Greater Yellowstone Coalition v. US Environmental Protection Agency

Filing 72

MEMORANDUM DECISION AND ORDER denying 41 GYC's Motion for Summary Judgment; granting 45 Motion to Remand; granting 46 EPA's Motion for Summary Judgment; granting 54 IDEQ's Motion for Summary Judgment; granting 58 IACI's Motion for Summary Judgment. The Court will remand the de minimis exemption issue to the EPA with directions that it have 90 days to either: (1) take a new action on the de minimis provision; or (2) inform the Court that it has determined not to take a new action, and to file a cross-motion for summary judgment and brief in support of that motion regarding the de minimis provision. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

GREATER YELLOWSTONE
COALITION,
Plaintiff,
v.

Case No. 4:12-CV-60-BLW

U.S. ENVIRONMENTAL PROTECTION
AGENCY,
Defendant,
and

MEMORANDUM DECISION AND
ORDER

IDAHO DEPARTMENT OF
ENVIRONMENTAL QUALITY and
IDAHO ASSOCIATION OF COMMERCE
AND INDUSTRY,
Defendant-Intervenors.
INTRODUCTION
The Court has before it cross-motions for summary judgment, and a motion by the
Environmental Protection Agency (EPA) to remand one issue to the agency. The Court
heard oral argument on April 4, 2013, and took the motions under advisement. For the
reasons explained below, the Court will (1) grant the motion to remand a portion of this
case; (2) deny the motion for summary judgment filed by plaintiff Greater Yellowstone
Coalition (GYC) on the issue of Idaho’s definition of “degradation,” and (3) grant the
cross-motions for summary judgment filed by the EPA and intervenors.
LITIGATION BACKGROUND
GYC challenges the EPA’s approval of Idaho’s rules governing water quality in

