Conservation Law Foundation, Inc. v. Pease Development Authority et al
ORDER granting in part and denying in part 10 defendants' Motion to Dismiss for Failure to State a Claim. So Ordered by Judge Steven J. McAuliffe.(lat)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Conservation Law Foundation, Inc.,
Case No. 16-cv-493-SM
Opinion No. 2017 DNH 202
Pease Development Authority;
David R. Mullen; George M. Bald;
Peter J. Loughlin; Robert A. Allard;
Margaret F. Lamson; John Bohenko;
Franklin Torr; and Robert Preston,
O R D E R
Plaintiff Conservation Law Foundation, Inc. (“CLF”) brings
suit under the Clean Water Act against the Pease Development
Authority (“PDA”), PDA’s Executive Director, David R. Mullen,
its Chairman, George M. Bald, Vice Chairman, Peter J. Loughlin,
and Board members, Robert A. Allard, Margaret F. Lamson, John
Bohenko, Franklin Torr, and Robert Preston (collectively, “the
CLF alleges that the PDA is discharging pollutants into
waters of the United States without the proper permit.
brings this action under the citizen suit provision of the Clean
Water Act, which allows private suits against any person alleged
to be in violation of an “effluent standard or limitation.”
U.S.C. § 1365(a)(1)(A).
Defendants have moved to dismiss the
case under Federal R. Civ. P. 12(b)(1) and 12(b)(6).
is granted in part, and denied in part.
STANDARD OF REVIEW
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable inferences
in favor of the pleader.”
(1st Cir. 2010).
SEC v. Tambone, 597 F.3d 436, 441
Although the complaint need only contain “a
short and plain statement of the claim showing that the pleader
is entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege
each of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face,” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation and internal
In other words, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. 544, 555 (2007).
Bell Atl. Corp. v.
Instead, the facts alleged
in the complaint must, if credited as true, be sufficient to
“nudge [plaintiff=s] claims across the line from conceivable to
Id. at 570.
If, however, the “factual allegations
in the complaint are too meager, vague, or conclusory to remove
the possibility of relief from the realm of mere conjecture, the
complaint is open to dismissal.”
Tambone, 597 F.3d at 442.
When considering a motion to dismiss under Rule 12(b)(1),
the Court should apply a standard of review “similar to that
accorded a dismissal for failure to state a claim” under Rule
Murphy v. United States, 45 F.3d 520, 522 (1st Cir.
However, “[w]hen considering a motion to dismiss for
lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), a
court may need to consider extrinsic materials submitted by a
plaintiff even when reviewing a facial challenge to
Pitroff v. United States, No. 16-CV-522-PB, 2017
WL 3614436, at *3 (D.N.H. Aug. 22, 2017) (citing Dynamic Image
Techs., Inc. v. United States, 221 F.3d 34, 37 (1st Cir. 2000)).
“In contrast, the court ordinarily should confine its review to
the complaint and a limited subset of documents such as those
incorporated in the complaint by reference and matters of public
record when determining whether the complaint states a claim for
Id. (citing Trans-Spec Truck Serv. v. Caterpillar,
Inc., 524 F.3d 315, 321 (1st Cir. 2008)).
Accepting the allegations in the amended complaint as true,
the relevant facts appear to be as follows.
The parties dispute whether the Pease Development Authority
is required to secure a small municipal separate storm sewer
system permit under the Clean Water Act, also known as a “small
The Clean Water Act prohibits the discharge of any
pollutant by any person from any point source1 to the waters of
the United States except where expressly authorized under valid
National Pollutant Discharge Elimination System (“NPDES”)
permits issued by the EPA, or by an EPA-delegated State
See Clean Water Act §§ 502(12)(A) and
In New Hampshire, the NPDES program is administered by
The Conservation Law Foundation is a non-profit, membersupported environmental advocacy organization, with
approximately 3,350 members, 450 of whom live in New Hampshire.
The CLF works to protect the health of New England’s water
The Clean Water Act defines a “point source” as “any
discernible, confined and discrete conveyance, including, but
not limited to any pipe, ditch, channel, tunnel, conduit, well,
discrete fissure, container, rolling stock, concentrated animal
feeding operation, or vessel or other floating craft, from which
pollutants may be discharged.” Clean Water Act § 502(14).
resources, and, more specifically, has worked for more than a
decade to protect Great Bay, Little Bay, the Piscataqua River
and other waters that collectively comprise the Great Bay
estuary from pollution associated with growth and development,
including stormwater pollution.
