Idaho Min. Ass'n, Inc. v. Browner

• Decision Date: 15 March 2000
• Docket Number: No. CV 98-0390-S-MHW.,CV 98-0390-S-MHW.
• Citation: 90 F.Supp.2d 1078
• Parties: IDAHO MINING ASSOCIATION, INC., Plaintiff, v. Carol M. BROWNER, Administrator, United States Environmental Protection Agency; Charles C. Clarke, Regional Administrator, United States Environmental Protection Agency, Region 10; and United States Environmental Protection Agency, Defendants.
• Court: U.S. District Court — District of Idaho

90 F.Supp.2d 1078

IDAHO MINING ASSOCIATION, INC., Plaintiff, v. Carol M. BROWNER, Administrator, United States Environmental Protection Agency; Charles C. Clarke, Regional Administrator, United States Environmental Protection Agency, Region 10; and United States Environmental Protection Agency, Defendants.

No. CV 98-0390-S-MHW.

United States District Court, D. Idaho.

March 15, 2000.

Thomas A. Banducci, Kevin J. Beaton, Gail L. Achterman, Stoel Rives, LLP, Boise, ID, Beth Ginsberg, Stoel Rives, LLP, Seattle, WA, for Idaho Mining Ass'n.

Deborah A. Hill, U.S. Attorney's Office, Boise, ID, Robert H. Foster, U.S. Dept. of Justice, Environmental Enforcement Section, Denver, CO, for Carol M. Browner, Charles C. Clarke.

Deborah A. Hill, U.S. Attorney's Office, Boise, ID, Robert H. Foster, U.S. Dept. of Justice, Environmental Enforcement Section, Denver, CO, Michael J. Zevenbergen, United States Department of Justice, Environmental

Defense Section, Seattle, WA, for E.P.A.

Laird J. Lucas, Land and Water Fund of the Rockies, Boise, ID, for Idaho Conservation League, Inc., The Lands Council.

ORDER RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

WILLIAMS, Chief United States Magistrate Judge.

The following motions are currently before the Court for its consideration: (1) Plaintiff Idaho Mining Association's Motion for Summary Judgment (Docket # 16), filed March 19, 1999; and (2) Defendants' Motion for Summary Judgment (Docket # 27), filed May 10, 1999. On September 1, 1999, the Court conducted a hearing on the pending motions with counsel for all parties appearing and participating. The Court has considered the arguments of counsel and has fully reviewed the legal briefing and other pertinent documents of record and is now prepared to enter its ruling on the pending motions as follows.

I. Background

In the instant action, the Court is asked to determine whether the Environmental Protection Agency ("EPA") exceeded its authority under the Administrative Procedures Act ("APA"), 5 U.S.C. § 551, et seq., and the Clean Water Act ("CWA" or "Act"), 33 U.S.C. § 1251, et seq., when it promulgated a rule establishing revised water quality standards for three (3) water body segments in Northern Idaho. Plaintiff, Idaho Mining Association, challenges the revised standards and seeks a declaration from this Court that the EPA's rulemaking was arbitrary and capricious, an abuse of discretion and otherwise not in accordance with the law. Plaintiff also seeks an order vacating the challenged rule and remanding the matter back to the EPA for further proceedings in accordance with the requirements of the APA and CWA.

A. The Clean Water Act

The primary objective of the Clean Water Act ("CWA") is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" through the implementation of goals and policies designed to eliminate the discharge of pollutants into these waters. Section 101(a), 33 U.S.C. § 1251(a). To this end, Congress has declared that "wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved." Section 101(a)(2), 33 U.S.C. § 1251(a)(2). These so-called "fishable/swimmable" uses are primarily achieved through the implementation of two mechanisms: (1) technology-based requirements, i.e. "effluent limitations guidelines;" and (2) water-quality based requirements, i.e. water quality standards. See Sections 301 and 303, 33 U.S.C. §§ 1311 and 1313.

Technology-based requirements impose stringent limitations upon the types and amounts of pollutants which may be discharged into the nation's waters by point sources.¹ Section 301, 33 U.S.C. § 1311. Water quality-based requirements, on the other hand, specify the desired condition of a waterway in terms of the standard (i.e. fishable/swimmable, agricultural, industrial, etc.) to be achieved. Section 303, 33 U.S.C. § 1313. Thus, water quality standards generally consist of three elements: (1) one or more designated uses for the water body at issue; (2) water quality criteria which express the concentrations or levels of pollutants which may be present in the water and still support the designated use(s); and (3) an anti-degradation policy. Section 303(c)(2), 33 U.S.C § 1313(c)(2); Section 303(d)(4)(B), 33 U.S.C. § 1313(d)(4)(B); 40 C.F.R. § 131.3(i). As the United States Supreme Court has explained, water quality standards "supplement effluent limitations `so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels.'" Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 1054, 117 L.Ed.2d 239 (1992) (quoting EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205 n. 12, 96 S.Ct. 2022, 2025, n. 12, 48 L.Ed.2d 578 (1976)).

