United States District Court for the District of Columbia
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
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
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
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
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
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 EPA
"believe[d] that significant chances would need to be made to the July
2000 rule before it could represent a workable formula for an efficient
and effective TMDL program." 68 Fed. Reg. 13608 (Mar. 19, 2003). Thus,
regulations related to the Act have remained unchanged since the
inception of this lawsuit.
B. Cordova Creek
Cordova Creek ("the Creek"), the body of water that is the subject of
this litigation, is a high mountain stream located in north Central New
Mexico. Plaintiff's Memorandum of Law in Support of its Motion for
Summary Judgment ("Pl.'s Mem."), II. Factual Background: The Undisputed
Facts ("Pl.'s Facts") ¶¶ 1, at 7. Prior to 1982, the Creek's water
quality was "excellent[,]" and supported fish and other wildlife,
Id. ¶¶ 3-4, at 7. However, in 1982, Rio Costilla,
Incorporated, a private corporation, purchased 4,000 acres of land
situated along the Creek's drainage and began developing a ski resort,
called the Rio Costilla Ski Valley or "Ski Rio." Id. ¶ 5,
at 7. Ski Rio's development activities, which included construction of
access roads and parking lots, adversely impacted the water quality of
the Creek as soon as the project commenced and by 1987 the development
continued to degrade the Creek's water quality. Id. ¶ 7, at
7. The degradation of the Creek's water quality impelled concerned
citizens to file a lawsuit to compel the EPA to take action to improve
the Creek's water quality. Id. ¶¶ 15-16, at 8-9. The
lawsuit, Forest Guardians v. Browner, Civil Action No. 96-0826,
resulted in a Consent Decree and Settlement agreement which established a
ten-year TMDL schedule with the State of New Mexico, and this schedule
was later adopted by the New Mexico Environmental Department
("NMED") pursuant to a Memorandum of Understanding ("MOU") with the
EPA. Id. ¶¶ 16-17, at 9.*fn4 TMDLs were established for
three pollutants that were impacting the Creek: turbidity, stream bottom
deposits, and total phosphorous. Pl.'s Stmt. ¶ 20, at 9.
As required by Section 303(d) of the CWA, and in accordance with the
deadline for the issuance of proposed TMDLs set forth in the Forest
Guardians' consent decree, on November 10, 1999, the NMED submitted
"the final TMDL . . . for Cordova Creek." Admin. R. at 14,*fn5 Letter to
William Hathway, Water Quality Protection Division Director, USEPA Region
6, from James H. Davis, Chief, Surface Water Quality Bureau, NMED, dated
November 10, 1999. The NMED's submission, entitled "Total Maximum Daily
Load for Turbidity, Stream Bottom Deposits and Total Phosphorus for
Cordova Creek," was submitted to the EPA for its "review, approval, and
update into work element six of the New Mexico Water Quality Management
Plan" "NMED's Final TMDL") Id. Contained within this final TMDL
document was a section entitled "Implementation Plan," which contained
the State's proposed method by which it hoped to attain the
proposed TMDL limits for the three identified pollutants. This
section of the final TMDL acknowledged that "[n]onpoint source water
quality improvement work utilizes a voluntary approach [,]" and stated
that the State's plan would include the use of "technical support and
grant money for implementation of best management practices. . . ."
Admin. R. at 31, NMED's Final TMDL In accordance with this
acknowledgment, the NMED indicated that "[a] combination of best
management practices [BMPs] [would] be used to implement this TMDL[,]"
and the State's Surface Water Quality Bureau ("SWQB") would "work with
the [NMSHD] and private landowners in implementing BMPs throughout the
watershed." Id. at 30.
In a letter dated December 17, 1999, the director of the Water Quality
Protection Division of the EPA stated that the agency had reviewed the
State's submission and was "pleased to approve the Cordova Creek TMDLs
for turbidity, stream bottom deposits, and total phosphorous as updates
to work element six of the New Mexico Water Quality Management Plan."
