Conservation Law Found., Inc. v. Longwood Venues & Destinations, Inc.

Decision Date26 November 2019
Docket NumberCIVIL ACTION NO. 18-11821-WGY
Citation422 F.Supp.3d 435
Parties CONSERVATION LAW FOUNDATION, INC., Plaintiff, v. LONGWOOD VENUES & DESTINATIONS, INC. ; Wychmere Harbor Real Estate, LLC; Wychmere Beach Club ; Wychmere Holdings Corp.; Atlas Investment Group, LLC; Wychmere Shores Condominium Trust; Harbor Club Management, LLC ; Beach Club Management, LLC; Jeffrey M. Feuerman; Barry J. Goldy; and Joseph F. McKenney, Defendants.
CourtU.S. District Court — District of Massachusetts

Christopher M. Kilian, Pro Hac Vice, Zachary K. Griefen, Conservation Law Foundation, Inc., Montpelier, VT, Heather A. Govern, Ian D. Coghill, Conservation Law Foundation, Boston, MA, for Plaintiff.

Andrew Nathanson, Emily Kanstroom Musgrave, Jeffrey R. Porter, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC, Boston, MA, for Defendants.

MEMORANDUM & ORDER

YOUNG, D.J.

I. INTRODUCTION

The question in this case is whether the Clean Water Act ("CWA") regulates discharges of pollutants into groundwater that then flows into navigable waters.1 According to the plaintiff, the CWA commands the Environmental Protection Agency ("EPA") to roam the land and police all pollution of our nation's waters which EPA can trace to a discrete source. The EPA is akin to a detective who must follow the evidence wherever it leads in order to find the culprit. The defendants' account of the CWA is quite different. They see the EPA not as a detective but much like the tollbooth ranger at our national parks, here stationed at the water's edge of our nation's navigable waters with orders to demand a permit before letting any chemical-spewing pipe through the perimeter. Point-source pollutants that do not overtly breach the perimeter are not EPA's concern, even when the pollutants seep into the river or ocean along with the water that trickles underground.

As these introductory metaphors suggest, the dispute in this case goes deeper than groundwater. At bottom, the parties present the Court with two competing visions of the Clean Water Act. Where one side sees sweeping federal authority, the other perceives state initiatives supported by an elaborate federal infrastructure. Does the CWA unleash a roving federal detective or, on the contrary, appoint a tollbooth ranger who largely stays put? The two accounts differ sharply as to whether the statute's center of gravity lies with the federal government or with the states.

The Court rejects each of these accounts, not because they are wrong but because they are both right. As this Court reads the CWA, the statute is shot through with irreconcilable ambiguity. The CWA confers a breathtaking mandate on the EPA to defend the waters of the United States from identifiable contaminators, yet it also takes pains to leave groundwater regulation to the states. Either of these policy choices, extended to its logical endpoint, would defang the other. Exactly how Congress wished to strike the federal-state balance here is mysterious. The congressional instructions on regulating groundwater discharges are simply garbled.

Since the CWA is ambiguous on the precise question before the Court, it is for the administering agency to supply a reasonable construction. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ; see United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) (applying Chevron to the CWA). This the EPA has done.

In the middle of this litigation, the EPA (after notice and comment) published its first sustained analysis of the CWA's application to discharges into groundwater that is hydrologically connected to navigable waters. See Interpretive Statement on Application of the Clean Water Act National Pollutant Discharge Elimination System Program to Releases of Pollutants from a Point Source to Groundwater (the "Interpretive Statement"), 84 Fed. Reg. 16,810 (Apr. 23, 2019) (to be codified at 40 C.F.R. pt. 122). The EPA concluded that the statute does not regulate such discharges. Id. at 16,814.

The EPA's interpretation is a significant legal development. Many courts have addressed the question of CWA jurisdiction over groundwater discharges by virtue of a hydrological connection to navigable waters -- or "the so-called ‘hydrological connection theory,’ " Kentucky Waterways All. v. Kentucky Utils. Co., 905 F.3d 925, 932 (6th Cir. 2018) -- and the Supreme Court is set to decide the issue this Term. County of Maui v. Hawaii Wildlife Fund, ––– U.S. ––––, 139 S. Ct. 1164, 203 L.Ed.2d 196 (2019) (mem.). Yet this Court is unaware of any judicial decision on the matter in the time since EPA published its recent view. The question put to this Court is thus both old and new.

As fully explained below, the Court rules that EPA's interpretation is a permissible construction of the CWA. The Court affords Chevron deference to EPA's interpretation and holds that discharges into groundwater are categorically excluded from the CWA's regulatory regime, irrespective of any hydrological connection to navigable waters.

