Conservation Law Found., Inc. v. Pease Dev. Auth.
| Decision Date | 26 September 2017 |
| Docket Number | Case No. 16-cv-493-SM |
| Citation | 2017 DNH 202 |
| Parties | Conservation Law Foundation, Inc., Plaintiff v. Pease Development Authority; David R. Mullen; George M. Bald; Peter J. Loughlin; Robert A. Allard; Margaret F. Lamson; John Bohenko; Franklin Torr; and Robert Preston, Defendants |
| Court | U.S. District Court — District of New Hampshire |
Plaintiff Conservation Law Foundation, Inc. ("CLF") brings suit under the Clean Water Act against the Pease Development Authority ("PDA"), PDA's Executive Director, David R. Mullen, its Chairman, George M. Bald, Vice Chairman, Peter J. Loughlin, and Board members, Robert A. Allard, Margaret F. Lamson, John Bohenko, Franklin Torr, and Robert Preston (collectively, "the individual defendants").
CLF alleges that the PDA is discharging pollutants into waters of the United States without the proper permit. It brings this action under the citizen suit provision of the Clean Water Act, which allows private suits against any person alleged to be in violation of an "effluent standard or limitation." 33 U.S.C. § 1365(a)(1)(A). Defendants have moved to dismiss the case under Federal R. Civ. P. 12(b)(1) and 12(b)(6). The motion is granted in part, and denied in part.
When ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must "accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader." SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), it must allege each of the essential elements of a viable cause of action and "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal punctuation omitted).
In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, the facts alleged in the complaint must, if credited as true, be sufficient to "nudge[] [plaintiff's] claims across the line from conceivable to plausible." Id. at 570. If, however, the "factual allegationsin the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal." Tambone, 597 F.3d at 442.
When considering a motion to dismiss under Rule 12(b)(1), the Court should apply a standard of review "similar to that accorded a dismissal for failure to state a claim" under Rule 12(b)(6). Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995)). However, "[w]hen considering a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), a court may need to consider extrinsic materials submitted by a plaintiff even when reviewing a facial challenge to jurisdiction." Pitroff v. United States, No. 16-CV-522-PB, 2017 WL 3614436, at *3 (D.N.H. Aug. 22, 2017) (citing Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 37 (1st Cir. 2000)). "In contrast, the court ordinarily should confine its review to the complaint and a limited subset of documents such as those incorporated in the complaint by reference and matters of public record when determining whether the complaint states a claim for relief." Id. (citing Trans-Spec Truck Serv. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008)).
Accepting the allegations in the amended complaint as true, the relevant facts appear to be as follows.
The parties dispute whether the Pease Development Authority is required to secure a small municipal separate storm sewer system permit under the Clean Water Act, also known as a "small MS4 permit." The Clean Water Act prohibits the discharge of any pollutant by any person from any point source1 to the waters of the United States except where expressly authorized under valid National Pollutant Discharge Elimination System ("NPDES") permits issued by the EPA, or by an EPA-delegated State permitting authority. See Clean Water Act §§ 502(12)(A) and 502(7). In New Hampshire, the NPDES program is administered by the EPA.
The Conservation Law Foundation is a non-profit, member-supported environmental advocacy organization, with approximately 3,350 members, 450 of whom live in New Hampshire. The CLF works to protect the health of New England's waterresources, and, more specifically, has worked for more than a decade to protect Great Bay, Little Bay, the Piscataqua River and other waters that collectively comprise the Great Bay estuary from pollution associated with growth and development, including stormwater pollution. In 2012, the CLF established the Great Bay-Piscataqua Waterkeeper, a program that is dedicated to restoring and protecting the health of the water bodies that make up the Great Bay estuary.
