MARY M. LISI, Senior District Judge.
The plaintiff in this action, the Conservation Law Foundation ("CLF")
The CWA was enacted to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a)(1994). "`This objective incorporated a broad, systemic view of the goal of maintaining and improving water quality . . . the word integrity• . . . refers to a condition in which the natural structure and function of ecosystems [are] maintained.'"
To achieve its objective, the CWA, with certain limited exceptions, prohibits "the discharge of a pollutant by any person." 33 U.S.C. § 1311(a). (12) The terms "discharge of a pollutant"• and "discharge of pollutants"• are defined as "(A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft." 33 U.S.C. § 1362(12). A "point source" is further defined as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." 33 U.S.C. § 1362(14). The provision also notes that "[t]his term does not include agricultural stormwater discharges and return flows from irrigated agriculture."
States and the federal government share responsibility for achieving the CWA's objective. 33 U.S.C. § 1251(g);
In addition to identifying waters within a state's boundaries that fail to meet their designated water quality standards and ranking them in order of priority, "States must then begin the planning process for bringing these waters into compliance with water quality standards."
As set forth in EPA regulations, TMDLs are calculated as "[t]he sum of the individual WLAs [Wasteload Allocation] for point sources and LAs [Load Allocation] for nonpoint sources and natural background." 40 C.F.R. § 130.2(i). A WLA is "[t]he portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources of pollution. WLAs constitute a type of water quality-based effluent limitation." 40 C.F.R. § 130.2(h). An LA is "[t]he portion of a receiving water's loading capacity that is attributed either to one of its existing or future nonpoint sources of pollution or to natural background sources." 40 C.F.R. § 130.2(g).
After the State has established TMDLs for "all pollutants preventing or expected to prevent attainment of [identified] water quality standards," the calculations to establish TMDLs are subject to public review. 40 C.F.R. § 130.7(c)(1)(ii). Following submission of finalized TMDLs to the EPA, the EPA may approve the identification of waters and established loads, in which case the State must incorporate them into its continuing planning process. 40 C.F.R. § 130.7(d)(2). In the event the EPA disapproves the TMDL, it must "identify such waters in such State and establish such loads for such waters as [the Administrator] determines necessary to implement the water quality standards applicable to such waters." The State is then required to incorporate the EPA-set TMDLs into its continuing planning process.
The CWA also prohibits the discharge of any pollutants from a point source unless authorized by an NPDES [National Pollutant Discharge Elimination System] permit.
In contrast to point source pollutants, nonpoint sources of pollution are generally excluded from CWA regulations, although states are encouraged to track and target such nonpoint source pollution.
According to a TMDL Report
The largest single phosphorus (non-point) source (47%) impacting Mashapaug Pond is attributed to tributary flow from Spectacle Pond; 22% of the total phosphorus load comes from six storm drains. Mashapaug Pond TMDL Report p. viii. The source of pollution to the six identified storm drains "is runoff from non-point sources such as streets, parking lots, rooftops, and lawns." Mashpaug TMDL report p. 13; p. 46 (noting that "[e]ven though stormwater point source discharges to Mashapaug Pond exist, the contributing sources are non-point in nature.")
To reverse eutrophication [lack of oxygen caused by excessive nutrients] of Mashapaug Pond, the TMDL Report calls for a "nutrient load reduction of 62% from all storm drains and direct overland runoff areas as well as the base flow from Spectacle Pond . . . in order to meet the water quality standard for hypoxia [oxygen deficiency].
The TMDL Report for Mashapaug Pond was approved by the EPA on September 27, 2007 (within one week of its receipt). EPA's assessment notes that "RI DEM has adequately identified the water body, the pollutant of concern, and the magnitude and location of the sources of pollution." EPA New England's TMDL Review Document p. 2 (unpaginated) (https://ofmpub.epa.gov/waters10/attains_impaired_waters.show_tmd l_document?p_tmdl_doc_blobs_id=67876).
