Conservation Law Found., Inc. v. U.S. Envtl. Prot. Agency

• Decision Date: 29 August 2013
• Docket Number: C.A. No. 10–11455–MLW.
• Parties: CONSERVATION LAW FOUNDATION, INC., et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Lisa P. Jackson, Administrator, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

964 F.Supp.2d 175

CONSERVATION LAW FOUNDATION, INC., et al., Plaintiffs,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Lisa P. Jackson, Administrator, et al., Defendants.

C.A. No. 10–11455–MLW.

United States District Court,

D. Massachusetts.

Aug. 29, 2013.

Anthony Nicholas Lappin Iarrapino, Christopher M. Kilian, Conservation Law Foundation, Inc., Montpelier, VT, Korrin N. Petersen, The Coalition for Buzzards Bay, New Bedford, MA, Mark A. Chertok, Sive, Paget & Riesel, New York, NY, for Plaintiffs.

Anton P. Giedt, United States Attorney's Office, Boston, MA, David S. Gualtieri, Department of Justice, Environment & Natural Resources Div., Washington, DC, for Defendants.

Perry M. Rosen, U.S. Department of Justice, Washington, DC.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. INTRODUCTION

Plaintiffs Conservation Law Foundation (“CLF”) and Buzzards Bay Coalition, Inc. (“BBC”) bring this case against the United States Environmental Protection Agency (“EPA”), by suing its Administrator, Lisa P. Jackson, and its Regional Administrator, Curt Spalding, in their official capacities. Plaintiffs assert three claims under the Clean Water Act (the “CWA”), 33 U.S.C. §§ 1313(d)(1)(C) and 1362(14), and the Administrative Procedure Act (the “APA”), 5 U.S.C. § 706(2).

In general, plaintiffs challenge the EPA's approval of thirteen Total Maximum Daily Loads (the “TMDLs”), which are documents that set forth how much pollution a body of water can receive without negatively affecting its designated uses. A TMDL has been characterized as a “pollution budget.” The TMDLs were initially prepared by the Massachusetts Department of Environmental Protection (the “MassDEP”) and then submitted to the EPA for approval. Plaintiffs claim that the EPA committed various errors in approving the TMDLs, which caused the waters covered by the TMDLs (the “waters” or “embayments”) to become increasingly polluted by nitrogen. Plaintiffs allege that the nitrogen pollution negatively affects their recreational, aesthetic, and commercial interests in the waters.

More specifically, plaintiffs allege in Count I that the EPA's approval of the TMDLs was arbitrary and capricious because the TMDLs failed to classify septic systems, certain storm water systems, and waste water treatment facilities (the “Sources”) as “point sources,” and failed to assign the Sources to the Wasteload Allocation (the “WLA”) category in the TMDLs (the “Misclassification Claim”). See Compl. ¶¶ 61–64, 68–71, 74–76, 89. Instead, the TMDLs classified the Sources as “non-point sources,” and assigned them to the Load Allocation (the “LA”) category in the TMDLs. See id. ¶¶ 59–62, 65–69, 72–73, 89. A point source is generally defined as any discernable and discrete conveyance of pollutants. See33 U.S.C. § 1362(14). In contrast, “[a] ‘nonpoint source’ is any source of water pollution or pollutants not associated with a discrete conveyance.” Or. Nat. Res. Council v. Lyng, 882 F.2d 1417, 1424 n. 8 (9th Cir.1989), amended by899 F.2d 1565 (9th Cir.1990). By approving the classification of the Sources as non-point sources that were assigned to the LA, the EPA allowed the Sources to be subject only to discretionary state regulation, rather than the mandatory federal pollution permitting system, called the National Pollution Discharge Elimination System (the “NPDES”), which governs point sources. See Compl. ¶¶ 24–27.

Plaintiffs allege in Counts II and III that the EPA ignored the effects of climate change on the embayments when approving the TMDLs (the “Climate Change Claim”). To support the Climate Change Claim, plaintiffs allege that the EPA's approval of the TMDLs was unreasonable because the “margin of safety” portion of the TMDLs did not account for the impacts of climate change on the embayments. See id. ¶¶ 77–84, 91, 93. The margin of safety portion of the TMDLs takes into account any lack of knowledge concerning the relationship between the quality of a certain body of water and the controls that have been placed on the dischargeof pollutants into that water. See id. ¶ 22.

In the Complaint, plaintiffs seek declaratory and injunctive relief that would vacate the EPA's approval of the relevant TMDLs and order the EPA to allocate the Sources to the WLA with an adequate margin of safety.

