American Wildlands v. Browner, CIV.A. 98-K-1621.
| Decision Date | 28 April 2000 |
| Docket Number | No. CIV.A. 98-K-1621.,CIV.A. 98-K-1621. |
| Citation | 94 F.Supp.2d 1150 |
| Parties | AMERICAN WILDLANDS, Pacific Rivers Council, Montana Environmental Information Center, and Northern Plains Resource Council, Inc., Plaintiffs, v. Carol BROWNER, in her official capacity as the Administrator of the U.S. Environmental Protection Agency, Bill Yellowtail, in his official capacity as the Regional Administrator of the U.S. Environmental Protection Agency, Region VIII; and U.S. Environmental Protection Agency, an agency of the United States Government, Defendants, Western Environmental Trade Association, on behalf of its members; State of Montana, Department of Environmental Quality, Intervenor-Defendants. |
| Court | U.S. District Court — District of Colorado |
Robert Baxter Wiygul, Earthjustice Legal Defense Fund, Inc., Denver, Douglas L. Honnold, James S. Angell, Earthjustice Legal Defense Fund, Bozeman, MT, Stephen D. Mashuda, Kristen L. Boyles, Earthjustice Legal Defense Fund, Seattle, WA, for plaintiffs.
David A. Carson, U.S. Department of Justice, Environment & Natural Resources Division, Denver, for defendants.
James B. Lippert, Rebecca Wunder Thomson, Gough, Shanahan, Johnson & Waterman, John Eric Bloomquist, Doney, Crowley & Bloomquist, PC, Claudia Leah Massman, Montana Dept. of Environmental Quality, Helena, MT, for Western Environmental Trade Association, intervenor-defendant.
Plaintiffs, American Wildlands, Pacific Rivers Council, Montana Environmental Information Center, and Northern Plains Resource Council (collectively "American Wildlands") filed this action for declaratory and injunctive relief against Defendants, Carol Browner, in her official capacity as the Administrator of the U.S. Environmental Protection Agency; Bill Yellowtail, in his official capacity as the Regional Administrator of the U.S. Environmental Protection Agency; Region VIII; and the U.S. Environmental Protection Agency, an agency of the United States (collectively "EPA"). Additionally, there are two intervening parties on behalf of Defendants, State of Montana Department of Environmental Quality and Western Environmental Trade Association.
American Wildlands challenges EPA's failure to review and approve or disapprove Montana's new and revised water quality standards, its approval of several Montana water quality standards, and its failure to promulgate standards that meet the requirements of the Clean Water Act, 33 U.S.C. § 1251 et seq. ("CWA"). They assert these failures violate the CWA and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. ("APA").
American Wildlands raises five issues: (1) Whether EPA's approval of Montana's water quality standards exempting nonpoint source pollution from the state's anti-degradation rules is arbitrary, capricious, an abuse of discretion, or in violation of the CWA; (2) whether EPA's approval of Montana's water quality standards exempting mixing zones from compliance with narrative water quality criteria and the State's antidegradation rules is arbitrary, capricious, an abuse of discretion or in violation of § 303(c)(3)-(4) of the CWA, 33 U.S.C. § 1313(c)(2)(A) and the APA; (3) whether EPA has violated, and continues to violate 33 U.S.C. § 1313(c)(3)-(4), and 40 C.F.R. § 131.22(a)(1999), by failing promptly to promulgate replacement standards for those water quality standards that it disapproved on December 24, 1998 and January 26, 1999; (4) whether EPA's failure to review and approve or disapprove Montana's definition of an "interested person" is arbitrary, capricious, an abuse of discretion in violation of 33 U.S.C. § 1313(c)(3), 40 C.F.R. § 131.21, and the APA; and (5) whether EPA's incorporation and use of Montana's numerous new and revised water quality standards without EPA's prior approval and EPA's continued incorporation and use of water quality standards that were disapproved by EPA on December 24, 1998 and January 26, 1999 is arbitrary, capricious, an abuse of discretion in violation of § 303(c)(3) of the CWA, 33 U.S.C. § 1313 and the APA.
Jurisdiction exists under 33 U.S.C. § 1365(a)(2). "The district court shall have jurisdiction ... to enforce such an effluent standard or limitation, or such an order, or to order the administrator to perform such act or duty." 33 U.S.C. § 1365(a)(2). "Where questions of due process and sufficiency of the evidence are raised on appeal from an agency's final decision, the district court must review the agency's decision making process and conduct a plenary review of the facts underlying the challenged action." Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1565 (10th Cir.1994).
