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Blue Water Baltimore v. Pruitt

United States District Court, District of Columbia

July 18, 2017

BLUE WATER BALTIMORE, et al., Plaintiffs,
SCOTT PRUITT, [1] Administrator, United States Environmental Protection Agency, Defendant.


          REGGIE WALTON United States District Judge

         The plaintiffs, Blue Water Baltimore, Chester River Association, Gunpowder Riverkeeper, Midshore Riverkeeper Conservancy, Potomac Riverkeeper Network, and Waterkeepers Chesapeake, all non-profit environmental organizations dedicated to protecting local watersheds[2] in Maryland, bring this action against Scott Pruitt, in his official capacity as the Administrator of the United States Environmental Protection Agency (the “EPA”), challenging the EPA's approval of Maryland's 2012 Integrated Report of Surface Water Quality (the “2012 Integrated Report”) under the Administrative Procedure Act (the “APA”), 5 U.S.C. §§ 701-06 (2012). See Complaint (“Compl.”) ¶¶ 1, 4-11, 16. Currently before the Court is the EPA's Motion to Dismiss, which seeks dismissal of the Complaint on the grounds of mootness, lack of standing, and failure to state a claim upon which relief may be granted. See Gov't's Mot. at 1. Upon careful consideration of the parties' submissions, [3] the Court concludes that it must grant the EPA's motion and dismiss the plaintiffs' Complaint.

         I. BACKGROUND

         A. Statutory Background: The Clean Water Act

         Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a) (2012). One of the Act's objectives is to regulate pollutants by implementing water quality standards. See Id. § 1313(d)(1). States initially establish the quality standards for the waters within their jurisdictions, which the EPA either approves or disapproves. See id. § 1313(c). States must also identify waters that cannot meet the required standards. Id. § 1313(d)(1)(A).

         “Each State shall establish . . . the total maximum daily load” of pollutants for the waters not meeting the quality standards (the “impaired waters”). Id. § 1313(d)(1)(C). The total maximum daily loads establish the “level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety, ” id. § 1313(d)(1)(C), and “take into account critical conditions for stream flow, loading, and water quality parameters, ” 40 C.F.R. § 130.7(c)(1). Each state identifies its impaired waters and establishes their total maximum daily loads by submitting biennially an Integrated Report to the EPA that classifies the state's waters into one of several categories. See § 1313(d)(2); 40 C.F.R. § 130.7(d)(1); see also EPA, Guidance for 2006 Assessment, Listing and Reporting Requirements Pursuant to Sections 303(d), 305(b) and 314 of the Clean Water Act (July 29, 2005) (“2006 Guidance”) at 6.

         The state must allow for public participation in the Integrated Report drafting and submission process, which “includes providing access to the decision-making process, seeking input from and conducting dialogue with the public, assimilating public viewpoints and preferences, and demonstrating that those viewpoints and preferences have been considered by the decision-making official.” 40 C.F.R. § 25.3(b). Once the state has provided “ample opportunity for interested and affected parties to communicate their views, ” id., it submits its Integrated Report to the EPA, which has thirty days to approve or disapprove the listings of impaired waters and their total maximum daily loads, id. § 130.7(d)(2). Approved Integrated Reports are implemented by the state, but if an Integrated Report is disapproved, the EPA has thirty days to “identify [the impaired] waters in [the s]tate and establish” their total maximum daily loads. Id.

         B. The Chesapeake Bay Program

         Congress amended the Clean Water Act in 1987 to improve the water quality of the Chesapeake Bay through a coordinated effort between the Bay's surrounding states and the federal government, known as the Chesapeake Bay Program (the “Bay Program”). See Water Quality Act of 1987, Pub. L. No. 100-4, § 117, 101 Stat. 7 (1987). Under the Bay Program, the EPA “had primary responsibility” and “was the final decision-maker” for the Bay Total Maximum Daily Load. Frequent Questions about the Chesapeake Bay TMDL: Developing the Bay TMDL, EPA, (last visited June 28, 2017).[4] The Bay Total Maximum Daily Load, which was finalized in 2010, covers ninety-two watershed segments, fifty-three of which are located in Maryland. See Compl., Exhibit (“Ex.”) F (Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus and Sediment (“Bay Total Maximum Daily Load”)) at 1, 2-15. “[W]here both local [total maximum daily loads] and [ ] Bay [Total Maximum Daily Load] have already been developed or established . . ., the more stringent of the [total maximum daily loads] will apply.” Id., Ex. F (Bay Total Maximum Daily Load) at 2-6.

