REGGIE B. WALTON, District Judge.
This case is before the Court on the parties' cross-motions for partial summary judgment regarding the Final Guidance memorandum issued by the Environmental Protection Agency ("EPA") on July 21, 2011.
"The Surface Mining Control and Reclamation Act embodies Congress' recognition that `the expansion of coal mining to meet the Nation's energy needs makes even more urgent the establishment of appropriate standards to minimize damage to the environment...." In re Permanent Surface Mining Regulation Litigation, 653 F.2d 514, 516 & 516, n. 1 (D.C.Cir. 1981) ("In re PSMRL") (citing 30 U.S.C. § 1201). Accordingly, the SMCRA requires those engaging in surface coal mining operations to comply with permitting requirements and environmental protection standards. 30 U.S.C. §§ 1202, 1256-1266 (2006). The SMCRA is administered and enforced by the Department of the Interior's Office of Surface Mining Reclamation and Enforcement ("Office of Surface Mining"), 30 U.S.C. § 1211(c)(1), but a state may assume primary jurisdiction over the regulation of surface mining within its borders by having its proposed program approved by the Secretary of the Interior,
The statute provides only a limited role for the EPA. First, the SMCRA requires the Secretary of the Interior to obtain the EPA's written concurrence on any SMCRA-implementing regulations that relate to air or water quality standards. Second, as noted, the Office of Surface Mining may not approve a proposed state program until it has solicited and publicly disclosed the EPA's views and obtained
The CWA establishes a permitting scheme for pollutants discharged into bodies of water, and coal mining operations typically must obtain both CWA permits and SMCRA permits.
Clean Water Act Section 404 permits are issued by the United States Army Corps of Engineers ("Corps") "for the discharge of dredged and fill material into navigable waters at specific disposal sites," 33 U.S.C. § 1344(a), and govern material that fills or displaces receiving waters. The Corps has sole authority to issue Section 404 permits, id., but in doing so must apply guidelines that it develops in conjunction with the EPA, id. § 1344(b). As required by the Clean Water Act, id., the EPA and the Corps promulgated 404(b)(1) guidelines to guide the Corps' review of the environmental effects of proposed disposal sites.
Known as National Pollutant Discharge Elimination System ("NPDES") permits, Section 402 permits are typically issued by states for the discharge of all other pollutants not covered by Section 404 permits (i.e., non-dredged or fill material). See 33 U.S.C. § 1342(a). NPDES permits govern pollutants that are assimilated by receiving waters by establishing limits placed on the make-up of wastewater discharge. See 33 U.S.C. § 1342.
Section 402 permits are issued by the EPA, unless a state has an approved program.
In accordance with Section 301 of the CWA, 33 U.S.C. § 1313, NPDES permits "typically contain numerical limits called `effluent limitations'[
Section 303 "requires states to adopt water quality standards applicable to their intrastate and interstate waters." Defs.' Mem. at 8 (citing 33 U.S.C. § 1313(a)-(c)); see also Am. Paper. Inst., 996 F.2d at 349 ("Under the CWA, the water quality standards referred to in section 301 [and which the Section 301 effluent limitations are intended to protect] are primarily the states' handiwork."); id. at 350 ("Of course, the [section 303] water quality standards by themselves have no effect on pollution; the rubber hits the road when the state-created standards are used as the basis for specific [section 301] effluent limitations in NPDES permits [i.e., Section 402 permits]."). A water quality standard designates uses for a particular body of water and establishes criteria for protecting
While states are responsible for developing the water quality standards, the EPA is required to review the standards for approval. See 33 U.S.C. § 1313(c). The EPA may assume the role of actually promulgating water quality standards only if (1) it determines that a state's proposed new or revised standard does not measure up to the Clean Water Act's requirements and the state refuses to accept EPA-proposed revisions, or (2) a state does not act, and the EPA determines that a new or revised standard is necessary. See Am. Paper Inst., 996 F.2d at 349 (citing 33 U.S.C. § 1313(c)(3)-(4)).
