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

Decision Date18 December 1998
Docket NumberNo. 98-979-A.,98-979-A.
Citation30 F.Supp.2d 908
CourtU.S. District Court — Eastern District of Virginia
PartiesAMERICAN CANOE ASSOCIATION, INC. and American Littoral Society, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

Dale R. Schmidt, Alexandria, VA, for Plaintiffs.

Sharon L. Parrish, Assistant U.S. Attorney, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

ELLIS, District Judge.

Plaintiffs in this suit assert that the Clean Water Act (CWA) and the Endangered Species Act (ESA), in conjunction with the Administrative Procedure Act (APA), impose various nondiscretionary and discretionary duties on the United States Environmental Protection Agency (EPA) and that EPA has failed to perform these duties. In its Rule 12(b)(6), Fed.R.Civ.P., threshold dismissal motion, EPA, joined by intervenor, Virginia Association of Municipal Wastewater Agencies (VAMWA), denies that such duties exist or, alternatively, claims that EPA has fulfilled all such duties and seeks to dismiss eleven of the twelve counts brought against it. For the reasons that follow, EPA's motion is granted in part and denied in part.

I.1

The American Canoe Society and the American Littoral Society (plaintiffs) are nonprofit organizations dedicated to the preservation and protection of waterways and their surrounding environments. Their membership includes individuals who fish Virginia's waters, hike and camp along Virginia's waterways, and otherwise make aesthetic and recreational use of the state's rivers, streams, and coastlines. Named as defendants are EPA, Carol Browner in her official capacity as United States EPA administrator, EPA Region III, and Michael McCabe in his official capacity as Region III EPA administrator (hereinafter collectively referred to as "EPA"). VAMWA, a membership association consisting of major municipal wastewater operators throughout Virginia, was granted leave to intervene as a defendant intervenor by Court order. American Canoe Soc'y v. United States Envtl. Protection Agency, C.A. 98-979-A (E.D.Va. Sept. 8, 1998).

Plaintiffs allege that their aesthetic and recreational interests in using Virginia's rivers, streams, and coastlines have been injured because EPA has failed to perform its duties under the CWA to identify Virginia's most heavily polluted waters and restore the chemical, physical, and biological integrity of those waters. They also allege that EPA's approval of various actions taken by Virginia pursuant to the CWA constitutes agency action under the ESA and, as a result, that EPA was required to consult with the Secretary of the Interior or the Secretary of Commerce to insure that such action did not jeopardize any endangered or threatened species. Plaintiffs allege this statutorily mandated consultation never occurred. Declaratory and injunctive relief is sought.

An overview of the Clean Water Act's purpose and scheme for achieving that purpose is essential to an understanding of the claims and defenses in this case. The purpose of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the nation's waters." 33 U.S.C. § 1251(a). The overall scheme for achieving this goal may be summarized as follows: First, the CWA provides that states must establish water quality standards for all their waters. 33 U.S.C. § 1313(a)-(c). Next, states must assess their waters to see which waters fail to meet these water quality standards. 33 U.S.C. § 1313(d)(1). Based upon this assessment, the CWA requires states to determine the maximum amount of pollutants each body of water can receive and still meet water quality standards. Id. These calculations are the basis for the imposition of controls on the sources of pollution. 33 U.S.C. § 1311(b)(1)(C). When states fail to perform their duties adequately, EPA is generally required to perform them on the states' behalf. 33 U.S.C. § 1313(b), (d)(2). The following sections detail the particular statutory requirements that plaintiffs allege EPA has failed to fulfill in carrying out this CWA-mandated process.

WQLS Submissions

Section 303(d)(1) of the CWA requires every state to identify those waters within its boundaries that do not meet, or are not expected to meet, their water quality standards even after the imposition of various enumerated controls and treatments. 33 U.S.C. § 1313(d)(1). These waters are known as "water quality limited segments" (WQLSs) and the submission from a state identifying these waters is known as a " § 303(d) submission." WQLSs must be ranked according to priority for treatment based on designated uses for the water and the severity of its impairment. 33 U.S.C. § 1313(d)(1)(A). According to regulations promulgated under § 303(d), a state's priority ranking must identify the pollutants causing, or expected to cause, violations of the water quality standards. 40 C.F.R. § 130.7. EPA regulations also require states to identify waters targeted for total maximum daily load (TMDL)2 development in the next two years and to provide various documentation in support of their decisions to include or not to include waters on their lists of WQLSs. Id.

