Northwest Environmental Advocates v. U.S. E.P.A.

537 F.3d 1006

NORTHWEST ENVIRONMENTAL ADVOCATES; The Ocean Conservancy, Inc.; Waterkeepers Northern California, Petitioners, and The States Of New York, Illinois, Michigan, Minnesota, Wisconsin, and the Commonwealth of Pennsylvania, Petitioners-Intervenors, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Northwest Environmental Advocates; The Ocean Conservancy; Santa Monica Baykeeper, dba San Francisco Baykeeper; dba DeltaBaykeeper, Plaintiffs-Appellees, and The States of New York, Illinois, Michigan, Minnesota, Wisconsin, and the Commonwealth of Pennsylvania, Plaintiffs-Intervenors-Appellees, v. United States Environmental Protection Agency, Defendant-Appellant, and The Shipping Industry Ballast Water Coalition, Defendant-Intervenor-Appellant.

Northwest Environmental Advocates; The Ocean Conservancy; Santa Monica Baykeeper, dba San Francisco Baykeeper; dba DeltaBaykeeper, Plaintiffs-Appellees, and The States of New York, Illinois, Michigan, Minnesota, Wisconsin, and the Commonwealth of Pennsylvania, Plaintiffs-Intervenors-Appellees, v. United States Environmental Protection Agency, Defendant-Appellant, and The Shipping Industry Ballast Water Coalition, Defendant-Intervenor-Appellant.

No. 03-74795.

No. 06-17187.

No. 06-17188.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 14, 2007.

Filed July 23, 2008.

Deborah A. Sivas, Stanford Law School Legal Clinics, Stanford, CA, Melissa Powers, Pacific Environmental Advocacy Center, Portland, OR, Michael R. Lozeau, Alameda, CA, for the petitioners-appellants/plaintiffs-appellees.

Jennifer L. Scheller, Thomas Sansoneti, Martin F. McDermott, U.S. Department of Justice, Washington, D.C., Nancy J. Marvel, U.S. Environmental Protection Agency, San Francisco, CA, for the respondent-appellee/defendant-appellant.

Michael W. Evans; Brian K. McCalmon; James R. Weiss, Kirkpatrick & Lockhart Preston Gates Ellis, Washington, D.C., Tim Walker; Rachel R. Davidson, Kirkpatrick & Lockhart Preston Gates Ellis, San Francisco, CA, for the defendant-intervenor-appellant.

Timothy Hoffman, Office of the Attorney General, Buffalo, NY, Michael A. Cox, Michigan Attorney General, Lansing, MI, Peggy Lautenschlager, Wisconsin Attorney General, Madison, WI, Mike Hatch, Attorney General of Minnesota, St. Paul, MN, Lisa Madigan, Office of the Attorney General, Chicago, IL, Richard P. Mather, Department of Environmental Protection, Harrisburg, PA, Michael W. Evans, Kirkpatrick & Lockhart Preston Gates Ellis, for the plaintiffs-intervenors-appellees.

On Petition for Review of an Order of the Environmental Protection Agency. EPA No. 03-5760.

Appeals from the United States District Court for the Northern District of California Susan Yvonne Illston, District Judge, Presiding. D.C. No. CV-03-05760-SI.

Before: HAWKINS, KIM McLANE WARDLAW, and W. FLETCHER, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge:

Plaintiffs in this case are Northwest Environmental Advocates, San Francisco Baykeeper, and The Ocean Conservancy. Plaintiffs-intervenors are the States of Illinois, Michigan, Minnesota, New York, Pennsylvania, and Wisconsin. Plaintiffs and plaintiffs-intervenors challenge a regulation originally promulgated by the Environmental Protection Agency ("EPA") in 1973 exempting certain marine discharges from the permitting scheme of sections 301(a) and 402 of the Clean Water Act ("CWA"). That regulation, 40 C.F.R. § 122.3(a), provides that the following vessel discharges into the navigable waters of the United States do not require permits: discharge of effluent from properly functioning marine engines; discharge of laundry, shower, and galley sink wastes from vessels; and any other discharge incidental to the normal operation of a vessel, including the discharge of ballast water.

The district court concluded that the EPA had exceeded its authority under the CWA in exempting these discharges from permitting requirements. The district court vacated § 122.3(a), effective September 30, 2008. We affirm the decision of the district court.

I. Background

A. The CWA and 40 C.F.R. § 122.3(a)

In 1972, Congress enacted sweeping amendments to the Federal Water Pollution Control Act of 1948. After another round of substantial amendments in 1977, the statute became known as the Clean Water Act. The CWA declares a "national goal that the discharge of pollutants into the navigable waters be eliminated by 1985." 33 U.S.C. § 1251(a)(1).

