Conservation Law Found., Inc. v. U.S. Envtl. Prot. Agency

223 F.Supp.3d 124

CONSERVATION LAW FOUNDATION, INC. & Charles River Watershed Association, Inc.

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.

CIVIL ACTION NO. 16–10397–RGS

United States District Court, D. Massachusetts.

Signed March 24, 2017

Caitlin S. Peale Sloan, Conservation Law Foundation, Boston, MA, Christopher M. Kilian, Conservation Law Foundation, Montpelier, VT, for Conservation Law Foundation, Inc. & Charles River Watershed Association, Inc.

Kate R. Bowers, United States Department of Justice, Washington, DC, Susan M. Poswistilo, United States Attorney's Office, Boston, MA, for United States Environmental Protection Agency et al.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS

STEARNS, DISTRICT JUDGE

This case tests the limits of a federal court to require an agency of the executive branch to do something that it is has decided not to do, no matter how compelling might be the circumstances. Plaintiffs Conservation Law Foundation, Inc., and Charles River Watershed Association, Inc., brought this citizen suit under the Clean Water Act (CWA) against the Environmental Protection Agency (EPA), the EPA's Region 1 Office, Gina McCarthy (EPA's Administrator at the time the lawsuit was filed), and H. Curtis Spalding (the Regional Administrator of the EPA's Region 1 Office), contending that the EPA¹ has abdicated a nondiscretionary duty to require stormwater dischargers along the Charles River to apply for pollution discharge permits. The EPA now moves to dismiss the Complaint for lack of subject matter jurisdiction and failure to state a claim. Fed. R. Civ. P. 12(b)(1), (6). After a hearing on the motion to dismiss, plaintiffs moved to amend the Complaint, seeking to add a claim that the EPA has failed to respond to a petition that plaintiffs filed in 2013 seeking designation of a number of stormwater point sources. The EPA opposes the motion, chiefly contending that amendment would be futile.

BACKGROUND

The relevant facts are largely undisputed, but the parties vigorously disagree over their fit in the overarching regulatory framework. Under the CWA, each state is required to set water quality standards for bodies of water within its boundaries. 33 U.S.C. § 1313(c). Once these standards are defined, the state determines which water bodies do not meet the quality standards for each of a list of pollutants. Id. § 1313(d)(1)(A). If a pollutant exceeds the acceptable level, the state must then establish the "total maximum daily load" (TMDL) of the pollutant that the water body can absorb and still meet water quality standards. Id. § 1313(d)(1)(C).

TMDLs allocate the daily load between point sources (such as a pipe or ditch, id. § 1362(14)) and all other sources, creatively referred to as nonpoint sources. A TMDL is the sum of acceptable "wasteload allocations" from point sources and "load allocations" from nonpoint sources. 40 C.F.R. § 130.2(g)–(i). Once a TMDL is designed, it is submitted to the EPA for approval. 33 U.S.C. § 1313(d)(2).

A separate section of the CWA establishes a permitting system for the discharge of pollutants from point sources. 33 U.S.C. §§ 1311(a), 1342(a). Under the National Pollutant Discharge Elimination System (NPDES), dischargers must obtain a permit that, among other restrictions, limits the quantity and type of pollutants that can be discharged into a protected body of water. 40 C.F.R. § 122.1(b). These limits must be "consistent with the assumptions and requirements of any available wasteload allocation for the discharge" set by the relevant TMDL. Id. § 122.44(d)(1)(vii)(B).

Point sources of stormwater discharges, however, are not treated like the mine-run of point sources. Instead, they are subject to special permitting rules established by a 1987 amendment to the CWA. Under the 1987 amendment, only certain types of stormwater discharge require a permit, most notably those associated with industrial activity and municipal sewer systems. 33 U.S.C. § 1342(p)(2). The amendment also gave the EPA the authority to identify and regulate other sources of stormwater discharge. Id. § 1342(p)(6). Exercising this authority, the EPA added two types of stormwater discharges to the NPDES permitting system, 40 C.F.R. § 122.26(a)(9)(i)(A), (B), and instituted an ad hoc procedure for permitting where: (1) the EPA² "determines that storm water controls are needed for the discharge based on wasteload allocations that are part of ‘total maximum daily loads' (TMDLs) that address the pollutant(s) of concern"; or (2) where the EPA "determines that the discharge, or category of discharges within a geographic area, contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States." Id. § 122.26(a)(9)(i)(C), (D). These provisions make up the EPA's "residual designation authority" (RDA).

