Northwest Environmental Advocates v. National Marine Fisheries Service et al
Filing
103
MEMORANDUM DECISION AND ORDER. Plaintiffs Partial Motion for Summary Judgment (Dkt. 85 ) is GRANTED. The EPAs Partial Motion for Summary Judgment (Dkt. 87 ) is DENIED. Plaintiffs Motion for Leave to File Sur-Reply (Dkt. 102 ) is GRANTED. The parties must file briefs regarding appropriate relief. Plaintiffs must file their motion and brief within twenty-one days of this Order. The briefing thereafter will proceed on the Courts typical briefing schedule. Signed by Judge David C. Nye. (alw)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
NORTHWEST ENVIRONMENTAL
ADVOCATES, an Oregon Non-Profit
Corporation; IDAHO
CONSERVATION LEAGUE, an
Idaho Non-Profit Corporation,
Case No. 1:13-cv-00263-DCN
MEMORANDUM DECISION AND
ORDER
Plaintiffs,
v.
UNITED STATES
ENVIRONMENTAL PROTECTION
AGENCY,
Defendant.
I. INTRODUCTION
Pending before the Court are the parties’ cross-motions for partial summary
judgment. Plaintiffs Northwest Environmental Advocates and Idaho Conservation League
filed the first motion (Dkts. 85–86), and the United States Environmental Protection
Agency (“the EPA”) filed the other (Dkt. 87). Both sides assert that there are no disputes
of material fact and that they are each entitled to judgment as a matter of law on Claim Six.
On June 16, 2021, the Court held a hearing on the motions and took them under advisement.
For the reasons set forth below, the Court GRANTS Plaintiffs’ motion and DENIES the
EPA’s motion.
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II. BACKGROUND
A. Procedural History
In 2013, Plaintiffs brought this lawsuit against the EPA, the United States Fish and
Wildlife Service, and the National Marine Fisheries Service. Dkt. 1. Plaintiffs’ Complaint
alleged that the three federal agencies failed to take actions required under the Clean Water
Act (“the CWA”) and the Endangered Species Act pertaining to several water quality
standards in Idaho. See generally id. In 2015, Plaintiffs reached a settlement agreement
with the Fish and Wildlife Service and the National Marine Fisheries Service regarding the
claims against those agencies. Accordingly, those agencies were dismissed from this case.
Dkt. 37. That same year, the EPA moved to dismiss many of Plaintiffs’ claims against it,
which the parties fully briefed. See Dkts. 38–39, 43. In 2019, Judge Lodge issued an order
granting in part and denying in part the EPA’s Motion to Dismiss. Dkt. 56. This case was
reassigned to the undersigned in late 2019. Dkt. 65.
Since that time, the parties have been focused on attempting to settle the remaining
claims in the case. The parties represent that they have made significant progress toward
reaching a final settlement of all the remaining claims in this case, with the exception of
Claim Six—a claim pertaining to mercury water quality standards in Idaho. See Dkt. 83.
Plaintiffs brought Claim Six under the citizen-suit provision of the CWA,
specifically Section 505(a)(2). See 33 U.S.C. § 1365(a)(2). They allege that the EPA has
violated its duties under Section 303(c) of the CWA to promptly publish and promulgate
mercury water quality standards after disapproving Idaho’s revision of those standards. See
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id. § 1313(c).
B. Section 303(c) of the CWA
To understand Plaintiffs’ claim, a full reading of Section 303(c) is helpful. To
summarize it, Section 303(c) of the CWA implements procedures for reviewing and
revising water quality standards throughout the States. Id. It first requires each State to
engage in a review of those standards every three years—what is known as triennial
review—and to make the results available to the EPA. Id. § 1313(c)(1). Also, “[w]henever
the State revises or adopts a new standard, such revised or new standard shall be submitted
to the [EPA].” Id. § 1313(c)(2)(A). The EPA then must review the standard, either
approving it within 60 days or disapproving it within 90 days. Id. § 1313(c)(3).
In the case of disapproval, the EPA must notify the State of the standard’s aspects
that are not consistent with the CWA and “specify the changes to meet such requirements.”
Id. “If such changes are not adopted by the State within ninety days after the date of
notification, the [EPA] shall promulgate such standard pursuant to paragraph (4) of this
subsection.” Id. (emphasis added).
Paragraph (4) lays out the requirements for the EPA to promptly publish and
promulgate a CWA-compliant water quality standard, unless the State exercises its last
chance to adopt “a revised or new water quality standard which the [EPA] determines to
be in accordance” with the CWA. Id. § 1313(c)(4). With the Court’s emphasis, paragraph
(4) states in full:
(4) The [EPA] shall promptly prepare and publish proposed regulations
setting forth a revised or new water quality standard for the navigable waters
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involved—
(A) if a revised or new water quality standard submitted by such State
under paragraph (3) of this subsection for such waters is determined
by the [EPA] not to be consistent with the applicable requirements of
this chapter, or
(B) in any case where the [EPA] determines that a revised or new
standard is necessary to meet the requirements of this chapter.
The [EPA] shall promulgate any revised or new standard under this
paragraph not later than ninety days after [it] publishes such proposed
standards, unless prior to such promulgation, such State has adopted a
revised or new water quality standard which the [EPA] determines to be in
accordance with this chapter.
Id.; see also Idaho Conservation League, Inc. v. Russell, 946 F.2d 717, 718 (9th Cir. 1991)
(explaining Section 303(c)’s procedures and explaining that, if a state fails to adopt the
EPA’s proposed changes, “the EPA shall promptly prepare and publish federal regulations
in lieu of the state regulations” (cleaned up)).
C. Undisputed Material Facts
In the case at hand, the material facts related to Idaho’s Section 303(c) revision of
its mercury water quality standard are not in dispute. On June 25, 1996, the EPA approved
Idaho’s numeric freshwater aquatic life mercury criteria under Section 303(c) and
determined that those criteria were in accordance with the CWA. Those criteria were 0.012
µg/L chronic and 2.1 µg/L acute.1 Water quality criteria can be either numeric (e.g., 0.012
1
Numeric water quality criteria are often expressed in “µg/L”—micrograms per liter. Aquatic life water
quality criteria are typically expressed in two forms: (1) acute criteria to protect against mortality or effects
that may occur due to a short-term exposure to a chemical, and (2) chronic criteria to protect against
mortality, growth and reproductive effects that may occur due to a longer-term exposure to a chemical.
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µg/L) or narrative (e.g., “Surface waters of the state shall be free from toxic substances in
concentrations that impair designated beneficial uses”). Dkt. 87-1, at 3–4.
On August 4, 2004, the Idaho Department of Environmental Quality (“IDEQ”)
published a proposed rule for public comment to update some of the numeric criteria for
toxic pollutants, including mercury. IDEQ proposed to remove the acute and chronic
numeric freshwater aquatic life criteria for mercury and add a footnote “g” to the toxic
criteria table to indicate that the narrative criteria for toxics would apply instead of the
numeric criteria. After receiving comments on the proposed standards, including comments
from the EPA, IDEQ submitted the proposal to the Idaho Board of Environmental Quality
on November 18, 2004, which adopted the standards and submitted them to the Idaho
Legislature in January 2005. The Idaho Legislature adopted the standards as final and made
them effective on April 6, 2005. On August 8, 2005, IDEQ submitted the standards to the
EPA for review and approval pursuant to its Section 303(c) requirement. Id. at 4.
