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Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States Environmental Protection Agency

April 29, 2009

CATSKILL MOUNTAINS CHAPTER OF TROUT UNLIMITED, INC., THEODORE GORDON FLYFISHERS, INC., CATSKILL-DELAWARE NATURAL WATER ALLIANCE, INC., FEDERATED SPORTSMEN'S CLUBS OF ULSTER COUNTY, INC., RIVERKEEPER, INC., WATERKEEPER ALLIANCE, INC., TROUT UNLIMITED, INC., NATIONAL WILDLIFE FEDERATION, ENVIRONMENT AMERICA, ENVIRONMENT NEW HAMPSHIRE, ENVIRONMENT RHODE ISLAND, AND ENVIRONMENT FLORIDA, PLAINTIFFS,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND LISA JACKSON, IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS.
STATE OF NEW YORK, CONNECTICUT, DELAWARE, ILLINOIS, MAINE, MICHIGAN, MINNESOTA, MISSOURI, WASHINGTON, AND THE GOVERNMENT OF THE PROVINCE OF MANITOBA, CANADA, PLAINTIFFS,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND LISA JACKSON, IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

OPINION AND ORDER

Plaintiffs Catskill Mountains Chapter of Trout Unlimited, Inc., Theodore Gordon Flyfishers, Inc., Catskill-Delaware Natural Water Alliance, Inc., Federated Sportsmen's Clubs of Ulster County, Inc., Riverkeeper, Inc., Waterkeeper Alliance, Inc., Trout Unlimited, Inc., National Wildlife Federation, Environment America, Environment New Hampshire, Environment Rhode Island, and Environment Florida (collectively, "Environmental Plaintiffs") and Plaintiffs States of New York, Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, Washington, as well as the Government of the Province of Manitoba, Canada (collectively, "State Plaintiffs"), seek judicial review of the National Pollutant Discharge Elimination System Water Transfers Rule (hereinafter "Water Transfers Rule"), 40 C.F.R. § 122.3(i), a regulation issued by Defendant United States Environmental Protection Agency ("EPA"). Defendant City of New York ("Defendant City") was granted permission without opposition to intervene as a Defendant in these actions. In the instant motion, Defendants EPA and Lisa Jackson, Administrator of EPA (collectively, "EPA Defendants") and Defendant City (collectively "Defendants") ask the Court to stay these consolidated proceedings pending the Eleventh Circuit's resolution of several consolidated petitions pending before it, which also challenge the Water Transfers Rule.*fn2 Alternatively, Defendants ask the Court to dismiss these actions on the ground that the Court lacks subject matter jurisdiction. For the reasons set forth below, the Court grants Defendants' motion to stay these proceedings.

I. Background

A. Relevant Legal and Regulatory Background

1. The Clean Water Act

Congress enacted the Clean Water Act ("CWA") "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To achieve this objective, the CWA generally prohibits the "discharge of any pollutant" except as authorized by a provision of the CWA. See 33 U.S.C. § 1311(a). The provision relevant to this case, 33 U.S.C. § 1342, establishes a permitting program called the National Pollutant Discharge Elimination System ("NPDES"), which allows EPA or state administrators to issue a permit for the discharge of a pollutant into national waters at or below the effluent limitations specified in the permit. Thus, it is through the NPDES permitting program that the CWA limits the amount and concentrations of pollutants that may be discharged into waters. See Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992) (noting that the NPDES permitting program is "[t]he primary means for enforcing the[] limitations and standards" contained in the CWA).

The CWA defines the "discharge of a pollutant" and "discharge of pollutants" as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12). A "pollutant" is broadly defined in the CWA to encompass a large number of substances, including industrial, municipal, and agricultural wastes. See id.§ 1362(6). "Navigable waters" are defined by the CWA as "the waters of the United States, including the territorial seas." Id. § 1362(7). A "point source" is defined by the CWA 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. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.

Id. § 1362(14). "The statute does not define 'addition.'" Catskill Mountains Chapter of Trout Unltd., Inc. v. City of New York, 273 F.3d 481, 489 (2d Cir. 2001) ("Catskill I").