In April 2010, the EPA released its "interim" guidance memorandum. In seeking a preliminary injunction from this Court in September 2010, the plaintiffs asserted that the EPA had made sweeping pronouncements regarding the need for water quality-based limits in CWA Section 402 and 404 permits. The plaintiffs maintained that the interim guidance had (1) effectively established a region-wide water quality standard based on conductivity
On July 21, 2011, the EPA issued the Final Guidance, which, according to the EPA, reflects public input on the interim guidance and accounts for and responds to key concerns raised by the Appalachian states and the mining industry during the earlier stages of this litigation. Defs.' Mem. at 1-2. The plaintiffs, however, allege that the EPA's Final Guidance exceeds the EPA's authority under the SMCRA and the CWA, is arbitrary and capricious, and is an abuse of discretion. See Pls.' Mem. at 1-2. The defendants' principal response is a bevy of arguments targeting the Court's ability to review the Final Guidance. They assert that the Final Guidance is not final agency action, Defs.' Mem. at 13; that the Final Guidance is not ripe for review, id. at 24; and that the plaintiffs do not have standing to maintain their challenges to the Final Guidance, id. at 26. Alternatively, the defendants maintain that if the Final Guidance does constitute final agency action, 33 U.S.C. § 1369(b)(1) vests exclusive jurisdiction of its review in the District of Columbia Circuit. Id. at 23. The defendants further assert that the Final Guidance is consistent with existing statutory and regulatory authority. Id. at 30, 33. Lastly, the defendants maintain that the Final Guidance satisfactorily explains its recommendations
The summary judgment standard set forth in Federal Rule of Civil Procedure 56(a) does not apply in a case involving review of a final agency action under the APA due to the limited role of a court in reviewing the administrative record. See Catholic Health Initiatives-Iowa, Corp. v. Sebelius, 841 F.Supp.2d 270, 276 (D.D.C.2012). "Under the APA, ... `the function of the district court is to determine whether ... as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.'" Id. (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir.1985)); see also Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C.1995) (explaining that where a case involves a challenge to a final administrative action, a court's review is limited to the administrative record) (citing Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)). "Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Catholic Health, 841 F.Supp.2d at 276 (citing Richards v. INS, 554 F.2d 1173, 1177 & n. 28 (D.C.Cir.1977)).
"Firing nearly all the arrows in its jurisdictional quiver," Natural Res. Def. Council v. EPA, 643 F.3d 311, 313 (D.C.Cir. 2011), the EPA argues that the Final Guidance is not final agency action, or, alternatively, if it is, that exclusive jurisdiction for its review rests with the Circuit, that the Final Guidance is not ripe for review, and that the plaintiffs lack standing to challenge the Final Guidance. As explained below, "[a]ll [four] arrows miss their target." Id.
The APA limits judicial review to "final agency action for which there is no other adequate remedy in court." 5 U.S.C. § 704. In other words, finality is a "threshold question" that determines whether judicial review is available. Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 18 (D.C.Cir.2006). The Supreme Court has explained that, "[a]s a general matter, two conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agency's decision making process," and second, "the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quotation marks omitted).
"Finality resulting from the practical effect of an ostensibly non-binding agency proclamation is a concept [that the District of Columbia Circuit has] recognized in the past." Nat'l Ass'n of Home Builders v. Norton, 415 F.3d 8, 15 (D.C.Cir.2005) (citing Gen. Elec. Co. v. EPA, 290 F.3d 377, 383 (D.C.Cir.2002) ("[I]f the language of the document is such that private parties can rely on it as a norm or safe harbor by which to shape their actions, it can be binding as a practical matter[.]"); McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1321 (D.C.Cir.1988) (agency action, though facially nonbinding, "created a norm with present day binding effect")). For example,
Appalachian Power Co. v. EPA, 208 F.3d 1015, 1021 (D.C.Cir.2000) (emphasis added). However, "if the practical effect of the agency action is not a certain change in the legal obligations of a party, the action is non-final for the purpose of judicial review." Norton, 415 F.3d at 15.
Here, the Court finds that the EPA's Final Guidance marks the "consummation of the agency's decision making process." Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154. Indeed, the defendants concede that the first prong of the Bennett test is met as the arguments in their opposition pertain only to whether the Final Guidance is a binding legislative rule or whether it is merely a policy statement. See Defs.' Mem. at 15-23. This concession was expressed again at the July 13, 2012 hearing when defense counsel explicitly stated that the EPA does not dispute that the Final Guidance is the consummation of the decision making process.
