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Blue Water Baltimore v. Wheeler

United States District Court, District of Columbia

December 2, 2019

BLUE WATER BALTIMORE, et al., Plaintiffs,
v.
ANDREW R. WHEELER, Administrator, United States Environmental Protection Agency, Defendant.

          MEMORANDUM OPINION

          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, bring this action under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706 (2018), against Andrew R. Wheeler, in his official capacity as the Administrator of the United States Environmental Protection Agency (“EPA”), challenging the EPA's approval of Maryland's Final 2018 Integrated Report of Surface Water Quality (the “2018 Integrated Report”). See Third Amended Complaint (“3d Am. Compl.”) ¶¶ 1, 4-11, 16. Currently before the Court are the Plaintiffs' Motion for Summary Judgment and Request for a Hearing (“Pls.' Mot.”) and the EPA's Cross-Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment (“Def.'s Mot.”). Upon careful consideration of the parties' submissions, [1] the Court concludes for the following reasons that it must deny the plaintiffs' motion for summary judgment and grant the defendant's cross-motion for summary judgment.

         I. BACKGROUND

         A. Statutory Background: The Clean Water Act

         Congress enacted the Clean Water Act (the “Act”) “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a) (2018). In order to achieve this objective, the Act, inter alia, requires each state to establish water quality standards for waters located within its jurisdiction and to submit those standards to the EPA for review and approval. See id. § 1313(a)-(c); see also Am. Paper Inst., Inc. v. EPA, 996 F.2d 346, 349 (D.C. Cir. 1993) (“Under the [Act], the water quality standards . . . are primarily the states' handiwork.”).[2] Water quality standards must “consist of the designated uses of the [ ] waters involved and the water quality criteria for such waters based upon such uses” that specifies “the maximum concentration of pollutants that may be present in the water without impairing its suitability for designated uses.” 33 U.S.C. § 1313(c)(2)(A); see Am. Paper Inst., Inc., 996 F.2d at 349.

         The Act also requires each state to identify the waters located within its jurisdiction “for which the effluent limitations[3] . . . are not stringent enough to implement any water quality standard applicable to such waters” (the “impaired waters”), 33 U.S.C. § 1313(d)(1)(A), and “establish . . . the total maximum daily load”[4] of pollutants “at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality, ” id. § 1313(d)(1)(C). States must “submit to the [defendant] from time to time . . . for his approval the waters identified [under 33 U.S.C. § 1313(d)(1)(A)] and the [total maximum daily] loads established under [33 U.S.C. § 1313(d)(1)(C)].” Id. § 1313(d)(2). Pursuant to Section 1313(d)(2), the defendant “shall either approve or disapprove such identification and [total maximum daily] load not later than thirty days after the date of submission.” Id. “If the [defendant] approves such identification and [total maximum daily] load, ” the state is required to “incorporate them into its [continuing planning process].” Id. However, if the defendant “disapproves such identification and [total maximum daily] load, ” within thirty days of his disapproval decision, he is required to “identify such waters in such State and establish such [total maximum daily] loads for such waters as he determines necessary to implement the water quality standards applicable to such waters[, ] and upon such identification and establishment[, ] the State shall incorporate them into its [continuing planning process].” Id.

         B. The Chesapeake Bay Total Maximum Daily Load

         Congress amended the Clean Water Act in 1987 to improve the water quality of the Chesapeake Bay through a coordinated effort between the Chesapeake 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 seven jurisdictions in the Chesapeake Bay watershed (Delaware, [the] District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia) [(the ‘Bay states')], . . . and [the] EPA agreed that [the] EPA would establish” total maximum daily loads for the Chesapeake Bay. 3d Am. Compl., Exhibit (“Ex.”) H (Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus and Sediment (“Chesapeake Bay TMDL”)) at ES-3; see also id., Ex. H (Chesapeake Bay TMDL) at 1-8. In December 2010, the EPA finalized what it determined to be the total maximum daily loads for the Chesapeake Bay (the “Chesapeake Bay Total Maximum Daily Load”), which are “designed to achieve significant reductions in nitrogen, phosphorus[, ] and sediment pollution” throughout the Chesapeake Bay and “include[] pollution limits that are sufficient to meet state water quality standards for dissolved oxygen, water clarity, underwater Bay grasses[, ] and chlorophyll[ ]a, an indicator of algae levels.” Id., Ex. H (Chesapeake Bay TMDL) at ES-3. The Chesapeake Bay Total Maximum Daily Load covers ninety-two watershed segments of the Chesapeake Bay that were identified as impaired for aquatic use by either Delaware, the District of Columbia, Maryland, or Virginia on their respective 2008 list of impaired waters, fifty-three of which are located in Maryland, and consists of 276 total maximum daily loads-“individual [total maximum daily loads] for each of the [three] pollutants.” Id., Ex. H (Chesapeake Bay TMDL) at ES-3, 2-14-2-15.[5] Because the Chesapeake Bay Total Maximum Daily Load “addresses only the restoration of aquatic life uses for the [Chesapeake] Bay . . . that are impaired from excess nitrogen, phosphorus, and sediment pollution, ” if the ninety-two segments “are impaired [because of] other pollutants, ” the state in which those segments are located must establish “separate total maximum daily loads to address those pollutants.” Id., Ex. H (Chesapeake Bay TMDL) at 2-6. And, in cases “where both local [total maximum daily loads] and [Chesapeake] Bay [Total Maximum Daily Load] have already been developed or established for nitrogen, phosphorus, and sediment, the more stringent of the [total maximum daily loads] will apply.” Id., Ex. H (Chesapeake Bay TMDL) at 2-6.

