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Conservation Law Foundation v. United States Environmental Protection Agency

United States District Court, D. Rhode Island

December 13, 2016

CONSERVATION LAW FOUNDATION Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Regina McCarthy, Administrator and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION I, H. Curtis Spalding, Regional Administrator Defendants.

          ORDER AND MEMORANDUM

          MARY M. LISI SENIOR UNITED STATES DISTRICT JUDGE

         The plaintiff in this action, the Conservation Law Foundation (“CLF”)[1], on its own behalf and that of its individual members, brought a citizen suit under the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (“CWA”) against the United States Environmental Protection Agency (“EPA”) by suing its Administrator, Regina McCarthy, and its Regional Administrator, H. Curtis Spalding (together with Regina McCarthy, the “Defendants”), in their official capacities. CLF alleges that the Defendants have failed to carry out “non-discretionary” duties under the CWA. Specifically, CLF contends that, although the Defendants have determined that certain commercial and industrial dischargers contribute to water quality violations affecting several bodies of water located in Rhode Island, the Defendants have failed (1) to notify those dischargers that they are required to obtain discharge permits under the Rhode Island Pollution Discharge Elimination System; and (2) to provide them with applications for permit coverage. CLF seeks declaratory and injunctive relief. The matter before the Court is the Defendants' motion to dismiss the complaint. For the reasons that follow, the Defendants' motion is GRANTED.

         I. Factual Background

         A. The Clean Water Act

         The CWA was enacted to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a)(1994). “‘This objective incorporated a broad, systemic view of the goal of maintaining and improving water quality ... the word integrity ... refers to a condition in which the natural structure and function of ecosystems [are] maintained.'” Dubois v. U.S. Dept. of Agriculture, 102 F.3d 1273, 1294 (1st Cir. 1996)(quoting United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132, 106 S.Ct. 455, 462, 88 L.Ed.2d 419 (1985) (quoting H.R.Rep. No. 92-911, at 76 (1972) U.S.Code Cong. & Admin.News 1972, at 3744)).

         To achieve its objective, the CWA, with certain limited exceptions, prohibits “the discharge of a pollutant by any person.” 33 U.S.C. § 1311(a). (12) The terms “discharge of a pollutant” and “discharge of pollutants” are defined as “(A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.” 33 U.S.C. § 1362(12). A “point source” is further defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). The provision also notes that “[t]his term does not include agricultural stormwater discharges and return flows from irrigated agriculture.” Id.

         States and the federal government share responsibility for achieving the CWA's objective. 33 U.S.C. § 1251(g); Upper Blackstone Water Pollution Abatement Dist. v. U.S. E.P.A., 690 F.3d 9, 14 (1st Cir. 2012) cert. Denied, __ U.S. __, 133 S.Ct. 2382, 185 L.Ed.2d 1063 (2013)(citing Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992)). Specifically, the CWA requires states to adopt water quality standards which protect against the degradation of the physical, chemical, or biological attributes of the states' waters and to designate the ambient water quality of their waters within their territory. 33 U.S.C. §§ 1251(a), 1313(c)(1), 1313(d)(4)(B) (1994); 40 C.F.R. § 131.12 (1995). Such “designated uses” of water bodies “specify the amount of pollutants that may be present in these water bodies without impairing their designated uses” (e.g. the propagation of aquatic life, recreation, aesthetics and use as public water supply). Upper Blackstone Water Pollution Abatement Dist. v. U.S. E.P.A., 690 F.3d at 14; 33 U.S.C. § 1313(c)(2)(A). Each state is required to “identify those waters within its boundaries for which the effluent limitations required by section 1311(b)(1)(A) and section 1311(b)(1)(B) of this title are not stringent enough to implement any water quality standard applicable to such waters. The State shall establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters.” 33 U.S.C. § 1313(d)(1)(A).

         In addition to identifying waters within a state's boundaries that fail to meet their designated water quality standards and ranking them in order of priority, “States must then begin the planning process for bringing these waters into compliance with water quality standards.” Upper Blackstone Water Pollution Abatement Dist. v. U.S. E.P.A., 690 F.3d at 14; 33 U.S.C. § 1313(d), (e); 40 C.F.R. § 122.44(d)(1). To assist in this process, states must develop Total Maximum Daily Loads (“TMDLs”) for those pollutants which are identified as suitable for such calculation. The TMDLs must be established “at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality.” 33 U.S.C. § 1313(d)(1)(C). A TMDL is a calculation of the maximum quantity of a pollutant that may be added to a water body from all sources without exceeding applicable water quality standards. In other words, a TMDL “represents the sum of point source waste allocations, non-point source load allocations, and natural background sources of pollutants.” American Farm Bureau Federation v. U.S. E.P.A., 278 F.R.D. 98, 101 (M.D.Pa. 2011)(noting that “[a] TMDL is, in essence, a pollution budget, and it represents a calculation of the maximum amount of a pollutant that a water body can receive and still meet water quality standards”).

         As set forth in EPA regulations, TMDLs are calculated as “[t]he sum of the individual WLAs [Wasteload Allocation] for point sources and LAs [Load Allocation] for nonpoint sources and natural background.” 40 C.F.R. § 130.2(i). A WLA is “[t]he portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources of pollution. WLAs constitute a type of water quality-based effluent limitation.” 40 C.F.R. § 130.2(h). An LA is “[t]he portion of a receiving water's loading capacity that is attributed either to one of its existing or future nonpoint sources of pollution or to natural background sources.” 40 C.F.R. § 130.2(g).