Admin. R. at 1, Letter to James H. Davis, Chief, SWQB, NMED, from William
B. Hathway, Director, Water Quality Protection Division, dated December
17, 1999. The EPA stated that "based on [its] review" of the State's
submission, it had "conclude[d] that the TMDLs [for turbidity, stream
bottom deposits, and total phosphorous] [met] the requirements found in
Section 303 of the Clean Water Act and the implementing regulations at
40 C.F.R. § 130.7." Id. Enclosed with the EPA's letter was a document
entitled "Review Elements of TMDLs." ("Review"). Id. at
3. This EPA document contained a section entitled "Implementation Plans,"
wherein the EPA stated that "[a]though implementation plans are not
approved by EPA, they help establish the basis for EPA's approval of
TMDLs." Id. at 9. The EPA Review commented that the NMED had
included a "generic" implementation plan section within its TMDL.
Id. Furthermore, the EPA indicated that although "EPA guidance
calls for reasonable assurances when TMDLs are developed for waters
impaired by both point and nonpoint sources[,]" for waters such as the
Creek that are
impaired solely by nonpoint sources, reasonable
assurances that load reductions will be achieved
are not required in order for a TMDL to be
approvable. However, for such nonpoint source-only
waters, States/Tribes are strongly encouraged to
provide reasonable assurances regarding
achievement of load allocations in the
implementation plans. . . .[S]uch reasonable
assurances should be included in State/Tribe
implementation plans and `may be non-regulatory,
regulatory, or incentive-based, consistent with
applicable laws and programs.
Id. at 10. The EPA did not comment on the substance of
the State's implementation plan or whether it believed that the TMDL
levels would be attained through the use of this plan.
II. The Parties' Arguments
According to plaintiff, there are two issues that are presented for the
Court's resolution in this case. The first is whether the EPA, "when
approving a TMDL and/or a plan to implement a TMDL," must require that a
"`reasonable assurances' . . . that the TMDL will be implemented to
improve water quality[.]" Pl.'s Mem. at 2.*fn6 The second issue in this
case, according to plaintiff, is whether the State of New Mexico's
implementation plan for the Creek TMDLs, which consists of "a `purely
voluntary' plan of implementation, provide[s] these `reasonable
assurances[.]'" id. Plaintiff argues that the text of the CWA,
its legislative history, and the EPA's own prior guidance documents,
establish that voluntary compliance plans do not provide the requisite
reasonable assurances that a TMDL will be implemented, id. at
15, 21. Accordingly, plaintiff posits that the "EPA's decision to approve
[the Creek's voluntary] plan is therefore `arbitrary and capricious, an
abuse of discretion, and otherwise not in accordance with the law.'"
Id. at 3 (quoting 5 U.S.C. § 706(2)(A)).
The defendants advance several arguments in support of their position
that the Court should grant their cross-motion for summary judgment. The
defendants first argue that this Court is without subject matter
jurisdiction over this dispute because the "EPA has taken no agency
action with respect to the Cordova Creek implementation plan. . . ."
Defs.' Opp'n" at 1. Rather, according to defendants, the EPA merely
approved the State's TMDLs for turbidity, stream bottom deposits, and
total phosphorus; it did not, however, as alleged by plaintiff, approve
the method by which these TMDLs would be achieved. Id.
Second, defendants assert that plaintiff does not have standing to
maintain this action "because they have failed to demonstrate that they
have suffered a concrete and immediate injury as the result of EPA's
alleged approval of the Cordova Creek implementation plan." Id.
at 2. Third, assuming the Court concludes it has jurisdiction, defendants
argue that there is no statutory requirement contained in the CWA that
requires that there must be reasonable assurances that a TMDL is
achieved. Id. Therefore, defendants opine that even if the
Court concludes that they approved the State's implementation plan, such
approval was reasonable. Id.
As indicated, defendants first argue that this Court lacks subject
matter jurisdiction over plaintiff's challenge because the ERA never
approved the State's implementation plan. Rather, according to
defendants, "[t]he only final agency action EPA has taken relevant to
Cordova Creek is that . . . it `approve[d] the Cordova Creek TMDLs for
turbidity, stream bottom deposits, and total phosphorus' because they
were consistent with the statutory and regulatory requirements for a
TMDL." Defs.' Opp'n at 20 (quoting Admin. R. at 1). Plaintiff contends,
on the other hand, that the "EPA clearly approved the implementation plan
section of the TMDLs for Cordova Creek and approves implementation plans
for TMDLs all the time." Pl.'s. Reply at 4. Although conceding that
"plans to implement TMDLs may not necessarily be a `required'
element of a TMDL . . .[,]" plaintiff asserts that they
"nonetheless [must] be approved by EPA." Id. at 5.
