Natural Resources Defense Council et al v. Gina McCarthy et al

Filing 73

ORDER DENYING DEFENDANTS' MOTION TO DISMISS by Judge Jon S. Tigar denying 38 Motion to Dismiss for Lack of Jurisdiction. (wsn, COURT STAFF) (Filed on 2/7/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NATURAL RESOURCES DEFENSE
COUNCIL, et al.,

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Plaintiffs,

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v.

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ORDER DENYING DEFENDANTS’
MOTION TO DISMISS
Re: ECF No. 38

GINA MCCARTHY, et al.,

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United States District Court
Northern District of California

Case No. 16-cv-02184-JST

Defendants.

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Before the Court is Defendants’ motion to dismiss Plaintiffs’ complaint. The Court will

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deny the motion.

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I.

BACKGROUND

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A. Factual History1

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This case concerns actions taken by the State of California following Governor Edmund G.

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Brown, Jr.’s January 17, 2014, Proclamation of a “State of Emergency” throughout California due

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to severe drought conditions. ECF No. 1-1 at 5.2 In particular, the case focuses on the waters

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subject to the 1995 San Francisco Bay/Sacramento-San Joaquin Delta Estuary Water Quality

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Control Plan (“Bay-Delta Plan”) and the Water Quality Control Plan for the Sacramento River

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Basin and San Joaquin River Basin, 4th Edition (“Central Valley Plan”), which implement water

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The Court accepts the following allegations from the complaint as true for the purpose of
resolving both a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996), and a facial
attack on the Court’s jurisdiction pursuant to Rule 12(b)(1), Wolfe v. Strankman, 392 F.3d 358,
362 (9th Cir. 2004).
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Page references are to a document’s internal pagination and not to the page numbers affixed by
the Court’s ECF electronic docketing system.

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quality standards3 issued by the State Water Resources Control Board (SWRCB) and approved by

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the EPA. ECF No. 1 ¶¶ 1, 2, 4. A 2006 plan issued by the SWRCB updated the 1995 Plan

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without amending the water quality standards. Id. ¶ 33. “After adopting the Bay-Delta [Plan],

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SWRCB allocated primary responsibility for meeting several of the standards to [the Federal

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Bureau of Reclamation (“Reclamation”)] and [the California Department of Water Resources

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(“DWR”)], as the owners and operators of the dams, reservoirs, canals, and pumps that convey

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water through the Delta.” Id. ¶¶ 5, 32. Water Rights Decision 1641 (“D-1641”) contains the

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terms and conditions for the permits that SWRCB issues to water rights holders to meet the

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objectives of the 1995 Bay-Delta Plan. Id. ¶ 5.
In the Drought Emergency Proclamation, Governor Brown directed the SWRCB to

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United States District Court
Northern District of California

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“consider modifying requirements for reservoir releases or diversion limitations, where existing

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requirements were established to implement a water quality control plan.” ECF No. 38 at 10. The

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Emergency Proclamation also suspended operation of California Water Code Section 132474

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(which, if not suspended, would require State agencies to comply with water quality control plans

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approved by the SWRCB). ECF No. 48-8 at 3. On December 22, 2014, Brown issued Executive

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Order B-28-14, which extended the suspension of that Water Code section to May 31, 2016. ECF

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No. 48 at 6. On November 13, 2015, Governor Brown suspended Section 13247 indefinitely.

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Exec. Order B-36-15. Id.

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“Following the Governor’s Drought Proclamations and Executive Order, water users have

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filed successive [temporary urgency change] petitions [‘TUCPs’] requesting changes to the water

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“Water quality standards are designed to do two things: first, they designate the use or uses to be
made of the water . . . and, second, they set the basic criteria that must be satisfied in order to
safely permit those uses. The second aspect of water quality standards, the water quality criteria,
can be expressed in narrative form or in a numeric form, e.g. specific pollutant concentrations.”
Florida Public Interest Research Grp. Citizen Lobby, Inc. v. EPA (“FPIRG”), 386 F.3d 1070, 1073
(11th Cir. 2004).
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Section 13247 provides:
State offices, departments, and boards, in carrying out activities which may affect
water quality, shall comply with water quality control plans approved or adopted by
the state board unless otherwise directed or authorized by statute, in which case
they shall indicate to the regional boards in writing their authority for not
complying with such plans.
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quality standards in the Bay-Delta Plan, as implemented by D-1641.” ECF No. 1-1 at 5. “On