In 2012, the CLF established
the Great Bay-Piscataqua Waterkeeper, a program that is
dedicated to restoring and protecting the health of the water
bodies that make up the Great Bay estuary.
Defendant Pease Development Authority owns and operates the
Pease International Tradeport and Airport, which is a 3,000-acre
property with 40 percent of its land in the City of Portsmouth,
and 60 percent of its land in the Town of Newington (“Pease
The property was previously owned by the
federal government, operating as Pease Air Force Base, which
closed in 1991.
In April of 1989, the New Hampshire Legislature
established the Pease Redevelopment Commission to plan for the
closure and redevelopment of the Base.
The Commission’s work
led to the creation of the Pease Development Authority on June
1, 1990, by the New Hampshire Legislature, as a “body politic
and corporate of the state,” “deemed to be a public
Compl. ¶ 15 (quoting NH RSA § 12-G:3, I).2
New Hampshire RSA § 12-G:3, I, further provides: “the
exercise by the authority of the powers conferred by this
1992 and 1997, the United States Air Force transferred its
interest in the Pease Air Force Base to the PDA.
The Authority is governed by a board consisting of seven
members, who are charged with appointing an Executive Director.
See NH RSA 12-G:4.
Four members of the Board are appointed by
the Governor and legislative leaders.
Three members are
appointed by the City of Portsmouth and the Town of Newington.
The Chairman of the Board is appointed by and serves at the
pleasure of New Hampshire’s Governor.
The Stormwater Runoff Permit
Stormwater runoff contains a wide variety of pollutants.
It is a major cause of water quality impairment in rivers,
lakes, estuaries and coastal areas in New Hampshire and across
the United States.
Stormwater runoff impacts water quality
because it contributes significant amounts of pollution to
receiving waters, changes natural hydrologic patterns,
accelerates stream flows, destroys aquatic habitat, and elevates
pollutant concentrations and loading.
Stormwater runoff is a
particularly significant source of water pollution in New
Hampshire, causing or contributing to 83 percent of water
quality impairments documented by the New Hampshire Department
chapter shall be deemed and held to be the performance of public
and essential governmental functions of the state.”
of Environmental Services.
And, in the Great Bay estuary,
stormwater accounts for the delivery of a substantial amount of
nitrogen (the pollutant of greatest concern to the estuary’s
The New Hampshire Department of Environmental Services
and the EPA have identified the reduction of nitrogen and other
pollutants as a top priority for the Great Bay estuary.
CLF’s complaint asserts that “PDA is an agency of the State
of New Hampshire with jurisdiction over disposal of sewage,
industrial wastes, stormwater or other wastes.”
Compl. ¶ 53.
So, says CLF, it is PDA’s responsibility to manage stormwater at
Pease International in compliance with the Clean Water Act.
Pease International generates stormwater runoff from its
streets, roofs, municipal buildings and infrastructure, and
parking lots, which contain a variety of pollutants.
which compiles Waterbody Quality Assessment Reports, has
determined that water quality is being impaired in a number of
the waters into which Pease International directly or indirectly
On August 8, 2000, the EPA issued an NPDES permit to PDA
that authorizes the discharge of wastewater and industrial
stormwater to five different outfalls: the Piscataqua River,
Hodgkins Brook, Flagstone Creek, McIntyre Brook, and Harvey’s
Creek (hereafter, the “Industrial Permit”).
That permit, which
had a term of five years, became effective on September 7, 2000,
and expired on September 7, 2005.
Since its expiration in 2005,
the Industrial Permit has been administratively continued, and
is still in effect.
But, according to the CLF, the Authority’s Industrial
Permit alone is no longer sufficient to maintain PDA’s compliant
Instead, asserts CLF, PDA was also required to obtain a
small municipal separate storm sewer system permit.
Section 402(p)(6) of the Clean Water Act, operators of small
municipal separate storm sewer3 systems4 are required to obtain
A “municipal separate storm sewer” is defined as a
conveyance or system of conveyances (including roads with
drainage systems, municipal streets, catch basins, curbs,
gutters, ditches, man-made channels, or storm drains) (i) owned
or operated by a public body created by or pursuant to State law
having jurisdiction over disposal of sewage, industrial wastes,
stormwater, or other wastes, (ii) designed or used for
collecting or conveying stormwater; (iii) which is not a
combined sewer; and (iv) which is not part of a Publically Owned
Treatment Works. See Compl. ¶ 24 (citing 40 CFR §
“Small municipal separate storm sewer systems” are defined
as separate storm sewers that are (i) owned or operated by a
public body created by or pursuant to State law having
jurisdiction over disposal of sewage, industrial wastes,
stormwater or other wastes, and (ii) not defined as large or
medium municipal separate storm water sewer systems or
designated by the EPA as contributing to a violation of a water
quality standard or pollutants to waters of the United States.