         C. Maryland's Integrated Reports

         Maryland released its draft version of its impaired waters list (the “2012 Draft Integrated Report”) to the public on February 13, 2012, see id., Ex. N (Draft 2012 Integrated Report of Surface Water Quality, Part F.4 Category 4a Waters (“2012 Draft Integrated Report”)) at 1, which determined that the Chesapeake Bay Total Maximum Daily Load covering the fifty-three Maryland segments had established total maximum daily loads for 139 listings that Maryland had previously classified as impaired, see id. Ex. O (Facts About: Maryland's 2012 Integrated Report (Feb. 13, 2012) (“2012 Facts”)) at 2 (noting that “in December 2010, the [EPA] . . . in cooperation with the Bay states, completed the Chesapeake Bay Total Maximum Daily Load[s], 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, Maryland 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 Chesapeake Bay Total Maximum Daily Load. See id., Ex. R (Maryland's Final Draft 2012 Integrated Report of Surface Water Quality (“2012 Final Draft Integrated Report”)) at 50 (“The completion of EPA's Chesapeake Bay [Total Maximum Daily Load] in December 2010 addressed [fifty-three] distinct water body segments (in Maryland) with nutrient and/or sediment impairments. In all, 139 of Maryland's water body-designated use-pollutant combinations were moved from Category 5 to Category 4a.”).

         Maryland held a public meeting on March 12, 2012, to receive comments on the 2012 Draft Integrated Report. Id., Ex. Q (Revised Facts About: Maryland's 2012 Integrated Report (Mar. 23, 2012) (“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. ¶ 87. Maryland also posted a revised fact sheet to its website. See id., Ex. Q (2012 Revised Facts) at 2 (noting that the Chesapeake 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 . . . to Category 4a . . .[, 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 (2012 Final Draft Integrated Report) at 1, and the EPA approved it on November 9, 2012, see id., Ex. A (Letter from Jon M. Capacasa, Director, Water Protection Division, EPA, to Marie Halka, Acting Director, Maryland Department of the Environment (Nov. 9, 2012) (“2012 EPA Approval Letter”)) at 1.

         On April 16, 2015, Maryland submitted its 2014 list of impaired waters to the EPA. See id., Ex. Y (Maryland's Final 2014 Integrated Report of Surface Water Quality (“2014 Integrated Report”)) at 1. The 2014 Integrated 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 Chesapeake Bay Total Maximum Daily Load “fully address[ed] any local water quality impairments.” Id., Ex. Y (2014 Integrated Report) at 113. The EPA approved Maryland's 2014 Integrated Report on October 16, 2015. See id., Ex. B (Letter from Jon M. Capacasa, Region III Director, EPA, to D. Lee Currey, Director, Maryland Department of the Environment (Oct. 16, 2015) (“2015 EPA Approval Letter”)) at 1.

         D. This Civil Action

         The plaintiffs filed their original complaint in this case on March 8, 2016. See Complaint at 1. On October 7, 2016, the defendant filed his motion to dismiss the Complaint, see EPA's Motion to Dismiss at 1, which the Court granted on the ground that the EPA's approval of Maryland's “2014 Integrated Report superseded the 2012 Integrated Report, thus mooting the plaintiffs' challenge to the reclassifications [of fifty-three water bodies] in the 2012 Integrated Report, ” Blue Water Baltimore v. Pruitt (Blue Water I), 266 F.Supp.3d 174, 180 (D.D.C. 2017) (Walton, J.); see also id. at 183 (concluding that the plaintiffs' challenges to the 2012 Integrated Report did not fall under the “capable of repetition, yet evading review” ...


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