2. EPA's Treatment of Water Transfers Under the CWA

The consolidated actions before this Court concern the appropriate treatment under the CWA of "water transfers," defined by EPA as "activities involving a transfer of the waters of the United States, unaltered and without any intervening industrial, municipal, or commercial use, through a point source from one location to another location." (EPA Defs.' Mem. in Supp. Mot. to Stay or Dismiss ("EPA Defs.' Mem.") 4.) This definition of water transfers reflects what is sometimes referred to as the "unitary water theory of navigable waters," which the Supreme Court has described as the argument that "all the water bodies that fall within the [CWA's] definition of 'navigable waters' . . . should be viewed unitarily for purposes of NPDES permitting requirements," and therefore "permits are not required when water from one navigable water body is discharged, unaltered, into another navigable water body." S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 105-06 (2004) (hereinafter "Miccosukee").

Historically, in administering the CWA, EPA generally did not require NPDES permits for water transfers. See NPDES Water Transfers Proposed Rule ("Proposed Rule" or "Proposed Water Transfers Rule"), 71 Fed. Reg. 32,887, 32,891 (proposed June 7, 2006) (codified at 40 C.F.R. § 122.3(i)) (explaining that EPA historically concluded that "Congress did not generally intend to subject water transfers to the NPDES program"); see also Miccosukee, 541 U.S. at 107 (noting EPA's argument that it has been the "longstanding EPA view that the process of transporting, impounding, and releasing navigable waters cannot constitute an addition of pollutants to the waters of the United States" (internal quotation marks omitted)). But see id. (noting that "an amicus brief filed by several former EPA officials argues that the agency once reached the opposite conclusion"). Prior to 2005, EPA had not formally articulated its policy regarding water transfers in any administrative document. See id. at 108 (noting that EPA had produced no administrative document espousing view that water transfers were not subject to the NPDES permitting requirements, that it was possible that EPA had at least on one occasion espoused a contrary position, and that such a position could conflict with NPDES permitting requirements); see also Catskill I, 273 F.3d at 490 (noting that while EPA had taken the position in several policy statements that dam releases were not covered under the NPDES permitting requirements, as well as in two lawsuits before the District of Columbia and Sixth Circuits, it had never formalized its position through a notice-and-comment rulemaking or formal adjudication under the Administrative Procedure Act ("APA"), 5 U.S.C. § § 553, 554).

a. The Second Circuit's First Decision in the Catskill Case

In March 2000, many of the same plaintiffs who are Environmental Plaintiffs in the instant cases filed a complaint against the City of New York, the New York City Department of Environmental Protection, and the Commissioner of the New York City Department of Environmental Protection in the District Court for the Northern District of New York under the citizen-suit provision of the CWA, 33 U.S.C. § 1365(a)(1), arguing that water transfers are covered by the NPDES permitting requirements. See Catskill I, 273 F.3d at 484-85. The lawsuit alleged that the City of New York had violated the CWA's prohibition against "discharg[ing] . . . any pollutant," 33 U.S.C. § 1311(a), by conducting certain water transfers without seeking an NPDES permit. See Catskill I, 273 F.3d at 484-85.*fn3

The district court granted the defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), concluding that "as a matter of law," the City of New York's water transfers "did not effect an 'addition' of a pollutant . . . as required to trigger the CWA's permit requirement." Id. at 485. On appeal in 2001, the Second Circuit reversed the district court's dismissal, id. at 494, holding that under the plain meaning of the CWA, "the transfer of water containing pollutants from one body of water to another, distinct body of water is plainly an addition and thus a 'discharge' that demands an NPDES permit," id. at 491. In interpreting the CWA, the Second Circuit noted that it did not grant Chevron deference to EPA's position that water transfers were not covered by the NPDES permitting requirements because EPA had never formalized its position through its rulemaking authority or through another formal proceeding.*fn4

See Catskill I, 273 F.3dat 489-90 ("Interpretations such as those in opinion letters -- like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law -- do not warrant Chevron-style deference.")). The Second Circuit ...


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