Kentucky Waterways Alliance v. Johnson

Decision Date03 September 2008
Docket NumberNo. 06-5614.,06-5614.
Citation540 F.3d 466
PartiesKENTUCKY WATERWAYS ALLIANCE; Sierra Club Cumberland Chapter; Kentuckians for the Commonwealth; Floyds Fork Environmental Association, Plaintiffs-Appellants, v. Stephen L. JOHNSON, in his official capacity as Administrator of the United States Environmental Protection Agency, Defendant-Appellee, Commonwealth of Kentucky; Kentucky Coal Association; Associated Industries of Kentucky; Kentucky Chamber of Commerce; Kentucky League of Cities, Intervening Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Albert F. Ettinger, Environmental Law & Policy Center, Chicago, Illinois, Thomas J. FitzGerald, Kentucky Resources Council, Inc., Frankfort, Kentucky, for Appellants. Robert J. Lundman, United States Department of Justice, Washington, D.C., Sharon R. Vriesenga, Brenda Gail Lowe, Kentucky Environmental and Public Protection Cabinet, Frankfort, Kentucky, Timothy J. Hagerty, Frost Brown Todd, LLC, Louisville, Kentucky, Carolyn M. Brown, John C. Bender, Greenebaum, Doll & McDonald, PLLC, Lexington, Kentucky, Mark S. Riddle, Greenebaum, Doll & McDonald, PLLC, Louisville, Kentucky, Culver V. Halliday, Kenneth T. Williams, Stoll Keenon Ogden, PLLC, Louisville, Kentucky, Ronald R. Van Stockum, Jr., Louisville, Kentucky, for Appellees. Kevin Reuther, Minnesota Center for Environmental Advocacy, St. Paul, Minnesota, Nancy K. Stoner, Natural Resources Defense Council, Inc., Washington, D.C., Karla Raettig, Michele Merkel, Environmental Integrity Project, Washington, D.C., Scott L. Long, Brown, Winick, Graves, Gross, Baskerville & Schoenebaum, Des Moines, Iowa, for Amici Curiae.

Before: SILER, CLAY, and COOK, Circuit Judges.

CLAY, J., delivered the opinion of the court. COOK, J. (pp. 490-94), delivered the remainder of the court's opinion in a separate concurring opinion, in which SILER, J., joined.

OPINION

CLAY, Circuit Judge.

Plaintiffs, Kentucky Waterways Alliance, Sierra Club Cumberland Chapter, Kentuckians for the Commonwealth, and Floyds Fork Environmental Association, appeal the district court's grant of summary judgment in favor of Defendants, Stephen L. Johnson, in his official capacity as Administrator of the United States Environmental Protection Agency ("EPA"), the Commonwealth of Kentucky, the Kentucky Coal Association, Associated Industries of Kentucky, the Kentucky Chamber of Commerce, and the Kentucky League of Cities, on Plaintiffs' challenge, brought pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq. (2000), of the EPA's approval, under § 303(c) of the Clean Water Act, 33 U.S.C. § 1313(c) (2000), of Kentucky's regulatory implementation of its Tier II water quality antidegradation rules. For the reasons set forth in parts I, II, and III-A of this opinion as well as for the reasons expressed in Judge Cook's concurring opinion, we AFFIRM in part and REVERSE in part the district court's opinion and order, VACATE in part the EPA's approval of Kentucky's Tier II antidegradation rules, and REMAND the matter to the EPA for further proceedings consistent with these opinions.1

I. BACKGROUND
A. Statutory and Regulatory Framework

The Federal Water Pollution Control Act, commonly known as the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., "is a comprehensive water quality statute designed to `restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'" PUD No. 1 of Jefferson County v. Wash. Dept. of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994) (quoting 33 U.S.C. § 1251(a)). In passing the CWA, Congress sought to eliminate "the discharge of pollutants into the [nation's] navigable waters"2 and to attain "an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife." 33 U.S.C. § 1251(a)(1)-(2).