Despite the defendants' concession, because final agency action is a "threshold question," Fund for Animals, Inc., 460 F.3d at 18, the Court is compelled to briefly set forth its reasoning why the first prong of the Bennett test is satisfied. The Final Guidance was issued after the EPA received over 60,000 comments on the interim guidance. See Norton, 415 F.3d at 14 (concluding that the agency protocols at issue "clearly marked the consummation of the decision making process," and observing that the protocols were "published after [the agency] solicited input from specialists and reviewed" past data); Appalachian Power, 208 F.3d at 1022 (observing that the EPA guidance in dispute followed the circulation of two earlier drafts). The Final Guidance itself notes that it "replaces [the] EPA's interim final guidance issued on April 1, 2010, and the Regions should begin consulting it immediately." Final Guidance at 1 (A.R. FG005440). Furthermore, and most important as to the first element of Bennett, the Final Guidance reflects the EPA's settled position on both its understanding of its authority under the respective statutes and regulations, see id. at 2 (A.R. FG005441), and its understanding of the science upon which the Final Guidance is based, see id. at 5 (A.R. FG005444). It is thus clear that the Final Guidance represents the consummation of the EPA's decision making process.
Next, the Court must assess whether the second element of Bennett is satisfied — whether the Final Guidance is an action "by which rights or obligations have been determined, or from which legal consequences will flow." 520 U.S. at 178, 117 S.Ct. 1154. Unsurprisingly, the plaintiffs argue yes and the defendants argue no. The EPA contends that the Final Guidance "is a policy statement, not a legislative rule."
As an initial matter, the Court is unconvinced by the defendants' arguments in regard to the nonbinding language in the Final Guidance. See Defs.' Mem. at 16, 18-19. It is true that the Final Guidance contains language avowing that the recommendations within the document are not binding pronouncements. See, e.g., Final Guidance at 1 (A.R. FG005440) ("This memorandum does not impose legally binding requirements and will not be implemented as binding in practice. It does not impose any obligations on private parties."); id. at 9 (A.R. FG005448) ("The use of language such as `recommend,' `may,' `should,' and `can' is intended to describe agency policies and recommendations, while the use of mandatory terminology such as `must' and `required' refers to existing requirements under the CWA, its implementing regulations, and relevant case law."). This Circuit has, however, described similar disclaimers as "boiler-plate." Appalachian Power, 208 F.3d at 1023; see also id. (explaining that because the policies in the disclaimer impose requirements, "`rights' may not be created but `obligations' certainly are — obligations on the part of the State regulators and those they regulate"). With the adage that actions speak louder than words thus ringing true, the Court will examine "the practical effect of [the] ostensibly non-binding [Final Guidance]." Norton, 415 F.3d at 15.
Review of the Final Guidance itself and of the post-implementation evidence before the Court makes clear that the Final Guidance, whether intentionally or not, has caused EPA field offices and the state permitting authorities to believe that permits should and will be denied if its "suggestions" and "recommendations" are not satisfied. For example, after the bulk of the first four paragraphs of the Final Guidance explain that it is nonbinding, the conclusion of the fourth paragraph makes clear that "[w]e [EPA Headquarters in Washington, D.C.] expect EPA Regions 3, 4, and 5 to give appropriate consideration to this guidance when reviewing proposed permits or permit applications associated with Appalachian surface coal mining activities." Final Guidance at 2 (A.R. FG005441) (emphasis added). Indeed, the document itself proclaims that it is "intended to guide EPA staff in reviewing and commenting on permitting activities related to Appalachian surface coal mining." Id. (A.R. FG005441). Additionally, after discussing two EPA reports and their review by the EPA's Science Advisory Board, the Final Guidance explains the review "reinforce[ed] the significant aquatic effects of Appalachian surface coal mining and the appropriateness of [the] EPA's conductivity benchmark for protecting aquatic life." Id. at 5 (A.R. FG005444). This leaves no doubt that the EPA's regional field offices and the state permitting authorities are on notice that the "EPA will consider the recommendations in this guidance, along with other relevant factors, when reviewing CWA permits." Id. at 10 (A.R. FG005449).