On December 12, 2008, the EPA disapproved Idaho’s deletion of the acute and
chronic mercury criteria for aquatic life by way of a disapproval letter. Overall, the EPA
concluded that “the removal of the acute and chronic numeric freshwater aquatic life
criteria for mercury and replacement with footnote ‘g’ is inconsistent with [the CWA]
Section 303(c) and 40 C.F.R. [§] 131.11.” Id. Specifically, the EPA explained that IDEQ’s
implementation guidance for the mercury criteria did “not contain definitive information
on how the State would translate the fish tissue criterion developed to protect human health
to a value which can be used to protect aquatic life.” Dkt. 86, at 16. The EPA identified
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specific changes that would be needed for any future effort to adopt a new or revised
mercury aquatic life standard to ensure compliance with the CWA. The EPA recommended
four remedies to address the EPA’s disapproval, stating:
There are several options Idaho could consider in establishing mercury
criteria that are based on scientifically defensible methods and protect
Idaho’s designated aquatic life uses including:
1) evaluate the protectiveness of EPA’s current recommended 304(a)
numeric acute freshwater aquatic life criterion for mercury (1.4 µg/l);
2) evaluate the protectiveness of Idaho’s previous numeric chronic
freshwater aquatic life criterion for mercury (0.012 µg/l);
3) evaluate development of Idaho-specific numeric acute and chronic
freshwater aquatic life criteria for mercury; and
4) evaluate the use of a combination of protective numeric water column
values and numeric wildlife criteria appropriate for Idaho species . . . .
Id. The EPA also suggested that “[u]ntil Idaho develops and adopts and EPA approves
revisions to numeric acute and chronic aquatic life criteria for mercury,” the criteria in
effect would be the previously adopted acute (2.1 µg/l) and chronic (0.012 µg/l) criteria
that the EPA approved in 1996. Id. at 10–11.
Neither the EPA nor Idaho has proposed or published revised aquatic life mercury
criteria since the EPA’s December 2008 disapproval letter. Now, Plaintiffs and the EPA
each seek summary judgment on Claim Six, which is that the EPA violated its Section
303(c) duties to promptly publish and promulgate mercury water quality standards for
Idaho. Dkts. 85, 87. Having heard oral argument and reviewed the parties’ briefs on the
issues involved, the matter is now ripe for the Court to issue its ruling.
III. LEGAL STANDARD
Summary judgment is proper “if the movant shows that there is no genuine dispute
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as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The Court’s role at summary judgment is not “to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Zetwick v. Cnty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (citation omitted). In
considering a motion for summary judgment, the Court must “view[ ] the facts in the nonmoving party’s favor.” Id. To defeat a motion for summary judgment, the respondent need
only present evidence upon which “a reasonable juror drawing all inferences in favor of
the respondent could return a verdict in [his or her] favor.” Id. (citation omitted).
Accordingly, the Court must enter summary judgment if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The respondent cannot simply rely on an unsworn affidavit or
the pleadings to defeat a motion for summary judgment; rather, the respondent must set
forth the “specific facts,” supported by evidence, with “reasonable particularity” that
precludes summary judgment. Far Out Products., Inc. v. Oskar, 247 F.3d 986, 997 (9th
Cir. 2001).
When cross-motions for summary judgment are filed, as is the case here, a court
must “rule on each party’s motion on an individual and separate basis, determining, for
each side, whether a judgment may be entered in accordance with the Rule 56 standard.”
Tulalip Tribes of Washington v. Washington, 783 F.3d 1151, 1156 (9th Cir. 2015) (cleaned
up). In doing so, it must independently search the record for factual disputes. Fair Hous.
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Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).
The filing of cross-motions for summary judgment—where all parties essentially assert
that there are no material factual disputes—does not end a court’s responsibility to
determine whether disputes as to material fact are present. Id.
IV. DISCUSSION
Upon independent review of this case’s record, the Court has determined that there
is indeed no dispute of material fact present. Therefore, the matter at hand is purely a
question of whether either side is entitled to judgment as a matter of law. The main issue
presented is whether the EPA has violated and continues to violate its duties under Section
303(c)(3)–(4) of the CWA, particularly its duties to promptly publish and promulgate a
CWA-compliant water quality standard for mercury in Idaho. See 33 U.S.C. § 1313(c)(3)–
(4).
Plaintiffs contend that the EPA is in violation of those duties because (1) Idaho’s
change to the 1996 mercury standard was a revision, (2) the EPA’s letter was a disapproval
of that revision, (3) neither Idaho nor the EPA has adopted or promulgated a new or revised
standard, and (4) the time elapsed since the EPA’s disapproval is not prompt. Dkt. 86, at
12–17. The EPA contends that, under the circumstances of this case, it has no duty to adopt
or promulgate a new standard or that duty is discretionary and cannot be a basis for
litigation. Based on the undisputed facts in this case, Plaintiffs are correct.
A. The EPA Has Failed to Perform Its Duties Under Section 303(c) of the CWA.
A step-by-step analysis of Section 303(c) and the undisputed events of this case
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shows that the EPA has violated its duties to promptly publish and promulgate a water
quality standard for mercury in Idaho. First, the Idaho legislature’s change from the prior
numeric criteria for mercury to the narrative criteria was a “revision” under Section
303(c)(2)(A), which triggered the EPA’s duty to review Idaho’s revised standard. See 33
U.S.C. § 1313(c)(2)(A) (“Whenever the State revises or adopts a new standard, such
revised or new standard shall be submitted to the [EPA].”). After all, the EPA itself referred
to the change as a revision and engaged in the next step of the Section 303(c) process. See
Dkt. 86, at 14.
Next, the EPA reviewed Idaho’s revised mercury standard and disapproved it
pursuant to Section 303(c)(3).2 Again, when disapproval of a revised or new standard
occurs, paragraph (3) requires the EPA to “notify the State and specify the changes to meet
such requirements. If such changes are not adopted by the State within ninety days after
the date of notification, the [EPA] shall promulgate such standard pursuant to paragraph
(4) of this subsection.” 33 U.S.C. § 1313(c)(3). The EPA’s 2008 disapproval letter notified
Idaho of the revised mercury standard’s lack of compliance with the CWA and specified
four potential changes to meet the CWA’s requirements. To date, Idaho has not adopted
any of those changes. Therefore, after the ninety-day period elapsed, the requirement arose
that the EPA promulgate a CWA-compliant standard “pursuant to paragraph (4).” Id.
When this final step of this process under Section 303(c) is reached, paragraph (4)
2
Idaho made its revision in 2005, and the EPA did not send its disapproval letter until 2008. Although the
parties don’t raise this issue, the Court notes that the EPA’s disapproval was untimely because it was well
beyond the 90-day timeframe provided in Section 303(c)(3). See 33 U.S.C. § 1313(c)(3).