Memorandum Decision & Order – page 1

the State. Specifically, GYC challenges the EPA’s approval of (1) Idaho’s definition of
“degradation” of water quality, and (2) Idaho’s mandatory exemption from review for de
minimis levels of discharge. GYC seeks a summary judgment that both approvals should
be overturned.
The EPA defends its approval of the “degradation” definition, but asks for an
opportunity to reconsider its approval of the de minimis exemption. The parties are all in
agreement that the Court should remand the de minimis issue to the EPA although they
differ on the conditions of that remand. The Court will resolve these issues after
reviewing the background of this litigation.
The EPA’s approval of Idaho’s rules is governed by the Clean Water Act (CWA).
Its objective is “to restore and maintain the chemical, physical, and biological integrity of
the nation’s waters.” See 33 U.S.C. § 1251. The CWA requires the states to set water
quality standards for all waters within their boundaries, see 33 U.S.C. § 1313, and the
EPA’s regulations describe the process for setting those standards. See 40 C.F.R. § 131.6.
The state must first identify designated uses for the water in order to establish goals for
water quality. The state then develops water quality criteria to achieve those goals and
establishes an antidegradation policy to ensure public input and maintain the water
quality. The EPA described that process in a nutshell: “Designated uses establish the
water quality goals for the water body, water quality criteria define the minimum
conditions necessary to achieve the goals and an antidegradation policy specifies the
framework to be used in making decisions regarding changes in water quality.” 63
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Fed.Reg. 36742 at 36779-80 (July 7, 1998).
It is this last step – the state’s establishment of an antidegradation policy – that is
challenged by the GYC here: The degradation definition and the de minimis exemption
are both part of Idaho’s antidegradation policy. A state’s antidegradation policy is
triggered when an activity is proposed for a body of water that may have some effect on
water quality. The EPA requires that a state’s antidegradation policy offer three levels of
protections to water bodies depending largely on the existing water quality in that
particular water body. The highest level of protection – tier III – is reserved for waters of
“exceptional” significance, such as those found in National Parks and wildlife refuges.
See 40 C.F.R. § 131.12(a)(3). The minimum level of protection – tier I – is granted to all
water bodies and maintains all existing uses and the water quality to protect those uses.
Id. at § 131.12(a)(1).
It is the middle level of protection – tier II – that is at issue here. It applies when
“the quality of the waters exceed levels necessary to support propagation of fish,
shellfish, and wildlife and recreation in and on the water.” 40 C.F.R. § 131.12(a)(2). The
capacity of a water body to absorb pollution from a new use and yet still maintain the
water quality necessary to support fish, wildlife, and recreation is known as its
“assimilative capacity.” Kentucky Waterways Alliance v. Johnson, 540 F.3d 466, 471 n. 4
(6th Cir. 2008). Tier II water bodies have an assimilative capacity. Under the EPA’s
regulations, a pollution increase that would decrease a water body’s assimilative capacity
would need to be justified by the necessity of the pollution for achieving important
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economic and social development. Id., see 40 C.F.R. § 131.12(a)(2). However, the
regulation prohibits any pollution increase that would create negative assimilative
capacity, regardless of the economic or social necessity for the pollution. Id.
Once a State adopts or revises its water quality standards, including its
antidegradation policy, the CWA requires the State to submit these standards to the EPA
for review. See 33 U.S.C. § 1313(c)(1). If the State’s standards are consistent with the
CWA and the EPA’s implementing regulations, then the EPA must approve the state
standards within sixty days. See 33 U.S.C. § 1313(c)(3). However, if the state water
quality standards do not satisfy the CWA's requirements, the EPA must, within ninety
days, “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[s].” Id.
Idaho’s de minimis Exemption
As part of its CWA plan, Idaho enacted an automatic exemption from Tier II
antidegradation review if the additional pollution from a new activity would consume
only 10% or less of the “assimilative capacity” of a water body. See Idaho Code § 393603(2)(c)(I). This exemption has been referred to as the de minimis exemption. GYC
argues that it allows too much pollution. For example, consider a toxin that accumulates
in the water without breaking down. In small amounts it may be harmless, but each small
discharge that evades review under the de minimis exemption adds an accumulating load
of toxins to the water that at some point will harm water quality. GYC is concerned that
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the EPA did not fully consider this point.
After reviewing GYC’s challenge, the EPA filed a motion to remand this issue to
the agency for further consideration. The other parties agree to the remand but seek to
impose various conditions on the remand. At oral argument, the parties agreed that the
time limit for the remand be 90 days.
This Court has the inherent authority to remand this case to the EPA. Loma Linda
University v. Schweiker, 705 F.2d 1123 (9th Cir. 1983). While GYC wants the Court to
bar the EPA from considering any new rationales for supporting the de minimis exception
on remand, the agency has full authority to reconsider – “the power to decide in the first
instance carries with it the power to reconsider.” See NRDC, Inc. v. U.S., 275 F.Supp.2d
1136, 1141 (C.D.Cal. 2002). Moreover, the Court will adopt the suggestion of intervenor
IACI and retain jurisdiction over the case so that GYC can challenge in this Court any
new analysis of the EPA. But IACI’s request that the Court order the EPA to “actively
include” IACI in the remand process would unduly hamper the EPA’s discretion on
remand.
In conclusion, the Court will grant the EPA’s motion for remand and give it 90
days to either: (1) take a new action on the de minimis provision; or (2) inform the Court
that it has determined not to take a new action, and to file a cross-motion for summary
judgment and brief in support of that motion regarding the de minimis provision. The
Court will maintain jurisdiction to ensure a timely remand process and to allow the parties
to challenge any new EPA decision in this case.
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Idaho’s Antidegradation Definition
GYC challenges the EPA’s approval of Idaho’s definition of degradation. The
term is significant because Idaho requires Tier 2 review when an activity or discharge
would “cause degradation.” IDAPA 58.01.02.052.08. The challenged definition is
contained in Idaho Code § 39-3602(6), which states as follows:
“Degradation” or “lower water quality” means, for purposes of antidegradation
review, a change in a pollutant that is adverse to designated or existing uses,
as calculated for a new point source, and based upon monitoring or calculated
information for an existing point source increasing its discharge. Such
degradation shall be calculated or measured after appropriate mixing of the
discharge and receiving water body.
This provision begins by using the terms “degradation” and “lower water quality”
interchangeably, suggesting that they mean the same thing. That is precisely the meaning
the law requires. The parties all agree that degradation must be defined as a lowering of
water quality to comply with the CWA.
If this provision had ended there – by equating “degradation” with “lower water
quality” – it would have been unassailable under the CWA. But the definition does not
end there, and the added language gives rise to GYC’s challenge. More specifically, the
drafter added language that defines both “degradation” and “lower water quality” as “a
change in a pollutant that is adverse to designated or existing uses.”
When the EPA first saw that language during the drafting stage, it was concerned
that degradation was being defined as being adverse to uses rather than to water quality, a
result that violated the CWA. The EPA urged Idaho to change the language and