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January 31, 2014, the SWRCB issued an order approving a petition jointly filed by [Reclamation]

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and [DWR],” which requested to amend the delta outflow objectives, export requirements, and the

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Delta Cross Channel gate closure requirements. Id.
On later dates in 2014, 2015, and 2016, DWR and Reclamation submitted additional

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TUCPs for revisions to water quality standards in the Bay-Delta and Central Valley Plans, which

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the SWRCB granted by orders amending or rescinding the requirements of D-1641. ECF No. 1

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¶¶ 42-43.
Plaintiffs are three different environmental organizations: the Natural Resources Defense

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Council (“NRDC”), Bay.org d/b/a The Bay Institute (“TBI”), and Defenders of Wildlife

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United States District Court
Northern District of California

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(“Defenders”). Id. ¶¶ 16-18. Their complaint seeks declaratory and injunctive relief against

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Defendants Gina McCarthy, Administrator of the United States Environmental Protection Agency

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(“EPA”), and Jared Blumenfeld,5 Regional Administrator for EPA Region IX, for failing to

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comply with their non-discretionary duty under the Clean Water Act (“CWA”), 33 U.S.C.

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§§ 1313(c)(2)(A), (c)(3)–(c)(4), to review and take appropriate action regarding revisions to water

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quality standards in the Bay-Delta and Central Valley Plans. Id. ¶ 1.
The EPA, through its enforcement of the CWA, provides federal oversight for water

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quality standards. Id. “The CWA gives the states the responsibility of adopting and revising

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water quality standards, but requires that the EPA review and approve any new or revised standard

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to determine whether it satisfies the requirements of the Clean Water Act and, more specifically,

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whether it provides adequate protection to fish and wildlife and other designated uses. A new or

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revised standard cannot go into effect unless and until EPA approves the standard.” Id. ¶ 2. “If

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EPA does not approve the new or revised standard, EPA must give the state an opportunity to cure

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any defect. If the state fails to do so, then the EPA must promulgate federal water quality

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standards.” Id.
The quality standards in place under the Bay-Delta Plan are meant to protect various

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In their motion to dismiss, Defendants substitute Acting Regional Administrator Alexis Strauss
for former EPA Region 9 Administrator Jared Blumenfeld, pursuant to Fed. R. Civ. P. 25(d).
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“species of fish and wildlife, and to provide for other beneficial uses of water.” Id. ¶ 4. Plaintiffs

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allege that beginning on January 31, 2014, the temporary orders “revised the Bay-Delta Plan water

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quality standards by amending” Water Rights Decision 1641, “which establishes terms and

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conditions for Reclamation’s and DWR’s licenses and permits,” id. ¶¶ 5–6, changing numerical

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limits on water flow and damaging fish and wildlife populations. Plaintiffs allege that, even

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though key water quality objectives are already weakened in drought years, the amendment

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“allowed Reclamation and DWR to further reduce river flows below the minimum levels

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allowable, to increase the proportion of water that can be exported out of the Delta above the

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maximum levels allowable, to move salinity compliance locations to allow higher salinity water to
enter the Delta, and to weaken restrictions on when the DCC gates may be opened.” Id. ¶ 6.

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United States District Court
Northern District of California

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“Reclamation and DWR operated under revised standards” provided by multiple TUCPs

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throughout 2014-2016. Id. These changes “weakened the flow, export, salinity, and DCC gates

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standards in the Bay-Delta Plan” and “revised the Central Valley Plan water quality standard

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requiring a minimum level of dissolved oxygen in the lower section of the Stanislaus River.” Id.

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¶ 7.

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B.

Procedural Background

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Plaintiffs sent a 60-day Notice of Intent to Sue to the Defendants on October 29, 2015. See

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33 U.S.C. § 1365(a); 40 C.F.R. § 135.2(c). ECF No. 1-1. Plaintiffs then filed their Complaint on

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April 22, 2016. ECF No. 1. On July 18, 2016, Defendants filed a motion to dismiss Plaintiffs’

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Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure

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12(b)(1) and for failure to state a claim pursuant to Rule 12(b)(6), which motion the Court now

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considers. ECF No. 38.

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C.

