 98-979-A.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: AMERICAN CANOE ASSOCIATION, INC., and The American Littoral Society, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

138 F.Supp.2d 722

AMERICAN CANOE ASSOCIATION, INC., and The American Littoral Society, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

No. CIV. A. 98-979-A.

United States District Court, E.D. Virginia, Alexandria Division.

April 9, 2001.

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David Gabriel Bookbinder, American Canoe Association Inc., Springfield, VA, for Plaintiffs.

Arthur Peabody, Jr., U.S. Attorney's Office, Alexandria, VA, David Ellis Evans, Christopher Donald Pomeroy, McGuire-Woods L.L.P., Richmond, VA, Stephen M. Colangelo, Morrison & Foerster, L.L.P., McLean, VA, for Defendants.

CORRECTED MEMORANDUM OPINION^*

ELLIS, District Judge.

Plaintiffs American Canoe Association ("ACA") and The American Littoral Society ("ALS"), having won a favorable settlement of their citizens suit against the United States Environmental Protection Agency ("EPA")¹ under the Clean Water Act ("CWA"),² the Endangered Species Act ("ESA"),³ and the Administrative Procedure Act ("APA"),⁴ now seek attorneys' fees, costs, and expenses pursuant to the fee-shifting provisions of the CWA⁵ and ESA.⁶

I.

The facts and legal principles pertinent to this citizens suit are more fully set forth in an earlier memorandum opinion, that granted in part, denied in part, and deferred in part EPA's threshold motion to dismiss. See American Canoe Ass'n v. EPA, 30 F.Supp.2d 908, 911-14 (E.D.Va. 1998) ("American Canoe I"). Only a brief recapitulation of the facts and proceedings is necessary here.

Plaintiffs are two nonprofit membership organizations dedicated by charter to the preservation and protection of American waterways and surrounding environments. They sued EPA in July 1998 alleging that their members' aesthetic and recreational use of Virginia's rivers, streams, and coastlines had been harmed by EPA's failure to perform certain discretionary and nondiscretionary duties under the CWA and ESA, in conjunction with the APA.⁷ Specifically, plaintiffs' twelve-count complaint alleged:

(1) that EPA violated a mandatory, non-discretionary duty under CWA § 106 by making grants to Virginia in the absence of an adequate state program for monitoring and analyzing water quality (Count I);⁸

(2) that EPA violated CWA § 303(d)(2) by approving Virginia's allegedly inadequate 1996 § 303(d) list of water quality limited segments ("WQLSs") (Count II);⁹

(3) that EPA abused its discretion and therefore violated APA § 706(2)(A) and (C) and § 706(1) in approving Virginia's allegedly inadequate 1996 § 303(d) list of WQLSs (Count III);¹⁰

(4) that EPA failed to establish total maximum daily loads ("TMDLs") and total maximum daily thermal loads ("TMDTLs") for Virginia's waters, in violation of the CWA (Count IV);¹¹ (5) that EPA abused its discretion, and therefore violated the APA, in failing to establish TMDLs and TMDTLs for Virginia's waters (Count V);¹²

(6) that EPA failed to perform a mandatory, nondiscretionary duty under the CWA either to approve or disapprove Virginia's continuing planning process ("CPP") submission (Count VI);¹³

(7) that EPA failed to perform a mandatory, nondiscretionary duty under CWA § 303(e) to disapprove Virginia's proposed 1987 CPP (Count VII);¹⁴

(8) that EPA failed to perform a mandatory, nondiscretionary duty under the CWA to revoke Virginia's Title IV National Pollutant Discharge Elimination System ("NPDES") permitting authority in the absence of an approved CPP for Virginia (Count VIII);¹⁵

(9) that EPA's actions in Counts VI, VII, and VIII constitute either (a) an unlawful withholding and unreasonable delay of agency action or (b) an abuse of discretion not in accordance with the law, in violation of §§ 706(1) and 706(2)(a) of the APA (Count IX);¹⁶

(10) that EPA violated the APA's procedural requirements for agency rule-making by failing to provide notice and an opportunity for comment prior to its approval of Virginia's § 303(d) submissions, its approval of Virginia's TMDLs and TMDTLs (if EPA argues that it in fact approved TMDLs and TMDTLs for Virginia), and its approval of Virginia's CPP (were such approval alleged by EPA) (Count X);¹⁷

(11) that by failing to consult with the Secretaries of Commerce and Interior before reviewing, approving, or promulgating WQLSs, TMDLs, or TMDTLs for Virginia and before reviewing or approving a CPP for Virginia, EPA failed to comply with the requirements of the ESA (Count XI);¹⁸ and,

(12) that EPA's failure to comply with ESA requirements before reviewing, approving, or promulgating WQLSs, TMDLs, or TMDTLs for Virginia and before reviewing or approving a CPP for Virginia violated the APA (Count XII).¹⁹

Each of these counts corresponds to one or another feature of the comprehensive process established by the CWA and ESA for the purpose of ensuring that water quality standards are met and protected species preserved.²⁰ Plaintiffs sought a declaration that EPA had failed (i) to identify Virginia's most heavily polluted waters, (ii) to restore the physical, biological, and chemical integrity of those waters, in violation of the CWA, and (iii) to consult with the Secretary of the Interior or the Secretary of Commerce to ensure that EPA approval of various actions taken by Virginia pursuant to the CWA did not jeopardize any endangered or threatened species, in violation of the ESA. See American Canoe I, 30 F.Supp.2d at 911-12. And, plaintiffs sought injunctive relief to compel EPA to perform all of its CWA and ESA duties. See id.

