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March 3, 2004.

Amigos Bravos, Plaintiff,
Richard Green, Regional Administrator, Region VI, et al.,[fn1] Greg Cook, Regional Administrator, Region VI, United States Environmental Protection Agency, et al., Defendants

The opinion of the court was delivered by: REGGIE B. WALTON, District Judge

*fn1 Pursuant to Fed.R.Civ.P. 25(d), Richard Green has been substituted as the named defendant Regional Administrator, Region VI, in this case. Similarly, defendant Mike Leavitt has been substituted as the Administrator of the EPA.


This lawsuit involves the issue of whether, pursuant to the Clean Water Act, 33 U.S.C. § 1251-1387 (2000), the Environmental Protection Agency's ("EPA") alleged approval of the State of New Mexico's implementation plan regarding the attainment of Total Maximum Daily Loads ("TMDLs"), was arbitrary and capricious. Currently before the Court are the parties' motions for summary judgment. Concluding that there has been no final agency action in this matter, the Court will grant the defendants' motion and dismiss plaintiff's complaint.

  I. Factual Background Page 2

  Resolution of the issues presented in this case, although not requiring an extensive analysis of the intricacies of the Clean Water Act's regulatory scheme, "requires a familiarity with the history, the structure, and alas, the jargon of the federal water pollution laws." Pronsolino v. Nastri, 291 F.3d 1123, 1126 (9th Cir. 2002) (quoting Natural Res. Def. Council v. EPA. 915 F.2d 1314, 1316 (9th Cir. 1990)). The Court will therefore begin its discussion with a brief overview of the statutory provisions at issue in this case.

 A. The Regulatory Scheme

  Congress passed the Federal Water Pollution Act, commonly referred to as the Clean Water Act ("CWA" or "Act"), in 1972 with the goal of "restor[ing] and maintain [ing] the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. In furtherance of this objective, Congress declared that a "national goal" of the CWA would be to eliminate "the discharge of pollutants into the navigable waters . . . by 1985." Id. § 1251(a)(1). The EPA has responsibility for enforcing the Act. Id. § 1251(d).

  There are two potential sources of pollution that the EPA's regulatory program targets: point sources and nonpoint sources. A point source is defined in the Act as "any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged." 33 U.S.C. § 1362(14). Examples of such sources are pipes, tunnels, or wells. Friends of the Earth v. EPA, 333 F.3d 184, 186 n.2 (D.C. Cir. 2003). Although the term nonpoint source is not defined in the Page 3 Act, "it is generally defined by exclusion to mean any pollutant source other than a point source, including, for example, runoff from agricultural fields." Defendants' Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment and in Support of Defendants' Cross-Motion for Summary Judgment ("Defs.' Opp'n") at 4 (citing National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 165-66, 176 (D.C. Cir. 1982)).

  Point sources were addressed in the 1972 amendments to the Act, wherein Congress prohibited the discharge of any pollutant from a point source into certain waters unless the discharge complied with the strict requirements of the Act. See 33 U.S.C. § 1311 (a), 1311 (b)(2). This approach focuses on technology-based controls to limit the amount of pollutant discharge through the utilization of the EPA's National Pollution Discharge Elimination System ("NPDES") permit program. 33 U.S.C. § 1342. The NPDES permit program, applicable only to point sources, "is the principal means for implementing both the technology-based regulations and the water quality standards." Defs.' Opp'n at 7 (citing 33 U.S.C. § 1342(a); other citation omitted). NPDES permits limit the amount of pollutant that can be discharged by a point source and are federally enforceable. Id.

  Although the technology-based point source program was intended to be the primary means for controlling water pollution, because solely targeting point source pollution was insufficient to restore certain rivers, streams or smaller Page 4 bodies of water, the Act also utilizes a water-quality based approach, which first "originated in the Water Quality Act of 1965, Pub. L. No. 89-234, 79 Stat. 903." Defs.' Opp'n at 5. This approach involves assigning each body of water "a specific water quality standard and that standard establishes the level of pollution that can be present in the waterbody, regardless of the source of pollution." Id. at 4-5.

  Nonpoint source pollution is primarily regulated by the States through the water-quality approach. Defs.' Opp'n at 7 (citations omitted). Section 303(d) of the CWA requires each State to identify and rank those waters within its boundaries where technology-based controls are inadequate to attain quality water standards. 33 U.S.C. § 1313(d)(1)(A). Such substandard waters are termed "water quality limited segments" ("WQLSs") and are listed on a State's § 303(d) list. Defs.' Opp'n at 8; 40 C.F.R. § 130.7(b). The State must submit documentation to its EPA Regional Administrator supporting its decision to list, or not list, waters on its § 303(d) list. 40 C.F.R. § 130.7(b)(6). For each body of water identified on its § 303(d) list, the State must establish the body's total maximum daily load ("TMDL"). Id. § 130.7(c)(1). Simply stated, "[a] TMDL is the maximum amount of a pollutant that can be added to a waterbody (its "loading capacity") without exceeding water quality standards." Defs.' Opp'n at 1 (footnote omitted); see also 40 C.F.R. § 130.2(i).*fn2 Each TMDL must "be Page 5 established at [a] level[ ] necessary to attain and maintain the applicable narrative and numerical [water quality standards,("WQS")], with seasonal variations and a margin of safety [taking] into account any lack of knowledge concerning the relationship between effluent limitations[*fn3] and water quality." 40C.F.R. § 130.7(c)(1).

  Each state is required to submit to its EPA Regional Administrator its 303(d) list and the corresponding TMDLs for the bodies of water enumerated on the list. 33 U.S.C. § 1313 (d)(2). The EPA is required to either approve or disapprove the bodies of water identified by the States and their corresponding TMDLs. Id. "If the [EPA] Administrator disapproves such identification[s] and load[s], he shall not later than thirty days after the date of such disapproval identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters. . . ." Id. Regardless of whether the EPA approves a State's 303(d) list and loads or establishes its own list and loads for the State, the CWA requires the state to incorporate this list and the designated loads into its current planning process Page 6 ("CPP"). Id.

  Unlike NPDES permits, TMDLS are not federally enforceable. Defs.' Opp'n at 11 (citation omitted). Rather, to encourage compliance, the EPA may "use federal grants to encourage the States to address nonpoint source pollution and accomplish the loading reductions established in a TMDL." Id. (citing 33 U.S.C. § 1288(f)). The EPA has authority, however, to institute a civil action against any polluter, whether from a point source or nonpoint source, "upon receipt of evidence that a pollution source or combination of sources is presenting an imminent and substantial endangerment" to human health or welfare. 33 U.S.C. § 1364; Defs.' Opp'n at 10 n.7. On July 13, 2000, the EPA issued proposed regulations that would have revised the TMDL process. Defs.' Opp'n at 13. These regulations would have, inter alia, redefined a TMDL to include eleven elements, one being an implementation plan. Id. at 14 (citing 65 Fed. Reg. at 43,662). The revised regulations would also have required States to provide "reasonable assurances," which was defined as "a demonstration that TMDLs will be implemented through regulatory or voluntary actions[,]" as a part of the State's implementation plan. Id. On March 19, 2003, the EPA withdrew this proposed final rule, which never became effective, because the ...

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