Catskill Mountains Chapter of Trout Unlimited, Inc. v. U.S. Envtl. Prot. Agency

8 F.Supp.3d 500

CATSKILL MOUNTAINS CHAPTER OF TROUT UNLIMITED, INC., Theodore Gordon Flyfishers, Inc., Catskill–Delaware Natural Water Alliance, Inc., Federated Sportsmen's Clubs of Ulster County, Inc., Riverkeeper, Inc., Waterkeeper Alliance, Inc., Trout Unlimited, Inc., National Wildlife Federation, Environment America, Environment New Hampshire, Environment Rhode Island, and Environment Florida, Plaintiffs

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency, Defendants.

State of New York, Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, Washington, and the Government of the Province of Manitoba, Canada, Plaintiffs

v.United States Environmental Protection Agency and Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency, Defendants.

Case Nos. 08–CV–5606 KMK

08–CV–8430 KMK.

United States District Court, S.D. New York.

Signed March 28, 2014.

Daniel E. Estrin, Esq., Karl S. Coplan, Esq., Edward Teyber, Conor Walline¹ , Pace Environmental Litigation Clinic, White Plains, NY, James G. Murphy, Esq., National Wildlife Federation, Montpelier, VT, Joseph J. Mann, Esq., National Environmental Law Center, San Francisco, CA, for Environmental Plaintiffs.

David Henry Wrinn, Esq., Connecticut Office of the Attorney General, Hartford, CT, Eldon V.C. Greenberg, Esq., Garvey Schubert Barer, Washington, DC, Gerald T. Karr, Esq., Illinois Office of Attorney General, Chicago, IL, Philip Michael Bein, Esq., Kevin P. Donovan, Esq., New York State Office of the Attorney General, Albany, NY, Thomas A. Harnett, Esq., Attorney General of Maine, Augusta, ME, David L. Ormond, Jr., Esq., Delaware Department of Justice, Wilmington, DE, Carla Heyl, Esq., Leah M.P. Hedman, Esq., Minnesota Office of the Attorney General, St. Paul, MN, Ronald L. Lavinge, Esq., Assistant Attorney General, Department of Ecology, Olympia, WA, Sean Peter Manning, Esq., Michigan Department of Attorney General, Lansing, MI, John K. McManus, Esq., Donald A. Willoh, Esq., Jennifer S. Frazier, Esq., Jessica Lynn Blome, Esq., Shelly A. Woods, Esq., Missouri Attorney General's Office, Jefferson City, MO, for State Plaintiffs.

Bernardo Roman, III, Esq., Yinet Pino, Esq., Law Offices of Bernardo Roman, P.A., Miami, FL, David Guest, Esq., Earthjustice, Tallahassee, FL, for Environmental Intervenor–Plaintiffs.

Daniel Post Filor, Esq., Natalie Nancy Kuehler, Esq., Robert William Yalen, Esq., U.S. Attorney's Office, Southern District of New York, New York, NY, for EPA Defendants.

Amy Lynn McCamphill, Esq., Bridget Therse Eichinger, Esq., New York City Law Department, New York, NY, for Intervenor–Defendant City of New York.

Peter David Nichols, Esq., Berg Hill Greenleaf & Ruscitti LLP, Boulder, CO, for Intervenor–Defendant Western Water Providers.

Annette Marie Quill, Esq., Colorado Office of The Attorney General, Denver, CO, for State Intervenor–Defendants.

James Edward Nutt, Esq., South Florida Water Management District, West Palm Beach, FL, for Intervenor–Defendant South Florida Water Management District.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

In the context of water regulation, federal law provides that “the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). And, as relevant here, it defines a “discharge of a pollutant” to mean “any addition of any pollutant to navigable waters from any point source.” Id. § 1362(12). The Environmental Protection Agency (“EPA”) interprets these provisions not to apply to a “water transfer,” which it has defined, in a regulation, to mean “an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use.” 40 C.F.R. § 122.3(i). Before the Court are multiple motions and cross-motions for summary judgment challenging or defending this regulation as promulgated under the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq. As with many things legal and nautical, there is much complexity to confront below the surface of this seemingly simple language. Let's dive in.

I. Background

A. Statutory History

Congress has long sought to protect the integrity of our Nation's waters by limiting what we put in them. In 1899, it passed the Rivers and Harbors Act, which made it unlawful, in part, “to throw, discharge, or deposit ... from or out of any ... floating craft of any kind, or from the shore ... any refuse matter of any kind or description whatever ... into any navigable water of the United States, or into any tributary of any navigable water....” Rivers and Harbors Appropriations Act of 1899, ch. 425, § 13, 30 Stat. 1152 (codified as amended at 33 U.S.C. § 407 ). In addition to limiting the “discharge ... [of] refuse matter,” the Act authorized the Secretary of the Army, acting pursuant to the judgment of the Army Corps of Engineers, to “permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him.” Id.