Both plaintiff and defendants agree that this case is governed by the
Administrative Procedure Act ("APA"), 5 U.S.C. § 701-706 (2000).
Pursuant to the APA, "agency action" is defined as "the whole or part of
an agency rule, order, license, sanction, relief, or the equivalent or
denial thereof, or failure to act. . . ." 5 U.S.C. § 551 (13).
Clearly, the defendants approved the State's TMDL levels for turbidity,
stream deposits, and total phosphorous. Admin. R. at 1. In its
explanation to the State regarding why it was approving the State's
TMDLs, the EPA explicitly stated that "[a]lthough implementation plans
are not approved by EPA, they help to establish the basis for the EPA's
approval of TMDLs." Id. at 9. Nowhere in the document does the
EPA state that it is endorsing the State's implementation plan; rather,
the EPA's "[c]omment" on the plan merely notes that the State's TMDL
included a "generic implementation plan [that] outline[d] strategies to
be used in implementing this TMDL." Id.
Pursuant to the APA, this Court is only permitted to review "`final
agency action' for which there is no other adequate remedy in a court."
Transport Robert (1973) Ltee v. United States Immigration &
Naturalization Service, 940 F. Supp. 338, 340 (D.D.C. 1996) (quoting
5 U.S.C. § 704). The "final agency action" requirement "recognizes
that courts must not interfere with the executive function, whether
exercised by executive officials or administrative agencies, by
entertaining a lawsuit that challenges an action that is not
final." Id. (citing Nat'l Automatic Laundry & Cleaning
Council v. Shultz, 443 F.2d 689, 698 (D.C. Cir. 1971)). In this
regard, the finality requirement is similar to the constitutional
doctrine of ripeness. As stated by the District of Columbia Circuit,
"[t]he degree of finality of agency action is the key consideration in
evaluating its `fitness for judicial review' under the ripeness
doctrine." Id. (citing Ciba-Geigy Corp. v. EPA,
801 F.2d 430, 435-36 (D.C. Cir. 1986)).
To be final, agency action must meet two conditions. "First, the action
must mark the `consummation' of the agency's decisionmaking
process,. . . it must not be of a merely tentative or interlocutory
nature. And second, the action must be one by which `rights or
obligations have been determined,' or from which legal consequences will
flow. . . ." Barrick Goldstrike Mines, Inc., v. Browner,
215 F.3d 45, 48 (D.C. Cir. 2000) (citations omitted). In determining whether
agency action is final for purposes of judicial review, the Court must
"look primarily to whether the agency's position is `definitive' and
whether it has a `direct and immediate . . . effect on the day-to-day
business' of the parties challenging the action." Ciba-Geigy
Corp., 801 F.2d at 435-36 (citations omitted). In line with this
reasoning, the Circuit Court for this District has held that "a guidance
document reflecting a settled agency position and having legal
consequences for those subject to regulation may constitute `final agency
action' for the purpose of judicial review." Barrick, 215 F.3d
The action challenged here is not the EPA's approval of the TMDL
limits, but rather, the agency's alleged approval of the State's
implementation plan, which plaintiff infers occurred because the ERA
approved the final TMDL limits. Pl.'s Mem. at 35. However, the agency's
letter, which is the purported final agency action plaintiff points to,
does not make any definitive findings regarding the State's
implementation plan; the letter merely comments that the implementation
plan was included with the State's submission and termed the plan
"generic." Admin. R. at 9. This corresponds with the defendants' position
because the EPA's approval of a State's TMDL does not translate into
approval of the State's implementation plan. As another Circuit Court
recognized, "[t]he two are different. . . . A TMDL is defined to be a set
measure or prescribed maximum quantity of a particular pollutant in a
waterbody,. . . while an implementation plan is a formal statement of
how the level of that pollutant can and will be brought down to or be
kept under the TMDL." Sierra Club v. Meiburg, 296 F.3d 1021,
1030 (11th Cir. 2002) (citation and footnote omitted). Although the
Court's research has failed to unveil a case directly analogous to the
present case, the resolution of the events presented to the Court in
City of Arcadia v. EPA, 265 F. Supp.2d 1142 (N.D. Cal. 2003),
provide support for the Court's conclusion here.