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suggested alternatives that would clearly tie degradation to “worsening water quality.”
See AR at 951-52. The EPA explained to Idaho that “it is important that the definition of
degradation does not imply that uses must be adversely affected before a proposed change
in water quality triggers an anti degradation review.” Id. at 1255. Even though the EPA
made three specific requests for Idaho to change its language, Idaho did not make those
changes.
The IDEQ did, however, respond to the EPA in a filing entitled “Response to
Public Comments.” Specifically, the IDEQ was responding to the EPA’s comment that
“[i]t is important that a proposed lowering of water quality need not be of a degree that
would impair uses to be given appropriate consideration under IDEQ’s antidegradation
policy and implementation procedures.” See AR Doc. 18 Att. 4 at 001044. The IDEQ
responded to that as follows:
[I]DEQ believes this suggested change is unnecessary. [I]DEQ agrees
completely that “lowering of water quality” need not be of a degree that would
violate criteria in order to be given appropriate consideration under [I]DEQ’s
antidegradation policy. Such an interpretation would completely obfuscate
Tier II and Tier III protection.
Id. The EPA seized on this clarification in approving Idaho’s antidegradation rule,
finding that
Idaho has clarified that “adverse to designated or existing uses” means that the
change in pollutant would result in a reduction in water quality. The reduction
in water quality need not be of such magnitude that it would impair uses in
order for that reduction to be given appropriate consideration under IDEQ’s
antidegradation policy and implementation procedures.
See AR Doc. 1 at 000008.
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The EPA may “clarify ambiguous state regulations by consulting with the state and
relying on authorized state interpretations.” Kentucky Waterways, 540 F.3d at 493. But
where the state rule is not ambiguous, “securing an informal commitment from a state
agency rather than requiring the state to amend its regulations violates the federal
approval procedure established by 33 U.S.C. § 1313(c)(3) . . . .” Id. at 494. The EPA
may not effectively rewrite or amend existing state regulations, see, e.g., Riverside
Cement Co. v. Thomas, 843 F.2d 1246, 1248 (9th Cir.1988), nor may it “escape the notice
and comment requirements . . . by labeling a major substantive legal addition to a rule a
mere interpretation.” Defenders of Wildlife v. E.P.A., 415 F.3d 1121, 1127 (10th Cir.
2005) (quoting Appalachian Power Co. v. E.P.A., 208 F.3d 1015, 1024 (D.C.Cir.2000)).
Two bookend cases that describe when the EPA can rely on a state’s clarifications
are Kentucky Waterways and Defenders of Wildlife. In the former, the EPA’s reliance
was misplaced while in the latter it was proper. The difference hinged entirely on the
ambiguity – or lack thereof – in the state’s CWA rules.
In Kentucky Waterways, Kentucky’s antidegradation plan for coal-mining
discharge failed to pass muster under EPA regulations. Kentucky gave the EPA an
informal commitment that would correct the flaw, and the EPA approved the plan. The
Sixth Circuit reversed, holding that Kentucky’s informal commitment was contrary to the
unambiguous plan it had submitted, and that the EPA had no authority to approve a plan
under those circumstances.
In Defenders of Wildlife, the plaintiffs claimed that New Mexico’s rules violated
the CWA by precluding the taking of certain measurements and the setting of certain
standards required by the CWA. The Tenth Circuit disagreed, finding that the New
Mexico rules – when read as a whole – were ambiguous, and that the EPA properly relied
on New Mexico’s clarification in approving the rules. Id. at 1127-28.
While these two cases are not binding on this Court, they are certainly persuasive.
The Court will follow their analysis here. The authority of the EPA to rely on Idaho’s

