Sierra Club, North Star Chapter v. Browner

• Decision Date: 13 December 1993
• Docket Number: Civ. No. 4-92-970.
• Parties: SIERRA CLUB, NORTH STAR CHAPTER, Izaak Walton League of America, Inc., Minnesota Division; St. Paul Audubon Society, and Project Environment Foundation, Plaintiffs, v. Carol M. BROWNER, as Administrator of the United States Environmental Protection Agency, Defendant.
• Court: U.S. District Court — District of Minnesota

843 F. Supp. 1304

SIERRA CLUB, NORTH STAR CHAPTER, Izaak Walton League of America, Inc., Minnesota Division; St. Paul Audubon Society, and Project Environment Foundation, Plaintiffs, v. Carol M. BROWNER, as Administrator of the United States Environmental Protection Agency, Defendant.

Civ. No. 4-92-970.

United States District Court, D. Minnesota, Fourth Division.

December 13, 1993.

COPYRIGHT MATERIAL OMITTED

Richard A. Duncan, Brian Boru O'Neill, Michael A. Ponto, Faegre & Benson, Minneapolis, MN, Richard B. Bates, Bates Law Office, St. Paul, MN, for plaintiffs Sierra Club, Izaak Walton League of America, Inc., St. Paul Audubon Soc. and Project Environment Foundation.

Friedrich Anson Paul Siekert, Asst. U.S. Atty., U.S. Atty. Office, Minneapolis, MN, Robin L. Juni, Roland Dubois, U.S. Dept. of Justice, Environment & Natural Resources Div., Environmental Defense Section, Washington, DC, Janice S. Loughlin, Chicago, IL, for defendant Carol M. Browner, as Adm'r of U.S. E.P.A.

MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, Chief Judge.

Plaintiffs Sierra Club, North Star Chapter, Izaak Walton League of America, Inc., Minnesota Division, St. Paul Audubon Society and Project Environment Foundation (collectively the Sierra Club Group) sued Carol M. Browner, as Administrator of the United States Environmental Protection Agency (EPA) to compel her to comply with her duties under the Clean Water Act (the Act), 33 U.S.C. §§ 1251-1387. Plaintiffs seek declarations that the Administrator has violated the Act and the Administrative Procedure Act (APA) and injunctive relief.¹ Plaintiffs and defendants now move for summary judgment.

I.

Congress passed the Act to restore "the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Under the Act, pollution sources are divided into two categories: point sources and nonpoint sources. A point source is "any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged". 33 U.S.C. § 1362(14). Nonpoint sources are any other source of pollution, such as agricultural runoff.

No pollution may be released from a point source unless it satisfies requirements provided in the Act. 33 U.S.C. § 1311. Those requirements include the National Pollutant Discharge Elimination System (NPDES) permit process which sets quantitative limits on the amount of pollutants released from each point source. 33 U.S.C. § 1342. The Act leaves regulation of nonpoint pollution to the states.

The Act also provides a water quality based approach to achieving its goals. Section 303(a) of the Act requires each state to adopt water quality standards for its waters. The states must identify the uses of the waters and the amount of pollution that would impair the uses. 33 U.S.C. § 1313(a)-(c). After developing water quality standards, the state must identify waters which would not be able to meet the water quality standards even after other Act pollution controls, such as the NPDES permit process, are implemented. Such waters are water quality limited segments (WQLSs). 33 U.S.C. § 1313(d).

After the WQLSs are identified, the state must give them a priority ranking based on the severity of pollution and the uses of the waters. 33 U.S.C. § 1313(d). The state must then develop, in accordance with the priority ranking, a total maximum daily load (TMDL) for pollutants identified by the EPA for each WQLS. A TMDL sets the maximum amount of a pollutant which may be released from point and nonpoint sources without violating water quality standards. 33 U.S.C. § 1313(d)(1)(C). A TMDL includes the best estimates of pollution from nonpoint sources or natural background sources (load allocations), the amount of pollution from specific point sources (wasteload allocations), and a margin of safety. 40 C.F.R. § 130.3(i).

The states must submit lists of WQLSs and TMDLs to the EPA for review. 33 U.S.C. § 1313(d)(2). The EPA must either approve or disapprove each list within 30 days of its submission. 33 U.S.C. § 1313(d)(2). If the lists are approved, then they are added to the state planning process, but the EPA must develop the lists if it disapproves the state's submissions. 33 U.S.C. § 1313(d)(2).

