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Potomac Riverkeeper, Inc. v. Wheeler

United States District Court, District of Columbia

March 31, 2019

POTOMAC RIVERKEEPER, INC., et al., Plaintiffs,
ANDREW WHEELER, [1] Administrator, U.S. Environmental Protection Agency, et al., Defendants.



         The Clean Water Act (CWA) requires each state to prepare a list of impaired waters within its borders every two years for the U.S. Environmental Protection Agency (EPA) to approve, modify, or reject. The plaintiffs are recreational and conservancy organizations whose members use and enjoy the Shenandoah River. They bring this action under the Administrative Procedure Act (APA) to challenge EPA's approval of Virginia's 2016 impaired waters list, which did not identify any segments of the Shenandoah River as impaired for recreational use despite numerous complaints from the public of excessive algal growth. Before the Court are the plaintiffs' Motion for Summary Judgment, Dkt. 43, defendant EPA's Cross-Motion for Summary Judgment, Dkt. 47, and defendant-intervenor Virginia Association of Municipal Wastewater Agencies, Inc.'s (VAMWA's) Cross-Motion for Summary Judgment, Dkt. 45. For the reasons that follow, the Court will grant EPA's and VAMWA's motions and deny the plaintiffs' motion.

         I. BACKGROUND

         A. The CWA and EPA Regulations

         Congress passed the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). To that end, the CWA requires states to establish EPA-approved “water quality standards.” See 33 U.S.C. § 1313(a)-(c).

         A water quality standard consists of two parts: a list of “designated uses”-such as drinking or swimming-and the “water quality criteria” necessary to support those uses. Id. § 1313(c)(2)(A). A state can express its water quality criteria through scientific “numerical values” or more general “narrative criteria.” See 40 C.F.R. § 131.11(b).

         When a segment of water fails to meet an applicable water standard, it is considered “impaired, ” and the state must “identify” it in a list-dubbed the state's “impaired waters list” or “303(d) list”-submitted to EPA every two years for approval. Nat. Res. Def. Council v. EPA, 301 F.Supp.3d 133, 137 (D.D.C. 2018) (citing 33 U.S.C. § 1313(d) and 40 C.F.R. § 130.7(b)(3), (d)). This identification triggers important consequences. When a state identifies a water as impaired, the state generally must also establish “total maximum daily loads” that limit the amount of particular pollutants the water can receive and still meet all applicable water quality standards. See 33 U.S.C. § 1313(d)(1)(C); 40 C.F.R. § 130.7(c)(1). In addition, the state must establish permit limits and other controls to enforce the total maximum daily loads and obtain full compliance with the state's water quality standards over time. See 33 U.S.C. § 1313(e)(3); 40 C.F.R. § 122.44(d)(1).

         EPA regulations outline the process a state must follow in preparing its impaired waters list. Among other things, the state must “assemble and evaluate all existing and readily available water quality-related data and information to develop the list.” 40 C.F.R. § 130.7(b)(5). And it must “provide documentation” to EPA “to support” its “determination to list or not to list its waters.” Id. § 130.7(b)(6). This documentation must include “[a] description of the data and information used to identify waters, ” id. § 130.7(b)(6)(ii), and “[a] rationale for any decision to not use any existing and readily available data and information, ” id. § 130.7(b)(6)(iii).

         A state can meet these and other reporting obligations under the CWA by submitting a single “Integrated Report” to EPA every two years. See EPA0016874-77. The state must take steps to involve the public in preparing this report, see 33 U.S.C. § 1313(e); 40 C.F.R. § 130.7(a), but EPA is not required to conduct a second round of public comment during its approval process, see City of Dover v. EPA, 36 F.Supp.3d 103, 118 (D.D.C. 2014).

         B. Virginia's Water Quality Standards

         Virginia's water quality standards provide that

[a]ll state waters, including wetlands, are designated for the following uses: recreational uses, e.g., swimming and boating; the propagation and growth of a balanced, indigenous population of aquatic life, including game fish, which might reasonably be expected to inhabit them; wildlife; and the production of edible and marketable natural resources, e.g., fish and shellfish.

9 Va. Admin. Code § 25-260-10.A (emphasis added).

         Virginia regulations also establish the applicable water-quality criteria for these uses. In addition to providing numeric criteria for certain pollutants, Virginia has adopted the following narrative criteria, which apply to all designated uses:

State waters, including wetlands, shall be free from substances attributable to sewage, industrial waste, or other waste in concentrations, amounts, or combinations which contravene established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful to human, animal, plant, or aquatic life.
Specific substances to be controlled include, but are not limited to: floating debris, oil, scum, and other floating materials; toxic substances (including those which bioaccumulate); substances that produce color, tastes, turbidity, odors, or settle to form sludge deposits; and substances which nourish undesirable or nuisance aquatic plant life.

Id. § 25-260-20.A (emphases added).

         A state agency called the Virginia Department of Environmental Quality-or “DEQ”-is responsible for preparing Virginia's impaired waters list and submitting it to EPA as part of a single, biennial Integrated Report. See EPA0058646-48, EPA0058662. DEQ begins this process by preparing a draft “Water Quality Assessment Guidance Manual” that describes the methodology DEQ plans to use in identifying impaired waters. EPA0051579-82. The public then has a chance to submit comments on the proposed methodology before DEQ applies it. See EPA0058701.