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dictates that the EPA “promptly prepare and publish proposed regulations setting forth a
revised or new water quality standard for the navigable waters involved” and “promulgate
any revised or new standard under this paragraph no later than ninety days after [it]
publishes such proposed standards.” 33 U.S.C. § 1313(c)(4). Here, the problem for the EPA
is that, to date, it has not complied with this step. For nearly 13 years since its disapproval
of Idaho’s revision, the EPA has neither published nor promulgated a water quality
standard for mercury in Idaho. And, even if the EPA were to publish and promulgate a
standard today, no argument can be made that doing so would be prompt. See, e.g., Nw.
Envt’l Advocs. v. U.S. E.P.A., 269 F. Supp. 2d 1255, 1261 (D. Or. 2003) (“[O]ver three
years have passed since EPA rejected Oregon’s submission. Accordingly, EPA has failed
to exercise its nondiscretionary duty under § 303(c)(4)(A).”); Idaho Conservation League
v. Browner, 968 F. Supp. 546, 549 (W.D. Wash. 1997) (holding that the EPA “failed to
perform its mandatory duty to promptly prepare and publish water quality standards for
Idaho” as “a matter of law” when it had not done so two years and seven months after a
disapproved revision); Raymond Proffitt Found. v. U.S. E.P.A., 930 F. Supp. 1088, 1101
(E.D. Pa. 1996) (“[T]he court concludes that a nineteen-month delay in preparing and
publishing proposed regulations is not fulfilling a public duty promptly”).
Consequently, all the statutory conditions precedent under Section 303(c) are met.
Given the EPA’s inaction, the EPA has violated its duties under Section 303(c)(4) to
promptly publish and promulgate a water quality standard for mercury in Idaho.
Nevertheless, the EPA advances two defenses. The EPA first contends that, under the
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circumstances of this case, it has no duty to do so. Dkt. 87-1, at 1. The EPA also argues
that, even if it has such a duty, the duty is discretionary, thereby removing Claim Six from
the realm of the CWA’s citizen-suit provision (Section 505(a)(2)), placing the claim in the
area of its sovereign immunity, and in turn ultimately warranting its dismissal. Id. at 1–2.
Neither argument is persuasive.
B. The EPA Has a Duty to Publish and Promulgate a Water Quality Standard for
Mercury in Idaho Under These Circumstances.
The EPA first argues that it does not have a duty to publish and promulgate a water
quality standard “when it disapproves a State’s effort to weaken or remove standards that
[the] EPA previously approved in accordance with” the CWA, referring here to the 1996
standard it approved. Dkt. 87-1, at 7. The EPA suggests that the “unless” clause found in
the flush language of Section 303(c)(4) applies to this case, which in turn obviates the need
for its action. The EPA then asserts that 40 C.F.R. § 131.21 is “[c]ritical to this
interpretation” of the “unless” clause. Dkt. 87-1, at 7. The Court disagrees with the EPA’s
interpretation for several reasons.
1. Text
When interpreting a statutory provision, courts begin “where all such inquires must
begin: with the language of the statute itself.” Republic of Sudan v. Harrison, 139 S. Ct.
1048, 1056 (2019). Here, by its own terms, the “unless” clause does not apply. Again, the
flush language of Section 303(c)(4) reads in full, “The [EPA] shall promulgate any revised
or new standard under this paragraph not later than ninety days after [it] publishes such
proposed standards, unless prior to such promulgation, such State has adopted a revised or
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new water quality standard which the [EPA] determines to be in accordance with this
chapter. 33 U.S.C. § 1313(c)(4) (emphasis added). The key terms running contrary to the
EPA’s interpretation are “a revised or new water quality standard” and “determines.” Note
the present tense of the verb.
First, notably absent from this text is a statement that the EPA may merely do
nothing and leave an old or existing standard in place. And nothing in the text speaks to
the particular State’s adoption of an “old” or “existing” standard as triggering the “unless”
clause. To the contrary, the State must adopt “a revised or new water quality standard” to
relieve the EPA of its burden. See id.
The second textual indicator that the EPA’s interpretation is incorrect is Congress’s
use of the verb “determines” in the present tense, rather than determined in the past tense.
The EPA’s interpretation of Section 303(c)(4)—that is, that standards approved prior to the
303(c) process implicate the “unless” clause—overlooks this key distinction. “[T]he
present tense generally does not include the past.” See Carr v. United States, 560 U.S. 438,
448 (2010) (citing 1 U.S.C. § 1); see also United States v. Wilson, 503 U.S. 329, 333 (1992)
(“Congress’ use of a verb tense is significant in construing statutes”). Use of the present
tense, in this context, demonstrates that Congress was providing a last chance for the State
to adopt “a revised or new water quality standard” that the EPA could determine to be
suitable at that time, not previously and especially not 25 years ago as they were here.
At the hearing, the EPA argued that the present tense use of the verb “determines”
could merely mean that the condition of determining a standard is in accordance with the
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CWA need only be met at some point. To illustrate its point, the EPA used an example in
which an individual is told he or she can turn left in an intersection at a yellow light once
the traffic clears, which the EPA suggested could mean that the person could still make
that left turn if the traffic had previously cleared during the green light. The EPA then
compared “clears” in its example to “determines” in the CWA. Though this example has
some superficial appeal, it is ultimately unpersuasive when one reads the step-by-step
process of Section 303(c) and considers the stated policies of the CWA: reviewing,
updating, and making current the nation’s water quality standards. Indeed, the “unless”
clause applies only at the end of the Section 303(c) process and only to the EPA’s duty to
promulgate a new standard. See 33 U.S.C. § 1313(c)(4). Why would the EPA have to
oversee this entire process and even “publish proposed regulations setting forth a revised
or new water quality standard” only to not promulgate a standard and fall back on a
standard it had previously approved? See id. A fairer reading of the CWA is the one the
Court endorses today.
For these textual reasons alone, the CWA does not support the EPA’s interpretation
of the “unless” clause. It simply cannot be read to refer to old standards that the EPA
determined were adequate and a State adopted prior to the Section 303(c) process.
2. Context and Policies
The EPA’s interpretation of Section 303(c)(4)’s “unless” clause also neglects the
context and explicit polices of the CWA. A holistic reading of Section 303(c) from start to
finish demonstrates a focus on reviewing and revising water quality standards. It shows
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that Congress was not, in this final stage, referring to old or existing standards in place at
the time. Indeed, the EPA’s review duty arises only after the State “revises or adopts a new
standard” 33 U.S.C. § 1313(c)(2)(A), (3). And the EPA’s duty to promptly publish and
promulgate a CWA-compliant water quality standard arises only after (1) the EPA has
notified the State that its new or revised standard is not consistent with the CWA specifying
the changes to meet such requirements and (2) the State has not adopted those EPA changes
within 90 days. At that point, the EPA must promptly publish and promulgate, unless the
State, through its last chance, acts to comply with the EPA’s suggestions. It defies the
structure of Section 303(c) to suggest, as the EPA does now, that Congress mandated this
entire process only to alleviate the EPA’s burden to act at the final step because there once
was an approved standard that has since been revised. To the contrary, the timing and steps
of these statutorily required events demonstrate that the EPA cannot merely do nothing.