As plaintiffs' counsel asked at the July 13, 2012 hearing, when EPA Headquarters explains to its subordinate regional offices
Defs.' Extra-record Resp., Nuhfer Decl., Ex. 2 (April 2, 2012 Letter from James Giattina, EPA Region 4, to Sandy Gruzesky, Director, Division of Water, Kentucky Department for Environmental Protection ("April 12, 2012 Giattina Letter")) at 1 (internal quotations marks omitted). The September 29, 2010 objection made clear that to address the objection, "KDOW [had to] submit a revised permit with effluent limitations that are as stringent as necessary to meet applicable narrative and numeric WQS." Id. (internal quotation marks omitted). And it was only after the KDOW revised the draft permit and resubmitted it for the EPA's consideration, that the EPA withdrew its objection after determining that "the revised permit reflect[ed] a more robust reasonable potential analysis and ... contain[ed] the necessary conditions and effluent limits." Id. The record before the Court thus confirms the plaintiffs' allegations that the Final Guidance is being implemented as binding and having a practical effect on the permitting process for new Appalachian surface coal mining projects.
To complete its final agency action analysis, the Court must address the defendants' argument that "[w]here [the] EPA merely comments on a draft permit, but does not object, the State can issue the permit without further action from [the] EPA; thus, [the] EPA's comments cannot possibly be seen as mandating compliance
The Final Guidance constitutes final agency action because it is both the consummation of the EPA's decision making process, and, even if facially nonbinding, it has been applied by the regional field offices in their review of draft permits in a manner that has had the practical effect of changing the obligations of the state permitting authorities. Therefore, the Final Guidance is a de facto legislative rule.
208 F.3d at 1022.
Section 509 of the CWA places exclusive jurisdiction in the federal Courts of Appeals to review certain EPA actions taken under color of the CWA. See Am. Frozen Food Inst. v. Train, 539 F.2d 107, 124 (D.C.Cir.1976) ("The Act gives the Courts of Appeals of the United States wide and exclusive jurisdiction to review the actions of the Administrator."). Section 509, codified at 33 U.S.C. § 1369, provides that:
33 U.S.C. § 1369(b)(1).
The defendants assert that, because the Court has agreed with the plaintiffs that the Final Guidance is a binding rule, the "[p]laintiffs' challenge to the portions of the [Final] Guidance that address Section 402 permits must be dismissed for lack of jurisdiction," as the Final Guidance "plainly relate[s] to the issuance or denial of Section 402 permits" and the plaintiffs' challenge therefore "falls within the exclusive jurisdiction of the Courts of Appeals." Defs.' Mem. at 23. The plaintiffs disagree, maintaining that "Section 509(b)(1) delineates six very specific categories of agency action for which a challenge must be brought as an original proceeding in a court of appeals," and that their "challenge to the Final Guidance is not among them and need not be reviewed by a court of appeals." Pls.' Reply at 11. The Court agrees with the plaintiffs.
The Final Guidance is not subject to the Circuit's original jurisdiction on the basis of 33 U.S.C. § 1369(b)(1)(E) because it is not an approved or promulgated Section 301 effluent limitation. First, even under the most expansive reading, the Final Guidance cannot be interpreted as establishing Section 301 effluent limitations. In other words, the Final Guidance does not set specific limits and mandate their inclusion in all Section 402 permits. Rather, the Final Guidance is concerned with (1) the interplay between Section 303 water quality standards and conductivity, and (2) the need for pre-permit reasonable potential analyses to ensure that Section 402 permits contain the most stringent effluent limitations necessary. Thus, while the Final Guidance does touch on the need for Section 301 effluent limitations in its discussion of pre-permit analyses and the requirements of 40 C.F.R. § 122.44(d), it does not attempt to prescribe certain effluent
Next, because the EPA has neither issued nor denied any Section 402 permits, § 1369(b)(1)(F) does not vest exclusive jurisdiction in the Circuit. While the EPA's formal objection to draft 402 permits may once have been construed as the "functional denial" of a permit, see Crown Simpson Pulp Co. v. Costle, 445 U.S. 193, 100 S.Ct. 1093, 63 L.Ed.2d 312 (1980), it is clear that after the 1977 Amendments to the CWA, an EPA objection "is no longer `functionally similar' to denying a permit." Am. Paper Inst. v. EPA, 890 F.2d 869, 874 (7th Cir.1989); see also id. at 874, n. 7 (explaining that the challenge in Crown Simpson preceded the 1977 Amendments). Here, then, while the plaintiffs are correct that Final Guidance does "relate to" the issuance of 402 permits, Defs.' Mem. at 23, it does not amount to an EPA issuance or denial of a 402 permit. Accordingly, § 1369(b)(1)(F) does not vest exclusive jurisdiction in the Circuit.