Pursuant to EPA's threshold dismissal motion under Rules 12(b)(6) and 12(b)(1), Fed.R.Civ.P., significant portions of plaintiffs' complaint were dismissed. See American Canoe I, 30 F.Supp.2d at 927. Specifically, six counts — Counts I, V, VII, VIII, IX, and XII — were dismissed in their entirety.²¹ Moreover, Counts VI and X were dismissed in part.²² Accordingly, only the following claims survived dismissal: (1) Count II, which alleged that EPA violated CWA § 303(d)(2) by approving Virginia's allegedly inadequate 1996 WQLS submission; (2) Count III, which alleged that EPA abused its discretion, in violation of APA § 706(2)(A) and (C) and § 706(1), by approving Virginia's allegedly inadequate 1996 WQLS submission;²³ (3) Count IV, which alleged that EPA violated the CWA by failing to establish TMDLs and TMDTLs for Virginia's waters; (4) the portion of Count VI that alleged that EPA violated the CWA by never approving or disapproving a CPP for Virginia; (5) the portion of Count X relating to any alleged EPA approval of TMDLs or TMDTLs for Virginia and relating to whether EPA provided notice and an opportunity for comment prior to its approval of Virginia's 1996 § 303(d) submissions; and (6) Count XI, which alleged that EPA failed to comply with the ESA before reviewing, approving, or promulgating WQLSs, TMDLs, or TMDTLs for Virginia and before approving or reviewing a CPP for Virginia.

In June 1999, while cross-motions for summary judgment were pending, the parties settled this dispute. In essence, plaintiffs and EPA submitted a Settlement Agreement and a Consent Decree specifying a comprehensive eleven-year schedule for the establishment of TMDLs for several hundred enumerated waters in Virginia that, following a hearing, won court approval. See American Canoe Ass'n, Inc. v. EPA, 54 F.Supp.2d 621, 623 (E.D.Va. 1999) ("American Canoe III"). Under the terms of this settlement, EPA agreed, inter alia, to: (i) take specified steps in the development and establishment of Virginia's next § 303(d) list;²⁴ (ii) take certain steps within established deadlines for the development and establishment of TMDLs for all pollutants for which each WQLS is identified;²⁵ (iii) review, publish, and take appropriate action with regard to Virginia's CPP;²⁶ (iv) comply with the requirements of the ESA in taking any future action;²⁷ (v) evaluate and recommend improvements to Virginia's monitoring program; and (vi) comply with specified reporting requirements.

Pursuant to the settlement, EPA also agreed that plaintiffs were "entitled to reasonable fees and costs." American Canoe Ass'n Inc. v. EPA, No. 98-979-A (E.D.Va. June 11, 1999) (Consent Decree). Plaintiffs accordingly filed an initial fee petition seeking (i) $495,348.00 in attorneys' fees for 2,272.33 hours worked in prosecuting all of their claims in the underlying litigation; (ii) an additional $33,731.00 in attorneys' fees for 177.80 hours spent preparing the fee petition; and (iii) $11,565.49 in costs, totaling $540,644.49. Thereafter, however, plaintiffs modified their fee petition on at least three occasions. Thus, their request for attorneys' fees for the underlying litigation (excluding costs) ranged from $495,348.00 in their original fee petition, to $454,640.10 in their Reply Brief,²⁸ to $453,696.10 in their "Corrected Reply Brief."²⁹ Indeed, it remains unclear precisely what plaintiffs' final fee figure is, as their calculations — even within the same document — have been inconsistent.³⁰ It appears, however, that, in the end, plaintiffs seek fees and costs totaling $498,992.59: (i) $453,696.10 in attorneys' fees for 2,268.63³¹ hours worked in prosecuting all of their claims, as reported in their Corrected Reply Brief; (ii) an additional $33,731.00 in attorneys' fees for 177.90 hours spent preparing the fee petition, as reported in their original petition and in their Corrected Reply Brief; and (iii) $11,565.49 in costs, as reported in their original petition.

II.

Analysis of plaintiffs' fee petition must begin with the acknowledgment that the fee-shifting provisions of the CWA and ESA provide that "[t]he court, in issuing any final order in any action brought pursuant to [the applicable CWA or ESA section], may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate." 33 U.S.C. § 1365(d); accord 16 U.S.C. §...