Food & Water Watch & Friends of the Earth v. U.S. Envtl. Prot. Agency & Bob Perciasepe

• Decision Date: 13 December 2013
• Docket Number: Civil Action No.: 12–1639(RC)
• Citation: 5 F.Supp.3d 62
• Parties: Food and Water Watch and Friends of the Earth, Plaintiffs, v. United States Environmental Protection Agency and Bob Perciasepe, Acting Administrator, Defendants.
• Court: U.S. District Court — District of Columbia

5 F.Supp.3d 62

Food and Water Watch and Friends of the Earth, Plaintiffs,

v.United States Environmental Protection Agency and Bob Perciasepe, Acting Administrator, Defendants.

Civil Action No.: 12–1639(RC)

United States District Court, District of Columbia.

December 13, 2013

Susan J. Kraham, Morningside Heights Legal Services, Inc., New York, NY, Zachary B. Corrigan, Food & Water Watch, Washington, DC, for Plaintiffs.

Angeline Purdy, U.S. Department of Justice, Washington, DC, for Defendants.

Re Document Nos.: 35, 36

MEMORANDUM OPINION

Granting Defendants' Motions To Dismiss

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

The plaintiffs in this action challenge the Environmental Protection Agency's (“EPA”) “authorization” of pollution trading and offsets outlined in its 2010 Chesapeake Bay Total Maximum Daily Loads (“Bay TMDL”). They allege that the “authorization” of pollution trading and offsets is contrary to the Clean Water Act, and arbitrary and capricious in violation of the Administrative Procedure Act (“APA”). They also allege that the “authorization” of pollution trading and offsets violates the APA's requirement for Notice and Comment Rulemaking. The defendants and defendant-intervenors ¹ moved to dismiss the Complaint for lack of subject matter jurisdiction because, they allege, the plaintiffs do not have standing. In addition, the defendants moved to dismiss the Complaint for failure to state a claim because, they allege, the plaintiffs do not challenge a final agency action in this case. For the reasons that follow, the Court will grant the defendants' motions to dismiss on both grounds.

II. FACTUAL BACKGROUND

A. Statutory Background

The Clean Water Act (“CWA”) was implemented to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). The Act contemplates collaborative efforts between the Federal Government, through the EPA, and State governments “to develop comprehensive solutions to prevent, reduce, and eliminate pollution in concert with programs for managing water resources.” Id. § 1251(g).

The CWA specifies that “the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). The CWA recognizes two types of pollutant sources: point and nonpoint. Point sources are defined in the CWA as “any discernible, confined, and concrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). Nonpoint sources are not defined in the CWA, but in the regulations promulgating it, and are defined as “not traceable to a discrete identifiable origin, but [as] generally result[ing] from land runoff, precipitation, drainage, or seepage.” 40 C.F.R. § 35.1605–4.

There are two main ways the CWA controls the discharge of these two sources into navigable waters of the United States: through technology-based controls and through water quality standards. See, e.g., Bravos v. Green, 306 F.Supp.2d 48, 50–51 (D.D.C.2004). The main technology-based regulation implemented by the CWA is the National Pollutant Discharge Elimination System (“NPDES”). That system only regulates point sources, and does so by allowing the EPA Administrator, and/or the States, to issue permits for the discharge of a point source pollutant. 33 U.S.C. § 1342. The regulations implementing the NPDES system specify that “no permit may be issued [w]hen the conditions of the permit do not provide for compliance with the applicable requirements of CWA, or regulations promulgated under CWA.” 40 C.F.R. § 122.4(a). States are authorized to adopt programs for issuing permits to point sources, but the EPA retains the authority to object to an inadequate State permit and to issue a federal permit instead. 33 U.S.C. § 1342(d). The anti-backsliding provision of the permit system provides that “a permit may not be renewed, reissued, or modified on the basis of effluent guidelines ... to contain effluent limitations ² which are less stringent than the comparable effluent limitations in the previous permit.” 33 U.S.C. § 1342(o).

The other main way the CWA seeks to control the discharge of pollutants, point source and nonpoint source alike, is through the water quality standards (“WQS”) process outlined in Section 303 of the CWA, and codified in 33 U.S.C. § 1313. Section 1313 specifies that “each State shall identify those waters within its boundaries for which the effluent limitations ... are not stringent enough to implement any water quality standard applicable to such waters.” 33 U.S.C. § 1313(d)(1)(A). “Each State shall [also] establish for the waters identified in paragraph (1)(A) ... the total maximum daily load (“TMDL”), for those pollutants which the Administrator identifies ... as suitable for such calculation.” Id. § 1313(d)(1)(C). The regulations implementing the CWA specify that States are to “identify those water quality-limited segments (“WQLS”) ³ still requiring TMDLs within its boundaries for which technology-based effluent limitations ... are not stringent enough to implement any water quality standards applicable to such waters.” 40 C.F.R. § 130.7(b)(1)(i)-(iii).

