Ctr. for Envtl. Law & Policy v. U.S. Fish & Wildlife Serv.

228 F.Supp.3d 1152

CENTER FOR ENVIRONMENTAL LAW AND POLICY ; and Wild Fish Conservancy, Plaintiffs,

v.UNITED STATES FISH AND WILDLIFE SERVICE; and Daniel M. Ashe, in his official capacity as Director of the United States Fish and Wildlife Service, Defendants.

No. 2:15–CV–00264–SMJ

United States District Court, E.D. Washington.

Signed January 9, 2017

Brian Alan Knutsen, Kampmeier & Knutsen, PLLC, Portland, OR, Daniel James Von Seggern, Center for Environmental Law and Policy, Paul A. Kampmeier, Kampmeier & Knutsen PLLC, Seattle, WA, for Plaintiffs.

Kent Edmund Hanson, Sheila Anne Baynes, United States Department of Justice, Environmental Enforcement Section, Washington, DC, for Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION FOR SUMMARY JUDGMENT

SALVADOR MENDOZA, JR., United States District Judge

I. INTRODUCTION

The United States Fish and Wildlife Service operates the Leavenworth National Fish Hatchery (the Hatchery) located on Icicle Creek near the city of Leavenworth, Washington. The Hatchery discharges certain effluent into Icicle Creek, which, pursuant to the Clean Water Act (CWA) requires a National Pollutant Discharge Elimination System (NPDES) permit issued by the United States Environmental Protection Agency (EPA). EPA issued an NPDES permit for the Hatchery that became effective in 1975. Plaintiffs Center for Environmental Law and Policy and Wild Fish Conservancy (collectively CELP) filed this suit against the Fish and Wildlife Service and its Director (collectively FWS) alleging that the Hatchery's NPDES permit expired on August 31, 1979, and that the Hatchery has been discharging pollutants into Icicle Creek without an NPDES permit since that time, in violation of the CWA.

CELP has moved for partial summary judgment, requesting that the Court enter an order determining that FWS is in violation of the CWA for discharging pollutants without an NPDES permit throughout the six-year statute-of-limitations period. FWS has moved for judgment on the pleadings, arguing that this case is a collateral attack on EPA's decision to extend FWS's permit in 1981, which may be brought only in the appropriate court of appeals. In the alternative, FWS moves for summary judgment on the basis that this action is barred under the doctrine of claim preclusion because Wild Fish Conservancy's predecessor, Washington Trout, filed a similar action in 2005.

As explained below, because EPA's 1981 letter was not a decision issuing a permit under section 402 of the CWA, this Court has jurisdiction to review CELP's claims under the CWA's citizen suit provision. And CELP's claims are not barred by claim preclusion because the parties to this case and Washington Trout's 2005 action are not the same. On the merits of CELP's claims, the Hatchery's NPDES permit expired on August 31, 1979. The permit was not automatically extended, and EPA has not issued a new NPDES permit. The Hatchery has therefore been discharging pollutants into Icicle Creek without an NPDES permit throughout the statute-of-limitations period. Accordingly, FWS's Motion for Judgment on the Pleadings and Motion for Summary Judgment are denied; CELP's Motion for Partial Summary Judgment is granted.

II. BACKGROUND

A. Relevant Provisions of the Clean Water Act

The CWA is "a comprehensive water quality statute deigned to ‘restore and maintain the chemical, physical, and biological integrity of the Nation's waters.’ " PUD No. 1 of Jefferson Cnty. v. Wash. Dep't of Ecology , 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994) (quoting 33 U.S.C. § 1251(a) ). The CWA establishes distinct roles for the state and federal governments: among other things, EPA is required to establish and enforce limitations on individual discharges into the navigable waters from point sources, and states, subject to federal approval, must institute comprehensive water quality standards for waters within state borders. Id. (citing 33 U.S.C. §§ 1311, 1313, 1314 ). Section 301(a) of the CWA makes discharge of any pollutant unlawful, except when in compliance with other provisions of the CWA. 33 U.S.C. § 1311(a). One of those exceptions is discharge in compliance with a permit issued under section 402 of the CWA.

Section 402 establishes the National Pollutant Discharge Elimination System (NPDES), which authorizes EPA to issue permits for discharge of pollutants. 33 U.S.C. § 1342 ; EPA v. Nat'l Crushed Stone Ass'n , 449 U.S. 64, 71, 101 S.Ct. 295, 66 L.Ed.2d 268 (1980). Before EPA can issue an NPDES permit, the appropriate state must issue a certification under section 401 that the activity will not violate water quality standards. 33 U.S.C. § 1341(a). Permits issued under section 402 must be issued for fixed terms not exceeding five years. 33 U.S.C. § 1342(b)(1)(B). But, under the Administrative Procedures Act (APA) and EPA's regulations, the conditions of an expired permit continue until the effective date of a new permit if the permittee timely submits an application for a new permit. 5 U.S.C. § 558(c) ; 40 C.F.R. § 122.6.