         In accordance with EPA guidance, see EPA0016922, Virginia's current Water Quality Assessment Guidance Manual provides for the division of waters into five major categories and several subcategories, EPA0058662-64. Two of those categories are relevant here.

         “Category 3C” applies to waters for which “data” has been “collected by a citizen monitoring or another organization indicating water quality problems may exist but the methodology and/or data quality has not been approved for a determination of support of designated use(s).” EPA0058663. Category 3C waters have “insufficient data” to support an impairment determination but are “prioritized by DEQ for follow-up monitoring.” Id.[2]

         “Category 5” applies to impaired waters and serves as Virginia's 303(d) list. See EPA0058663-64.

         C. Virginia's Approach to Citizen-Generated Data

          To encourage public efforts to collect and analyze water-quality data, while ensuring that citizen-generated data is used appropriately, Virginia has released a “Virginia Citizen Water Quality Monitoring Methods Manual” that explains how DEQ treats citizen-generated data. See EPA0058683. The manual separates citizen data into three tiers.

         “Level I” data includes data for which “[t]here is no Quality Assurance Project Plan (QAPP) or Standard Operational Procedures (SOP) on file.” Id. Such data is “[n]ot approved by DEQ for assessment” but is still used (1) “to identify sites that may require DEQ to perform follow-up monitoring, ” (2) “for educational or outreach purposes, ” and (3) to “notify DEQ of significant pollution events for rapid agency response.” Id.

         “Level II” data is generated using “a monitoring method similar”-but not identical-“to DEQ protocols.” Id. Such data is only “[p]artially approved by DEQ” and is used for the same purposes as Level I data, as well as “to identify possible waters with observed effects or waters that appear to be healthy but will need DEQ monitoring data to confirm.” Id. Of relevance here, DEQ uses Level II data to classify water segments as Category 3C (prioritized for follow-up monitoring). Id.

         “Level III” data must be prepared using “DEQ testing” and “quality assurance” protocols. Id. A group responsible for preparing such data must have in place “a DEQ approved [Quality Assurance Project Plan] and [Standard Operating Procedures].” Id. (abbreviations expanded). Level III data is treated “as if DEQ had collected and analyzed” the data for itself, and-unlike Level I and Level II data-Level III data is used to determine whether waters should be added to or removed from Virginia's impaired waters list. EPA0058684.

         D. EPA Guidance

         EPA, for its part, has published non-binding guidance on how states can “identify[] nutrient-impacted waters”-such as those with excessive algal growth-in the absence of “numeric nutrient water quality criteria.” EPA0016992; see generally EPA0016987, EPA0016994-99. The guidance lists “a number of examples of approaches” to “inform States that have not yet established nutrient assessment methods for applicable narrative criteria and to illustrate how some States assess their waters pending the adoption of numeric nutrient criteria.” EPA0016995.

         One way a state “can determine whether a waterbody is attaining . . . relevant narrative criteria and designated uses” is through the use of “visual assessments, ” including “field observations of excessive algal growth, . . . presence or duration of harmful algal blooms, unsightly green slimes or water column color, and/or objectionable odors.” EPA0016994. To assess impairment of recreational use, states can also consider “beach closures or outbreaks of waterborne illness among swimmers.” Id. When evaluating this kind of evidence, states should “consider feedback from the general public and waterbody users about the condition of the waterbody such as photographs or testimonials of abundant algal mats that impede recreation or create unsightly aesthetics in the waterbody.” Id.

         “Another approach to assessing waterbodies, ” however, is to “develop[] numeric water quality targets or thresholds for [certain nutrients] that are used as quantitative ‘translations' of [a state's] narrative criteria.” Id. These “translations” are distinct from “EPA approved water quality standards containing numeric nutrient criteria” and “are often described in State guidance or methodology documents.” Id. States can use these “numeric target values in combination with [other] measurements” when “implementing their narrative criteria.” Id.

         In describing these various “[l]isting [a]pproaches, ” EPA0016993, EPA made clear that it did “not endorse one method over another, ” and it emphasized that “the appropriateness of a particular method will depend on [a] variety of fact-specific circumstances.” EPA0016995.

         E. Virginia's 2010, 2012, and 2014 Integrated Reports

         Although the plaintiffs' legal challenge focuses on Virginia's 2016 Integrated Report, see Second Am. Compl. ¶¶ 62-67, Dkt. 37, their dispute with DEQ began long before then, in connection with Virginia's 2010, 2012, and 2014 Integrated Reports. Each year, plaintiff Shenandoah Riverkeeper submitted comments documenting what it considered excessive algal growth impeding recreational use of the Shenandoah River. See, e.g., EPA0000001-7 (2010 comments); EPA0003399-403, EPA0003406-524 (2012 comments); EPA0046327-33[3] (2014 comments). And each year, DEQ declined to rely on Shenandoah Riverkeeper's comments and chose not to identify any segment of the Shenandoah ...

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