Jurisdiction

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Plaintiffs contend the Court has jurisdiction pursuant to 33 U.S.C. § 1365(a) (Clean Water

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Act citizen-suit provision), 28 U.S.C. § 1331 (action arising under the laws of the United States),

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28 U.S.C. § 2201 (declaratory relief), and 28 U.S.C. § 2202 (injunctive relief). Defendants contest

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jurisdiction under the citizen-suit provision of the Clean Water Act, claiming that there has been

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no failure to perform any non-discretionary act by the EPA. ECF No. 38. As set forth below, the
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Court has jurisdiction on each of these bases.
D.

Legal Standards
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Rule 12(b)(1)

A motion to dismiss under Rule 12(b)(1) tests the subject matter jurisdiction of the Court.
See Fed R. Civ. P. 12(b)(1). If a plaintiff lacks Article III standing to bring a suit, the federal court

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lacks subject matter jurisdiction and the suit must be dismissed under Rule 12(b)(1). Cetacean

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Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). “A Rule 12(b)(1) jurisdictional attack may

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be facial or factual. In a facial attack, the challenger asserts that the allegations contained in a

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complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual

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attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise

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United States District Court
Northern District of California

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invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)

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(citation omitted). In resolving a facial attack, the court assumes that the allegations are true and

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draws all reasonable inferences in the plaintiff's favor. Wolfe v. Strankman, 392 F.3d 358, 362

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(9th Cir. 2004) (citations omitted). A court addressing a facial attack must confine its inquiry to

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the allegations in the complaint. See Savage v. Glendale Union High Sch., Dist. No. 205,

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Maricopa Cty., 343 F.3d 1036, 1051 (9th Cir. 2003). Defendants here bring a facial attack to the

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Court’s jurisdiction. ECF No. 38 at 14-15.

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2.

Rule 12(b)(6)

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and

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the ground upon which it rests.” Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 555 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (internal quotation marks omitted). “A claim has facial plausibility

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when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.” Id. “Dismissal under Rule 12(b)(6) is

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appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support

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a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th
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Cir. 2008). The Court must “accept all factual allegations in the complaint as true and construe

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the pleadings in the light most favorable to the nonmoving party.” Knievel v. ESPN, 393 F.3d

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1068, 1072 (9th Cir. 2005).

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E.

Request for Judicial Notice

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Defendants request that the Court take judicial notice of the public documents referred to

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in their motion to dismiss. ECF No. 38 at 14, n.13. Plaintiffs request that the Court take judicial

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notice of the publicly accessible documents referred to in their Complaint and attached to their

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opposition to the motion to dismiss. ECF No. 48-13.
Federal Rule of Evidence 201 allows the Court to take judicial notice of a fact “not subject

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to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to

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United States District Court
Northern District of California

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sources whose accuracy cannot reasonably be questioned.” Moreover, “[a] court shall take

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judicial notice if requested by a party and supplied with the necessary information.” Id. The

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Court may take judicial notice of public records, Santa Monica Food Not Bombs v. City of Santa

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Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006), and facts within public records that are not

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subject to reasonable dispute, Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001).

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Accordingly, the Court takes judicial notice of the public records the parties have submitted.

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II.

DISCUSSION

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A.

Mootness

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“A moot action is one where the issues presented are no longer ‘live’ or the parties lack a

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legally cognizable interest in the outcome.” Headwaters, Inc. v. Bureau of Land Management,

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893 F.2d 1012, 1015 (9th Cir. 1990) (internal quotes omitted). “[The Court] cannot take

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jurisdiction over a claim to which no effective relief can be granted.” Id. (citing United States v.

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Geophysical Corp. of Alaska, 732 F.2d 693, 698 (9th Cir. 1984)).

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Defendants argue that Plaintiffs’ claims are moot because the TUCP Orders at issue have

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all expired, and Plaintiffs do not “contend that Reclamation or DWR has a currently filed or

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pending petition for such an urgency order at this time.” ECF No. 38 at 16. Thus, Defendants

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argue, this case concerns only a hypothetical legal dispute about TUCP orders that might be issued

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in the future, and there is no live controversy before the Court because “there is nothing for EPA
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to review.” Id. The Court disagrees.
EPA’s “burden of demonstrating . . . mootness . . . is a heavy one.” Greenpeace Action v.

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Franklin, 14 F.3d 1324, 1329 (9th Cir. 1992). If injunctive relief is unavailable, the Court may

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still grant declaratory relief if the dispute is “capable of repetition, yet evading review.” Davis v.