Section 301(a) of the CWA provides that, subject to certain exceptions, "the discharge of any pollutant by any person shall be unlawful." Id. § 1311(a). One of these exceptions is for discharges authorized by a permit granted pursuant to the National Pollutant Discharge Elimination System ("NPDES"), a system set forth in section 402 of the Act. Id. §§ 1311(a), 1342. The combined effect of sections 301(a) and 402 is that "[t]he CWA prohibits the discharge of any pollutant from a point source into navigable waters of the United States without an NPDES permit." N. Plains Res. Council v. Fid. Exploration & Dev. Co., 325 F.3d 1155, 1160 (9th Cir.2003). The EPA administers the NPDES. 33 U.S.C. § 1251(d).

Obtaining a permit under the CWA need not be an onerous process. For example, in appropriate circumstances a discharge may be allowed under a "general permit" requiring only that the discharger submit a "notice of intent" to make the discharge. As we explained in Natural Resources Defense Council v. U.S. EPA, 279 F.3d 1180, 1183 (9th Cir.2002):

NPDES permits come in two varieties: individual and general. An individual permit authorizes a specific entity to discharge a pollutant in a specific place and is issued after an informal agency adjudication process. See 40 C.F.R. §§ 122.21, 124.1-124.21, 124.51-124.66. General permits, on the other hand, are issued for an entire class of hypothetical dischargers in a given geographical region and are issued pursuant to administrative rulemaking procedures. See id. §§ 122.28, 124.19(a). General permits may appropriately be issued when the dischargers in the geographical area to be covered by the permit are relatively homogenous. See id. § 122.28(a)(2). After a general permit has been issued, an entity that believes it is covered by the general permit submits a "notice of intent" to discharge pursuant to the general permit. Id. § 122.28(b)(2). A general permit can allow discharging to commence upon receipt of the notice of intent, after a waiting period, or after the permit issuer sends out a response agreeing that the discharger is covered by the general permit. Id. § 122.28(b)(2)(iv).

In 1973, the EPA exempted by regulation several categories of vessel discharges from NPDES permitting requirements under the CWA. See NPDES, 38 Fed.Reg. 13,528, 13,530, § 125.4 (May 22, 1973). The regulation provides that "[t]he following discharges do not require NPDES permits":

Any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel. This exclusion does not apply to rubbish, trash, garbage, or other such materials discharged overboard; nor to other discharges when the vessel is operating in a capacity other than as a means of transportation[.]

40 C.F.R. § 122.3(a). The CWA expressly exempts sewage discharges from vessels from the permitting process and regulates these discharges by other means. See 33 U.S.C. §§ 1362(6)(A), 1322. Because § 122.3(a) does not itself exempt sewage discharges but instead merely recognizes the statute's exemption of sewage discharges, the sewage clause in § 122.3(a) is not subject to the ultra vires claim made here. See also Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 493 n. 13 (9th Cir.1984) (contrasting the express statutory exemption of sewage with regulation relating to "deballasting" by ships). Therefore, three categories of discharges exempted by 40 C.F.R. § 122.3(a) are at issue in this case: (1) marine engine discharges; (2) graywater discharges ("laundry, shower, and galley sink wastes"); and (3) "any other discharge incidental to the normal operation of a vessel."

The first proposed draft of the regulation would have excluded only marine engine discharges. See NPDES, 38 Fed. Reg. 1362, 1363-64, § 125.4(c) (proposed Jan. 11, 1973). The EPA subsequently added the exclusions for graywater and other discharges incidental to normal vessel operations. When promulgating the final regulation in May 1973, the EPA explained its anticipated effect: "Most discharges from vessels to inland waters are now clearly excluded from the permit requirements." 38 Fed.Reg. at 13,528, (b)(13)(ii). The EPA stated that "[t]his type of discharge generally causes little pollution." Id. The EPA stated, further, that the "exclusion of vessel wastes from the permit requirements will reduce administrative costs drastically." Id. Decades later, an EPA administrator declared that in 1973:

[W]e were faced with many, many other much higher priority situations such as raw sewage being discharged, municipal plants having to be built, very large paper mills or steel mills and the like discharging. At the time we thought that was not an important area to deal with.... Vessels were not important to the overall scheme of things at that time.

Craig Vogt, EPA, EPA Pub. Meeting # 12227, Ocean Discharge Criteria (Sept. 12, 2000, 1 p.m.). The EPA amended the regulation in 1979 in minor respects that do not affect our analysis. See NPDES, Revision of Regulations, 44 Fed.Reg. 32,854, 32,902, § 122.4 (June 7, 1979); see also NPDES, Revision of Existing Regulations, 43 Fed.Reg. 37,078, 37,079, I(c)(2) (Aug. 21, 1978) (describing the proposed changes).

The text of the CWA does not exempt from NPDES requirements marine engine discharges, graywater discharges, or other discharges incidental to the normal operation of vessels. However, the EPA contended in 1973, and continues to...