San Francisco Baykeeper, Inc. v. Browner

• Citation: 147 F.Supp.2d 991
• Decision Date: 22 February 2001
• Docket Number: No. C-00-0424-CAL.,No. C-00-0132-CAL.,C-00-0132-CAL.,C-00-0424-CAL.
• Court: U.S. District Court — Northern District of California
• Parties: SAN FRANCISCO BAYKEEPER, INC., et al., Plaintiffs, v. Carol BROWNER, et al., Defendants. California Association of Sanitation Agencies, et al., Plaintiffs, v. Carol Browner, et al., Defendants.

147 F.Supp.2d 991

SAN FRANCISCO BAYKEEPER, INC., et al., Plaintiffs, v. Carol BROWNER, et al., Defendants.

California Association of Sanitation Agencies, et al., Plaintiffs, v. Carol Browner, et al., Defendants.

No. C-00-0132-CAL.

No. C-00-0424-CAL.

United States District Court, N.D. California.

February 22, 2001.

COPYRIGHT MATERIAL OMITTED

Thomas N. Lippe, Law Offices of Thomas N. Lippe, San Francisco, CA, Michael R. Lozeau, Earthlaw Environmental Clinic, Stanford, CA, Nora J. Chovrover, Law Offices of Nora J. Chovrover, Albany, Ny, Leo O'Brien, San Francisco, CA, for San Francisco Baykeeper.

David S. Beckman, Natural Resources Defense Council, Inc., Los Angeles, CA, for Natural Resources Defense Council, Inc.

Charles O'Conner, U.S. Attorney's Office, San Francisco, CA, Norman L. Rave, Jr., Environment & Natural Resources Division, U.S. Department of Justice, Washington, DC, for Carol Browner, Felicia Marus, Environmental Protection Agency.

Jon K. Wactor, Luce Forward Hamilton & Scripps, San Diego, CA, for Industrial Environmental Association of San Diego, Building Industry Legal Defense Foundation, California Building Industry Association.

Margaret N. Rosegay, Pillsbury Winthrop LLP, San Francisco, CA, for Western States Petroleum Association.

ORDER ON MOTIONS

LEGGE, District Judge.

Introduction

The above entitled cases are two in a group of cases challenging the actions and the inaction of the United States Environmental Protection Agency (the "EPA") in its regulation of waters of the United States in California. The above two cases have been consolidated, but the motions now before the court and this order specifically address the causes of action in C-00-0132.

Plaintiffs in C-00-0132 have moved to file a second amended complaint. The proposed amendment is not opposed, and IT IS THEREFORE ORDERED that plaintiff's proposed second amended complaint be filed. All further references in this order to plaintiffs' claims are to those in the second amended complaint (the "SAC").

Generally speaking, the plaintiffs in C-00-0132 are several public interest groups which "seek to remedy the failure of the EPA to perform its non-discretionary duties to identify and restore water quality for polluted waters throughout the state of California." SAC ¶ 1. More specifically, the plaintiffs allege that the EPA has failed to discharge its non-discretionary duties under section 303(d)(2) of the Clean Water Act to establish total maximum daily loads of pollutants for water quality limited segments of waters of the United States located in California. Id.

Again generally speaking, the plaintiffs in C-00-0424 are public sanitation agencies and treatment works in California, acting through their associations. They allege that the EPA has violated both federal and state law by improperly approving submissions by the state of California to the EPA. The specific causes of action alleged in C-00-0424 are not identical to those in C-00-0132, nor is the relief sought identical. The cases are consolidated, but this order specifically discusses only the claims in C-00-0132.

The third action in this group of related cases is Western States Petroleum Association v. Browner, No. C-00-1815. That action is proceeding on a schedule separate from the above two consolidated cases, and this order makes no direct rulings on the cause of action in that case.

The Pending Motions

The motions now before this court are the following, listed in the order of their filing: (1) Defendant's¹ motion for judgment on the pleadings regarding the third and fourth claims; however, the fourth claim has now been amended by the SAC. And this motion is for practical purposes subsumed within the motions for summary judgment. (2) Plaintiffs' motion for summary judgment. The motion seeks summary judgment on the issues of liability only, and it pertains to all four of plaintiffs' claims in the SAC. (3) Defendant's cross motion for summary judgment on all claims in the SAC.

The motions have been briefed, argued, and submitted for decision. The court has reviewed: the moving and opposing papers, the record of the case, the records submitted in support of and in opposition to the motions, the records of which this court can take judicial notice, and the applicable authorities. The court is resolving these motions under the standard of Rule 56 of the Federal Rules of Civil Procedure; that is, resolving issues of law and issues of fact where there is no genuine issue of material fact. The parties agree that the issues are primarily ones of law.