This reading comports with the explicit policies of reviewing and updating the
“criteria for water quality accurately reflecting the latest scientific knowledge.” Id. §
1314(a)(1). “[T]o hold otherwise would allow the agency’s inaction to leave old standards
or no standards in place, thereby defeating the CWA’s purpose of restoring and maintaining
‘the chemical, physical, and biological integrity of the Nation’s waters.’” Nw. Envt’l
Advocs., 268 F. Supp 2d at 1261 (quoting 33 U.S.C. § 1251(a)). And the CWA was
implemented to “restore and maintain the chemical, physical, and biological integrity of
the Nation’s waters” and to attain “water quality which provides for the protection and
propagation of fish, shellfish, and wildlife.” 33 U.S.C. § 1251(a)(1), (2). “These
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congressional goals simply cannot be satisfied when neither the EPA nor the state has
promulgated a water quality standard that complies with federal law.” Raymond Proffitt,
930 F. Supp. at 1097. When the States do not implement a standard, or implement a
standard that will not achieve these purposes in compliance with the CWA, Section 303(c)
requires the EPA to do so. Id. (“In this situation, Congress has stated that the
Administrator—and nobody else—must promptly prepare and promulgate an acceptable
water quality standard”).
Although the EPA is correct that the CWA places primacy on state action, see 33
U.S.C. § 1251 (“It is the policy of the Congress to recognize, preserve, and protect the
primary responsibilities and rights of States . . . .”), such remains intact while still requiring
the EPA to act in this scenario. The States review the standards on a triennial basis. The
States revise those standards or adopt new ones. The States choose to adopt the EPA’s
suggestions when the EPA disapproves of their efforts. And the States—even at the last
stage of the 303(c) process—control the fate of the standards. 33 U.S.C. § 1313. Regardless
of the Court’s interpretation, the process is replete with State primacy. Nw. Envt’l Advocs.,
268 F. Supp. 2d at 1260 (“This interpretation is consistent with the statutory scheme that
vests primary authority for the promulgation of water quality standards in the states, but
requires EPA’s oversight”); cf. Columbia Riverkeeper v. Wheeler, 944 F.3d 1204, 1209–
10 (9th Cir. 2019) (“An interpretation of § 1313 that provides states and the EPA with the
opportunity to avoid their statutory obligations is incompatible with both the mechanics
and purpose of the entire statute”). Indeed, the facts of this case evince State primacy. Idaho
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carried the majority of the statutory weight, reviewing the mercury water quality standard,
revising it, submitting it for review, and choosing not to adopt the EPA’s suggestions or an
alternative satisfactory standard. The CWA now requires the EPA to step in and to ensure
CWA-compliant water standards are in place. See Raymond Proffitt, 930 F. Supp. at 1098
(“Once the EPA has disapproved the state standard, the ball is in the EPA’s court. Nothing
in the [CWA] authorizes the EPA to defer to the state or put off its obligation” to ensure a
current standard is in place).
In short, the structure of Section 303(c), the context of the EPA’s duties to promptly
publish and promulgate a standard, and the explicit policies of the CWA cut against the
EPA’s interpretation.
3. 40 C.F.R. § 131.21
Given these points, the EPA falls back on 40 C.F.R. § 131.21 for support. The
relevant regulation therein states, “A State or authorized Tribe’s applicable water quality
standard for purposes of the [CWA] remains the applicable standard until EPA approves a
change, deletion, or addition to that water quality standard, or until EPA promulgates a
more stringent water quality standard.” 40 C.F.R. § 131.21 (emphasis added). This
prompts the EPA to argue, “True, Idaho was attempting to revise—in fact remove—the
1996 [mercury] standards; however, that revision never took effect as a matter of federal
law because [the] EPA did not approve it. . . . The 1996 Standards remained in effect the
entire time because [the] EPA never approved new or revised standards.” Dkt. 87-1, at 13–
14 & n.5. The EPA, therefore, claims that it does not need to act because the 1996 standard
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is still the existing standard.
But this regulation and the EPA’s argument do not respond to the true question at
hand. The question here is not whether there is an existing standard. Rather, the question
is whether the statutory conditions precedent to the EPA’s duties to promptly publish and
promulgate a new or revised water quality standard occurred. The EPA implicitly
acknowledges that its regulation is not on point because it suggests that Chevron deference
does not apply to it. See Dkt. 87-1, at 5–6, 11–12. See generally Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (holding that reviewing
courts must defer to an agency’s interpretation of an ambiguous statute administered by the
agency that carry the force of law). Although it may be true that the existing standard stays
in place until the EPA carries out its duties to promptly publish and promulgate under
paragraph (4) of Section 303(c), the EPA still must fulfill its statutory duties. As those
conditions most certainly were met in this case, the EPA needed to act regardless of the
1996 standard.3
All that said, one could argue that interpreting the statute to require the EPA to
promulgate a new standard when there is one existing would be an absurd requirement,
which is to be avoided when interpreting statutes. See McNeill v. United States, 563 U.S.
816, 822 (2011); Sturges v. Crowninshield, 17 U.S. 122, 202–03 (1819) (stating that, to set
aside the plain language of a statute based on the absurdity doctrine, the interpretation
3
Arguments could be made regarding whether the EPA could merely re-publish and re-promulgate the
same standards it previously had in place, but the CWA’s plain terms require the EPA to, at bare minimum,
publish and promulgate some CWA-compliant standard. However, answering this question is unnecessary,
given that this case presents a situation of total inaction on the part of the EPA.
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“must be one in which the absurdity and injustice of applying the provision to the case,
would be so monstrous, that all mankind would, without hesitation, unite in rejecting the
application”). However, reviewing and updating water quality standards are precisely what
the CWA aims to require. Thus, the Court’s interpretation is far from absurd, especially
given the existing standard’s 25-year-old status in this case and the high bar to successfully
convince a court of an absurdity argument.
In short, the cited regulation does not alter the Court’s conclusion.
4. Skidmore Deference
The EPA then argues that its interpretation is entitled to Skidmore deference. Under
Skidmore v. Swift & Co., courts look to an agency’s interpretation where it lacks the force
of law, to the extent of “the thoroughness evident in [the agency’s] consideration, the
validity of its reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade.” 323 U.S. 134, 140 (1944); see also Sierra Club
v. Trump, 929 F.3d 670, 693 (9th Cir. 2019). The EPA’s interpretation is not entitled to
Skidmore deference for a few reasons.
The EPA’s request for deference starts off on very rocky ground because, though it
is arguably consistent with its stated position in the 2008 disapproval letter (more on this
in a moment), its interpretations on this topic have been not only inconsistent with but flat
out contrary to its position here. Most tellingly, the EPA’s own memorandum diametrically
opposes the interpretation the EPA advances in this case. Policy for the EPA’s Review and
Action on CWA Program Submittals, U.S. Envt’l Protection Agency (June 3, 2019),
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https://www.epa.gov/sites/production/files/201906/documents/policy_for_the_epas_review_and_action_on_cwa_program_submittals_0.
pdf [https://perma.cc/C69S-7GNQ]. The memorandum first explains that it applies to “all
CWA program submittals” and that its purpose is to ensure the EPA “reviews and formally
acts upon all state and tribal . . . [CWA] program submittals in accordance with the [EPA’s]
statutory obligations and timelines.” Id. at 1. Then, the memorandum recognizes that the
EPA has a history of being neglectful of its CWA duties, which precipitated this
memorandum:
For many years, the EPA has routinely exceeded the review and action
timelines established by Congress in the CWA. The EPA’s disregard for its
statutory deadlines has resulted in significant backlogs and lawsuits against
the [EPA] for failing to comply with the [CWA] and has hindered states’
abilities to implement and enforce authorized programs.