         After the State has established TMDLs for “all pollutants preventing or expected to prevent attainment of [identified] water quality standards, ” the calculations to establish TMDLs are subject to public review. 40 C.F.R. § 130.7(c)(1)(ii). Following submission of finalized TMDLs to the EPA, the EPA may approve the identification of waters and established loads, in which case the State must incorporate them into its continuing planning process. 40 C.F.R. § 130.7(d)(2). In the event the EPA disapproves the TMDL, it must “identify such waters in such State and establish such loads for such waters as [the Administrator] determines necessary to implement the water quality standards applicable to such waters.” The State is then required to incorporate the EPA-set TMDLs into its continuing planning process. Id.

         The CWA also prohibits the discharge of any pollutants from a point source unless authorized by an NPDES [National Pollutant Discharge Elimination System] permit. Id. 33 U.S.C. § 1311(a), 1342. NPDES permits “bring both state ambient water quality standards and technology-based effluent limitations to bear on individual discharges of pollution ... and tailor these to the discharger through procedures laid out in the Act and in EPA regulations.” Upper Blackstone Water Pollution Abatement Dist. v. U.S. E.P.A., 690 F.3d at 14. The NPDES permit program provides permits to individual entities discharging point source pollutants by setting the maximum discharge levels of a particular contaminant. American Farm Bureau Federation v. U.S. E.P.A., 984 F.Supp.2d 289, 296 (M.D. Penn. Sept. 13, 2013). Together with the CWA requirement of state-established water quality standards that protect against the degradation of the physical, chemical, or biological attributes of the states' waters, “[the] most important component of the Act is the requirement that an NPDES permit be obtained.” Dubois v. U.S. Dept. of Agriculture, 102 F.3d 1273, 1294 (1st Cir. 1996). Rhode Island is among the states authorized by the EPA to administer its own NPDES program.

         In contrast to point source pollutants, nonpoint sources of pollution are generally excluded from CWA regulations, although states are encouraged to track and target such nonpoint source pollution. Oregon Desert Association v. U.S. Forest Service, 550 F.3d 778, 785 (9th Cir. 2008). “‘Non-point source pollution has been described as nothing more [than] a [water] pollution problem not involving a discharge from a point source.'” Conservation Law Foundation, Inc. v. U.S. E.P.A., 964 F.Supp.2d 175, 180 (D.Mass. Aug. 29, 2013)(quoting Defenders of Wildlife v. U.S. E.P.A., 415 F.3d 1121, 1124 (10th Cir.2005)). Accordingly, the focus of the CWA is generally on pollutants from identifiable point source discharges. Oregon Desert Association v. U.S. Forest Service, 550 F.3d at 785.

         B. Rhode Island Bodies of Water in this Litigation[2]

         1. Mashapaug Pond

         According to a TMDL Report[3] dated September 2007, the Mashapaug Pond watershed, which is located in the Pawtuxet River basin, is on Rhode Island's Section 303(d) list of impaired waters for “phosphorus, excess algal growth/chlorophyll a, pathogens, and PCBs [polychlorinated biphenyl, an organic chlorine compound].” Mashapaug TMDL p. vii. (http://www.dem.ri.gov/programs/benviron/water/quality/rest/pdfs/ mashpaug.pdf). The TMDL Report notes that “excessive phosphorus loads contribute to high plankton concentrations, which in turn contribute to low dissolved oxygen concentrations that impair fish and animal survival and loss of habitat.” Moreover, “[t]he phosphorus loads also contribute to the growth of blue-green algae species that have been identified as hazardous to humans (through skin contact), making the pond unsafe for swimming.” Id.

         The largest single phosphorus (non-point) source (47%) impacting Mashapaug Pond is attributed to tributary flow from Spectacle Pond; 22% of the total phosphorus load comes from six storm drains. Mashapaug Pond TMDL Report p. viii. The source of pollution to the six identified storm drains “is runoff from non-point sources such as streets, parking lots, rooftops, and lawns.” Mashpaug TMDL report p. 13; p. 46 (noting that “[e]ven though stormwater point source discharges to Mashapaug Pond exist, the contributing sources are non-point in nature.”)

         To reverse eutrophication [lack of oxygen caused by excessive nutrients] of Mashapaug Pond, the TMDL Report calls for a “nutrient load reduction of 62% from all storm drains and direct overland runoff areas as well as the base flow from Spectacle Pond ... in order to meet the water quality standard for hypoxia [oxygen deficiency]. Id. at 41. Specifically, the TMDL Report recommends reduction of the pond's phosphorus inputs by using a phased approach of combining BMPs [best management practices], including a reduction of stormwater loads to Spectacle Pond and various other management techniques to improve conditions in Spectacle Pond, as well as cooperative efforts between the Cities of Cranston and Providence and the Rhode Island Department of Transportation (“RIDOT”).

         The TMDL Report for Mashapaug Pond was approved by the EPA on September 27, 2007 (within one week of its receipt). EPA's assessment notes that “RI DEM has adequately identified the water body, the pollutant of concern, and the magnitude and location of the sources of pollution.” EPA New England's TMDL Review Document p. 2 (unpaginated) (https://ofmpub.epa.gov/waters10/attainsimpairedwaters.showtmd ldocument?ptmdldocblobsid=67876).

         2. Spectacle Pond

         Spectacle Pond, which constitutes the most significant source of phosphorus for Mashapaug Pond, is covered by the “9 Eutropic Ponds in Rhode Island” TMDL Report. Like Mashapaug Pond, Spectacle Pond is located in an urbanized area and subject to stormwater runoff from a high percentage of impervious cover. Eutropic Ponds TMDL Report p. 9. (http://www.epa.gov/region1/eco/tmdl/pdfs/ri/mashapaugpond.pdf).

         The Spectacle Pond TMDL Report indicates that 53% of the Spectacle Pond watershed consists of high density residential development, whereas 17% of the area features commercial land use, and 10% features industrial land use. Id. The Spectacle Pond watershed includes 19 ...


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