See Compl. ¶ 25 (citing 40 CFR § 122.26(b)(16).
NPDES permit coverage for their stormwater discharges.
2003, the EPA issued a General Permit for Stormwater Discharges
from Small Municipal Separate Storm Sewer Systems applicable to
small municipal separate storm sewer systems in New Hampshire
(the “2003 MS4 Permit”).
The 2003 MS4 Permit expired on May 1,
2008, but remains in effect until the EPA issues a new permit.5
The 2003 MS4 Permit imposes certain requirements on small
municipal separate storm sewer system operators to, inter alia,
develop implement and enforce a stormwater management plan that
details practices that will be implemented by the operator to
reduce the discharge of pollutants from the storm sewer systems
to the maximum extent practicable.
According to CLF, PDA’s
existing Industrial Permit fails to impose those requirements.
CLF alleges that PDA owns and operates a small municipal
separate storm sewer system at Pease International.
specifically, CLF alleges that Pease International is located in
an urbanized area, and owns and operates a system of conveyances
discharging pollutants (including roads with drainage systems,
municipal streets, catch basins, curbs, gutters, ditches, man-
The EPA released a draft new general permit for stormwater
discharges from small MS4s, and accepted public comments on that
draft until November 20, 2015. In January, 2017, the EPA issued
a final 2017 General Permit for Stormwater Discharges from Small
Municipal Separate Storm Sewer Systems (the “2017 MS4 Permit”),
with a July 1, 2018, effective date.
made channels or storm drains), which are (1) designed or used
for collecting or conveying stormwater that is not a combined
sewer or publically owned treatment works, and (2) owned or
operated by a public body created pursuant to state law and
having jurisdictional authority over stormwater.
says CLF, PDA is required to obtain coverage under a small MS4
Based on the foregoing, the CLF asserts eight violations of
the Clean Water Act by PDA, all of which stem from PDA’s failure
to obtain a small municipal separate storm sewer system permit,
and to comply with that permit’s additional requirements.
asks the court to, inter alia, declare PDA to be in violation of
the Clean Water Act for its unpermitted discharge of pollutants
into the waters of the United States; order PDA’s compliance
with all applicable MS4 requirements; and order PDA to pay civil
The PDA’s response falls into three categories.
argues that, as a state agency, it is immune from suit under the
And, it says, the individual defendants,
state officers sued in their official capacity, are immune as
well, both from claims for money damages, and from the
declaratory and injunctive relief sought by the CLF.
PDA argues it is prohibited from applying for an MS4 permit
because: (1) it already has a stormwater permit under the Clean
Water Act, and (2) the 2003 MS4 Permit expired in 2008.
Therefore, says PDA, CLF lacks standing because its injury
(stormwater discharge in the absence of a 2003 MS4 Permit) is
not redressable by the Court.
Finally, PDA contends, even if
CLF has standing, its claims fail as a matter of law.
The Clean Water Act and Stormwater Regulation
Before examining the substance of the parties’ respective
positions, some background concerning the Clean Water Act may
The Clean Water Act was enacted by Congress in
1972, to “restore and maintain the chemical, physical, and
biological integrity of the Nation's waters.”
Northwest Envtl. Def. Ctr., 568 U.S. 597, 602 (2013) (additional
“A central provision of the Act is its
requirement that individuals, corporations, and governments
secure National Pollutant Discharge Elimination System (NPDES)
permits before discharging pollution from any point source into
the navigable waters of the United States.”
Id. (citing 33
U.S.C. §§ 1311(a), 1362(12) (additional citations omitted).
permit may be granted from the EPA or from the state where the
discharger is located, if the state has developed a program and
has received permitting authority from the EPA.”
Interest Research Grp. v. Atl. Salmon of Maine, LLC, 215 F.
Supp.2d 239, 246 (D. Me. 2002) (citing 33 U.S.C. § 1342(a),
“NPDES permits come in two varieties: individual and
NRDC v. United States E.P.A., 279 F.3d 1180, 1183
(9th Cir. 2002).