WQLSs are the starting point for the CWA's pollution regulation process, and the statutory schedule for promulgating WQLSs is clear and precise. Thus, Virginia's (and other states') initial § 303(d) submission was due 180 days after EPA first identified the pollutants suitable for maximum daily load calculations. 33 U.S.C. § 1313(d)(2). EPA did not complete this task until December 28, 1978, and hence Virginia's § 303(d) deadline fell on June 26, 1979. By statute, subsequent state § 303(d) submissions were due "from time to time thereafter." Id. This phrase is defined in EPA regulations promulgated in 1992 to mean that all states' § 303(d) submissions are due April 1 of each even-numbered year. 40 C.F.R. § 130.7(d)(1). Once a state submits its § 303(d) list of WQLSs, the CWA requires EPA to approve or disapprove the list within 30 days. 33 U.S.C. § 1313(d)(2). If the list is disapproved, EPA must then identify and prioritize WQLSs for the state within 30 days of the disapproval. Id.

Virginia made a § 303(d) submission of WQLSs on November 27, 1996, several months after the April 1 deadline. Virginia's § 303(d) submission does not identify all the impaired waters within Virginia, even according to Virginia's own data. Also, by its own admission, Virginia has not monitored and assessed all waters within the state. In addition, its § 303(d) submission (i) failed to identify all pollutants causing impairment of its WQLSs, (ii) failed to identify and prioritize each individual WQLS, and (iii) failed to identify waters targeted for TMDL development in the next two years. Nevertheless, EPA approved Virginia's submission on March 14, 1997, more than 30 days after it was submitted.

Virginia submitted its 1998 § 303(d) list on October 14, 1998, which was partially approved and partially disapproved by EPA on November 16, 1998.

TMDL Submissions

In addition to requiring the identification of WQLSs, the CWA compels states to establish the total maximum daily load (TMDL) of pollutants that each WQLS can assimilate. 33 U.S.C. § 1313(d)(1)(C). A TMDL represents the highest level at which a pollutant may be "loaded" into a water body without violating water quality standards. Thus, TMDLs must 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" for all pollutants that prevent or are expected to prevent the attainment of water quality standards. Id.; see also 40 C.F.R. § 130.7(c)(1)(ii).

To address thermal pollution, the CWA requires each state to estimate the total maximum daily thermal load (TMDTL) required to "assure protection and propagation of a balanced, indigenous population of shellfish, fish and wildlife" in each thermally-impaired WQLS. 33 U.S.C. § 1313(d)(1)(D). To this end, the CWA sets out various considerations that must be taken into account in arriving at this estimation. Id.

The CWA schedule for TMDL and TMDTL submissions is essentially the same as that for WQLSs. As with the initial identification of WQLSs, Virginia was to have submitted initial TMDLs and TMDTLs to EPA by June 26, 1979, and thereafter from "time to time." 33 U.S.C. § 1313(d)(2). According to federal regulations, the deadlines for these subsequent submissions are to be determined by the EPA regional administrator and the state. 40 C.F.R. 130.7(d)(1). Also as with WQLSs, EPA must approve or disapprove a state's TMDL and TMDTL submission within 30 days, and in the event a TMDL or TMDTL is disapproved, EPA has 30 days from the date of disapproval to establish the TMDLs or estimate the TMDTLs for the state's WQLSs. 33 U.S.C. § 1313(d)(2). In the nearly twenty years that have elapsed since the 1979 deadline, Virginia has never submitted a TMDL or TMDTL for any of its waters, and EPA has never established any TMDL or TMDTL for any of Virginia's waters.

Continuing Planning Process Requirements

Section 303(d) of the CWA requires each state to have an EPA-approved continuing planning process (CPP) for meeting the CWA's requirements. 33 U.S.C. § 1313(e).3 States were required to submit their CPPs for EPA approval by February 17, 1973, and EPA was required to approve or disapprove these submissions within 30 days. 33 U.S.C. § 1313(e)(2). Thereafter, states were required to resubmit CPPs "regularly," 40 C.F.R. § 130.10(b)(1), and EPA was required to review states' CPPs from "time to time" to ensure that they remained consistent with the CWA's requirements, 33 U.S.C. § 1313(2). Plaintiffs allege Virginia did not file a CPP on or before February 17, 1973, and indeed, did not do so until 1987.4 EPA did not...

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