As neither of the two § 1369(b)(1) subsections cited by the defendants as mandating exclusive Circuit jurisdiction apply to the Final Guidance, this Court possesses original jurisdiction to review the Final Guidance.
"[R]epresent[ing] a prudential attempt to balance the interests of the court and the agency in delaying review against the petitioner's interest in prompt consideration of allegedly unlawful agency action," Fla. Power & Light Co. v. EPA, 145 F.3d 1414, 1420-21 (D.C.Cir.1998), the ripeness doctrine requires courts to consider the framework set forth by the Supreme Court in Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). First, a court must "evaluate the `fitness of the issues for judicial decision.'" Fla. Power & Light, 145 F.3d at 1421 (quoting Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507). If a challenged decision is not "fit" for review, "the petitioner must show `hardship' in order to overcome a claim of lack of ripeness." Fla. Power & Light, 145 F.3d at 1421. In assessing the fitness prong, courts evaluate "whether the agency action is final; whether the issue presented for decision is one of law which requires no additional factual development; and whether further administrative action is needed to clarify the agency's position." Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940 (D.C.Cir.1986).
The irreducible constitutional minimum of standing contains three elements: (1) injury in fact, (2) causation, and (3) the possibility of redress by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). These requirements apply whether an organization asserts standing on its own behalf, or on behalf of its members. Havens Realty Corp. v. Coleman, 455 U.S. 363, 378, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982).
The defendants assert that the plaintiffs have failed to demonstrate injury in fact and causation because "[t]he [Final] Guidance does not impose any obligations on the regulated industry and does not bind [the] EPA, the States, or the Corps in taking action on permit applications." Defs.' Mem. at 26. The defendants' standing argument thus strikes a similar chord to their arguments on final agency action. And those arguments have already been rejected by the Court. The Final Guidance is binding in regard to the obligations it imposes on the state permitting authorities, and thus the members of the regulated industry seeking the permits, and these obligations amount to injuries caused by the Final Guidance. And a decision vacating the Final Guidance would redress the plaintiffs' injuries. Accordingly, the plaintiffs have standing to challenge the Final Guidance.
In sum, the Court is confident that it has authority to review the claims asserted in this case and is unmoved by any of the defendants' jurisdictional arguments. The Final Guidance is final agency action, subjecting it to this Court's review under the APA; the Final Guidance does not trigger any of the subsections of § 1369(b)(1), which would divest this Court of jurisdiction and confer exclusive jurisdiction on the Circuit; the Final Guidance is ripe for review; and the plaintiffs have demonstrated that they have standing to challenge the Final Guidance. Consequently, the Court now moves to the heart of the plaintiffs' contentions: What did Congress intend the SMCRA and the CWA to regulate, and what role does the EPA play in that regulation?