As the Court of Appeals for the Ninth Circuit
“An individual permit authorizes a specific entity to
discharge a pollutant in a specific place and is
issued after an informal agency adjudication process.”
Natural Res. Def. Council, 279 F. 3d at 1183 (citing
40 C.F.R. §§ 122.21, 124.1–124.21, 124.51–124.66). A
general permit, by contrast, is issued for an entire
class of hypothetical dischargers in a given
geographical region and is issued pursuant to
administrative rulemaking procedures. See id. §
122.28. Once a general permit has been issued, an
entity seeking coverage generally must submit a
“notice of intent” to discharge pursuant to the
permit. Id. § 122.28(b)(2). The date on which
coverage commences depends on the terms of the
particular general permit, such as, inter alia, upon
receipt of the notice of intent or after a specified
waiting period. Id. § 122.28(b)(2)(iv). Additionally,
the permit issuer may require a potential discharger
to apply for an individual permit. Id. §
Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC, 765
F.3d 1169, 1171 (9th Cir. 2014).
In 1987, Congress added Section 402(p) to the Act, which
requires implementation of a two-phase comprehensive regulatory
program to address stormwater discharge.
Phase I of the program
required NPDES permits for large discharge sources,
specifically: (1) operators of “large” and “medium”
municipalities (those generally serving populations of 100,000
or more): (2) stormwater discharges associated with industrial
activity; (3) certain other discharges designated by state or
EPA officials as causing a violation of water quality standards;
and (4) those entities for which permits had been issued prior
to the enactment date of the amendment.
See Conservation Law
Found. v. Hannaford Bros. Co., 327 F. Supp. 2d 325, 328 (D. Vt.
2004), aff'd sub nom. Conservation Law Found. v. Hannaford
Bros., 139 Fed. Appx. 338 (2d Cir. 2005), (citing 33 U.S.C. §
Phase II required the EPA to “identify and address
sources of pollution not covered by the Phase I Rule.”
Def. Ctr., Inc. v. E.P.A., 344 F.3d 832, 842 (9th Cir. 2003).
In 1990, the EPA promulgated rules establishing Phase I of
the NPDES stormwater program, setting forth permit application
requirements for those large discharge sources covered by Phase
National Pollutant Discharge Elimination System Permit
Application Regulation for Stormwater Discharges, 55 Fed. Reg.
47,990 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 122–24).
December, 1999, EPA promulgated the Phase II rule.
for Revision of the Water Pollution Control Program Addressing
Storm Water Discharges, 64 Fed. Reg. 68,722 (Dec. 8, 1999)
(codified at 40 C.F.R. pts. 9, 122, 123 and 124).
required NPDES permits for stormwater discharges from regulated
small municipal sewer systems (small MS4s located in “urbanized
areas” as defined by the Bureau of the Census), and small
40 C.F.R. § 122.26(a)(9)(i).
Eleventh Amendment Immunity
Defendants argue that the Eleventh Amendment bars all
claims against them.
”The Eleventh Amendment provides that the
‘Judicial power of the United States shall not be construed to
extend to any suit . . . commenced or prosecuted against one of
the States by citizens of another State, U.S. Const., Amdt. 11,
and [as interpreted] by its own citizens.’”
Lapides v. Bd. of
Regents, 535 U.S. 613, 618 (2002) (quoting Hans v. Louisiana,
134 U.S. 1, 10 (1890)).
“As a general matter, ‘states are
immune under the Eleventh Amendment from private suit in the
Wojcik v. Mass. State Lottery Comm’n, 300
F.3d 92, 99 (1st Cir. 2002) (quoting Greenless v. Almond, 277
F.3d 601, 606 (1st Cir. 2002)).
That “immunity applies only to
the states themselves and entities that are determined to be
arms of a state.”
Pastrana-Torres v. Corporacion De P.R. Para
La Difusion Publica, 460 F.3d 124, 126 (1st Cir. 2006)
As the entity asserting immunity, PDA
“bears the burden of showing that it is an arm of the state.”
Wojcik, 300 F.3d at 99 (citations omitted).
PDA as an “Arm of the State”
Our court of appeals has developed a two-step analysis to
be used in determining whether an entity is an arm of the state.
See Irizarry-Mora v. University of Puerto Rico, 647 F.3d 9, 12
(1st Cir. 2011).
Under that two-step analysis:
a court must first determine whether the state has
indicated an intention — either explicitly by statute
or implicitly through the structure of the entity —
that the entity share the state's sovereign immunity.
