Ohio Valley Envtl. Coal., Inc. v. McCarthy
| Decision Date | 14 February 2017 |
| Docket Number | CIVIL ACTION NO. 3:15-0271 |
| Parties | OHIO VALLEY ENVIRONMENTAL COALITION, INC., SIERRA CLUB, WEST VIRGINIA HIGHLANDS CONSERVANCY, INC. and VIRGINIA RIVERS COALITION, Plaintiffs, v. GINA MCCARTHY, Administrator, United States Environmental Protection Agency and SHAWN M. GARVIN, Regional Administrator, United States Environmental Protection Agency, Region III, Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
Pending in this administrative review action are cross-motions for summary judgment brought by Plaintiffs Ohio Valley Environmental Coalition, Inc., Sierra Club, West Virginia Highlands Conservancy, and Virginia Rivers Coalition (collectively the "Environmental Groups"), ECF No. 30, and by Defendants Gina McCarthy, Administrator of the United States Environmental Protection Agency, and Shawn Garvin, a regional administrator for the same agency (collectively "EPA"), ECF No. 38. In this citizen suit pursuant to the Federal Water Pollution Control Act (Clean Water Act or "CWA"), 33 U.S.C §§ 1251-1388., and under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, the Environmental Groups challenge EPA's failure to disapprove actual or constructive submissions by the West Virginia Department of Environmental Protection ("WVDEP") that lacked total maximum daily loads ("TMDLs") for certain West Virginia waterbodies previously identified by WVDEP and EPA as "biologically impaired." The Environmental Groups seek an order declaring EPA's alleged failure in violation of the CWA's process for reviewing state TMDL submissions, 33 U.S.C § 1313, and in violation of the APA's prohibition on agency action that is arbitrary, capricious, abusive of discretion, and otherwise not in accordance with law, 5 U.S.C. § 706(2). 2d Am. Compl. 35-37, ECF No. 78. The Environmental Groups also request an order declaring EPA's decision to approve sets of TMDLs for a particular watershed arbitrary and capricious because not all TMDLs for that watershed were submitted to EPA. Id.
The Court, in an Order dated September 9, 2016, determined that the Environmental Groups have standing to bring this case. ECF No. 81. On October 20, 2016, the Court heard oral argument on the remaining issues raised in the cross motions for summary judgment.
The remaining issues raised by the cross motions for summary judgment require the Court to determine: (1) EPA's liability on Claims 1 and 2, which allege EPA violated a nondiscretionary duty under the CWA to, first, disapprove WVDEP's actual or constructive submissions of no biological impairment TMDLs for biologically impaired waterbodies, some of which are impaired specifically by ionic toxicity, and second, to establish those undeveloped TMDLs; and (2) EPA's liability on Claims 3 through 8, which allege EPA violated the APA by arbitrarily or capriciously approving WVDEP's TMDL Lists for certain waterbodies, which included no ionic toxicity TMDLs despite those waterbodies' state of ionic impairment.
Having considered the briefing, the administrative record, and the arguments raised at oral argument, the Court GRANTS in part and DENIES in part the Environmental Groups' Motionfor Summary Judgment, ECF No. 30, and GRANTS in part and DENIES in part EPA's Cross Motion for Summary Judgment. ECF No. 38.
In 1972 Congress passed amendments to the Federal Water Pollution Control Act, which are commonly known as the Clean Water Act ("CWA"). The goal of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" and to attain "water quality which provides for the protection and propagation of fish, shellfish, and wildlife." 33 U.S.C. § 1251(a). Congress expected the CWA to solve the Nation's water quality crisis by 1985. Id. The CWA provides for two primary mechanisms to achieve this ambitious goal: point source pollution controls embodied in the National Pollution Discharge Elimination System ("NPDES") and ambient water quality standards implemented through the Total Maximum Daily Load ("TMDL") program. See §§ 1311, 1313.
NPDES permits address point source pollution outfalls through technology-based controls. § 1311. Any discharge from a point source into waters within the jurisdiction of the CWA is unlawful unless the discharge complies with an NPDES permit. Id. NPDES permits, however, do not address ambient water quality of the waters into which permitted discharges are emitted.