While both effluent limitations guidelines and water quality standards are useful tools in improving the condition of the nation's waters, neither alone is sufficient to ensure compliance with the requirements of the CWA. Thus, Congress created the National Pollutant Discharge Elimination System ("NPDES") as a means of enforcing the limitations and standards imposed by the Act. Section 402, 33 U.S.C. § 1342. Under the NPDES, individuals must obtain a permit in order to discharge pollutants into the waters of the United States. Section 301(a), 33 U.S.C. § 1311(a) (prohibiting the discharge of any pollutant by any person except as permitted by certain provisions of the CWA, including section 402). An NPDES permit sets forth certain terms and conditions with which individual dischargers must comply and "serves to transform generally applicable effluent limitations and other standards including those based on water quality into the obligations ... of the individual discharger ...." State Water Resources Control Bd., 426 U.S. at 205, 96 S.Ct. at 2025.

Under the CWA, individual states are primarily responsible for the prevention, reduction and elimination of pollution of waterways within their boundaries. Section 101(b), 33 U.S.C. § 1251(b). This responsibility carries with it the obligation to promulgate water quality standards consistent with the purposes and requirements of the CWA. Section 303(c), 33 U.S.C. § 1313(c).² Specifically, section 303(c) of the CWA requires that each state periodically undertake a public review of existing water quality standards and revise and adopt new standards as appropriate. 33 U.S.C. § 1313(c)(1). In adopting and/or revising water quality standards, each state is required to specify the appropriate water uses to be achieved and protected, taking into consideration the particular water body's "use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation." Section 303(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 131.10(a). Furthermore, each state is required to adopt water quality criteria, expressed in terms of numerical values or narrative criteria, to protect the designated use(s). 40 C.F.R. § 131.11.

The CWA does not impose upon states the obligation to designate any particular use(s) for water bodies. At a minimum, however, states must revise their water quality standards to reflect existing uses, i.e. those uses which are actually being attained. 40 C.F.R. § 131.10(i); 40 C.F.R. § 131.10(e). Furthermore, fishable/swimmable uses are favored. Section 101(a)(2), 33 U.S.C. § 1251(a)(2). Thus, where a state fails to designate a water body for fishable/swimmable uses, the state must conduct a use attainability analysis ("UAA") in accordance with the provisions of the CWA.³ 40 C.F.R. § 131.10(j)(1). Conversely, a UAA is not required whenever fishable/swimmable uses are designated. 40 C.F.R. § 131.10(k).

Although it is the states' responsibility to develop and/or revise water quality standards for waters within their boundaries, such new or revised standards must be submitted to the EPA for approval. Section 303(c)(2)(A), 33 U.S.C. § 1313(c)(2)(A). The EPA implementing regulations set forth the minimum requirements for water quality standards submissions as follows:

The following elements must be included in each state's water quality standards submitted to EPA for review:

(a) Use designations consistent with the provisions of Sections 101(a)(2) and 303(c)(2) of the Act.

(b) Methods used and analyses conducted to support water quality standards revisions.

(c) Water quality criteria sufficient to protect the designated uses.

(d) An antidegradation policy consistent with § 131.12.

(e) Certification by the State Attorney General or other appropriate legal authority within the State that the water quality standards were duly adopted pursuant to State law.

(f) General information which will aid the Agency in determining the adequacy of the scientific basis of the standards which do not include the uses specified in Section 101(a)(2) of the Act [i.e. fishable/swimmable uses] as well as information on general policies applicable to State standards which may affect their application and implementation.

40 C.F.R. § 131.6. If the EPA rejects a state's proposed water quality standards, it must so notify that state within ninety (90) days and specify the changes necessary to meet CWA requirements. Section 303(c)(3), 33 U.S.C. § 1313(c)(3). If, within ninety (90) days after notification, the state fails to make such changes, the EPA is required to "promptly prepare and publish proposed regulations setting forth a revised or new water quality standard for the navigable waters involved." Section 303(c)(4)(A), 33 U.S.C. § 1313(c)(4)(A); 40 C.F.R. § 131.22(a). In doing so, the EPA "is subject to the same policies, procedures, analyses, and public participation...