If no explicit indication exists, the court must
consider the structural indicators of the state's
intention. If these point in different directions, the
court must proceed to the second stage and consider
whether the state's treasury would be at risk in the
event of an adverse judgment.
Id. (quoting Redondo Constr. Corp. v. P.R. Highway & Transp.
Auth., 357 F.3d 124, 126 (1st Cir. 2004)) (additional citations
PDA argues that, as “an agency of the State of New
Hampshire,” compl. ¶ 53, it is entitled to Eleventh Amendment
In support of that argument, PDA contends that its
status is made clear by statutory language creating it, that
explicitly declares the PDA to be a “body politic and corporate
of the state,” and providing that “the exercise by the authority
of the powers conferred by this chapter shall be deemed and held
to be the performance and essential governmental functions of
NH RSA 12-G:3, I (emphases added).
PDA also draws support from New Hampshire statutes that
govern the State’s sovereign immunity, including NH RSA 541-B,
which creates a limited waiver of the State’s sovereign immunity
with respect to tort suits in state court, and includes PDA as a
state agency; and NH RSA 99-D, which codifies the State’s
sovereign immunity, and specifically includes “directors,
officers, and employees of the Pease development authority.”
So, says PDA, because New Hampshire has explicitly indicated its
intent that PDA share its sovereign immunity, the structural
factors on which CLF focuses its argument do not come into play
(although, PDA argues, consideration of those structural factors
also supports its entitlement to sovereign immunity).
PDA further argues that the legislative history supports
its position, pointing out that the legislation creating the PDA
initially described it as a “body politic and corporate having a
distinct legal existence separate and apart from the state.”
Def.’s Reply in Supp. of Mot. to Dismiss at 5 (quoting N.H.
Senate Jour., Feb. 1, 1990, p. 236).
However, says PDA, the
federal government was unsatisfied by that envisioned structure,
and “would not transfer Pease unless the transferee were part of
So, the legislation was amended to make clear
that PDA was a “body politic and corporate of the state.”
(citing NH House Journ., Mar. 29, 1990, p. 86).
Plaintiff disagrees that PDA is an “arm of the state.”
Relying on Grajales v. P.R. Ports Auth., 831 F.3d 11, 19 (1st
Cir. 2016), CLF takes the position that the PDA is not an “arm
of the state” for sovereign immunity purposes simply because it
has been so designated by the State.
Instead, the CLF argues,
the court must consider the PDA’s structure and conduct, which,
CLF says, weigh against such a finding.
More specifically, CLF
argues that the following factors weigh against PDA being
considered an “arm of the state:” (1) PDA has been vested with
significant autonomy by the legislature; (2) PDA performs
proprietary functions, including acting as a landlord; (3) PDA
is financially independent of the State; and (4) PDA is not
controlled by the state, but by a board of directors and an
Finally, CLF argues that PDA is not
entitled to sovereign immunity because New Hampshire would not
be liable to pay any judgment against PDA, and this suit poses
no risk to the State of New Hampshire’s treasury.
The New Hampshire legislature’s intent that PDA share its
sovereign immunity is made clear in several different statutory
First, NH RSA 12-G:8, XIV, grants PDA the power:
To procure insurance against any loss in connection
with its airport or division property or projects in
such amount . . . as it may deem necessary or
desirable, and to pay any premiums therefor. Nothing
in this paragraph shall be construed as a waiver of
the sovereign immunity of the state except as
authorized under RSA 491:8.
Id. (emphasis added).
CLF argues that this provision supports
its own position, because it notes that the state’s sovereign
immunity is not affected by PDA’s ability to procure insurance,
not that PDA has sovereign immunity.
According to CLF, the
clause suggests that, “PDA’s mere operation as a public body
might otherwise waive New Hampshire’s (and not PDA’s) sovereign
immunity due to its quasi-public/private nature.”
Surreply in Supp. of Obj. to Mot. to Dismiss at 15-16.
PDA points out, if the legislature believed that PDA and the
state were separate, PDA’s purchase of insurance would have no
impact on the state.
Instead, as PDA persuasively argues, the
legislature intended to grant PDA the ability to purchase
insurance without endangering PDA’s sovereign immunity
RSA 99-D:1 and 2 further evidence the state’s intent that
PDA share the state’s sovereign immunity.
The New Hampshire
legislature codified the state’s sovereign immunity in RSA 99D:1, which “also adopted official immunity for state and state
agency officers, trustees, officials and employees.”