. . . .
Today’s policy is intended to restore the rule of law, carry out Congressional
intent, meet statutory obligations while fulfilling the [EPA’s] mission, and
require the [EPA] to be responsive to state and tribal partners.
Id. at 2–3. Lastly, the memorandum expresses the view that the EPA has a duty to promptly
publish and promulgate a federal water quality standard when the States do not, just as
what occurred in this case:
[A]n EPA disapproval is likely to trigger the need for the [EPA] to
promulgate a federal standard. In accordance with the case law principles
described above, and consistent with other timelines for water quality
standard review and action, . . . the EPA is expected to propose federal water
quality standards promptly, without undue delay. Subject to this policy and
to facilitate more effective program implementation and oversight, the EPA
will interpret . . . promptly and without undue delay as requiring the proposal
of federal standards within 90 days after a state or tribe fails to remedy a
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disapproval, and will finalize those standards within 90 days after proposal.
. . . These timeframes should be more than adequate, as the information
needed to correct the state and tribal submittals should be clearly articulated
in the EPA’s disapproval decisions.
....
By incorporating a 90-day timeline to propose a federal water quality
standard, the EPA will have a total of 270 days from the time it disapproves
a state or tribal standard to the time it must issue a final federal standard.
Id. at 4 & n.4; see also id. at 5 (stating that the EPA “must take definitive action within the
deadlines established by Congress”). Hence, the EPA’s own memorandum supports the
Court’s interpretation.4
Similarly, the EPA previously summarized Section 303(c)(4) as working just the
way the Court holds today, stating: “Whether proceeding under section 303(c)(4)(A) or
(B), the [EPA] is to promulgate a final water quality standard not later than 90 days after
proposal, unless the State or authorized Tribe has in the meantime taken action that
addresses EPA’s concern.” See, e.g., 64 Fed. Reg. 37072-01, 37074 (July 9, 1999)
(emphasis added). Clearly, by stating “in the meantime,” the EPA read the “unless” clause
of Section 303(c)(4) as requiring the State to adopt the revised or new standard at that time,
not before. And, back to the 2008 disapproval letter, though it’s true that the EPA stated
4
At the hearing, the EPA claimed that this memorandum does not apply to the situation at hand and does
not carry the force of law to obligate the EPA to act in accordance with it. The EPA repeated these
arguments in a subsequent memorandum. Dkt. 101. But there is nothing in the memorandum to support the
EPA’s first claim. To the contrary, the memorandum is directly on point by its own language. The EPA
does have a statutory duty to act, as it recognized in its June 2019 memorandum, and as the Court holds
today. Although the EPA is correct that the memorandum does not compel the Court’s holding, it is
persuasive of how the EPA officially views the issues. The Court grants leave and accepts Plaintiffs’ filed
Sur-Reply. Dkt. 102. The Court agrees with many of the points made therein as reflected in this Order. In
short, the EPA’s arguments do not dissuade the Court from giving the memorandum the persuasive weight
it deems appropriate.
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the 1996 standard would remain the standard, the EPA did not state that it, therefore, did
not need to carry out its statutory duties of promptly publishing and promulgating. As
explained, that is a separate issue. Thus, consistency of pronouncements is not on the
EPA’s side here.
The EPA’s thoroughness of supporting its position in its 2008 disapproval letter is
suspect as well. Again, it did not include any citation or discussion as to why it would need
not act. Instead, that rationale has arisen only now in litigation. The Ninth Circuit has
rejected the notion of deferring to agencies’ litigation positions interpreting statutes they
are charged with administering. See Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820,
830 (9th Cir. 2012); see also Martin v. Occupational Safety & Health Rev. Comm’n, 499
U.S. 144, 156 (1991). Therefore, the lack of pre-litigation thoroughness for its position is
another strike against the EPA in its quest for Skidmore deference.
Another factor cutting against the EPA is that its interpretation does not “rest on the
sort of expertise that might inspire deference.” See Sierra Club, 929 F.3d at 694; see also
Kisor v. Wilkie, 139 S. Ct. 2400, 2417 (2019) (explaining that when an agency interprets
its own regulation, its “interpretation must in some way implicate its substantive expertise”
to be entitled to deference). Although the EPA indisputably has significant experience with
the CWA and the science involved in regulating our nation’s waters, it does not have more
experience than an Article III court in interpreting a statute like Section 303(c), which is
focused on process and procedures. Deciding procedural requirements is well within the
federal judiciary’s wheelhouse. Take a counterexample: if the EPA were seeking to guide
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the Court in interpreting whether a specific promulgated mercury criteria met the
requirements of the CWA, then the EPA’s expertise would be well-suited to inform the
Court because such a situation would implicate the EPA’s scientific fact-finding or policy
choices. However, obviously Section 303(c) does not deal with scientific standards and the
type of expertise that might inspire deference to the EPA. In short, Skidmore deference is
at its ebb in usefulness for interpreting Section 303(c).
Lastly, the Court does not view the EPA’s reasoning as validly applied to the text,
context, and policies of the CWA for the reasons already stated. For all these reasons, the
Court will not afford the EPA Skidmore deference with respect to its interpretation of
Section 303(c)(4) of the CWA.
5. Administrative Burden
As a last resort, the EPA turns to the parade of horribles that it speculates will ensue
if the Court interprets the CWA in the manner it does today. The EPA suggests that the
administrative burdens of the Court’s interpretation will be too much to bear, causing
problems throughout the country. Specifically, the EPA raises the concern of how
burdensome it would be to deal with a State-proposed standard during the 90-day window
it has to promulgate a federal standard, if one were proposed at that time. At the hearing,
the EPA also suggested that adopting the reading of the CWA that the Court does today
would not allow the EPA to review a State-submitted water quality standard the day before
the 90-day window closes and would only allow the EPA to review one submitted during
the 90-day window.
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But the second concern is not at all the outcome of the Court’s holding or what the
CWA requires. Rather, the CWA allows the EPA to assess a State-submitted standard
during the entire Section 303(c) process, not merely the 90-day window the EPA has to
promulgate. Thus, that worry is unfounded. Plus, the EPA’s worries seems to be derived
from litigation strategy rather than a sincere institutional concern because, in its June 3,
2019 memorandum, the EPA itself did not view the timeframes as overly worrisome,
stating:
While the timeframes established by Congress are short, in most
circumstances the Regional water programs should have sufficient
information to meet those deadlines if the disapproval process is
implemented correctly. For example, if a state’s water quality standard is not
based on sound science, the EPA should have relied on sound science to
support a disapproval decision and therefore should be able to develop a
revised federal standard expeditiously.
If the Regional water program plans to issue a disapproval and cannot meet
applicable statutory deadlines for federal action triggered by that
disapproval, the Regional Administrator must work with the Office of
General Counsel and the Assistant Administrator for Water to develop a
strategy to address that legal risk and to ensure that the Region is doing all it
can to satisfy the requirements of the CWA.