Plaintiffs contend that under the RDA, the EPA is required to take urgent action to address stormwater discharges into the Charles River. Plaintiffs point to three Charles River TMDLs approved by the EPA in recent years. The first two TMDLs address "nutrient" pollution in the Charles. These TMDLs divide the Charles into two stretches: the Upper/Middle Charles (flowing from Hopkinton to the Watertown Dam), and the Lower Charles (flowing from the Watertown Dam to the New Charles River Dam). In both stretches, nutrient pollution (primarily from phosphorus) has fostered "cultural" or "accelerated eutrophication," a process by which a body of water produces overabundant plant life, including toxic algae, thereby degrading water quality and deterring recreational use. Defs.' Ex. 1, Dkt. # 22–2, at 5–6, 19–20; Defs.' Ex. 2, Dkt. # 22–3, at 2, 13–14. Both TMDLs identify stormwater as a major source of nutrient discharge into the Charles. Defs.' Ex. 1 at 43; Defs.' Ex. 2 at 46–51.

The third TMDL addresses pathogen pollution, including bacteria such as fecal coliform and E. coli. Pathogens endanger the health of persons who drink or are otherwise exposed to the polluted water. Defs.' Ex. 3, Dkt. # 22–4, at 3. The TMDL identifies stormwater as a major source of pathogens, primarily because it washes animal waste and other pathogen hosts into the Charles. Id. at 39.

All three TMDLs and the recitations in plaintiffs' Complaint identify significant threats to the vitality of the Charles—the amelioration of which will require severe reductions in the levels of nutrient and pathogen pollution contributed to the River by stormwater. Nutrient pollution has caused toxic algal blooms in the Charles, leading state and local authorities to warn citizens and their pets to avoid any contact with River water. Am. Compl. ¶¶ 48, 81. Plaintiffs also note that high levels of pathogen pollution have forced the cancellation of public swimming events. Am. Compl. ¶ 52. The Lower Charles nutrient TMDL implementation plan will require "Commercial," "Industrial," and "High Density Residential" land users to reduce phosphorous loading by 65% from 1998–2002 levels, while cities and towns along the Charles will be required to achieve reductions in excess of 60% of 1998–2002 levels. Defs.' Ex. 1 at 106–112. The implementation plan for the Upper/Middle Charles nutrient TMDL also calls for severe reductions in nutrient contributions by "Commercial/Industrial/Transportation" and "High Density/Medium Density/Multi–Family Residential" land users on "the same [scale] as those called for in the Lower Charles Nutrient TMDL." Defs.' Ex. 2 at 84. The pathogen TMDL, for its part, envisions reductions of 41.2%–98.8% in bacteria loading and reductions of 97.1%–97.6% in fecal coliform loading for comparable land use categories. Defs.' Ex. 3 at 40.

Plaintiffs filed this lawsuit on February 25, 2016, and amended the Complaint on June 20, 2016. The court heard oral argument on the EPA's motion to dismiss on February 3, 2017. At the conclusion of the argument, the court invited additional comments concerning the relationship between this suit and the citizen petition provision of the EPA's regulations implementing the RDA. See 40 C.F.R. § 122.26(f)(2). Both parties responded, and plaintiffs, together with their response, sought leave to add an additional count to the Complaint. That count would assert that the EPA has failed to fulfill the nondiscretionary duty imposed under the RDA to make a final determination on citizen petitions for point source designations within 90 days of receipt. See id. § 122.26(f)(5). Specifically, plaintiffs contend that the EPA has yet to issue a final determination on a petition filed on July 10, 2013, requesting the EPA to require permits for commercial, industrial, and institutional stormwater discharges at some 1,711 locations in New England.

DISCUSSION

Relying on the citizen suit provision of the CWA, 33 U.S.C. § 1365, plaintiffs allege that the EPA has failed under 40 C.F.R. § 124.52 to distribute NPDES permit applications to various commercial, industrial, institutional, and high-density residential stormwater point sources along the Charles (the EPA does not contest the fact that it has not done so). The essence of plaintiffs' argument is that the EPA, in approving the Charles River TMDLs, made an implicit determination under its RDA that stormwater dischargers along the River must obtain NPDES permits.

As a general proposition, sovereign immunity bars suits against federal agencies and their officials. Commonwealth of Puerto Rico v. United States , 490 F.3d 50, 57 (1st Cir. 2007). Congress may waive that immunity, and it has done so under the CWA to the extent that citizens are authorized to bring suits to compel the EPA Administrator to carry out "any act or duty ... which is not discretionary." 33 U.S.C. § 1365(a)(2). Stated in the obverse, "[a] clearly mandated, nondiscretionary duty imposed on the Administrator is a prerequisite for federal jurisdiction under the CWA citizen suit provision." Miccosukee Tribe of Indians of Fl. v. U.S. E.P.A. , 105 F.3d 599, 602 (11th Cir....