United States District Court, D. Rhode Island
ORDER AND MEMORANDUM
M. LISI SENIOR UNITED STATES DISTRICT JUDGE
plaintiff in this action, the Conservation Law Foundation
(“CLF”), 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
Clean Water Act
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)).
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.
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).
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”).
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).
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.
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.
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.
Rhode Island Bodies of Water in this
to a TMDL Report 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.
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.”
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.”)
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”).
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)
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.
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 ...