         C. Maryland's Integrated Reports

         Maryland released its draft version of the 2012 Integrated Report (the “2012 Draft Report”) to the public on February 13, 2012, Compl., Ex. L (2012 Draft Report) at 1, which determined that the Bay Total Maximum Daily Load covering the fifty-three Maryland watershed segments had established total maximum daily loads for 139 listings that Maryland had previously classified as impaired, see id., Ex. M (Feb. 13, 2012 MDE, Facts About: Maryland's 2012 Integrated Report (“2012 Facts”)) at 2 (noting that “in December 2010, the Environmental Protection Agency (EPA), in cooperation with the Bay states, completed the Chesapeake Bay Total Maximum Daily Load, establishing a pollution diet (for nutrients and sediments) for the watershed and effectively addressing 139 of Maryland's impairment listings”). As a result of this determination, the 2012 Draft Report moved these 139 listings from Category 5, which are impaired waters requiring a total maximum daily load, to Category 4a, which are impaired waters that do not require a total maximum daily load because one has already been established, in this case by the Bay total maximum daily load. See id., Ex. L (2012 Draft Report) at 107; id., Ex. M (2012 Facts) at 2; id., Ex. O (March 23, 2012 MDE, Revised Facts About: Maryland's 2012 Integrated Report (“2012 Revised Facts”)) at 2.

         Maryland held a public meeting on March 12, 2012, to receive comments on the 2012 Draft Report. Id., Ex. O (2012 Revised Facts) at 2. “After several of the [p]laintiff groups objected to the lack of clear disclosure or explanation of the proposed de-listing, [Maryland] agreed to hold a second public meeting on April 19, 2012, to discuss the groups' concerns about the de-listing, and extended the public comment period to April 26, 2012.” Id. ¶ 82. Maryland also posted a revised fact sheet to its website. See id., Ex. O (2012 Revised Facts) at 2 (noting that the Bay Total Maximum Daily Load “established individual [total maximum daily loads] for [fifty-three] of Maryland's tidal tributary segments and caused 139 of Maryland's tidal nutrient and sediment impairment listings to be moved from Category 5 (impaired, requires a TMDL) to Category 4a (impaired, TMDL established)[, which] represents a major step forward in bringing the Chesapeake Bay into water quality compliance”). Maryland submitted its 2012 Integrated Report to the EPA on July 23, 2012, id., Ex. R (July 23, 2012 Maryland Department of the Environment, Maryland's Final Draft 2012 Integrated Report of Surface Water Quality (“2012 Final Report”)) at 1, and the EPA approved it on November 9, 2012, see id., Ex. A (November 9, 2012 Letter from Jon M. Capacasa, Director of the EPA's Water Protection Division, to Marie Halka, Acting Director of Maryland Department of the Environment (“2012 Capacasa Letter”)) at 1.

         Maryland submitted its 2014 Integrated Report to the EPA on April 16, 2015. Id., Ex. U (2014 Integrated Report) at 1. That report reiterates that “[w]ith the approval of the Chesapeake Bay [Total Maximum Daily Load], 139 of Maryland's water body-designated use-pollutant combinations were moved from Category 5 to Category 4a” because the Total Maximum Daily Load “will fully address any local water quality impairments.” Id., Ex. U (2014 Final Report) at 113. The EPA approved Maryland's 2014 Integrated Report on October 16, 2015. See id., Ex. V (Oct. 16, 2015 Letter from Jon M. Capacasa, the EPA's Region III Director, to D. Lee Currey, Director of Maryland Department of the Environment (“2015 Capacasa Letter”)) at 1.

         D. ...

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