Cross Timbers Concerned Citizens v. Saginaw, CIV. 3-97-CV-1564-H.

• Decision Date: 16 December 1997
• Docket Number: No. CIV. 3-97-CV-1564-H.,CIV. 3-97-CV-1564-H.
• Citation: 991 F.Supp. 563
• Parties: CROSS TIMBERS CONCERNED CITIZENS, Plaintiffs, v. Jane SAGINAW, Regional Administrator, United States Environmental Protection Agency, Region VI; and Paul Johnson, Chief, United States Department of Agriculture, Natural Resources Conservation Service, Defendants.
• Court: U.S. District Court — Northern District of Texas

991 F.Supp. 563

CROSS TIMBERS CONCERNED CITIZENS, Plaintiffs, v. Jane SAGINAW, Regional Administrator, United States Environmental Protection Agency, Region VI; and Paul Johnson, Chief, United States Department of Agriculture, Natural Resources Conservation Service, Defendants.

No. CIV. 3-97-CV-1564-H.

United States District Court, N.D. Texas, Dallas Division.

December 16, 1997.

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Boyd Waggoner and Clint D. Van Treese, Waggoner & Malouf, Dallas, TX, for Plaintiffs.

Paula M. Billingsley, Assistant U.S. Attorney, Dallas, TX, Daniel M. Flores and Claire E. Douthit, Environment & Natural Resource Division, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

SANDERS, Senior District Judge.

Before the Court are Defendants' Partial Motion to Dismiss and Motion for More Definite Statement, filed September 17, 1997; Plaintiff's Response, filed October 6, 1997; Defendants' Reply, filed October 21, 1997; and Plaintiff's Response, filed November 10, 1997.

The Court held oral argument on these motions on November 26, 1997. After consideration of the pleadings on file and the argument of counsel, the Court finds that Defendants' partial motion to dismiss should be granted, and the motion for more definite statement should be denied.

I. BACKGROUND

Plaintiff, a citizens' group, seeks declaratory and injunctive relief for alleged action and inaction of the United States Environmental Protection Agency ("EPA") and the United States Department of Agriculture, Natural Resource Conservation Service ("NRCS"). Plaintiff alleges violations of the Clean Water Act ("CWA") and the National Environmental Policy Act ("NEPA") with regard to certain large feedlots, called Concentrated Animal Feeding Operations ("CAFOs").¹ In its Complaint, filed June 30, 1997, Plaintiff asserts the following claims: Count I against the EPA for violations of the CWA and NEPA; and Count II against NRCS for violations of the CWA and NEPA.

The Clean Water Act establishes a comprehensive program to clean up the nation's water systems, in part through reduction and eventual elimination of the discharge of pollutants into those waters. See 33 U.S.C. § 1251(a). The CWA divides sources of water pollution into two categories: (1) "point source" pollution, and (2) "nonpoint source" pollution. Point source pollution is characterized by a discrete source, such as factories and other sources with "end of pipe" discharges. Nonpoint source pollution is not defined, but has been construed to mean any source "not associated with a discrete conveyance ... includ[ing] runoff from fields and forests." Oregon Natural Resources Council v. Lyng, 882 F.2d 1417, 1424 n. 8 (9th Cir. 1989), as modified, 899 F.2d 1565 (9th Cir. 1990).

In this case, Plaintiff complains of a Texas "Strategy" devised by the Tarleton Institute for Applied Environmental Research ("TIAER") that allegedly addresses Concentrated Animal Feeding Operations, or CAFOs, as nonpoint pollution sources.² Plaintiff believes that the Strategy violates the CWA, and that CAFOs should continue to be regulated by the EPA as point sources of pollution. Plaintiff therefore sues the EPA for failing to take action against the Strategy and by allegedly condoning it with grants and otherwise.

As a general matter, Plaintiff complains that the EPA has attempted to avoid its obligation to regulate CAFOs as point sources in the past and has been prevented from doing so only by the courts. E.g., Carr v. Alta Verde Indus., Inc., 931 F.2d 1055 (5th Cir.1991); Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369 (D.C.Cir. 1977) ("Costle"). Notwithstanding Plaintiff's view in that regard, it is undisputed that the EPA has issued effluent limitations standards for CAFOs as point sources. It is also undisputed that pursuant to those standards, the EPA issued a General Permit on February 8, 1993, for CAFOs in Texas and several other states ("General Permit"). The General Permit governs all Texas CAFO operations as point sources under the effluent standards the EPA established. The General Permit is intertwined with the EPA's issuance of a Finding of No Significant Impact ("FONSI") with regard to the CAFOs. The FONSI is based in part on a "mitigating circumstance" that the permit require a "no discharge" standard. Plaintiff alleges, among other things, that the EPA has not enforced the "no discharge" standard, and that the Strategy does not require Texas to enforce it.