Under the APA, courts must hold unlawful and set aside agency actions found to be in excess of statutory jurisdiction, authority, or limitations. 5 U.S.C. § 706(2)(C). To determine whether an agency exceeded its statutory authority
Whether statutory ambiguity exists is for the Court to decide, and the Court "owe[s] the agency no deference on the existence of ambiguity." Am. Bar Ass'n v. FTC, 430 F.3d 457, 468 (D.C.Cir. 2005). If the Court determines that the statute is either silent or ambiguous, the Court must then proceed to the second component of Chevron and determine whether the agency's position is based on a permissible construction of the statute. Colo. Wild Horse & Burro Coal., 639 F.Supp.2d 87, 91 (D.D.C.2009). Courts are hesitant to "presume a delegation of power based solely on the fact that there is not an express withholding of such power." Am. Petroleum Inst. v. EPA, 52 F.3d 1113, 1120 (D.C.Cir.1995) (citing Ethyl Corp. v. EPA, 51 F.3d 1053, 1060-61 (D.C.Cir. 1995)). Similarly, "the duty to act under certain carefully defined circumstances simply does not subsume the discretion to act under other, wholly different, circumstances, unless the statute bears such a reading." Ry. Labor. Execs. Ass'n v. Nat'l Mediation Bd., 29 F.3d 655, 671 (D.C.Cir. 1994) (emphasis omitted); see also id. at 670 ("categorically reject[ing]" the Board's suggestion that "it possesses plenary authority to act within a given area simply because Congress has endowed it with some authority to act in that area").
As noted above, "Congress chose a special kind of regulatory structure for the [SMCRA], in which the federal government shares administrative responsibility with the states." In re PSMRL, 653 F.2d at 518. It is, however, the Secretary of the Interior, acting through the Office of Surface Mining, who executes the duties that the SMCRA imposes on the federal side of the state-federal relationship. The SMCRA grants to the EPA only the ability to comment on and provide its written concurrence prior to the Secretary's approval of a state SMCRA permitting program. In other words, once the EPA has given its assent to approve a state SMCRA permitting program, the SMCRA affords it no further authority in the oversight or administration of the SMCRA regime. The plaintiffs are therefore correct that "[n]othing in the SMCRA expressly — or even implicitly — contemplates that [the] EPA will `work with' SMCRA permitting authorities to incorporate [Best Management Practices] or otherwise influence permit terms." Pls.' Mem. at 30. As the SMCRA unambiguously limits the EPA's authority, there is no need to advance to the second step of the Chevron analysis.
Attempting to cast the issue differently, the defendants argue that the Final Guidance does not violate the SMCRA because "there is substantial overlap between issues that are appropriately considered by the SMCRA permitting authority during its permit process, and issues that are properly considered by the Corps during its CWA Section 404 permit process or by State permitting authorities during the 402 permitting process." Defs.' Mem. at 30-31; see Pls.' Mem. at 27 ("[The] EPA
Moreover, the defendants themselves seemingly recognize the limitations on their permitting authority as they correctly identify the entities that do possess such authority: the Corps and state permitting authorities. See Defs.' Mem. at 30. Thus, even assuming the existence of overlap between the SMCRA and the CWA, it is not the EPA that is responsible for working with the SMCRA permitting authorities on matters where overlap exists. Stated differently, in circumstances where the EPA lacks the authority to issue the permits, whether there is overlap between requirements for SMCRA permits and CWA permits is of no moment. Accordingly, the EPA cannot justify its incursion into the SMCRA permitting scheme by relying on its authority under the CWA — it has no such permitting authority. The EPA has therefore impermissibly interjected itself into the SMCRA permitting process with the issuance of the Final Guidance.
The plaintiffs assert that, with the issuance of the Final Guidance, the EPA has overstepped the limitations on its CWA authority in two principal ways: (1) by setting "what is tantamount to a region-wide water quality criterion for conductivity," thus infringing on the State's role under Section 303, Pls.' Mem. at 32, and (2) by insisting that draft permits contain a pre-issuance reasonable potential analysis, thus "usurping the State's primary authority to determine when and if a discharge has the `reasonable potential' to exceed" water quality standards, Defs.' Mem. at 37. The Court will examine each of these contentions in turn.