Congress passed the CWA in an effort to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In furtherance of these goals, § 1251(a)(7) states, "it is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this chapter to be met through the control of both point and nonpoint sources of pollution." 33 U.S.C. § 1251(a)(7). In short, Congress prohibited the discharge from a point source of any pollutant into waters of the United States unless that discharge complied with specific requirements of the CWA. 33 U.S.C. § 1311(a). Compliance with these requirements may be achieved by obtaining and abiding by the terms of a National Pollutant Discharge Elimination System ("NPDES") permit issued pursuant to § 402 of the CWA. 33 U.S.C. § 1342.
When a state revises or adopts a new standard for water, such standards must be submitted to the Administrator of the EPA ("Administrator"), and shall be established taking into account their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, navigation, and other purposes. 33 U.S.C § 1313(c)(2)(A). The Administrator shall, within sixty days of submission, determine whether the standard offered meets the requirements of the CWA, in which case they become the water standard for the applicable waters of the state. 33 U.S.C. § 1313(c)(3). If the Administrator determines the standards do not meet CWA requirements, he shall notify the state within ninety days from the date of submission and specify the changes to meet such requirements. Id.
Water quality standards under the CWA are analyzed within three different areas. The first area is "designated uses of the water" such as public water supply or recreation. 33 U.S.C. § 1313(c)(2)(A). The second area is "criteria for all toxic pollutants" which articulates the amounts of various pollutants that may be present in the water without interfering with the designated uses. 33 U.S.C. § 1313(c)(2)(B). Such criteria shall be articulated either in the form of numeric concentration limits for specific pollutants or in a narrative form. 40 C.F.R. § 131.11(b) (1999). The final area is the antidegradation policy, which requires the state to adopt policies in this area. 33 U.S.C. § 1313(d)(4)(B). Under the CWA, states are expected to hold hearings at least once every three years to review applicable water quality standards and modify such standards if appropriate. 33 U.S.C. § 1313(c).1
From 1989 to 1998, Montana implemented a number of revisions to different components of its water quality standards. On March 5, 1998, pursuant to the CWA provisions regarding notice of "citizen suits" 33 U.S.C. § 1365(b)(2), American Wildlands, Pacific Rivers Council, and Montana Environmental Information Center filed a sixty days notice of violation by the EPA under the CWA for its alleged failure to perform the mandatory duty to review and approve or disapprove Montana's water quality standards. (Administrative Record Document (A.R.Doc.) 36.)2 American Wildlands asserted the EPA had failed since 1994 to approve or disapprove Montana's revised water quality standards as required by the CWA. On September 24, 1998, Northern Plains Resource Council followed suit filing similar notice of violation against the EPA. (A.R.Doc. 44.)
In early December, 1998, American Wildlands wrote a letter to the EPA pointing out alleged legal and factual shortcomings of letters sent by Montana to the EPA regarding clarification which the EPA sought about certain aspects of Montana's water quality standards. (A.R. Doc 48.) The gist of this letter was to urge the EPA to disapprove the standards of water quality submitted by Montana. Shortly thereafter, American Wildlands sent a follow up letter detailing further concerns over the water quality standards submitted (A.R.Doc. 49.)
On July 27, 1998, American Wildlands filed the instant action alleging EPA violated the CWA and the APA by (1) failing to approve or disapprove Montana's new and revised water quality standards since 1989 and (2) failing promptly to prepare and promulgate proposed standards for those state standards that failed to meet the requirements of CWA. (R. Doc. 1.) On October 16, 1998, Western Environmental Trade Association moved to intervene as a Defendant. (R. Doc. 8.) On October 28, 1998, American Wildlands moved for Summary Judgment. (R. Doc. 20.) On October 19, 1998, the State of Montana moved to intervene on the side of EPA. On November 4, 1998, I granted Western Environmental Trade Association's Motion to Intervene. (R. Doc. 27.) After denying Montana's first motion to intervene for failure to comply with this court's local rules, I granted its second motion to intervene, filed on November 9, 1998. (R. Doc. 32.) On February 26, 1999, American Wildlands' Motion for Summary Judgment was denied without prejudice. (R. Doc. 42.)
In December, 1998 and January, 1999, the EPA acted to approve and disapprove certain of Montana's revised water standards, ...
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