Spectacle Pond, which constitutes the most significant source of phosphorus for Mashapaug Pond, is covered by the "9 Eutropic Ponds in Rhode Island" TMDL Report. Like Mashapaug Pond, Spectacle Pond is located in an urbanized area and subject to stormwater runoff from a high percentage of impervious cover. Eutropic Ponds TMDL Report p. 9. (http://www.epa.gov/region1/eco/tmdl/pdfs/ri/mashapaugpond.pdf).
The Spectacle Pond TMDL Report indicates that 53% of the Spectacle Pond watershed consists of high density residential development, whereas 17% of the area features commercial land use, and 10% features industrial land use.
This TMDL Report contains specific recommendations to reduce the phosphorus load impacting the water quality of Spectacle Pond (and, as a result, that of Mashapaug Pond). Such recommendations include, inter alia, the identification of all stormwater outfalls discharging directly into Spectacle Pond; the implementation of infiltration, filtration, and/or retention BMPs; the reduction of stormwater volume; increased street sweeping and other measures to address sediment loads to the pond; cleaning and maintaining culverts; and the installation of buffers to discourage use of the pond by waterfowl.
EPA approved the 9 Eutropic Ponds TMDL Report with the same September 27, 2007 communication addressing the Mashapaug Pond TMDL Report.
Bailey's Brook, which flows into North Easton Pond,
The Bailey's Brook TMDL Report recommends, inter alia, the reduction of stormwater runoff through implementation of BMPs, many of which are already in place; the elimination of illicit discharges; further implementation of an already existing Stormwater Management Plan by the Town of Middletown and RIDOT; the adoption of an Onsite Wastewater Management Plan; the evaluation of sanitary sewers and the reduction of leaks and overflows; the development of conservation plans for farming activities; and the implementation of measures to minimize waterfowl-related impacts or that of animal waste.
According to the March 2005 TMDL Report applicable to portions of the Sakonnet River and the Cove in Portsmouth, Rhode Island, the pollutant of concern in those waterbodies is "fecal coliform, a parameter used by Rhode Island as an indicator of human pathogens." The Sakonnet River-Portsmouth Park and the Cove Island Park TMDL Report p. 1. (http://www.dem.ri.gov/programs/benviron/water/quality/rest/pdfs/ sakonnet.pdf).
The impaired waters are closed to shellfishing "due to the potential public health risk associated with direct discharges of groundwater seeps and storm drain outfalls contaminated by human waste."
According to the applicable TMDL Report, the two areas adjacent to the impaired waters are "densely developed" and "composed predominately of high-density residential development with a mix of commercial and industrial facilities, some of which are located directly adjacent to the shorelines."
The goal of the phased TMDL Report is "the elimination of all discharges of untreated or inadequately treated wastewater," together with additional monitoring to "ensure that water quality standards are met as remedial actions are accomplished."
On April 28, 2015, CLF filed a three-count complaint for alleged violations of non-discretionary duties under the CWA by the Defendants (ECF No. 1). Although summonses as to the EPA Administrator and the Regional EPA Administrator issued the following day, on August 12, 2015, CLF requested an extension to serve the complaint on or before February 26, 2016 (ECF No. 4). Two months prior to filing the complaint, CLF sent 60-day "Notice Letters" to the Defendants as well as the Attorney General of the United States; such Notice Letters are required under the CWA before the filing of a citizen suit pursuant to 33 U.S.C. § 1365(a)(2), (b)(1)(A).
On June 10, 2016, the Defendants filed a motion to dismiss the complaint for lack of jurisdiction and for failure to state a claim upon which relief could be granted (ECF No. 14). On June 20, 2016, CLF filed an amended complaint (the "Complaint") which included three new paragraphs that made reference to certain "EPA guidance documents" (Complaint at ¶¶ 44-46).
On August 11, 2016, the Defendants filed a motion to dismiss the Complaint for lack of jurisdiction and for failure to state a claim upon which relief could be granted (ECF No. 17). CLF responded with an objection on September 8, 2016 (ECF No. 19), to which the Defendants filed a reply on September 29, 2016 (ECF No. 23). On October 20, 2016, CLF filed a sur-reply (ECF No. 24).