The parties filed cross-motions for summary judgment. Hearings on the motion were held on August 20, 2013 and August 21, 2013. For the reasons stated below, the court is allowing defendants' motion for summary judgment because plaintiffs have failed to provide sufficient admissible evidence to permit a reasonable factfinder to conclude that plaintiffs or their members have the constitutionally required standing to litigate the claims in this case.

II. THE CWA'S STATUTORY AND REGULATORY REGIME

The objective 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). Subject to certain exceptions, the CWA renders unlawful “the discharge of any pollutant by any person.” Id. § 1311(a). “The term ‘discharge of a pollutant’ and the term ‘discharge of pollutants' each means (A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.” Id. § 1362(12). A “point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, [or] container, ... from which pollutants are or may be discharged.” Id. § 1362(14).

To implement the CWA and achieve its objectives, the statute “establishes distinct roles for the Federal and State Governments.” PUD No. 1 of Jefferson Cnty. v. Wash. Dep't of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994); see also Upper Blackstone Water Pollution Abatement Dist. v. EPA, 690 F.3d 9, 14 (1st Cir.2012), cert. denied,––– U.S. ––––, 133 S.Ct. 2382, 185 L.Ed.2d 1063 (2013). The CWA's regulations require each state to adopt water quality standards, which function “to protect the public health or welfare, enhance the quality of water and serve the purposes of the [CWA].” 40 C.F.R. § 131.3(i). 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.” Id. § 131.3(i); see also33 U.S.C. §§ 1313(a) and (c)(1). “When criteria are met, water quality will generally protect the designated use.” 40 C.F.R. § 131.3(b).

Each state also must identify waters within its boundaries where the restrictions on discharges from point sources “are not stringent enough to implement any water quality standard applicable to such waters.” 33 U.S.C. § 1313(d)(1)(A); see also Upper Blackstone, 690 F.3d at 14 (“The CWA also requires states to identify the waters within their boundaries that fail to meet their designated water quality standards....”). Those bodies of water are called a “water quality limited segment.” 40 C.F.R. § 130.2(j); see also Sierra Club v. Meiburg, 296 F.3d 1021, 1025 (11th Cir.2002). Where limitations on point source discharges are insufficient to achieve the requisite water quality standards, each state is required to establish a TMDL for each relevant pollutant. See33 U.S.C. § 1313(d)(1)(C); see also Upper Blackstone, 690 F.3d at 14 n. 8.

“A TMDL is, in essence, a pollution budget, and it represents a calculation of the maximum amount of a pollutant that a water body can receive and still meet waterquality standards.” Am. Farm Bureau Fed'n v. U.S. Envtl. Protection Agency, 278 F.R.D. 98, 101 (M.D.Pa.2011). The theory of a TMDL “is that individual-discharge permits will be adjusted and other measures taken so that the sum of [a] pollutant in the waterbody is reduced to the level specified by the TMDL.” Meiburg, 296 F.3d at 1025.

Under the EPA's regulations, TMDLs are calculated as “[t]he sum of the individual WLAs for point sources and LAs for nonpoint sources and natural background.” 40 C.F.R. § 130.2(i). The WLA is “[t]he portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources of pollution. WLAs constitute a type of water quality-based effluent limitation.” Id. § 130.2(h).¹ As noted earlier, a “point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, [or] container, ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14).

The LA is “[t]he portion of a receiving water's loading capacity that is attributed either to one of its existing or future nonpoint sources of pollution or to natural background sources.” 40 C.F.R. § 130.2(g). “Unlike point source discharges, non-point source discharges ... are not defined by the CWA.” Defenders of Wildlife v. U.S. Envtl. Protection Agency, 415 F.3d 1121, 1124 (10th Cir.2005). “Non-point source pollution has been described as nothing more [than] a [water] pollution problem not involving a discharge from a point source.” Id. (internal quotation marks omitted).

As indicated earlier, a state's designation of certain sources of pollution as “point sources” rather than as “non-point sources” affects the regulatory scheme to which those sources of pollution are subject. Pollutants that are discharged from a “ ‘point source’ into the navigable waters must obtain a [ ] [federal National Pollution Discharge Elimination System or] NPDES permit.” Upper Blackstone, 690 F.3d at 14 (citing 33 U.S.C. §§ 1311(a) and 1342). “An NPDES permit serves to transform generally applicable effluent limitations and other standards including those based on water quality into the obligations (including a timetable for compliance) of the individual discharger, and the [CWA] Amendments provide for direct administrative and...