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Fed. Election Comm’n, 554 U.S. 724, 735 (2008). A case qualifies for this exception if “(1) the

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duration of the challenged action is too short to allow full litigation before it ceases, and (2) there

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is a reasonable expectation that the plaintiffs will be subjected to it again.” Greenpeace Action, 14

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F.3d at 1329.
The Court agrees with Plaintiffs that their claims meet this test. First, the duration of the

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SWRCB process “is too short to allow full litigation before it ceases.” The SWRCB orders at the

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United States District Court
Northern District of California

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heart of the lawsuit are “limited to no more than 180 days,” ECF No. 38 at 8, and other of its

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orders were in effect for less than 90 days. ECF No. 1 at ¶¶37 & n.4. Orders of such a short

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duration are likely to frustrate judicial review. See Greenpeace Action, 14 F.3d at 1329-30 (“The

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regulation challenged was in effect for less than one year, making it difficult to obtain effective

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judicial review.”); Alaska Ctr. For Env’t v. U.S. Forest Serv., 189 F.3d 851, 855 (9th Cir. 1999).
The dispute is also reasonably likely to recur, because the SWRCB’s conduct shows that it

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views temporary permits as the most expedient means to deal with California’s drought, and

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recurring drought will remain a “brooding presence” over the state for the foreseeable future. See

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Headwaters, 893 F.2d at 1015.6 Moreover, both EPA’s position in this litigation and its track

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record vis-a-vis the SWRCB’s earlier orders establishes that EPA will not review the SWRCB’s

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future temporary orders of its own volition. Also, the Governor’s executive actions seemingly

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remain in effect. See ECF No. 38 at 10. Under this constellation of facts, Plaintiffs and the Court

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can reasonably expect that the challenged harms will recur. See Alaska Ctr., 189 F.3d at 856.

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That California is currently enjoying a period of significant rainfall does not change the
underlying reality that drought is part of the recurring California weather cycle. For example, the
Court takes judicial notice that one of the heaviest rainfall years on record, which occurred during
the 2010-11 rainfall season, was followed shortly thereafter by the driest year on record, the 201415 rainfall season. See California Department of Water Resources, California Data Exchange
Center, California Snow Water Content,
http://cdec.water.ca.gov/cdecapp/snowapp/swcchart.action (last accessed Jan. 27, 2017).
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Plaintiffs’ claim for declaratory relief is not moot.

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B.

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Whether Plaintiffs Have Alleged A Nondiscretionary Duty on the Part of the
EPA

A “mandated, nondiscretionary duty imposed on the Administrator is a prerequisite for

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federal jurisdiction under the Clean Water Act citizen suit provision.” Miccosukee Tribe of
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Indians of Fla. v. EPA¸105 F.3d 599, 602 (11th Cir. 1997). Here, the parties dispute whether the
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issuance of the SWRCB’s TUCP orders constitute revisions to the state’s water quality standards:
if they are, then the EPA has a duty to review the revisions; if they are not, then it doesn’t.

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Federal and state governments share the responsibility of monitoring and regulating water
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United States District Court
Northern District of California

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pollution pursuant to the Clean Water Act. With regard to the states, “the CWA requires each
state to establish water quality standards for bodies of water within the state’s boundaries.” ECF
No. 1 ¶ 58; 33 U.S.C. § 1313(a)-(c); 40 C.F.R. § 130.3. “The state must first designate the use or
uses of a particular body of water,” and then “designate water quality criteria that are sufficient to
protect the designated uses.” ECF No. 1 ¶ 58; 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 131.10; 40

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C.F.R. §§ 131.6(c), 131.11.
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As relevant here, the federal government’s role is set by the Clean Water Act (“CWA”),

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which requires that, whenever a state revises a water quality standard, EPA must review and either
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approve or disapprove the revision. See 33 U.S.C. § 1313(c)(2)(A), (c)(3). After the state submits
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its officially adopted revisions to the EPA, the EPA has either 60 days to approve the revisions, or
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90 days to disapprove the revisions with an indication of the deficiencies in compliance and the
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changes needed to assure compliance for any new or revised State standard. 40 C.F.R. § 131.21.
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The CWA allows for “any citizen” to bring suit against the EPA Administrator “where there is

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alleged a failure of the Administrator to perform any act or duty . . . which is not discretionary
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with the Administrator.” 33 U.S.C. § 1365. Plaintiffs bring such a citizen suit here, challenging
“the failure of [Defendants] to carry out their mandatory federal oversight duties” under the CWA
in failing to review the SWRCB’s TUCP orders.