U.S. Envt’l Protection Agency, supra, at 4 (emphasis added).
What’s more, these concerns do not have adequate support to overcome the analysis
above. The law is what it is. If it leads to poor policy, that is for Congress to correct.
Additionally, the burdens of which the EPA complains seem to be ones that Congress
intended to impose on it. That is to say, Congress meant for the EPA to oversee the review
and update process of water quality standards and to promulgate federal standards when
the States could not or would not do so. Lastly, the Court is doubtful that the EPA’s
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concerns will be borne out.5 Therefore, the EPA’s parade-of-horribles argument is
ultimately unpersuasive.
6. Conclusion
Simply put, absent action from Idaho in this scenario, the CWA requires action on
the part of EPA. That action is for it to promptly publish and promulgate a new or revised
water quality standard. The plain language of the CWA, its structure, its context, its explicit
policies, the caselaw, and the EPA’s own memorandum reject the EPA’s interpretation.
This Court does also.
C. The EPA’s Duty to Promptly Publish and Promulgate a New Standard Under
Section 303(c)(4), Absent Relevant Action from a State, Is Nondiscretionary.
The EPA next argues that the statutory duties are discretionary because, if so, it is
entitled to sovereign immunity from this lawsuit since Congress’s waiver thereof, through
the citizen-suit provision of the CWA, would not apply. The Court disagrees. In short, the
duties are nondiscretionary, and therefore the EPA is not immune from this lawsuit.
The United States and its agencies are immune from suit by virtue of their sovereign
immunity except for when Congress legislates in a manner to consent to be sued. United
States v. Mitchell, 445 U.S. 535, 538 (1980). The CWA’s citizen-suit provision—Section
505(a)(2)—is a situation in which sovereign immunity has been waived. That provision
provides, in pertinent part, that “any citizen may commence a civil action . . . against the
Administrator [of the EPA] where there is an alleged failure of the Administrator to
5
In its reply brief, the EPA appears to unwittingly concede the point that its administrative burdens
argument is unfounded, commenting on “the unique facts of this case” and stating that this “case presents
a rare situation.” Dkt. 97, at 3, 6.
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perform any act or duty under this chapter which is not discretionary with the
Administrator.” 33 U.S.C. § 1365(a)(2) (emphasis added). Here, Plaintiffs have sued the
EPA under Section 505(a)(2) for the EPA’s failure to publish and promulgate replacement
criteria for mercury water standards in Idaho as required by Section 303(c). Thus, as noted,
the issue of whether there is discretion to perform those acts determines whether Plaintiffs
may maintain this lawsuit against the EPA.
1. Nondiscretionary Duties
The EPA’s duties to promptly publish and promulgate a new standard under Section
303(c) and under the circumstances of this case are nondiscretionary for numerous reasons.
First, Congress used the word “shall,” when referring to the duties of promptly publishing
and promulgating the new standard in both paragraphs (3) and (4) of Section 303(c). 33
U.S.C. § 1313(c)(3)–(4). And the accompanying regulation uses similar mandatory
language: “If the State does not adopt the changes specified by the [EPA] within 90 days
after notification of the [EPA’s] disapproval, the Administrator shall promptly propose and
promulgate such standard.” 40 C.F.R. § 131.22(a) (emphasis added). Though not
dispositive of the issue, Sierra Club v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001) (“[T]he
use of ‘shall’ is not conclusive.”), this is a strong starting point that the duty is
nondiscretionary because the word “shall” generally imposes a mandatory duty. Maine
Cmty. Health Options v. United States, 140 S. Ct. 1308, 1320 (2020) (noting that “shall” is
“mandatory language” that presumptively “connotes a requirement”) (collecting cases));
see also United States v. Monsanto, 491 U.S. 600, 607 (1989) (recognizing that by using
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“shall,” “Congress could not have chosen stronger words to express its intent” to impose a
mandatory requirement); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523
U.S. 26, 35 (1998) (recognizing that “‘shall[]’ . . . normally creates an obligation
impervious to judicial discretion”).
Second, the scheme of the statute demonstrates that these duties are
nondiscretionary. A holistic reading of Section 303(c), as summarized above, shows that
at every turn the duties are nondiscretionary. The States must review the standards; the
States must submit revised or new standards to the EPA’s review; the EPA must review
and approve or disapprove the standards; and the EPA must publish and promulgate
standards, if the States do not do so. The duty to promptly publish and promulgate a
standard does not appear to be an exception in this mandatory statutory scheme. Plainly
put, when the Court reads Section 303(c), it sees nothing that indicates Congress intended
to carve out such a limited exception when it comes to the EPA’s duties to promptly publish
and promulgate under Section 303(c)(4). Indeed, Congress could have used the word
“may” if it wished to do so, but it did not.
Relatedly, the repeated use of the word “shall” in Section 303 underscores the
nondiscretionary nature of the duties to promptly publish and promulgate a new standard.
See Maine Community Health Options, 140 S. Ct. at 1320–21 (explaining that Congress’s
recurring use of “shall” in the relevant provision and adjacent provisions “underscore[d]
its mandatory nature”). Here, Section 303 is rife with mandatory language. In subsection
(c), Congress used “shall” 15 times, and “shall” appears 55 times in total in Section 303.
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See 33 U.S.C. § 1313.
Third, not requiring the EPA to act in this situation would undermine the key
purposes of the CWA, as already discussed. Again, to hold the EPA’s duties as
discretionary “would allow the agency’s inaction to leave old standards or no standards in
place, thereby defeating the CWA’s purpose of restoring and maintaining ‘the chemical,
physical, and biological integrity of the Nation’s waters.’” Nw. Envt’l Advocs., 268 F. Supp
2d at 1261 (quoting 33 U.S.C. § 1251(a)).
Fourth, the caselaw supports viewing these duties as nondiscretionary. The Ninth
Circuit has addressed the issue and held that the EPA’s duties to publish and promulgate
new standards under these circumstances are nondiscretionary:
Plaintiffs argued Section 303(c) of the Clean Water Act imposes a mandatory
duty upon the EPA to promptly promulgate water quality regulations if the
state fails to do so within the 90 day period specified by Section 303(c)(3).
The plain language of Section 303(c) supports plaintiffs’ view. Section
303(c)(3) uses mandatory language, stating “the Administrator shall
promulgate such standard pursuant to [Section 303(c)(4) ].” The same
mandatory language appears in Section 303(c)(4): “The Administrator [of
the EPA] shall promptly prepare and publish proposed regulations setting
forth a revised or new water quality standard” if a state fails to adopt
regulations within the specified period. There is no case law suggesting
Section 303(c) leaves the Administrator any discretion to deviate from this
apparently mandatory course.
Idaho Conservation League Inc. v. Russell, 946 F. 2d 717, 720 (9th Cir. 1991)
(cleaned up). Although the issue before the Russell court was whether the plaintiffs were
entitled to attorney’s fees as the prevailing party, the court’s language demonstrates that it
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viewed the Section 303(c) duties as nondiscretionary. See id. at 719–20.6 Therefore, the
Ninth Circuit’s view supports maintaining this lawsuit.