Almost fifty years later, Congress significantly expanded its water-regulation authority when it passed the Federal Water Pollution Control Act of 1948, ch. 758, Pub.L. No. 845, 62 Stat. 1155 (codified as amended at 33 U.S.C. §§ 1251 et seq. ). This Act provided, inter alia, that

[t]he pollution of interstate waters in or adjacent to any State or States (whether the matter causing or contributing to such pollution is discharged directly into such waters or reaches such waters after discharge into a tributary of such waters), which endangers the health or welfare of persons in a State other than that in which the discharge originates, is hereby declared to be a public nuisance and subject to abatement as herein provided.

Id. § 2(d)(1). Although the Act did not define “pollution,” it did define “interstate waters” to mean “all rivers, lakes, and other waters that flow across, or form a part of, State boundaries.” Id. § 10(e). This part of the Act was slightly amended in 1956, see ch. 518, Pub.L. No. 660, § 8(a), 70 Stat. 498, and it was again amended in 1961 to expand the scope of the regulation from “interstate waters” to “interstate or navigable waters,” see Pub.L. No. 87–88, § 8(a), 75 Stat. 204 (“The pollution of interstate or navigable waters in or adjacent to any State or States ... which endangers the health or welfare of any persons, shall be subject to abatement....”). The 1961 amendments also modified the definition of “interstate waters,” but it did not define the newly added term “navigable waters.” See id. § 9(e) (“The term ‘interstate waters' means all rivers, lakes, and other waters that flow across or form a part of State boundaries, including coastal waters.”).

Then, about a decade later, Congress passed the Federal Water Pollution Control Act Amendments of 1972 (“1972 Amendments”), Pub.L. No. 92–500, 86 Stat. 816 (codified as amended at 33 U.S.C. §§ 1251 et seq. ), which represented a “comprehensive revision of national water quality policy.” S.Rep. No. 95–370, at 1 (1977), 1977 U.S.C.C.A.N. 4326, 4327. As relevant here, § 301 of the amended Act provided that, “[e]xcept as in compliance with” certain sections of the Act, “the discharge of any pollutant by any person shall be unlawful.” Id. § 301(a), 86 Stat. at 844 (codified as amended at 33 U.S.C. § 1311(a) ). Separately, the Act defined “discharge of a pollutant” to mean, in relevant part, “any addition of any pollutant to navigable waters from any point source.” Id. § 502(12), 86 Stat. at 886 (codified as amended at 33 U.S.C. § 1362(12) ). It further defined “pollutant” to mean “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” Id. § 502(6), 86 Stat. at 886 (codified as amended at 33 U.S.C. § 1362(6) ). It also defined “point source” to mean “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, ... or vessel or other floating craft, from which pollutants are or may be discharged.” Id. § 502(14), 86 Stat. at 887 (codified as amended at 33 U.S.C. § 1362(14) ). Finally, the Act defined “navigable waters” to mean “the waters of the United States, including the territorial seas.” Id. § 502(7), 86 Stat. at 886 (codified as amended at 33 U.S.C. § 1362(7) ).

In addition to significantly revising federal water-quality standards, Congress, through § 402 of the Act, created the National Pollutant Discharge Elimination System (“NPDES”). See id. § 402, 86 Stat. at 880–83 (codified as amended at 33 U.S.C. § 1342 ). Under this program, which explicitly replaced the permit program previously established by the Rivers and Harbors Act of 1899, see id. § 402(a)(5), 86 Stat. at 880 (codified as amended at 33 U.S.C. § 1342(a)(5) ), the Administrator of the EPA “may ... issue a permit for the discharge of any pollutant[ ] ... notwithstanding [§ ]301(a), upon condition that such discharge will meet ... such conditions as the Administrator determines are necessary to carry out the provisions of this Act.” Id. § 402(a)(1), 86 Stat. at 880 (codified as amended at 33 U.S.C. § 1342(a)(1) ). After obtaining a permit, any person discharging pollutants in compliance with the permit's terms is deemed to comply with § 301(a)'s ban on pollutant discharges. Id. § 402(k), 86 Stat. at 883 (codified as amended at 33 U.S.C. § 1342(k) ). But in addition to providing federal authority to issue permits, Congress also provided state governments with authority to create their own permit programs that, once established, would supersede...