To achieve these goals, the CWA "provides for two sets of water quality measures." Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992). First, the CWA requires the EPA "to establish and enforce technology-based limitations on individual discharges into the country's navigable waters from point-sources."3 PUD No. 1 of Jefferson County., 511 U.S. at 704, 114 S.Ct. 1900 (citing 33 U.S.C. §§ 1311, 1314). These effluent limitations "restrict the quantities, rates, and concentrations of specified substances which are discharged from point sources." Arkansas v. Oklahoma, 503 U.S. at 101, 112 S.Ct. 1046. In order to comply with the CWA, an individual point-source discharger must obtain and adhere to the terms of a National Pollutant Discharge Elimination System ("NPDES") permit issued by the EPA or an EPA-authorized state agency. 33 U.S.C. § 1342(a)-(d). The EPA has authorized Kentucky to issue NPDES permits for waters within the Commonwealth, see Approval of Kentucky's NPDES Program, 48 Fed.Reg. 45,597 (Oct. 6, 1983), under a program referred to as the Kentucky Pollution Discharge Elimination System ("KPDES"). 401 Ky. Admin. Regs. 5:050 (2007).

Second, § 303 of the CWA "requires each State, subject to federal approval, to institute comprehensive water quality standards establishing water quality goals for all intrastate waters." PUD No. 1 of Jefferson County, 511 U.S. at 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (citing 33 U.S.C. §§ 1311(b)(1)(C), 1313). The statute provides that these water quality standards "shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses. Such standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of [the CWA]." 33 U.S.C. § 1313(c)(2)(A). The Supreme Court has further explained that "[t]hese state water quality standards provide `a supplementary basis . . . so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels.'" PUD No. 1 of Jefferson County, 511 U.S. at 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (quoting EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205 n. 12, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976)).

Pursuant to a 1987 amendment to the CWA, these state-established water quality standards must include an antidegradation policy, which is "a policy requiring that state standards be sufficient to maintain existing beneficial uses of navigable waters, preventing their further degradation." Id. at 705, 114 S.Ct. 1900. Specifically, the CWA permits the revision of certain effluent limitations or water quality standards "only if such revision is subject to and consistent with the antidegradation policy established under [the CWA]." 33 U.S.C. § 1313(d)(4)(B). Accordingly, the EPA's regulations implementing the CWA require each State to "develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy." 40 C.F.R. § 131.12(a) (2008).

The EPA regulations further provide that "[t]he antidegradation policy and implementation methods shall, at a minimum, be consistent with" certain federal standards provided for in the regulation. 40 C.F.R. § 131.12(a). These federal standards establish three levels of water quality protection: Tier I, Tier II, and Tier III.

Tier I protection establishes the minimum water quality standard for all of a State's waters and requires that "[e]xisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected." 40 C.F.R. § 131.12(a)(1).

Tier II protection applies when "the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water." 40 C.F.R. § 131.12(a)(2). For such waters, the regulation requires that their "quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State's continuing planning process, that allowing lower water quality is necessary to accommodate important economic and social development in the area in which the waters are located." 40 C.F.R. § 131.12(a)(2). However, "[i]n allowing such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully."4 40 C.F.R. § 131.12(a)(2).

Finally, Tier III protection provides that "[w]here high quality waters constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected." 40 C.F.R. § 131.12(a)(3).

Once a State adopts or revises its water quality standards, including its antidegradation policy, the CWA requires the State to submit these standards to the EPA for review. 33 U.S.C. § 1313(c)(1). If the State's standards and implementation procedures are consistent with the minimum federal standards required by the CWA and the EPA's implementing regulations, then the EPA must approve the state standards within sixty days. 33 U.S.C. § 1313(c)(3). However, if the state water quality standards do not satisfy the CWA's requirements, the EPA must, within ninety days, "notify the State and specify the changes to meet such requirements. If such changes are not adopted by the State within ninety days after the date of notification, the [EPA] shall promulgate such standard[s]." 33 U.S.C. § 1313(c)(3).

B. Factual and Procedural History

Kentucky adopted its original antidegradation policy in 1979.5 In 1995, the Kentucky Environmental and Public Protection Cabinet (the "Cabinet")...

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