TMDLs, the subject of this litigation, were designed to address ambient water quality in bodies of water that do not meet water quality standards even after NPDES permits have been issued to point source discharges. Id.; see also San Francisco BayKeeper v. Whitman, 297 F.3d 877, 880 (9th Cir. 2002). In other words, TMDLs place daily limits on the total load from all sources of a pollutant or pollutants discharged into a body of water. The CWA gave states a key role in developing water quality standards ("WQS"), identifying bodies of water that do not meetthose standards, and developing TMDLs to bring those bodies of water into compliance. See § 1313; 40 C.F.R. § 130.7. EPA then reviews state action to ensure compliance with the CWA. Id.
Before a state can begin development of TMDLs, the CWA requires each state to develop a WQS consistent with the CWA's requirements. §§ 1313(a)(3)(A), (b), (c); see also 40 C.F.R. §§ 130.2(d), 131.4(a). A WQS identifies the "designated uses" for a particular waterbody (e.g., public water supply, support of aquatic life, or recreational uses) and a "water quality criteria" expressed as a numeric limit or narrative condition that must be met for the waterbody to support the identified uses (e.g., iron concentrations necessary for aquatic life). § 1313(c)(2); 40 C.F.R. § 131.3(i).
When existing pollution controls in a waterbody are not stringent enough to meet applicable water quality standards and the waterbody therefore cannot support its designated uses, that waterbody must be classified by the state as "impaired." § 1313(d)(1); 40 C.F.R. § 130.7. States must place all impaired waters on a list commonly referred to as a "303(d) List" for review and approval by EPA. Id. States, through 303(d) Lists, also "establish a priority ranking of impaired waterbodies, taking into account the severity of the pollution and the uses to be made of such waters." § 1313(d)(1)(A); see also 40 C.F.R. § 130.7(b)(4). States then submit 303(d) Lists to EPA, and EPA must either approve or disapprove of the list within thirty days. § 1313(d)(2); 40 C.F.R. § 130.7(d)(2). The CWA does not require EPA to approve a state's priority ranking. See § 1313. If EPA disapproves a state's 303(d) List, EPA must establish a list of waterbodies that should have been included in the state's 303(d) List within thirty days of the disapproval. Id.
Bodies of water listed on a state's 303(d) List are, as demonstrated by their presence on the list, not meeting the applicable WQS. § 1313(d)(1)(A). Where a body of water is not meeting its WQS, the CWA requires states to develop a TMDL for that body of water in accordance with thewaterbody's priority ranking on the state's 303(d) List. § 1313(d)(1)(C); 40 C.F.R. § 130.7(c)(1). "A TMDL establishes the maximum daily discharge of pollutants into a waterway" from all sources. Hayes v. Whitman, 264 F.3d 1017, 1021 (10th Cir. 2001) (citing Scott v. City of Hammond, 741 F.2d 992, 996 (7th Cir. 1984)). As a state develops a TMDL for a particular body of water in accord with that waterbody's priority ranking, EPA regulations permit a state to produce a TMDL for each individual pollutant affecting a particular body of water or to produce a TMDL via a "biomonitoring" approach. 40 C.F.R. § 130.7(c)(1)(i). As with 303(d) Lists, states must submit their TMDLs to EPA, and EPA must approve or disapprove of the TMDLs within thirty days. § 1313(d)(2). If EPA disapproves of a TMDL, EPA must develop, submit for public comment, and finalize a TMDL within thirty days. Id.
West Virginia's water quality standards include two narrative water quality criteria, which are designed to protect uses of West Virginia's streams related to aquatic life. Those criteria provide:
W. VA. CODE R. §§ 47-2-3.2.e-3.2.i. From 2002 through 2010, West Virginia used the West Virginia Stream Condition Index ("WVSCI") as its methodology for assessing compliance with the narrative criteria that protect aquatic life. EPA Enclosure 1 Review of W. Va.'s 2012Section 303(d), J.A. 2597. Beginning in 1998 West Virginia used the health of the macroinvertebrate community to assess compliance with narrative water quality standards. Id. By 2002 West Virginia, in conjunction with Tetra Tech, Inc. and EPA, developed the WVSCI. Id.; The West Virginia GLIMPSS: Genus Level Index of Most Probable Stream Status, J.A. 2621 [hereinafter GLIMPSS]. "The WVSCI summarizes family [taxonomic] level identifications of benthic macroinvertebrate assemblages to bioassess the condition of wadeable streams." GLIMPSS, J.A. 2621. WVSCI was developed using data collected by EPA and WVDEP from riffle habitats in wadeable streams in West Virginia. EPA Enclosure 1 Review of W. Va.'s 2012 Section 303(d), J.A. 2597.
WVSCI is scaled from 0 (...
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