City of Dover v. U.S. Envtl. Prot. Agency, Civil Action No. 12–1994(JDB).

• Decision Date: 30 July 2013
• Docket Number: Civil Action No. 12–1994(JDB).
• Citation: 956 F.Supp.2d 272
• Court: U.S. District Court — District of Columbia
• Parties: CITY OF DOVER, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

956 F.Supp.2d 272

CITY OF DOVER, et al., Plaintiffs,

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

Civil Action No. 12–1994(JDB).

United States District Court,

District of Columbia.

July 30, 2013.

John C. Hall, Hall & Associates, Washington, DC, Robert Lucic, Sheehan, Phinney, Bass & Green, P.A., Manchester, NH, for Plaintiffs.

Eileen T. McDonough, U.S. DOJ–Environmental Defense Section, Washington, DC, for Defendants.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Plaintiffs, three New Hampshire cities, filed this action pursuant to the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365(a)(2). They allege that the Environmental Protection Agency (“EPA”) failed to perform its nondiscretionary duties under the Act by not reviewing a document published by the New Hampshire Department of Environmental Services that proposed certain nutrient levels for the Great Bay Estuary, a tidal estuary located in eastern New Hampshire. The EPA has moved to dismiss the complaint, arguing that the Court has no jurisdiction because plaintiffs lack standing and that the complaint fails to state a claim because EPA did not violate any nondiscretionary duty. For the reasons explained below, the Court finds that it has jurisdiction, but agrees with EPA that plaintiffs have failed to state a claim under Federal Rule of Civil Procedure 12(b)(6).

BACKGROUND

The Clean Water Act seeks “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). Under the Act, discharge of pollutants from certain sources, such as factory pipes, into U.S. waters is “normally permissible only if made pursuant to the terms of a National Pollution Discharge Elimination System (‘NPDES') permit.” Am. Paper Inst., Inc. v. EPA, 996 F.2d 346, 349 (D.C.Cir.1993); see also33 U.S.C. §§ 1311(a), 1342. EPA is responsible for the NPDES permits for New Hampshire waters. See33 U.S.C. § 1342(a), (b); see also Mot. to Dismiss [Docket Entry 8–1] at 6 & n. 3 (Feb. 21, 2013). A permit must contain limitations necessary for the waterway receiving the pollutant to meet “water quality standards.” 33 U.S.C. § 1311(b)(1)(C); see also40 C.F.R. § 122.44(d)(1)(i).

Each State must also develop a list of waters not meeting applicable water quality standards, referred to as the “impaired waters” list, and the listed waters become subject to additional permit limitations. See33 U.S.C. § 1313(d). States submit this list, which contains a priority ranking of the impaired waters, to the EPA for review and approval every two years. 40 C.F.R. § 130.7(d). In preparing the lists, States must “evaluate all existing and readily available water quality-related data and information.” 40 C.F.R. § 130.7(b)(5).

While striving to improve water quality, the Act “recognize[s], preserve[s], and protect[s] the primary responsibilities and rights of States” in reducing pollution and protecting their water resources. 33 U.S.C. § 1251(b). Consistently with this aim, water quality standards “are primarily the states' handiwork.” Am. Paper Inst., 996 F.2d at 349. States must promulgate water quality standards and review existing standards every three years, holding public hearings to examine the governing water quality standards and assure that they “protect the public health or welfare, enhance the quality of water and serve the purposes” of the Act. 33 U.S.C. § 1313(c)(2)(A). Whenever a State adopts a new or revised water quality standard, it must submit the standard to EPA for review. Id. EPA then has sixty days to review and approve the new or revised standard, and ninety days to disapprove the standard and notify the state of changes needed to satisfy the Act. 33 U.S.C. § 1313(c)(3); 40 C.F.R. § 131.21(a). If EPA disapproves a State's new or revised standard and the State fails to adopt required changes in a prescribed time, EPA must propose and promulgate Federal water quality standards to be effective within that State. 33 U.S.C. § 1313(c)(4).