Other courts have issued highly persuasive opinions that are in accord with the Ninth
Circuit’s view. Nw. Envt’l Advocs., 268 F. Supp. 2d at 1261 (holding that under Section
303(c)(4) “a state’s failure to submit revisions in a timely fashion triggers EPA’s
nondiscretionary duty to act”); Browner, 968 F. Supp. at 549 (“By the plain language of
the statute, and under the cited authorities, the EPA’s duty under § [303](c)(4)(A) is
mandatory.”). Raymond Proffitt Found., 930 F. Supp. at 1096–98 (E.D. Pa. 1996). The
Court has read these opinions and adopts their reasoning on this issue.7
In short, the Court concludes that the EPA’s Section 303(c)(4) duties to promptly
publish and promulgate a new water standard for mercury in Idaho under the circumstances
of this case are nondiscretionary. Therefore, the EPA is not entitled to sovereign immunity.
Notwithstanding these points, the EPA insists that there is discretion to publish and
promulgate the new standard, thereby making it immune from this suit. The EPA makes
several arguments to this end. None of its arguments are persuasive.
2. Confused Issue of Discretion
6
The EPA argues that, because the Russell court explicitly acknowledged that the “EPA [did] not seriously
contest this analysis” and because the legal issues were different in Russell than the ones presented in this
case, the quoted language is not binding authority. Dkt. 87-1, at 22–23 (quoting Russell, 946 F. 2d at 720).
That may be so, but regardless of whether the language is binding or persuasive from a technical standpoint,
this Court gives great credence to what the Ninth Circuit has said, especially when it has spoken so clearly
on the very issue this Court is deciding.
7
Of course, there have been courts which have held to the contrary: that is, the EPA’s duties to promptly
publish and promulgate a new standard is discretionary. The Court has read those cited cases as well, but
they are unpersuasive for the reasons explained below.
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To begin, the EPA confuses the question of discretion under the CWA. Invoking the
date-certain rule (which the Court will address in one moment), the EPA argues that “where
the statutory language of the relevant CWA provision leaves EPA at least some discretion
in determining when to perform an act or duty, a citizen suit cannot proceed.” Dkt. 87-1, at
15 (cleaned up). Similarly, the EPA asserts, “Because Congress in Section 303(c)(4) gave
EPA discretion as to the timing of promulgating new water quality standards, Plaintiffs’
claim falls outside of the limited waiver of sovereign immunity in the citizen suit
provision.” Dkt. 97, at 9 (emphasis added). Admittedly, the timetable for the EPA to act
here does involve some limited discretion because Section 303(c)(4) requires the EPA to
act “promptly” in publishing and promulgating a water quality standard instead of by a
certain date or in a certain timeframe.
However, this point is unavailing because it is not the correct question of discretion
under the CWA, nor does the EPA’s argument receive support from the CWA. The
question of discretion under the CWA is not one of timing; rather, it is one of discretion
over whether “to perform any act or duty under this chapter which is not discretionary.” 33
U.S.C. § 1365(a)(2) (emphasis added). In other words, the issue is not whether the EPA
has some discretion as to when it acts; the issue is whether the EPA has discretion to act.
And, as explained, the CWA does not leave the act or duty of publishing and promulgating
a water quality standard under these circumstances to the EPA’s discretion. The EPA must
do so. Therefore, the EPA’s argument attempts to incorrectly shift the issue from discretion
over acting to discretion over timing.
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3. The Date-Certain Rule
Beyond this important distinction, the date-certain rule does not apply in this context
of the CWA, which dooms the EPA’s other arguments. The date-certain rule was developed
by the D.C. Circuit in interpreting the pre-1990 Clean Air Act. Sierra Club v. Thomas, 828
F.2d 783 (D.C. Cir. 1987). The rule is that “where timeliness is at issue, statutory provisions
which do not set bright-line deadlines fall outside the reach of a citizen’s suit.” Defenders
of Wildlife v. Browner, 888 F. Supp. 1005, 1008 (D. Ariz. 1995) (first citing NRDC v.
Thomas, 885 F.2d 1067, 1075 (2d Cir. 1989); and then citing Sierra Club, 828 F.2d at 790
& n. 58).
The Court disagrees that this rule applies to the Section 505(a)(2) when applied to
Section 303(c). For one thing, the date-certain rule has no support in the text of the CWA.
Indeed, at no point does the CWA mention that discretion depends on a certain timetable
or date to act. For another thing, the date-certain rule arose from the Clean Air Act’s
statutory scheme, which is different in a significant way from the CWA’s: The date-certain
rule “was developed to resolve an issue under the bifurcated jurisdictional scheme of the
[pre-1990] Clean Air Act, and there is no analogous problem under the Clean Water Act.”
Raymond Proffitt, 930 F. Supp. at 1098. “The Sierra Club court fashioned its rule as part
of an attempt to distinguish between the two court-bound avenues by which a citizen may
travel to file a suit alleging unreasonable delay under the Clean Air Act. There is no reason
to transport the Sierra Club rule into the much different context of a citizen’s suit claim
alleging violation” of a duty under Section 303(c). Id. at 1100. Additionally, in this case,
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there is no dispute as to the timeliness of the EPA’s actions because the Court easily
concludes that the EPA failed to act promptly in publishing and promulgating a standard.8
Finally, if the EPA’s own view of its Section 303(c) duties, as expressed in its June 3, 2019
memorandum, were applied to the facts of this case, there would be a date certain for the
EPA to act. U.S. Envt’l Protection Agency, supra, at 4 & n.4 (“By incorporating a 90-day
timeline to propose a federal water quality standard, the EPA will have a total of 270 days
from the time it disapproves a state or tribal standard to the time it must issue a final federal
standard.”).
These points also dispose of the EPA’s argument that the similarities between the
Clean Air Act’s citizen-suit provision and the CWA’s means they should be interpreted
with the same date-certain rule. Compare 33 U.S.C. § 1365(a)(2), with 42 U.S.C. §
7604(a)(2). At first glance, this argument may seem compelling. Indeed, the Ninth Circuit
in Kennecott Copper Corp. v. Costle, adopted the date-certain approach for the Clean Air
Act’s citizen-suit provision because “Congress recognized the potential for disruption of
the administrative process inherent in a broad grant of jurisdiction to hear all cases
involving the alleged failure of the Administrator to take actions authorized by” the Clean
Air Act. 572 F.2d 1349, 1353 (9th Cir. 1978). But, again, the two Acts are meaningfully
different. And the Ninth Circuit has not incorporated the date-certain rule into the CWA in
the context at hand. To the contrary of the date-certain rule applying, the Ninth Circuit’s
general rule is that a certain date of action is not required to find a statutory duty
Moreover, if the EPA’s own view, as expressed in the June 3, 2019 memorandum, were applied to the
facts of this case, there would be a date certain for the EPA to act.
8
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nondiscretionary. In re Nat. Res. Def. Council, Inc., 956 F.3d 1134, 1138, 1140 (9th Cir.
