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.
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 ...