As explained above, Section 303 of the CWA allocates primary authority for the development of water quality standards to the states. All parties agree that the EPA does have the authority to promulgate section 303 water quality standards in certain instances, but likewise agree that they those procedures have not been undertaken here. See Defs.' Mem. at 33, n. 23 (citing Pls.' Mem. at 9-10, 31); see also 33 U.S.C. § 1313(c)(3)-(4). Logically, then, having recognized that the EPA has only limited authority under Section 303 to establish water quality standards, and having conceded that it has not exercised that authority here, the question
Throughout their briefs, the defendants assert the nonbinding language of the Final Guidance, but nowhere more than in regard to the conductivity "benchmarks" or "triggers." See Defs.' Mem. at 33 ("The conductivity benchmarks set forth in the [Final] Guidance are just that — benchmarks."); id. ("Neither the language of the [Final] Guidance itself, nor the experience in the field, supports [the p]laintiffs' contention that the conductivity benchmarks are binding water quality standards or that they have been applied as such."); id. at 34 ("There is simply nothing in the [Final] Guidance to support [the p]laintiffs' assertion that the conductivity benchmarks are binding water quality standards."); id. at 36 (noting that the Final Guidance merely "recommends" that states give serious consideration to the science contained in the EPA's two studies, which indicated that substantial impacts on aquatic life occur as conductivity increases beyond the lower range of the EPA's benchmark). The defendants thus offer nothing more than a repetition of the arguments made in regard to the finality of the Final Guidance, arguments earlier ejected by the Court.
With the Court and the parties all in agreement as to the EPA's statutory authority under Section 303, the assessment of the plaintiffs' claim that the EPA has impermissibly infringed on the states' Section 303 authority is less a matter of statutory interpretation and more a matter of assessing the Final Guidance itself. Accordingly, in light of its earlier determination that the Final Guidance's conductivity benchmarks were being treated as binding by the EPA's regional offices, see supra at 130-31, 132-33, the Court must again conclude that the Final Guidance impermissibly sets a conductivity criterion for water quality. The EPA has, therefore, overstepped the authority afforded it by Section 303 of the CWA.
As described earlier in this Memorandum Opinion, the Appalachian States subject to the Final Guidance all have EPA-approved permitting programs and thus administer the Section 402 permitting scheme for permits sought within their state borders. As such, the states are the primary permitting authority for Section 402 permits, but must submit draft permits to the EPA for review. Should the EPA determine that the draft permit does not meet the requirements of the CWA, the EPA possesses the statutory authority to object to that draft permit. If the state does not respond to the EPA's objection, the EPA may assume the responsibility to issue the permit. It is this authority — the authority to review draft permits for compliance with the CWA — that the defendants cite as the authority underpinning the Final Guidance.
The plaintiffs assert that the EPA has usurped the State's primary authority to determine when and if a discharge has the reasonable potential to exceed state water quality standards. Pls.' Mem. at 37. Specifically, the plaintiffs maintain that
Id.; see also id. at 38 ("40 C.F.R. § 122.44(d)(1) is clear and unambiguous that states, not [the] EPA, make the `reasonable potential' determination.") The plaintiffs continue: "There is no permissible construction of the CWA or its regulatory scheme that would permit [the] EPA to displace state permitting authorities from their role of determining whether a discharge violates their own state narrative water quality standards and/or when specific numeric effluent limits must be established." Id. at 38; see also Pls.' Reply at 22 ("Under the plain language of the CWA, the states, not [the] EPA, determine how to best interpret their narrative standards and when there is a reasonable potential to cause or contribute to an excursion from those standards. [The] EPA cannot substitute its judgment for the states' in a guidance document."). Lastly, the plaintiffs maintain that since the issuance of the Final Guidance, "[s]tate permitting authorities no longer have the discretion to conduct post-permit [reasonable potential analyses] and determine through collection of site-specific data whether the discharge actually will cause or has the potential to cause a violation of state standards." Pls.' Mem. at 38.
The defendants respond that the "EPA promulgated regulations more than 20 years ago that require state permitting authorities to incorporate water quality-based effluent limitations in permits for all pollutants that have the reasonable potential to cause or contribute to an excursion above any applicable water quality standard, including narrative water quality standards." Defs.' Mem. at 36. The defendants further maintain that "[w]hile the reasonable potential determination rests with the State in the first instance, existing regulations require that States consider relevant information when performing a reasonable potential analysis for narrative standards."