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Defendants argue that the EPA has no duty to review the SWRCB orders, because those
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orders did not revise any state water quality standards. Thus, the question presented in this
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motion is simply whether or not Plaintiffs have adequately pleaded that the temporary orders

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issued by the State throughout 2014–2016 qualify as “revisions” to the water quality standards in

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the EPA-approved 1995 Bay-Delta Plan.7 The answer turns on what it means to “revise” a state

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water quality standard. To some extent, both Plaintiffs and Defendants acknowledge that the

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Court should defer to EPA’s interpretation of what constitutes a revision, but they disagree over

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what EPA’s position is. See ECF No. 48 at 9.
The EPA invokes the rule of Chevron deference to urge the Court to adopt its

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interpretation of Section 1313. Under that doctrine, when reviewing an agency’s construction of a

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statute it administers, courts must first decide “whether Congress has directly spoken to the precise
question at issue,” Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842 (1984). If so, “that is the

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United States District Court
Northern District of California

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end of the matter; for the court, as well as the agency, must give effect to the unambiguously

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expressed intent of Congress.” Id. at 842-43. However, “if the statute is silent or ambiguous with

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respect to the specific issue, the question for the court is whether the agency’s answer is based on

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a permissible construction of the statute.” Id. at 843. The parties agree that Congress has not

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spoken directly to interpret the term “water quality standard.” See, e.g., ECF No. 38 at 19. The

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Court therefore looks to the agency’s interpretation.
To determine the agency’s interpretation of the statute, the Court “look[s] first to the

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agency regulations, which are entitled to deference if they resolve the ambiguity in a reasonable

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manner.” Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 277–78 (2009).

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If the regulations are also ambiguous, the Court “turn[s] to the agenc[y’s] subsequent

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interpretation of those regulations.” Id. at 278. The Court must uphold the agency’s

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interpretation unless it is “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins,

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519 U.S. 452, 461 (1997).
Here, “the definitional provision in the EPA regulations defines a water quality standard,

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The state has never submitted the SWRCB’s TUCP orders to the EPA for review, but both
parties agree that this fact is not material. “Although the states are required to submit any new or
revised standard for review, the EPA has an affirmative duty to review any new or revised
standard regardless of whether the state makes a submission.” ECF No. 1 ¶ 59 (citing, e.g., Fla.
Pub. Interest Research Grp. Citizen Lobby v. U.S. Envtl. Prot. Agency, 386 F.3d 1070, 1073 (11th
Cir. 2004)).
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but it does not define what a revised or new water quality standard is.” Pine Creek Valley

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Watershed Assoc. v. United States Envtl. Prot. Agency, 137 F. Supp. 3d 767, 773 (E.D. Pa. 2015)

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(citing 40 C.F.R. § 131.3). Nor does the regulation answer the question posed by the SWRCB’s

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orders: “is the EPA to review revised standards only when those standards come packaged as full-

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on water quality standards (regardless of whether the states submit them to the EPA) or is the EPA

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to review any revision to those standards, no matter what form it takes?” Id.

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The EPA’s own internal guidance, however, answers that question. The EPA articulated

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an “effects test” in its Water Quality Standards Handbook (“EPA Handbook”), entitled “What

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Provisions Constitute New or Revised Water Quality Standards Under Clean Water Act Section
303(c).” Chapter 1.5.1 of that Handbook sets forth a four-part definition for “new or revised

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United States District Court
Northern District of California

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quality standards”:

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(1) Is it a legally binding provision adopted or established pursuant to state or tribal
law?; (2) Does the provision address designated uses, water quality criteria to
protect designated uses, and/or antidegradation requirements for waters of the
United States?; (3) Does the provision express or establish the desired condition
(e.g. designated uses, criteria) or instream level of protection (e.g., anti-degradation
requirements) for waters of the United States immediately or mandate it will be
expressed or established for such waters in the future?; (4) Does the provision
establish a new WQS [water quality standard] or revise an existing WQS? . . . A
provision that establishes a new WQS or has the effect of changing an existing
WQS would meet this consideration. In contrast, a provision that simply
implements a WQS without revising it would not constitute a new or revised WQS.
EPA Handbook 1.5.1 (emphasis added), ECF No. 48-2 at 5-6.
Plaintiffs contend that “EPA’s Handbook provides clarity” (or an “interpretation of its own

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regulations”) sufficient to determine that the State’s actions here constitute revised water quality

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standards. ECF No. 48 at 9. And in their complaint, Plaintiffs contend that “SWRCB’s orders

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modifying the water quality standards in the Bay-Delta and Central Valley Plans, as implemented

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by D-1641 and D-1422, satisfy each of the elements in the EPA Handbook definition of revised

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water quality standards requiring EPA review.” ECF No. 1 ¶ 63.

