Ohio Valley Environmental Coalition v. Marianne Lamont Horinko, CIVIL ACTION NO. 3:02-0059 (S.D. W.Va. 8/29/2003)
| Decision Date | 29 August 2003 |
| Docket Number | CIVIL ACTION NO. 3:02-0059. |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | OHIO VALLEY ENVIRONMENTAL COALITION, et al., Plaintiffs, v. MARIANNE LAMONT HORINKO, Acting Administrator, United States Environmental Protection Agency, Defendant. |
This case involves a challenge to the Environmental Protection Agency's (the EPA's) decision, pursuant to its authority under section 303(c) of the Clean Water Act, 33 U.S.C. § 1313(c), to approve the State of West Virginia's antidegradation implementation procedures, a set of procedures designed to prevent the degradation of the State's waters. For the reasons that follow, the court concludes that the EPA acted arbitrarily and capriciously in approving West Virginia's antidegradation procedures. With respect to seven particular aspects of West Virginia's program, the EPA failed to ensure that West Virginia's procedures met minimum federal requirements, as defined by the Clean Water Act and the EPA's own regulations. In some instances there is simply insufficient evidence in the administrative record to support certain aspects of West Virginia's implementation procedures and, correspondingly, the EPA's approval of those procedures. For example, West Virginia has classified the main segments of the Kanawha and Monongahela Rivers as Tier 1 waters, but there is almost no evidence in the record about the water quality of these rivers that would justify the decision to deny them the more stringent protection of Tier 2. See infra at IV.1. Nor is there sufficient evidence in the record explaining how Tier 2 review, which is location-specific and requires public participation, could be done at the time a general section 402 or section 404 permit was issued, rather than at the time new individual discharges are proposed. See infra at IV.4. In other instances, West Virginia's regulations simply fail to require the minimum protections required by the EPA's regulations, and the EPA's approval of West Virginia's procedures was based on an unreasonable attempt to effectively amend the plain meaning of those provisions so as to bring them into line with federal requirements. For example, West Virginia's procedures allow new or expanded discharges from certain wastewater treatment plants to evade Tier 2 review if the new discharge results in a "net decrease in the overall pollutant loading." The EPA approved this provision as consistent with minimum federal standards by, in effect, amending it to apply only when there is a net decrease in the pollutant loading for each pollutant parameter. See infra at IV.3.
Apart from the seven instances where the EPA failed to ensure that West Virginia's procedures met minimum federal requirements, however, the court rejects the plaintiffs' challenges to six other aspects of West Virginia's procedures. The EPA's conclusion that these six aspects of West Virginia's procedures satisfied minimum federal requirements was reasonable and supported by the evidence in the record. For example, the EPA reasonably concluded that best management practices for nonpoint source pollution will be "achieved," as required by EPA regulations, if those practices are "installed and maintained," as required by West Virginia's procedures. See infra at IV.5. Similarly, there was sufficient evidence in the record to support the EPA's approval of a provision allowing for a de minimis ten percent reduction in the available assimilative capacity of Tier 2 waters before Tier 2 review is required. See infra at IV.8.
That said, because the EPA failed to ensure, in a number of respects, that West Virginia's antidegradation implementation procedures were consistent with minimum federal requirements, the EPA's approval of West Virginia's procedures was arbitrary, capricious, and an abuse of discretion. Accordingly, the court VACATES the EPA's approval of West Virginia's antidegradation procedures and REMANDS to the EPA for further proceedings consistent with this opinion.
The Clean Water Act (CWA or the Act), 33 U.S.C. § 1251 et seq., was passed by Congress "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a) (2003). In particular, the CWA seeks to eliminate "the discharge of pollutants into the navigable waters" of the United States, and to "provide[] for the protection and propagation of fish, shellfish, and wildlife and provide[] for recreation in and on the water." Id. at §§ 1251(a)(1) & (a)(2).1 The Supreme Court has explained that the CWA requires the Administrator of the EPA to "establish and enforce technology-based limitations on individual discharges into the country's navigable waters from point sources," and also "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 v. Washington Dept. of Ecology, 511 U.S. 700, 704 (1994). Under a 1987 amendment to the Act, State 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; see also 33 U.S.C. § 1313(d)(4)(B). Pursuant to this statute, the EPA promulgated a regulation governing antidegradation, 40 C.F.R. § 131.12. Section 131.12 requires States to "develop and adopt a statewide antidegradation policy and identify methods for implementing such policy." 40 C.F.R. § 131.12(a) (2003). Section 131.12 further provides that "[t]he antidegradation policy and implementation methods shall, at a minimum, be consistent" with certain federal standards specified in the regulation. Id. States must submit their antidegradation policy and implementation procedures to the EPA. 33 U.S.C. § 1313(c)(2)(A). If the State's policy and procedures are consistent with the minimum federal standards, the EPA must approve the procedures within sixty days. Id. at 1313(c)(3). If not, the EPA must, within ninety days, Id.
On April 14, 2001, the West Virginia legislature passed West Virginia's antidegradation implementation procedures, codified in Title 60, Series 5, of West Virginia's Code of State Regulations.2 West Virginia submitted those procedures to the EPA on July 5, 2001, and the EPA approved the procedures on November 26, 2001.3 On January 23, 2002, the plaintiffs, a group of concerned citizens and environmental and recreational organizations, brought this suit challenging the EPA's approval of West Virginia's procedures.4 The plaintiffs claimed that the EPA's approval of West Virginia's antidegradation implementation procedures was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), and sought a declaration to that effect, an order setting aside the EPA's approval and remanding the case to the EPA for further proceedings, and an award of costs and expenses, including reasonable attorneys' and expert witness fees, under 28 U.S.C. § 2412.5 In particular, the plaintiffs contend that a number of provisions of West Virginia's antidegradation implementation procedures are inconsistent with EPA regulations implementing the Clean Water Act. The primary regulation at issue is 40 C.F.R. § 131.12.
The parties in this case, in addition to the plaintiffs and the EPA, include a number of defendant-intervenors. The defendant-intervenors are organized into three groups: the Industrial Intervenors6; the Municipal Intervenors7; and the West Virginia Department of Environmental Protection (WVDEP). The parties have filed cross-motions for summary judgment, and the matter is ripe for decision.
Prior to turning to the merits of the case, the court will briefly discuss the relevant provisions of § 131.12. Section 131.12 provides, in relevant part, that a State's antidegradation policy and procedures must ensure that:
(1) Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.
(2) Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that 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 or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully. Further, the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control.
(3) Where 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)(1)-(3). These three provisions establish what are commonly referred to as three "tiers" of antidegradation protection. See Am. Wildlands v. Browner, 260 F.3d 1192, 1194 (10th Cir. 2001). Tier 1 applies to all waters, and requires that existing water uses be protected. 40 C.F.R. § 131.12(a)(1). Tier 2 applies to high quality waters, defined as waters...
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