Defendant Pease Development Authority owns and operates the Pease International Tradeport and Airport, which is a 3,000-acre property with 40 percent of its land in the City of Portsmouth, and 60 percent of its land in the Town of Newington ("Pease International"). The property was previously owned by the federal government, operating as Pease Air Force Base, which closed in 1991. In April of 1989, the New Hampshire Legislature established the Pease Redevelopment Commission to plan for the closure and redevelopment of the Base. The Commission's work led to the creation of the Pease Development Authority on June 1, 1990, by the New Hampshire Legislature, as a "body politic and corporate of the state," "deemed to be a public instrumentality." Compl. ¶ 15 (quoting NH RSA § 12-G:3, I).2 In1992 and 1997, the United States Air Force transferred its interest in the Pease Air Force Base to the PDA.
The Authority is governed by a board consisting of seven members, who are charged with appointing an Executive Director. See NH RSA 12-G:4. Four members of the Board are appointed by the Governor and legislative leaders. Id. Three members are appointed by the City of Portsmouth and the Town of Newington. Id. The Chairman of the Board is appointed by and serves at the pleasure of New Hampshire's Governor. Id.
Stormwater runoff contains a wide variety of pollutants. It is a major cause of water quality impairment in rivers, lakes, estuaries and coastal areas in New Hampshire and across the United States. Stormwater runoff impacts water quality because it contributes significant amounts of pollution to receiving waters, changes natural hydrologic patterns, accelerates stream flows, destroys aquatic habitat, and elevates pollutant concentrations and loading. Stormwater runoff is a particularly significant source of water pollution in New Hampshire, causing or contributing to 83 percent of water quality impairments documented by the New Hampshire Departmentof Environmental Services. And, in the Great Bay estuary, stormwater accounts for the delivery of a substantial amount of nitrogen (the pollutant of greatest concern to the estuary's health). The New Hampshire Department of Environmental Services and the EPA have identified the reduction of nitrogen and other pollutants as a top priority for the Great Bay estuary.
CLF's complaint asserts that "PDA is an agency of the State of New Hampshire with jurisdiction over disposal of sewage, industrial wastes, stormwater or other wastes." Compl. ¶ 53. So, says CLF, it is PDA's responsibility to manage stormwater at Pease International in compliance with the Clean Water Act.
Pease International generates stormwater runoff from its streets, roofs, municipal buildings and infrastructure, and parking lots, which contain a variety of pollutants. The EPA, which compiles Waterbody Quality Assessment Reports, has determined that water quality is being impaired in a number of the waters into which Pease International directly or indirectly discharges stormwater.
On August 8, 2000, the EPA issued an NPDES permit to PDA that authorizes the discharge of wastewater and industrial stormwater to five different outfalls: the Piscataqua River, Hodgkins Brook, Flagstone Creek, McIntyre Brook, and Harvey'sCreek (hereafter, the "Industrial Permit"). That permit, which had a term of five years, became effective on September 7, 2000, and expired on September 7, 2005. Since its expiration in 2005, the Industrial Permit has been administratively continued, and is still in effect.
But, according to the CLF, the Authority's Industrial Permit alone is no longer sufficient to maintain PDA's compliant status. Instead, asserts CLF, PDA was also required to obtain a small municipal separate storm sewer system permit. Pursuant to Section 402(p)(6) of the Clean Water Act, operators of small municipal separate storm sewer3 systems4 are required to obtainNPDES permit coverage for their stormwater discharges. In May 2003, the EPA issued a General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems applicable to small municipal separate storm sewer systems in New Hampshire (the "2003 MS4 Permit"). The 2003 MS4 Permit expired on May 1, 2008, but remains in effect until the EPA issues a new permit.5 The 2003 MS4 Permit imposes certain requirements on small municipal separate storm sewer system operators to, inter alia, develop implement and enforce a stormwater management plan that details practices that will be implemented by the operator to reduce the discharge of pollutants from the storm sewer systems to the maximum extent practicable. According to CLF, PDA's existing Industrial Permit fails to impose those requirements.
CLF alleges that PDA owns and operates a small municipal separate storm sewer system at Pease International. More specifically, CLF alleges that Pease...
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