On October 25, 2016, the Court held a hearing on the Defendants' motion to dismiss the Complaint, in which both parties took the opportunity to state their respective positions and to respond to questions from this Court. The Court took the matter under advisement to issue a written decision.
A motion to dismiss for lack of subject matter jurisdiction is governed by Fed. R. Civ. P. 12(b)(1). A motion to dismiss for failure to state a claim upon which relief may be granted is governed by Fed. R. Civ. P. 12(b)(6). If a motion is brought under both 12(b)(1) and 12(b)(6), "a district court, absent good reason to do otherwise, should ordinarily decide the 12(b)(1) motion first."
The standard of review accorded a dismissal under either Rule 12(b)(1) or 12(b)(6) is "similar."
Although the Court generally may not consider documents outside of the complaint unless it converts the motion to dismiss pursuant to Rule 12(b)(6) into one for summary judgment, it may make an exception "for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to the plaintiffs' claim; or for documents sufficiently referred to in the complaint."
Claims against the EPA, as an agency of the United States, are generally barred by sovereign immunity, unless permitted by a specific waiver.
In its Complaint, CLF asserts that the Defendants have failed (1) to notify "certain commercial and industrial dischargers" that they are required to obtain discharge permits under the Rhode Island Pollution Discharge Elimination System; and (2) to provide such dischargers with applications for permit coverage. Complaint p. 2. CLF contends that the Defendants' duties to perform such acts are "non-discretionary" under the CWA and that those duties are triggered by the Defendants' determination that the dischargers are contributing to water quality violations and require stormwater controls.
CLF suggests that the EPA's approval of TMDLs for the Rhode Island waterbodies at issue constitutes a determination by the EPA that (1) stormwater discharges from commercial and industrial facilities contribute to violations of water quality standards governing bacteria and phosphorus concentrations in those water bodies; and (2) stormwater controls are needed for stormwater discharges from commercial and industrial facilities. Complaint at 13.
The Defendants take the position that because the EPA, in approving the TMDLs at issue in this litigation, did not make a determination that NPDES [National Pollutant Discharge Elimination System] permits are required, there is no legal requirement for the EPA to notify dischargers of permit requirements or to send them permit applications. Specifically, the Defendants contend that, in order to subject otherwise unregulated stormwater discharges to permitting, the Regional Administrator or the state permitting authority must make an affirmative determination that "the stormwater discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States." 33 U.S.C. §1342(p)(2)(E)(generally known as EPA's residual designation authority). The Defendants reject CLF's contention that approval of a TMDL, in and of itself, constitutes a residual designation determination and, therefore, imposes a permit requirement on stormwater discharges.
The Defendants also assert that CLF has failed to identify a nondiscretionary duty that is enforceable under the CWA citizen suit provision and they contend that, in the absence of such nondiscretionary duty, the Complaint must be dismissed for lack of jurisdiction.
It is evident from the statutory provisions of the CWA that, unlike point source discharges, which require authorization under Section 301(a) of the CWA, 33 U.S.C. § 1311, the regulation of stormwater discharges is limited. Pursuant to Section 402(p), 33 U.S.C. § 1342(p)(2) a permit for stormwater discharges is required if (1) a permit for the discharge had been issued prior to February 4, 1987; (2) the discharge is associated with industrial activity; (3) the discharge is from a municipal separate storm sewer system serving a population of 250,000 or more; (4) the discharge is from a municipal separate storm sewer system serving a population of 100,000 or more, but less than 250,000; and (5) the discharge is one "for which the Administrator or the State, as the case may be, determines that the stormwater discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States." 33 U.S.C. § 1342(p)(2).
The corresponding regulations for stormwater discharges not otherwise requiring an NPDES permit that are relevant to the instant case are set forth in 40 C.F.R §122.26(a)(9)(i)(C) and (D). An NPDES permit is required under the following circumstances:
Based on the foregoing regulations and Section 402(p) of the CWA, CLF takes the position that EPA's approval of TMDL Reports submitted by RIDEM constitutes an exercise of EPA's residual designation authority.