In City of Arcadia, several Californian cities brought suit
against the EPA and its administrators alleging that the defendants had
violated, inter alia, the CWA. Relevant to the present suit was
the plaintiffs' challenge in City of Arcadia to
what the Court termed the "de facto TMDL procedure,"
which entailed the establishment of the relevant TMDL by the State
Regional Board and "the preparation and notice of the TMDL by the [EPA]."
Id. at 1153. The defendants argued that "what [p]laintiffs
characterize[d] as a de facto TMDL procedure [was] not an `agency
action,' much less a final agency action, but in fact a sequence of
events; as such, they maintain[ed], the procedure [could not] give rise
to a challenge under the APA. . . ." Id. at 1153-54. In
agreeing with the defendants that it lacked subject matter jurisdiction
to consider the plaintiffs' challenge, the Court concluded that it was
"apparent that the alleged de facto TMDL procedure . . . is
not subject to challenge under the APA . . . because it is not final
agency action within the meaning of [the] statute[ ]." id. at
1154. Notably, the Court agreed with defendants that "[p]laintiffs'
assertion that the TMDL procedure consummated in final agency
action, namely the EPA's approval of the State Trash TMDLs, is an
implicit admission that the `procedure' itself is not final agency
action." Id. Plaintiff here, in a similar fashion, does not
challenge the EPA's final action, i.e., the approval of the TMDL limits,
but the procedure employed by the EPA to reach its final decision to
approve the State's TMDLs, which included the review, but not the
approval, of the State's implementation plan. This review did not
constitute final agency action, as it did not amount to an approval of
the State's implementation plan.
In a case less analogous than City of Arcadia, but of some
assistance to the
Court, the Supreme Court held that a wildlife group's challenge to
the Bureau of Land Management's ("BLM") "land withdrawal review program"
had to be dismissed because, among other deficiencies, the program did
not constitute agency action or final agency action within the meaning of
the APA. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 890
(1990). The agency program at issue there was not the product of an
administrative rule or regulation, but involved the BLM's review and
recommendation process regarding the management of public lands under the
Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1701
et seq., ("FLPMA"), which "established a policy in favor of
retaining public lands for multiple use management." Id. at
877. The National Wildlife Federation argued that the Department of
Interior's "reclassification of some withdrawn lands and the return of
others to the public domain would open the lands up to mining activities,
thereby destroying their natural beauty." Id. at 879. It argued
further that the agency had failed to revise land use plans, submit
recommendations for withdrawals of land to the President, "fail[ed] to
consider multiple uses for the disputed lands," inappropriately focused
on "mineral exploitation and development," and failed "to provide public
notice of decisions." Id. The Supreme Court held that the
challenged land review program was "not an `agency action' within the
meaning of [5 U.S.C.] § 702, much less a `final agency action' within
the meaning of § 704." Id. at 890. The Court stated that
[t]he term land withdrawal review program (which
as far as [the Court could discern was] not
derived from any authoritative text) [did] not
refer to a single BLM order or regulation, or even
to a complete universe of particular BLM orders
and regulations. It is simply the name by which
petitioners have occasionally referred to the
continuing (and thus constantly changing)
operations of the BLM in reviewing withdrawal
revocation applications and the classifications of
public lands and developing land use plans as
required by the FLPMA. It is no more an
identifiable `agency action' much less a
`final agency action' than a `weapons
procurement program' of the Department of Defense
or a `drug interdiction program of the Drug
Id. Thus, the Court held that plaintiff's challenge to
the agency's decision-making process, which it termed the land review
program, was not final agency action in and of itself. Id. at
890 n.2 ("[W]e do not contend that no land withdrawal review program'
exists. . . . We merely assert that it is not an identifiable `final
agency action' for purposes of the APA.").