A. Factual Background

On the southern shore of Cape Cod, where a skinny channel links an estuary known as Wychmere Harbor to the ocean at Nantucket Sound, sits the Wychmere Beach Club. Defs.' Agreed-Upon Resp. Pl.'s Statement Undisputed Material Facts L.R. 56.1 Supp. Pl.'s Mot. Summ. J. ("Agreed-Upon Facts") ¶¶ 1-2, ECF No. 94; Statement Undisputed Material Facts L.R. 56.1 Supp. Defs.' Mot. Summ. J. ("Defs.' Facts") ¶¶ 1-3, ECF No. 78. The Wychmere Beach Club, located at 23 Snow Inn Road in Harwich Port, Massachusetts, is owned or operated by the defendants in this case (collectively, "the Beach Club"). Id. The club is a seasonal resort complex that includes "condominiums, seasonal employee housing, and the Wychmere Beach Club Hotel," along with "an event venue, and recreational and other facilities." Id. ¶ 1.

Sewage from this complex is treated at the Wychmere wastewater treatment facility ("the Facility") located on the property, which has a design capacity of 40,000 gallons per day. Id. ¶¶ 2, 5. The sewage is placed in large tanks for denitrification and removal of solids, moved to a 36,000 gallon equalization tank, then sent to the rotating biological contractors, passed through the secondary clarifiers and tertiary filters, and from there deposited in twenty-two "concrete leaching pits surrounded by crushed stone well four inches above the highest groundwater elevation." Agreed-Upon Facts ¶ 38. The purpose of these leach pits is to convey the treated sewage from the Facility into the ground. Id. ¶ 43.

The Facility's twenty-two leach pits are cylindrical tubes of perforated concrete, twelve feet long and eight feet in diameter, extending down into the ground from a foot below the surface. Id. ¶¶ 44-51. Below the pits is a layer of gravel, and they are enveloped by crushed rock. Id. ¶¶ 50-51. The treated wastewater seeps, or "leaches," out of these twenty-two perforated concrete pits into the surrounding crushed rock, sand, and soil, and then further percolates into the groundwater table below. Id. ¶¶ 50-55. The leach pits sit very close -- between a hundred and five hundred feet -- to Wychmere Harbor and the channel that joins it to the ocean; the groundwater below the leach pits flows east or southeast toward the harbor and channel. Id. ¶¶ 56-57. The wastewater in the pits contains nitrogen, which then meanders through the groundwater into the harbor or channel -- a journey that lasts between 45 and 223 days, depending on the pathway. Id. ¶¶ 58-59. About twenty percent of the nitrogen in the wastewater dissipates between the pits and the groundwater, perhaps, but all the rest of it finds its way into Wychmere Harbor. Id. ¶¶ 63-66.

The Facility does not have a federal discharge permit, Defs.' Facts ¶ 8, but the Massachusetts Department of Environmental Protection ("MassDEP") has issued the Facility an Individual Groundwater Discharge Permit, which limits the Facility's concentration of Total Nitrogen in its effluent to ten milligrams per liter (10 mg/L), id. ¶¶ 4-7. Since opening in 1988, the Facility has had continuous problems meeting its state permit limitations on nitrogen discharges. Decl. Heather A. Govern Supp. Pl. CLF's Mot. Summ. J., Ex. 12, Engineering Report for the Repairs to the Snow Inn Wastewater Treatment Plan (Feb. 10, 2015) 1, ECF No. 84-12. In 2014, MassDEP issued a Notice of Noncompliance and required the Facility to adhere to a return-to-compliance plan. Id. Nevertheless, the measurements reported to MassDEP by the Beach Club indicate that the Facility still regularly violates its nitrogen limits, with an average of 12.7 mg/L Total Nitrogen in 2018 and 14.46 mg/L in 2017. Agreed-Upon Facts ¶ 61; Decl. Emily Kanstroom Musgrave Supp. Defs.' Mot. Summ. J., Ex. 1, Expert Report of Remy J.-C. Hennet, Ph.D. 8, ECF No. 79-1.

In February 2016, MassDEP issued its Total Maximum Daily Loads ("TMDL") for Total Nitrogen in Wychmere Harbor and other nearby harbors. Decl. Heather A. Govern Supp. Pl. CLF's Mot. Summ. J., Ex. 1, FINAL: Allen, Wychmere and Saquatucket Harbors Embayment Systems: Total Maximum Daily Loads for Total Nitrogen ("Nitrogen TMDL"), ECF No. 84-1. The Nitrogen TMDL found excessive nitrogen in Wychmere Harbor and other Harwich waters, which "could result in in an overabundance of macro-algae, a higher frequency of extreme decreases in dissolved oxygen concentration and fish kills, widespread occurrence of unpleasant odors and visible scum, and a complete loss of benthic macroinvertebrates throughout most of the embayments." Id. at iii. MassDEP determined that the Facility is responsible for 2% of all nitrogen added to Wychmere Harbor (3% if you ask the Beach Club's expert), with the Facility adding 0.066 kilograms of nitrogen each day. Id. at 11, 19; Decl. John H. Guswa, Ph.D., Ex. A, Expert Report of John H. Guswa 14-15, ECF No. 80-1. Around 3.866 kilograms of nitrogen, or 8.52 pounds, are added...

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