It is thus clear that the parties' disagreement boils down to whether the CWA and its implementing regulations — specifically, 40 C.F.R. § 122.44 — require that the reasonable potential analysis be conducted prior to the state's issuance of a Section 402 permit. In making this assessment, the Court must "`give substantial deference to an agency's interpretation of its own regulations.'" St. Marks Housing
In pertinent part,
40 C.F.R. § 122.44(d)(1)(i)-(v) (footnote and emphases added).
There is no quarrel here that the "permitting authority" referenced in the regulation is the state, as all Appalachian states have EPA approval to administer Section 402 permitting regimes for coal mining projects on lands within their state boundaries. And it is clear that the permitting authority is afforded the authority to determine whether a discharge "causes, has the reasonable potential to cause, or contributes to" and excursion of water quality standards. Id. § 122.44(d)(1)(ii). As written, the regulation does not mandate when the state permitting authority must conduct its analysis of the discharge's impact on the water quality standard. For example, 40 C.F.R. § 122.44(d)(1)(i) provides that "limitations must control all pollutants... which the Director determines are or may be discharged," suggesting that the pollutants could already have been discharged at the time the Director makes the determination or may be discharged in the future. Additionally, the regulation sets forth procedures for the state-permitting authorities to use "when determining whether a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative or numeric criteria within a State water quality standard." 40 C.F.R. § 122.44(d)(1)(ii) (emphasis added). The fact that two of these determinations are written in the present — rather than future — tense belies the defendants' assertion that the CWA, and particularly § 122.44, require a pre-issuance reasonable potential analysis. To be clear, the Court agrees that § 122.44(d)(1) sets forth requirements with which the states must comply, but it does not impose or mandate the timing of that compliance (i.e., whether compliance must be achieved prior to the issuance of the permit).
Accordingly, the EPA's "presumption" that, based on the scientific studies regarding conductivity, it is likely that all discharges will lead to an excursion or that the conductivity studies will be instructive on the matter, Defs.' Mem. at 38, removes the reasonable potential analysis from the realm of state regulators. In other words, by presuming anything with regard to the reasonable potential analysis, the EPA has effectively removed that determination from the state authority. And there can be no question that a plain reading of the regulation leaves that determination, and the decision as to when it must be made, solely to state permitting authorities. The EPA's interpretation of the regulation, an interpretation on which it has premised the Final Guidance, is therefore "inconsistent with the regulation" itself. St. Marks Housing Co., 610 F.3d at 82. Should the EPA wish to alter the manner by which an reasonable potential analysis is conducted, it is of course free to amend the regulation in a manner consistent with the APA and
The Court is not unappreciative of the viable interests asserted by all parties to this litigation. How to best strike a balance between, on the one hand, the need to preserve the verdant landscapes and natural resources of Appalachia and, on the other hand, the economic role that coal mining plays in the region is not, however, a question for the Court to decide. In this litigation, the sole inquiry for the Court is the legality of the Final Guidance, and, for the reasons set forth above, that inquiry yields the conclusion that the EPA has overstepped its statutory authority under the CWA and the SMCRA, and infringed on the authority afforded state regulators by those statutes. Accordingly, because the EPA has exceeded its statutory authority, the plaintiffs' motion for partial summary judgment is granted and the defendants' motion for partial summary judgment is denied.
On October 6, 2011, the Court granted the plaintiffs' first motion for partial summary judgment after it concluded that the EPA exceeded its statutory authority under the Clean Water Act ("CWA"), 33 U.S.C. 1251 (2006), in adopting its Multi-Criteria Integrated Resource Assessment ("MCIR Assessment") and Enhanced Coordination Process ("EC Process"). See Nat'l Mining Ass'n v. Jackson, 816 F.Supp.2d 37, 49 (D.D.C.2011) ("Nat'l Mining Ass'n II"). On July 21, 2011, the EPA issued its Final Guidance Memorandum, mooting the plaintiffs' challenges to the Interim Guidance. The plaintiffs and plaintiff-intervenors then amended their complaints, alleging that the Final Guidance violates the Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. § 1202 (2006), CWA, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 (2006). The parties then rebriefed the challenges to the Final Guidance, and the pending cross-motions pertain only to the Final Guidance.
Center for Auto Safety v. Nat'l Highway Traffic Safety Admin., 452 F.3d 798, 806 (D.C.Cir. 2006).