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While Plaintiffs acknowledge that “SWRCB’s orders did not amend the text of the Bay-

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Delta and Central Valley Plans themselves,” they argue that this is of no consequence in

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determining the EPA’s review obligations because “the orders modified the requirements in D-

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1641 to meet water quality objectives in the Bay-Delta and Central Valley Plans.” Id. ¶ 67. When
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the SWRCB decided “not to implement a water quality objective” by “modifying the conditions of

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Reclamation’s and DWR’s licenses and permits under D-1641 and D-1422 such that they could

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operate the CVP and SWP in violation of the Bay-Delta and Central Valley Plans,” they made a

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‘de facto amendment to a water quality objective in a water quality control plan,’ even though that

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amendment was temporary. Id. (quoting State Water Res. Control Bd. Cases, 136 Cal.App.4th

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674, 732 (2006)).

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The EPA has several responses to this argument. First, it argues that the Handbook is not
controlling, and that only an amendment to the Bay-Delta Plan itself can constitute a “revision.”

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ECF No. 38 at 24 (arguing that “[a]bsent a bona fide State revision of [the Bay-Delta Plan], EPA

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has no statutory duty under CWA section 303(c) to review and approve or disapprove the State's

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United States District Court
Northern District of California

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actions.”). The EPA essentially asks the Court to ignore the Handbook in favor of its litigation

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position in this Court and in other cases. See, e.g., Nw. Envtl. Advocates v. EPA, 855 F. Supp. 2d

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1199 (D. Or. 2012). But the courts have not uniformly deferred to the EPA’s litigation position,

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because that position is not reasonable. See id. at 1211 (“Thus, the court concludes that the EPA's

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construction of the statute regarding its nondiscretionary duty to review water quality standards is

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not based on a permissible construction of the statute.”). In fact, prior cases have made it clear

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that in challenges like the present one, the EPA ‒ and upon review, the Court ‒ is required to

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determine whether state regulatory action like the TUCP orders change the state’s water quality

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standards. Miccosukee Tribe of Indians of Florida v. U.S., E.P.A., 105 F.3d 599, 603 (11th Cir.

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1997) (“Because citizen suit jurisdiction depended on whether or not the EFA constituted new or

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revised state water quality standards, invoking a mandatory duty of the Administrator, the district

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court had to decide independently the effect of the EFA on existing state standards.”); FPIRG, 386

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F.3d at 1088 (holding that “the district court erred by failing to conduct a thorough review of the

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effect of the [regulation at issue] on the water quality standards of Florida.” (emphasis in

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original)). Thus, the fact that the EPA has taken a position in this litigation, without more, is not

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persuasive.

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The EPA next argues that the courts that have relied on the “effects test” improperly
omitted any mention of deference to the EPA. ECF No. 57 at 8. It is hard to know what to make
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of this argument – the most likely explanation of the absence of this point is that neither the EPA

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nor any other party raised the issue, not that numerous federal courts ignored the issue even after it

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was properly placed before them. Thus, the Court gives this point little weight. In any event,

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regardless of the role that deference played in the FPIRG court’s decision, the EPA itself

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subsequently concluded that FPIRG accurately stated the law regarding the EPA’s obligations. In

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its October 2012 publication, “What Is A New or Revised Water Quality Standard Under CWA

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303(c)(3): Frequently Asked Questions,” EPA Publication 820F12017, the EPA stated that “case

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law relating to what constitutes a new or revised WQS has been established in” FPIRG, and that in

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the EPA decision following the 2004 remand in the FPIRG litigation, “EPA determined that
specific water quality criteria provisions in the IWR were new or revised WQS because they were

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legally binding provisions that define, change, or establish magnitude, duration or frequency of

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water quality criteria.”8 The EPA’s own language sounds remarkably like the effects test. And at