The EPA was required to identify which pollutants require TMDL's by October 18, 1973, and states were required to submit their WQLS list 180 days from this date. 33 U.S.C. § 1314(a)(2)(D). The EPA did not publish its pollutant list until December 28, 1978, however, and the due date for WQLS lists became June 26, 1979. The regulations initially required that the list be revised from time to time, 40 C.F.R. § 130.7(d), but revisions are now due on April 1 of every even numbered year. 40 C.F.R. § 130.7(d). On August 24, 1992, new regulations required states to submit a 303(d) list by October 22, 1992. 40 C.F.R. § 130.7(d).

The 1987 Water Quality Management Plan prepared by the Minnesota Pollution Control Agency (MPCA) included a list of five river segments requiring TMDLs. The report states that the MPCA has established TMDLs for the Minnesota River and that the same process will be used to establish other TMDLs.

In an April 1, 1992 letter to the EPA, MPCA submitted a list of WQLSs to the EPA which included 7 river reaches and scheduled end dates for TMDLs ranging from June 1993 to December 2002. The letter noted that the schedules were:

dependent upon the occurrence of reasonably low flow conditions during the respective summer sampling periods and the availability of adequate human and financial resources within the Assessment and Planning Section. It is our intention to add additional problem areas to the list as resources become available to deal with them. However the above schedule stretches out ten years which is the usual horizon for most long range planning efforts so adding more problem areas at this time seems pointless.

In a June 24, 1992 letter, MPCA submitted a new list to the EPA which included an additional WQLS and provided more detail about when TMDLs for the listed WQLSs would be completed. That letter stated:

Our latest 305(b) report identifies other waters of the state which are not meeting one or more water quality standards. We include these by reference on our 303(d) list but consider them to be of a lower priority than the above listed waters. Problems in these waters will be addressed as circumstances permit.

The 303(b) report referred to in the June 1992 letter is the 1992 Minnesota Water Quality Report to Congress which is required under Section 305(b). According to that report, MPCA had assessed 4,634 miles of the total 91,944 total river miles and 1,753 of Minnesota's 11,842 significant lakes.

The appendix to the 1992 Report lists approximately 1116 waters which do not meet one or more water quality standards. The Sierra Club Group suggests that each of the 1116 waters are WQLSs. The EPA responds that at least some of the 1116 waters are those not meeting water quality standards because a point source is not meeting its permit requirements and that these waters are not WQLSs because the effluent limitations required by other sections of the Act might be stringent enough to implement water quality standards. 33 U.S.C. § 1313(d)(1)(A).

The EPA approved the revised list on July 22, 1992. On December 2, 1992, however, the EPA wrote to the MPCA explaining that the approval was invalid because of a misunderstanding at EPA headquarters. This letter also advised the MPCA to solicit public comment before resubmitting the list. The MPCA did not follow this advice and informally submitted a revised list on February 23, 1993. This list was never formally submitted, however, and the MPCA published it on April 19, 1993 to obtain public comment.

On July 6, 1993, the MPCA formally submitted its list. In an August 9, 1993 letter the EPA partially disapproved the list because the list:

does not include all water quality limited waterbodies requiring a TMDL, as evidenced by the 1000 plus impaired waterbodies documented in the State's Section 305(b) Report to Congress.... a complete Section 303(d) list submittal for Minnesota should include both waters which are water quality limited due to point sources and those which are water quality limited due to nonpoint sources.

In an August 12, 1993 letter to the court, counsel for the EPA states, "In accord with the Clean Water Act, we will develop a Section 303(d) list for the State of Minnesota within 30 days of this partial disapproval and, promptly thereafter, will publish that list for public comment." In a December 1, 1993 letter to the court, counsel for the EPA submitted its proposed Section 303(d) list which will be published in the Federal Register. The list identifies 447 WQLSs and prioritizes them for development of TMDLs.

The EPA states that it has approved 43 TMDLs submitted by the MPCA, but plaintiffs assert that they were not valid TMDLs. The EPA notes that the MPCA has been working on a complex TMDL for the Minnesota River for a 330 mile stretch of the river. In 1989 MPCA developed the Minnesota River Assessment Project to collect and to evaluate information to implement the TMDL for the Minnesota River. The Minnesota TMDL was scheduled for completion in July of 1993.

MPCA is also engaged in other activities which increase water quality, such as the issue of permits, development of nonpoint management, and publication of 20 water quality reports. The Sierra Club Group notes that some of these reports were published before the Administrator identified pollutants requiring TMDLs and at least one acknowledged that nonpoint source pollution was not considered.

The Sierra Club Group offers a letter from MPCA to the EPA which states that MPCA has removed WQLSs which are affected by nonpoint source pollution and another suggesting that MPCA refuses to hire or assign personnel to identify WQLSs and to establish TMDLs. In a more recent letter from the MPCA to counsel for plaintiffs, MPCA...