Water quality standards “consist of a designated use or uses for the waters of the United States and water quality criteria for such waters based upon such uses.” 40 C.F.R. § 131.3(i). The water quality criteria can be “expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports a particular use.” 40 C.F.R. § 131.3(b). Narrative criteria describe the desired levels qualitatively, without specifying particular pollutant concentrations. New Hampshire has a water quality standard with narrative nutrient criteria, which provides, for instance, that “Class B waters shall contain no phosphorus or nitrogen in such concentrations that would impair any existing or designated uses, unless naturally occurring.” N.H. Code Admin. R. Ann. Env–Wq § 1703.14(b) (emphasis added).

Taking as true the allegations in the complaint, as the Court must at this stage, see Oberwetter v. Hilliard, 639 F.3d 545, 549 (D.C.Cir.2011), the following facts form the basis for this action. Seeking to develop numeric water quality criteria for nutrients in the Great Bay Estuary, the New Hampshire Department of Environmental Services (“DES”)—the New Hampshire agency charged with protecting its environment—conducted a site-specific water quality analysis. Working closely with the EPA, see Compl. [Docket Entry 1] ¶ 42 (Dec. 13, 2012), DES released a draft report summarizing the study for public comment, and received 135 comments, including by the plaintiffs in this case. See Ex. 1 to Compl. [Docket Entry 1–1] at 74 (Dec. 13, 2012) (“2009 Document”). Then, in June 2009, it published the analysis, including responses to comments. See id. The 2009 Document described itself as a “report,” which “contain[ed] proposals for numeric nutrient criteria for different designated uses in the Great Bay Estuary.” Id. at 2. The Document further stated that its “numeric criteria will first be used as interpretations of the water quality standards narrative criteria.... Later, DES will promulgate these values as water quality criteria in [New Hampshire Code of Administrative Rules, Chapter] Env–Wq 1700.” Id. at 1.

DES subsequently decided not to promulgate the values in the 2009 Document as regulations in the New Hampshire Code of Administrative Rules, but it has continued to use the Document as a guide for interpreting the Code's narrative criteria. See Compl. ¶¶ 53–56, 66; see also 2009 Document at B–1. The Cities allege (and the Court takes as true for purposes of this motion) that EPA suggested that DES defer formal adoption of the Document to avoid the regulatory requirements for revising a water quality standard. See Compl. ¶ 55. EPA has directed DES to consider the 2009 Document in creating impaired water lists, and has relied on the Document in approving New Hampshire's expanded impaired waters list. Id. at ¶¶ 58–61. And EPA has used the nutrient levels proposed in the 2009 Document in its permitting decisions for the Great Bay watershed, issuing more restrictive permits as a result. Id. at ¶¶ 62–64.

In 2010, DES initiated a technical peer review of the 2009 Document's proposals and received a technical assessment from EPA's Nutrient Scientific Technical Exchange Partnership and Support, which found the numeric criteria clearly explained and well supported. See 2009 Document at C–1. In its review letter, EPA explained that its purpose “was to support the state by providing advice from national experts on how to improve the technical and scientific soundness of the document as a basis for future development of numeric nutrient water quality criteria.” Id. at C–2. Plaintiffs requested that the public be permitted to participate in the peer review, but the request was rejected by the EPA. See Compl. ¶ 68.

STANDARD OF REVIEW

“[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Therefore, the factual allegations must be presumed true, and plaintiffs must be given every favorable inference that may be drawn from the allegations of fact. See Scheuer, 416 U.S. at 236, 94 S.Ct. 1683;Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000). However, the Court need not accept as true “a legal conclusion couched as a factual allegation,” nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Federal Trade Comm'n, 456 F.3d 178, 193 (D.C.Cir.2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)).

Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court—plaintiffs here—bears the burden of establishing that the Court has jurisdiction. See U.S. Ecology, Inc. v. U.S. Dep't of the Interior, 231 F.3d 20, 24 (D.C.Cir.2000); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001) (a court has an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority”). “ ‘[P]laintiff's factual allegations in the complaint ... will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge, 185 F.Supp.2d at 13–14 (omission in original) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed.1987)). Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.20...