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the hearing on this motion, counsel for both EPA and the Plaintiffs agreed that this standard was

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the correct one to apply in this case. So it would seem that the FPIRG court accurately stated the

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policies of and obligations upon the EPA, even if it did not explicitly discuss the role of deference

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to that agency.9
Finally, Defendants argue that even if the Handbook states the correct test, “the Court

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should [nonetheless] defer to EPA’s reading of the Act as not imposing a nondiscretionary duty on

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EPA in this instance,” “given that EPA has never subjected the State’s TUCP orders to review

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under CWA section 303(c).” ECF No. 38 at 19. This fact does not affect the Court’s conclusion.

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The EPA’s lack of prior action does not necessarily represent a considered decision on its part not

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to apply the effects test to the TUCP, particularly given that the State has never submitted those

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Section 1.5.1 of the EPA Handbook contains a hyperlinked reference to the 2012 FAQ with the
suggestion that the reader consult the FAQ “[f]or additional information on determining what
provisions constitute new or revised WQS.” ECF No. 48-2 at 4.
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Even if there is a conflict between the EPA’s litigation position and the guidance set forth in its
Handbook, the Court concludes that, construing the facts in Plaintiffs’ favor at this early stage of
the litigation, Plaintiffs have provided “reason to suspect that [the EPA’s litigation position] does
not reflect the EPA’s fair and considered judgment” as promulgated in its Handbook interpreting
when something qualifies as a new or revised water quality standard. Pine Creek, 137 F.Supp.3d
at 776.
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orders for review and any inference arising from EPA’s past inaction is weak. Moreover, “the

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very fact that [a State] failed to properly amend” its water quality standards and “did not follow

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the mandated procedures” which require submission to EPA is “one factor the EPA would be

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required to consider in a section 303(c) review.”
Lastly, Defendants suggest half-heartedly that their present litigation position actually

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complies with the EPA’s Handbook definition, see ECF No. 57 at 13–15, but the language of the

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argument does not support its thesis. For example, Defendants state that “the Handbook merely

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acknowledges that EPA must itself evaluate ‘the effect’ of a particular provision of state law to

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determine if such provision actually revises water quality standards, even where a state does not

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expressly style the law as a revision to water quality standards and does not submit it to EPA for

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review.” ECF No. 57 at 18. Yet that is precisely Plaintiffs’ position ‒ that the EPA must

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determine whether the State’s TUCP orders are, in effect, revised water quality standards.

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Applying that standard here, the question is whether Defendants have demonstrated as a matter of

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law that the TUCP orders do not revise California’s water quality standards. They have not.

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CONCLUSION

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The Court concludes that this dispute is not moot, and that Plaintiffs have plausibly alleged

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a non-discretionary duty by the EPA to review the SWRCB orders at issue. The Court denies

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Defendants’ motion to dismiss under Rules 12(b)(1) and 12(b)(6).10

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Defendants also argue that adopting the “effects test” as Plaintiffs propose would violate the
Ninth Circuit's "clear statement rule." ECF No. 38 at 24. The Ninth Circuit has described the rule
as follows:
[W]e have held that the nondiscretionary nature of the duty must be clear-cut—that
is, readily ascertainable from the statute allegedly giving rise to the duty. We must
be able to identify a “specific, unequivocal command” from the text of the statute at
issue using traditional tools of statutory interpretation; it's not enough that such a
command could be teased out “from an amalgamation of disputed statutory
provisions and legislative history coupled with the EPA's own earlier
interpretation.”
WildEarth Guardians v. McCarthy, 772 F.3d 1179, 1182 (9th Cir. 2014) (citations omitted).
Plaintiffs’ position does not run afoul of the clear statement rule, because the EPA’s duty to
review revised water quality standards is clear-cut. See 33 U.S.C.A. § 1313(c)(2)(A) (“Whenever
the State revises or adopts a new standard, such revised or new standard shall be submitted to the
Administrator.”); 1313(c)(3) (“If the Administrator determines that any such revised or new
standard is not consistent with the applicable requirements of this chapter, he shall not later than
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IT IS SO ORDERED.
Dated: February 7, 2017

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______________________________________
JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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the ninetieth day after the date of submission of such standard notify the State and specify the
changes to meet such requirements.”). As set forth above, the question is not whether the EPA’s
duty is clear-cut, but whether the duty is triggered at all.
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