With regard to Defendant NRCS, Plaintiff sues primarily for allegedly providing funding for the Lake Waco/Bosque River Watershed Quality Initiative ("the Initiative"). The Initiative allegedly aims to develop model legislation to implement plans similar to the Strategy for other states. According to Plaintiff, the NRCS has determined that the Initiative falls within the Categorical Exclusion from NEPA regulations. Plaintiff alleges that such an Exclusion applies only to those actions found not to have a significant impact on the human environment. Plaintiff alleges further that the EPA's FONSI in that regard is incorrect and useless because it is based on the "no discharge" permit standard that is not enforced.

Under Rule 12(b)(1), Federal Rules of Civil Procedure, Defendants move that the Court dismiss Plaintiff's CWA claims against EPA and NRCS for lack of subject matter jurisdiction. Under Rule 12(b)(6), Defendants move to dismiss Plaintiff's NEPA claims for failure to state a cause of action. Under Rule 12(e), Federal Rules of Civil Procedure, Defendants move for a more definite statement for any cause of action not dismissed by the Court.

II. CLEAN WATER ACT

Defendants argue that the Court has no jurisdiction to hear the claims brought against the EPA or NRCS under the Clean Water Act. See Fed.R.Civ.P. 12(b)(1). In paragraphs 1 and 36 of the Complaint, Plaintiff asserts federal question jurisdiction for those claims under the following statutes: (1) the Clean Water Act ("CWA"), 33 U.S.C. § 1365(a)(1) & (a)(2); (2) the Administrative Procedure Act ("APA"), 5 U.S.C. § 703; and (3) the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02.

A. Standard for Dismissal Under Rule 12(b)(1)

To defend a motion for dismissal under Rule 12(b)(1), the plaintiff has the burden of demonstrating subject matter jurisdiction. Boudreau v. United States, 53 F.3d 81, 82 (5th Cir.1995), cert. denied, 516 U.S. 1071, 116 S.Ct. 771, 133 L.Ed.2d 724 (1996); 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 n.48 (1980 & Supp.1997). The question of subject matter jurisdiction is an issue for the court. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981).

Under Fifth Circuit law, a court may base its disposition of a motion to dismiss for lack of subject matter jurisdiction on (1) the complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Robinson v. TCI/US West Communications Inc., 117 F.3d 900, 904 (5th Cir.1997); Williamson, 645 F.2d at 413. Thus, the existence of disputed material facts "will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. The Court's jurisdictional findings of fact are reviewed for clear error. Robinson, 117 F.3d at 904.

B. Clean Water Act ("CWA")

Plaintiff first claims that jurisdiction for its Clean Water Act claims arises directly from within that statute. The jurisdictional provision for "citizen suits" brought under the CWA follows:

[A]ny citizen may commence a civil action on his own behalf —

(1) against any person (including (I) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitations under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty which is not discretionary with the Administrator.³

33 U.S.C. § 1365(a) ("Section 1365(a)," "Subsection (a)(1)," and "Subsection (a)(2)"). The Court will examine each subsection separately.

1. Subsection (a)(1)

For jurisdiction to exist for a CWA citizen suit brought under Subsection (a)(1), a defendant must be "in violation" of an EPA effluent standard or EPA order. In this case, Defendants argue that Plaintiff does not allege a "violation" but rather a "maladministration." Because neither Defendant is itself accused of polluting United States waters in violation of the CWA, Defendants contend that jurisdiction cannot lie under subsection (a)(1).

The United States Supreme Court has recently decided that issue in another context. See Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1162-63, 137 L.Ed.2d 281 (1997). In Bennett, the Court interpreted a substantially similar "citizen suit" provision of the Endangered Species Act ("ESA") in an action brought against the ESA's administering agency. See id. The relevant passage provides: "[A]ny person may commence a civil suit on his own behalf ... to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof." 16 U.S.C. § 1540(g) (emphasis added). The Bennett Court held that federal jurisdiction is not invoked by that provision for a citizen suit brought against the agency as administrator of the statute. Id. ("[T]he term `violation' does not include the Secretary's failure to perform his duties as administrator of the ESA.").

In so holding, the Supreme Court reasoned that any other interpretation...