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clarification of its CWA rules depends on whether those rules – read as a whole – are
ambiguous.
In this case, there is no ambiguity in the definition of “degradation” quoted earlier
– it means a change adverse to use, not a change adverse to water quality. But other
provisions of Idaho’s rules do tie degradation to a change in water quality. Idaho’s
antidegradation policy contained in IDAPA 58.01.02.052.08 states that the IDEQ “will
evaluate the effect on water quality for each pollutant. The [IDEQ] will determine
whether an activity or discharge results in an improvement, no change, or degradation of
water quality.”
The Rule then goes on to explain that for each new activity or discharge, the IDEQ
will be measuring not the effect on use but the change in water quality resulting from the
new activity or discharge:
For a reissued permit or license, the calculated change will be the difference
in water quality that would result from the activity or discharge as authorized
in the current permit or license and the water quality that would result from the
activity or discharge as proposed in the reissued permit or license. For a new
permit or license, the calculated change will be the difference between the
existing receiving water quality and water quality that would result from the
activity or discharge as proposed in the new permit or license.
See IDAPA 58.01.02.052.06(a). Using this measurement, the IDEQ will determine
whether the new activity or discharge “results in an improvement, no change, or
degradation of water quality.” Id. at 052.06. In this context – where the three choices are
“improvement, no change or degradation of water quality” – the term “degradation”
means “adverse” to water quality. And the provision makes it clear that “degradation” is
being measured exclusively by the change in water quality; it says nothing about
measuring changes or effects on uses.
This provision raises an ambiguity in the Idaho rules when read as a whole. While
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“degradation” is defined as a change adverse to uses in one provision, it is measured as a
change adverse to water quality in another. Given that ambiguity, the EPA had the
authority, under the analysis of Defenders of Wildlife, to call on Idaho for clarification.
Idaho gave that clarification, representing to the EPA and to this Court that degradation
means a change in a pollutant that reduces water quality. That clarification aligns Idaho’s
rules with the CWA and renders the EPA’s approval proper.
Accordingly, the Court will deny GYC’s motion for summary judgment and grant
the motions filed by the EPA, the IDEQ, and the IACI.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that GYC’s motion for
summary judgment (docket no. 41) is DENIED.
IT IS FURTHER ORDERED, that the motions for summary judgment filed by the
EPA, the IDEQ, and the IACI (docket nos. 46, 54 & 58) are GRANTED.
IT IS FURTHER ORDERED, that the motion for voluntary remand (docket no.
45) is GRANTED. The Court will remand the de minimis exemption issue to the EPA
with directions that it have 90 days to either: (1) take a new action on the de minimis
provision; or (2) inform the Court that it has determined not to take a new action, and to
file a cross-motion for summary judgment and brief in support of that motion regarding
the de minimis provision. The Court will retain jurisdiction to ensure a timely remand
process and to allow the parties to challenge any new EPA decision in this case.
Memorandum Decision & Order – page 10

DATED: April 24, 2013

Honorable B. Lynn Winmill
Chief U. S. District Judge

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