Under § 1313(d)(2), the State shall submit to the Administrator the waters identified and the loads established in sections (1)(A), (1)(B), and (1)(C), and the Administrator shall either approve those identifications and loads, or if the Administrator does not approve the identifications and loads, the Administrator “shall identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters,” and then the State shall incorporate them into its “continuing planning process,” as codified in § 1313(e). See33 U.S.C. § 1313(d)(2). Each State is to “have a continuing planning process” to ensure that it comports with the TMDL that either it, or the EPA sets. See33 U.S.C. § 1313(e).

Though there is no NPDES analogue for nonpoint sources, the EPA can use federal grants to encourage states to address nonpoint source pollution and implement the load allocations established in a TMDL. See33 U.S.C. § 1329(h). See also Chesapeake Bay TMDL ES–8 (“nonpoint sources are not covered by a similar federal permit program; as a result, financial incentives, other voluntary programs and state-specific regulatory programs are used to achieve nonpoint source reductions”).

Because this action arises specifically from the EPA's establishment of the Chesapeake Bay TMDL, it is useful to describe what, exactly, a TMDL is. A TMDL is the “total maximum daily load” of a given pollutant that can be added into a navigable water of the United States on a given day. It essentially “identifies the maximum amount of a pollutant that can be added to a body of water consistent with attaining applicable water quality standards.” EPA's Mot. to Dismiss 4, ECF No. 36. The way this number is calculated is defined in 40 C.F.R. § 130.2(i), and it turns largely on the amount of point and nonpoint sources of pollution in that particular body of water. “The portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources of pollution” is known as the wasteload allocation (“WLA”). 40 C.F.R. § 130.2(h) (emphasis added). “The portion of a receiving water's loading capacity that is attributed either to one of its existing or future nonpoint sources of pollution” is known as the load allocation (“LA”). Id. § 130.2(g) (emphasis added). The TMDL is the sum of the LA and the WLA, plus a “margin of safety.” Id. § 130.2(i); 33 U.S.C. §§ 1313(d)(1)(C), (d)(1)(D). See also Chesapeake Bay TMDL 1–2.

B. The Chesapeake Bay TMDL

The Chesapeake Bay is the largest estuary in the United States and one of the largest and most biologically productive estuaries in the world. See Chesapeake Bay Protection and Restoration, 74 Fed.Reg. 23,099, 23,099 (May 12, 2009). Unfortunately, and despite decades-long efforts by federal and state regulators, the Bay remains widely polluted, which has prevented “the attainment of existing State water quality standards and the ‘fishable and swimmable’ goals of the Clean Water Act.” See id. The main pollutants in the Bay are nitrogen, phosphorus and sediment. See Chesapeake Bay TMDL 2–7, ECF No. 36–1.⁴ These pollutants generally come from point sources such as municipal wastewater facilities and industrial discharge facilities; and from nonpoint sources such as agricultural lands and other runoff. See id. at 4–1.

On December 29, 2010, the EPA established the Chesapeake Bay TMDL because the State TMDLs were not achieving the water quality standards mandated by the CWA. See Chesapeake Bay TMDL ES–1. The TMDL establishes final load allocations (from both point and nonpoint sources of pollution) for the entire Chesapeake Bay and it “identifies the necessary pollution reductions of nitrogen, phosphorus, and sediment across Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia and sets pollution limits necessary to meet applicable water quality standards in the Bay and its tidal rivers and embayments.” Chesapeake Bay TMDL ES–1.

Because the finality and legality of the TMDL are in dispute in this case, it is helpful to outline several of its key provisions. The Executive Summary of the TMDL explains EPA's process in establishing the numbers set out in the TMDL. See Chesapeake Bay TMDL ES–1–5. EPA collaborated with the Chesapeake Bay jurisdictions (Delaware, Maryland, Virginia, Pennsylvania, New York, West Virginia, and the District of Columbia) to arrive at the various loading allocations. Each State submitted its own Watershed Implementation Plan (“WIP”) that details how each State will implement the TMDL in its own State to achieve its jurisdiction-specific pollutant loading allocations. The EPA and the Bay...