Here, plaintiff makes even a less compelling argument for finding final
agency action than did the organization in Lujan. Plaintiff
concedes that "plans to implement TMDLs may not necessarily be a
`required' element of a TMDL Pl.'s Reply at 5. Furthermore, there is no
statutory language requiring submission to or approval of a State's
implementation plan by the EPA; rather, the statute only requires that
the EPA approve or disapprove a State's TMDL. 33 U.S.C. § 1313 (d)
(2). Nonetheless, plaintiff contends that the EPA "approves
implementation plans for TMDLs all the time." Pl.'s. Reply at 4. However,
even assuming the truth of this assertion, plaintiff fails to demonstrate
how what the EPA does "all the time" translates into making what occurred
in this case final
agency action. Accordingly, plaintiff's reference to the fact that
the "EPA entered into a Memorandum of Agreement with the State of Oregon
Department of Environmental Quality . . . regarding the implementation of
TMDLs in the State of Oregon[,]" has no significance to the Court's
conclusion that there was no final agency action in this case.*fn7 Nor
does reference to prior EPA guidance documents, which do not "have the
effect of law." Sierra Club, 296 F.3d at 1033. What the Court
must assess in determining whether there was final agency action is the
actual correspondence issued by the EPA, which approved the TMDL limits
established by the State. The EPA's correspondence in no way either
approved or disapproved the State's implementation plan. Thus, there was
no final agency action concerning the implementation plan and this Court
is without jurisdiction pursuant to the APA to review plaintiff's
challenge. Plaintiff's complaint is therefore dismissed.
SO ORDERED on this 3rd day of March,
In accordance with the Court's Memorandum Opinion that is being issued
contemporaneously with the issuance of this Order, it is hereby
ORDERED that plaintiff's motion for summary judgment [#15] is
denied. It is further
ORDERED that defendants' cross-motion for summary judgment
[#20] is granted. It is further
ORDERED that this action is dismissed.
*fn2 Technically, a TMDL is "[t]he sum of the individual [wasteload
allocations] for point sources and [load allocations] for nonpoint
sources and natural background." 40 C.F.R. § 1 30.2(i). A load
allocation ("LA") is that "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."
Id. § 130.2(g). Wasteload allocation ("WLA") is that
"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." Id. §
*fn3 The term "effluent limitation" is defined as "any restriction
established by a State or the Administrator [of the EPA] on quantities,
rates, and concentrations of chemical, physical, biological, and other
constituents which are discharged from point sources into navigable
waters, the waters of the contiguous zone, or the ocean, including
schedules of compliance." 33 U.S.C. § 1362(11).
*fn4 Although maintaining that this fact is not material to the
resolution of this lawsuit, defendants contend that plaintiff erroneously
characterizes the resolution. Rather, according to defendants, "[t]he
Consent Decree and Settlement Agreement allow EPA until December 31, 201
6, to ensure completion of any necessary TMDLs for the water quality
limited segments on New Mexico's 1 996 Section 303(d) list." Defendants'
Statement Controverting Plaintiff's Statement of Undisputed Material
Facts ("Defs.' Stmt.") ¶ 16.
*fn5 References to "Admin. R." are to the Administrative Record filed
by the defendants. Page citations reference the page numbers that have
been stamped on the documents by the defendants.
*fn6 Plaintiff does not challenge the EPA's approval of the State's
TMDLs. As demonstrated in their complaint, they challenge the EPA's
alleged approval of the State's implementation plan through which it
hopes to attain the TMDL levels it established.
*fn7 In its reply, plaintiff relies on the district court's decision
in Sierra Club v. Hankinson, No. 94-2501, slip op. at 3-4 (N.D.
Ga. July 24, 2001), wherein the Court held that pursuant to the terms of
a consent decree entered into by the EPA and the State of Georgia,
implementation plans had to be established. The Court also rejected the
EPA's argument that the CWA did not require the submission of
implementation plans, stating that the "EPA's interpretation is
incompatible with the Clean Water [A]ct['s] goal of improving water
quality." Id. at 4. On July 3, 2002, defendants filed a Notice
of Supplemental Authority in which they indicated that the district
court's decision in Sierra Club had been reversed by the
Eleventh Circuit. See Sierra Club v. Meiburg, 296 F.3d 1021
(11 th Cir. 2002). Specifically the Eleventh Circuit reversed the
district court's conclusion that the consent decree required the EPA to
establish implementation plans for the State of Georgia because the
consent "decree defined a TMDL as having the meaning provided at Section
303(d)(1)(C) of the CWA . . . and 40 C.F.R. § 130.2(i) . . .[n]either
[of which] includes implementation plans within the meaning of TMDLs."
Id. at 1029-30. The Eleventh Circuit held that the district
court abused its discretion by "grafting onto the [consent] decree a
substantial modification that was not part of the original bargain
between the parties." Id. at 1024.
*fn8 An Order consistent with the Court's ruling is being issued
contemporaneously with the issuance of this Memorandum Opinion.
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