The documents underlying this litigation are several TMDL Reports related to six Rhode Island waterbodies that have been identified as impaired and placed on Rhode Island's 303(d) list because they are not meeting applicable standards for various pollutants, including phosphorus and/or bacterial waste. As required under the CWA, RIDEM established TMDLs for each pollutant affecting the six waterbodies and submitted the respective TMDL Reports to the EPA.
The Mashapaug TMDL Report, which identifies stormwater runoff from the Spectacle Pond as the primary source of phosphorus discharge, features an implementation plan that includes various BMPs to reduce stormwater loads to Spectacle Pond, as well as the implementation of BMPs for municipal storm sewer systems operated by the City of Providence and RIDOT. The Mashapaug TMDL Report does not identify individual point sources for pollutant discharges nor does it recommend the issuance of NPDES permits to any new discharges.
The corresponding EPA approval document notes that there are no permitted, wastewater point sources in the TMDL study area. The document also acknowledges that "sources of stormwater from developed areas which contribute to runoff through identified culverts, pipes, or other conveyances are . . . NPDES-permitted point sources" and that the TMDL includes a "wasteload allocation for the stormwater runoff from those permitted sources." EPA Approval of Mashapaug TMDL Report ¶ 5. With respect to the Mashapaug TMDL Report's implementation plan, EPA notes that it "is taking no action on the implementation plan."
In sum, the EPA approval document is limited to reviewing and ascertaining that and how the respective TMDL Report meets the statutory and regulatory requirements of TMDLs in accordance with Section 303(d) of the CWA. Nothing in the EPA approval document indicates (1) that EPA has conducted its own analysis or fact finding; that (2) that EPA has made an independent determination that the stormwater discharge into Mashapaug Pond contributes to a violation of water quality standards; and/or (3) that additional NPDES permits should be required for stormwater discharges into Mashapaug Pond.
The TMDL Reports for the other five waterbodies and their respective EPA approval documents follow the same pattern. The TMDL Reports for Spectacle Pond, North Easton Pond, and Bailey's Brook reflect that all three waterbodies are negatively impacted by stormwater runoff from developed areas, many of them commercial and/or industrial. In addition, Bailey's Brook is impacted, inter alia, by sewer leaks, illegal discharges, and agricultural activities. Segments of the Sakonnet River and the Cove, on the other hand, which have been identified in the applicable TMDL documents for fecal coliform bacteria, are impacted by failing septic systems, illegal sewer connections to storm drains, and illegal direct discharges. None of these TMDL Reports identify particular point sources or individual dischargers of pollutants.
Like EPA's approval of the Mashapaug TMDL Report, the EPA approval documents related to these five waterbodies contain no independent determinations by the EPA that the stormwater discharges contribute to water quality violations or that they constitute significant contributors of pollutants to those waters. Moreover, the EPA approval documents explicitly refrain from approving or taking action on the implementation plans contained in the TMDL Reports and they do not call for the issuance of NPDES permits.
None of the TMDL Reports in this case specifically identify point sources of the identified pollutant discharges, nor do they require NPDES permits as part of their implementation plans. The EPA, in approving the TMDL Reports, made no independent determination of RIDEM's findings or analysis, nor did it explicitly approve the submitted implementation plans. Rather, the EPA's approval appears to be limited to a summary of the TMDL Reports and an acknowledgment that the TMDLs meet statutory and regulatory requirements.
Under those circumstances, CLF cannot close the gap between RIDEM's assessments of the impaired waterbodies and the EPA's alleged duty to notify stormwater dischargers of NPDES permit requirements or to provide them with permit applications. In the absence of an independent determination by the EPA that the stormwater discharges contribute to a violation of a water quality standard or that they are significant contributors of pollutants to the waterbodies at issue, i.e., in the absence of EPA's exercise of its "residual designation authority," the EPA's election not to require permitting for stormwater discharges does not constitute a failure to perform a nondiscretionary duty under the CWA. Accordingly, the Court has no jurisdiction over the matter and CLF's Complaint cannot withstand the Defendants' motion to dismiss this action.
For the reasons stated herein, the Defendants' motion to dismiss the Complaint is GRANTED and the Complaint is DISMISSED with prejudice.
SO ORDERED.