B. The Leavenworth National Fish Hatchery

Icicle Creek originates in the Cascade Mountains and is a tributary to the Wenatchee River, which is a tributary to the Columbia River. ECF No. 14 at 6. Icicle Creek is home to populations of a number of fish species including steelhead, Chinook salmon, bull trout, and mountain whitefish. ECF No. 14 at 6. The Leavenworth National Fish Hatchery (the Hatchery), which is operated by FWS, is located on Icicle Creek approximately three miles upstream from the point where Icicle Creek enters the Wenatchee River. ECF No. 1 at 7, 10; ECF. No. 14 at 3. The Hatchery was constructed to maintain salmon stocks lost as a result of the construction of Grand Coulee Dam on the Columbia River, and it currently targets an annual release of 1.2 million spring Chinook salmon. ECF No. 1 at 10–11. No. 14 at 3.

The Hatchery discharges effluent from its fish rearing raceway to Icicle Creek at "Outfall 1," at approximately river mile 2.8. ECF No. 14 at 4–5. This water "contains some organic solid wastes that consist of uneaten food and fecal matter." ECF No. 15 at 16. The Hatchery also discharges effluent from pollution abatement ponds at "Outfall 2," at approximately river mile 2.7. ECF No. 14 at 5. This water contains "re-suspended organic solids created when the bottom of the rearing ponds are cleaned" including "fish food, fecal matter and other debris." ECF No. 15 at 16–17. Additionally, the Hatchery began discharging effluent from a new location known as "Outfall 6" in August 2015. ECF No. 14 at 6.

C. NPDES Permitting for Discharges From the Hatchery

It is undisputed that the Hatchery discharges pollutants into Icicle Creek,¹ that portions of Icicle Creek and the Wenatchee River have been identified as failing to meet certain water quality standards, and that an NPDES permit is required for discharges from the Hatchery. ECF No. 1 at 10–11; ECF No. 7 at 5–6. EPA issued an NPDES permit authorizing discharge from the Hatchery on December 30, 1974, which became effective on January 30, 1975. ECF No. 1 at 12; ECF No. 14 at 12. EPA modified the permit on May 20, 1977, to correctly identify the receiving water as Icicle Creek rather than the Wenatchee River. ECF No. 1 at 12; ECF No. 14 at 13–14. That permit, by its terms, was set to expire on August 31, 1979. ECF No. 1 at 12; ECF No. 14 at 14. FWS did not submit an application for a new NPDES permit prior to the expiration date. ECF No. 14 at 14.

FWS submitted an application for a new NPDES permit on November 12, 1980. ECF No. 1 at 13; ECF No. 25 at 2. On May 6, 1981, FWS received a letter from EPA providing:

Your previous [NPDES] permit is automatically extended in accordance with the U.S. Administrative Procedures Act (5 U.S.C. Section 558(c) ) and 40 CFR Part 122.5. The terms and conditions of that permit remain in effect indefinitely until a decision is made to take formal action on permit reissuance based on the new NPDES permit application which you have submitted.

Due to budgetary constraints, we are unable to process a permit reissuance for your facility at this time. Your new permit application will be retained in our files. In the event that a decision is made to take action on permit reissuance, you may be requested to update the information contained in your application.

ECF No. 15 at 110.

FWS has submitted applications for an updated permit on a number of occasions since 1981, most recently in 2005 and 2011, but EPA has never taken final action and issued or denied a new NPDES permit. ECF No. 25 at 2–3.

D. 2005 Washington Trout Lawsuit and Recent NPDES Permit Applications

In 2005 Plaintiff Washington Trout (the predecessor of Wild Fish Conservancy) filed a lawsuit alleging that EPA unlawfully delayed issuing a new NPDES permit for the Hatchery, that EPA's extension of the 1975 Permit was arbitrary, and that FWS was unlawfully discharging pollutants from the hatchery in violation of the CWA. Washington Trout v. Leavenworth Nat'l Fish Hatchery , No. 05–00203, 2005 WL 1845736 (E.D. Wash. July 8, 2005) ; ECF No. 14 at 14–15. The parties to that case reached a settlement agreement, pursuant to which EPA issued a draft NPDES permit for the hatchery in August 2006. ECF No. 14 at 15; ECF No. 25 at 3. The court dismissed the case with prejudice. Washington Trout v. Leavenworth Nat'l Fish Hatchery , No. 05–00203 (E.D. Wash. Feb. 22, 2007)

Following draft and final section 401 certifications issued by the Department of Ecology in November 2009 and January 2010, EPA issued a new draft NPDES permit on December 21, 2010. ECF No. 14 at 15–16. However, in light of significant changes to Hatchery operation plans since 2005, EPA determined that FWS should submit an entirely new NPDES permit application. ECF No. 24 at 4. On October 24, 2011, FWS submitted a new NPDES permit application, which, among other things, identified a new discharge...