2020) (“hav[ing] no trouble concluding that a writ of mandamus [was] . . . warranted”
although Congress “supplied no specific timetable” for action other than the APA’s general
requirement that it occur “within a reasonable time” (quoting 5 U.S.C. § 555(b)); Columbia
Riverkeeper, 944 F.3d at 1208 (holding that even where the CWA was “silent as to what
duties the EPA has when a state simply fails to submit a TMDL altogether,” the EPA had
a nondiscretionary duty to act); In re Cmty. Voice, 878 F.3d 779, 782–84 (9th Cir. 2017)
(holding that the EPA’s duty to revise certain standards was mandatory, even absent a clear
deadline for action); In re Pesticide Action Network N. Am., 798 F.3d 809, 813–15 (9th
Cir. 2015) (finding the EPA delay unreasonable despite having previously concluded their
timeline was discretionary); see also Norton v. S. Utah Wilderness All. (SUWA), 542 U.S.
55, 63 n.1 (2004) (same rule). Moreover, this Court believes that incorporating the datecertain rule in this context would be inappropriate. If these duties were not mandatory, the
explicit purposes of the CWA would be undermined because water quality standards would
remain either absent or stale.
4. Unconvincing Caselaw
In arguing for its position, the EPA cites several cases—none of which convince the
Court to change its conclusion. First, none of the cited cases are binding. Second, they all
incorporated the D.C. Circuit’s date-certain rule, which the Court holds does not apply in
this context of the CWA. And, lastly, they all have further important differences.
For example, as is true about many of the cases the EPA cites, Zen-Noh Grain Corp.
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v. Jackson, is wholly distinguishable because it dealt with the Clean Air Act’s citizen-suit
provision, not the CWA’s. 943 F. Supp. 2d 657, 659 (E.D. La. 2013) (“This case arises
under Clean Air Act . . . .”). Moreover, if anything, Zen-Noh Grain Corp. hurts the EPA’s
position. In a footnote, the court distinguished a case that held that the date-certain rule
doesn’t apply to the CWA’s citizen-suit provision—Raymond Proffitt—by acknowledging
a meaningful difference between the two provisions: “Importantly, the [CWA] does not
have the same venue distinctions between unreasonable delay cases and nondiscretionary
duty cases.” Id. at 663 n.5. Thus, Zen-Noh Grain Corp. does not undermine the Court’s
conclusion; it offers further support to it.
And, although in Cronin v. Browner the court applied the date-certain rule to the
CWA, the court was dealing with Section 316, not Section 303(c). 898 F. Supp. 1052, 1059
(S.D.N.Y. 1995). More importantly, the court held that the references in Section 316 to
Sections 301 and 306 ultimately made the acts nondiscretionary. Therefore, the ultimate
holding that the duties were nondiscretionary is favorable to Plaintiffs’ position because it
makes even more of the duties in the CWA nondiscretionary. See id. And, again, the Court
disagrees with the initial premise that the date-certain rule applies to the CWA here, making
the case unpersuasive.
The EPA also cites Defenders of Wildlife v. Browner, 888 F. Supp. 1005 (D. Ariz.
1995). In short, this Court respectfully thinks that such case was wrongly decided. First, it
was premised on the date-certain rule, which the Court determines does not apply to the
CWA in this context for the reasons stated. Second, in doing so, the court relied on
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Kennecott Copper Corp., which again dealt with the Clean Air Act, not the CWA. Third,
the court reasoned that the duty to promptly publish and promulgate “is not a categorical
mandate from Congress that deprives EPA of all discretion over timing for preparing and
publishing proposed water quality regulations for Arizona.” Id. at 1008 (emphasis added).
To reiterate, this Court deems this type of discretion to be the incorrect question of
discretion under the CWA, focused wrongly on discretion over timing rather than
discretion regarding whether to act. See 33 U.S.C. § 1365(a)(2). Therefore, this Court
declines to follow its fellow Ninth Circuit court, opting to agree with its other Ninth Circuit
courts instead. See Nw. Envt’l Advocs., 268 F. Supp 2d at 1261; Idaho Conservation
League, 968 F. Supp. at 549; see also Raymond Proffitt Found., 930 F. Supp. at 1098
(providing three reasons not to follow the same case).
Consequently, the caselaw upon which the EPA relies is unable to dissuade the
Court from viewing the EPA’s Section 303(c) duties to publish and promulgate as
nondiscretionary.
5. Inapplicable Canons of Construction
The EPA also suggests that two canons of construction apply to aid the Court in
interpreting the CWA. The Court disagrees.
First, the EPA points out that Congress used timeframes in the States’ required
triennial review, in the EPA’s required 60- or 90-day reviews, and in the 90-day timeframe
for the EPA to promulgate final standards, but Congress did not use one for publishing.
Instead, Congress used the word “promptly.” The EPA then claims that, under the doctrine
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of expressio unius est exclusio alterius (the expression of one thing implies the exclusion
of others), Congress knew how to impose a deadline when it meant to and when it meant
to leave EPA with discretion over the timing of a duty. But this argument necessarily
depends on the date-certain rationale applying in the first place and Congress assuming
that it did when it enacted the CWA. Both assumptions are incorrect. Therefore, this
argument is unconvincing.
Second, the EPA asserts that “the language ‘shall promptly’ is ambiguous as
whether it creates a non-discretionary duty,” and, therefore, it is entitled to a favorable
statutory construction. Dkt. 87-1, at 25–26. “A waiver of the Government’s sovereign
immunity will be strictly construed, in terms of its scope, in favor of the sovereign . . . .”
Lane v. Pena, 518 U.S. 187, 192 (1996); see also FAA v. Cooper, 566 U.S. 284, 290 (2012)
(“Any ambiguities in the statutory language are to be construed in favor of immunity”).
However, the EPA notably does not offer differing plausible interpretations of the language
“shall promptly” that would make it ambiguous. Because the Court does not find the
language to be ambiguous, it need not and does not adopt a construction favorable to the
EPA. Reading those words plainly, they impose a nondiscretionary duty on the EPA to act
in accordance with them.
6. Conclusion
Due to the text, scheme, and polices of the CWA, as well as the caselaw on this
issue, the Court concludes that the relevant duties under Section 303(c)(4)—promptly
publishing and promulgating water quality standards—are nondiscretionary. Accordingly,
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the EPA is not entitled to have this case dismissed based on sovereign immunity because
Congress waived its immunity through the CWA’s citizen-suit provision (Section
505(a)(2)).
V. CONCLUSION
In sum, the Court holds that the EPA violated its nondiscretionary duties under
Section 303(c) of the CWA to promptly publish and promulgate a mercury water quality
standard for Idaho. The Court rejects the EPA’s arguments to the contrary. Now that the
EPA’s liability has been established, the Court will allow the parties to brief the issue of
appropriate relief per the parties’ request in their briefs and at the hearing. See, e.g., Dkt.
86, at 19.
VI. ORDER
IT IS HEREBY ORDERED:
1. Plaintiffs’ Partial Motion for Summary Judgment (Dkt. 85) is GRANTED.
2. The EPA’s Partial Motion for Summary Judgment (Dkt. 87) is DENIED.
3. Plaintiffs’ Motion for Leave to File Sur-Reply (Dkt. 102) is GRANTED.
4. The parties must file briefs regarding appropriate relief. Plaintiffs must file their
motion and brief within twenty-one days of this Order. The briefing thereafter will
proceed on the Court’s typical briefing schedule.
DATED: July 19, 2021
_________________________
David C. Nye
Chief U.S. District Court Judge
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