The Statutory Framework

The United States has jurisdiction over waters within the states which are statutorily and judicially defined as "waters of the United States;" 33 U.S.C. § 1326. Acting pursuant to that jurisdiction, the Congress of the United States enacted the Clean Water Act of 1972 (the "CWA"). The objective of the CWA is to "restore and maintain the chemical, physical and biological integrity of the nation's waters." 33 U.S.C. § 1251(a). The CWA seeks to eliminate "the discharge of pollutants into navigable waters" and to attain "water quality which provides for the propagation of fish, shellfish, and wildlife and provides for recreation in and on the water." 33 U.S.C. § 1251(a)(1),(2).

These suits specifically concern section 303(d) of the CWA; 33 U.S.C. § 1313(d). That section requires the states to identify waterbodies within their boundaries that do not meet water quality standards, and to establish a priority for ranking those polluted waterbodies based on the severity of the pollution and the type of use of that waterway. 33 U.S.C. § 1313(d)(1)(A). The regulations use the term "water quality limited segments" (WQLSs) to identify such waters. See 40 C.F.R. § 130.2(j).

Section 303(d) requires each state to determine how much of a pollutant a WQLS can endure before its quality becomes impaired. This determination is known as the Total Maximum Daily Load ("TMDL") calculation. The TMDL calculation must be made on a waterbody-specific and a pollutant-specific basis wherever a pollution problem has been identified and other regulatory approaches are not resolving the problem. The TMDL contemplates establishing Waste Load Allocations ("WLAs") and Load Allocations ("LAs") for the sources of the pollutants, to ensure that the sum of all pollutants does not exceed the TMDL.

In other words, the CWA requires each state to identify the maximum amount of each type of pollutant that a waterbody can handle without violating water quality standards. See 33 U.S.C. § 1313(d)(1)(C).

A National Pollutant Discharge Elimination System ("NPDES") permit is required for all discharges of a pollutant. See 33 U.S.C. § 1342(a). Those permits are issued by the states; 33 U.S.C. § 1342(a)(5) and (b). Under the regulations to the CWA, there can be no "new source" or "new discharger," if the discharge will contribute to a violation of water quality standards. 40 C.F.R. § 122.4(i). Thus, there cannot be a new source or a new discharger if the waterbody is a WQLS impaired waterway unless the state completes a TMDL for that WQLS beforehand. Id.

The CWA requires each state to submit to the EPA a list of WQLSs, and to establish TMDLs "not later than one hundred and eighty days after the date of publication of the first identification of pollutants under section 1314(a)(2)(D)," and from "time to time" thereafter. See 33 U.S.C. § 1313(d)(2). The EPA first identified the pollutants on December 28, 1978. See 43 Fed.Reg. 60,662. Thus, the states were required to submit to the EPA a list of WQLSs and to establish TMDLs no later than June 26, 1979. The EPA regulations require the states to make section 303(d) submissions biennially, by October 22, 1992 and by April 1 for every even-numbered year thereafter. See 40 C.F.R. § 130.7(d)(1).

These cases concern the duties of the EPA with respect to the lists submitted or not submitted by the states. The EPA is obligated to approve or disapprove the states' section 303(d) lists within 30 days. See 40 C.F.R. § 130.7(d)(2). And the EPA may approve a submission only if it meets the requirements set forth in paragraphs 1 and 2 of section 303(d) of the Act. Id. According to plaintiffs, the EPA has a non-discretionary duty to establish TMDLs for the identified WQLSs if a state does not meet the requirements of the CWA. See 33 U.S.C. § 1313(d)(2); 40 C.F.R. §§ 130.2(g), (h) and (i) and 130.7(d)(2).

Allegations Regarding Waters in California

Plaintiffs bring this action against the EPA under the authority of 33 U.S.C. § 1365(a)(2). That section allows a citizen's suit against the EPA for an alleged failure of that agency to perform any act or duty "which is not discretionary" with the EPA. Id. Plaintiffs allege that the EPA has failed to perform such duties. See Alaska Center for the Environment v. Browner, 20 F.3d 981 (9th Cir.1994).

The essence of plaintiffs' complaint is that California has failed to establish TMDLs for most of its polluted water bodies. More specifically, plaintiffs assert that California's lists of its WQLSs did not include the TMDLs as required by the CWA. See SAC ¶¶ 55-57. The EPA has allegedly taken no action or has approved defective TMDL lists for the WQLSs. See SAC ¶¶ 59-61. Plaintiffs contend that as a result of California's failures under the CWA, the EPA had and has a non-discretionary duty to establish TMDLs for the WQLSs within California. And plaintiffs assert that the EPA also has a duty to revoke California's NPDES permit-issuing authority until such time as California complies with the CWA.

The record is clear that the EPA has approved some of California's lists, or has issued some documents defining TMDLs for several of California's waterbodies. The EPA has also entered into consent decrees relating to the establishment of TMDLs in several regions of the state. On May 4, 2000 the EPA issued a report regarding the California's TMDL program. That report is...