Gen. Elec. Co., 156 N.H. 202, 209-210 (2007).
provides, in part:
The doctrine of sovereign immunity of the state, and
by the extension of that doctrine, the official
immunity of officers, trustees, officials, or
employees of the state or any agency thereof acting
within the scope of official duty and not in a wanton
or reckless manner, except as otherwise expressly
provided by statute, is hereby adopted as the law of
RSA 99-D:2 goes on to define circumstances under
which state employees would be entitled to a defense and
indemnification provided by the state.
within RSA 99-D:2’s list of state employees entitled to a
defense and indemnification under the statute are “directors,
officers and employees of the Pease development authority.” RSA
99-D:2 (emphasis added).
Finally, the legislature included PDA in the state’s
limited waiver of its sovereign immunity in RSA 541-B:1.
541-B sets forth comprehensive procedures and guidelines for
bringing claims that would otherwise be barred by sovereign
immunity, against the state, its agencies and employees.
generally RSA 541-B:1, et seq.
“Agency” is defined by the
all departments, boards, offices, commissions,
institutions, other instrumentalities of state
government, including but not limited to the Pease
development authority, division of ports and harbors,
the New Hampshire housing finance authority, the New
Hampshire housing finance authority, the New Hampshire
energy authority, the community college system of New
Hampshire, and the Pease development authority, and
the general court, including any official or employee
of same when acting in the scope of his or her elected
or appointed capacity, but excluding political
subdivisions of the state.
RSA 541-B:1(I) (emphasis added).
CLF fails to provide an
adequate explanation as to why the state would (twice) designate
PDA as an agency waiving sovereign immunity for certain claims
if the PDA was not otherwise entitled to sovereign immunity.
CLF pays those statutes scant attention, arguing only that
they are inapplicable to this suit.
CLF does not explain why
that might be the case, and, indeed, its reasoning logic in that
regard is difficult to discern.
But, even if the court were to
ignore the state’s clear expressions of intent that PDA share
the state’s sovereign immunity, consideration of structural
indicators of the state’s intent further establishes PDA’s
status as an arm of the state.
Mot. to Dismiss at pp. 5-15.
See Defs.’ Reply in Supp. of
Accordingly, for the reasons given
in PDA’s briefing as well as those given here, the court finds
that PDA is a state agency for Eleventh Amendment purposes.
Claims against PDA Officers and Directors
PDA argues that CLF’s claims against the individual
defendants are also barred by the Eleventh Amendment.
The Eleventh Amendment applies “whether the named defendant
is the state itself,” or “a state official in her official
Davidson v. Howe, 749 F.3d 21, 27 (1st Cir. 2014).
Thus, claims against state officials for damages in their
official capacities are barred by the Eleventh Amendment.
Redondo–Borges v. United States HUD, 421 F.3d 1, 7 (1st Cir.
However, the doctrine of Ex parte Young, 209 U.S. 123
(1908), “permits suit against a state official to obtain a
declaratory judgment for prospective relief to enforce a federal
Wilson v. Brock, No. CIV. 01-284-JD, 2002 WL 1676287,
at *5 (D.N.H. July 18, 2002) (citations omitted).
words, “an Ex parte Young plaintiff may obtain prospective, but
not retrospective, relief.”
Greenless, 277 F.3d at 607.
parte Young exception to the Eleventh Amendment is intended “to
prevent continuing violations of federal law, but not to remedy
As the Supreme Court noted in Papasan v. Allain, 478 U.S.
265, 278 (1986):
Relief that in essence serves to compensate a party
injured in the past by an action of a state official
in his official capacity that was illegal under
federal law is barred even when the state official is
the named defendant. This is true if the relief is
expressly denominated as damages. See, e.g., Ford
Motor Co. v. Department of Treasury of Indiana, 323
U.S. 459 (1945). It is also true if the relief is
tantamount to an award of damages for a past violation
of federal law, even though styled as something else.
See, e.g., Green v. Mansour, 474 U.S. 64, at 69–70
(1985), Edelman v. Jordan, 415 U.S. 651, 664–668
(1974). On the other hand, relief that serves
directly to bring an end to a present violation of
federal law is not barred by the Eleventh Amendment
even though accompanied by a substantial ancillary
effect on the state treasury. See Milliken v.
Bradley, 433 U.S. 267, 289–290 (1977); Edelman, supra
415 U.S. at 667–668.
To the extent that CLF is seeking retrospective relief for
PDA’s purported past violations of the Clean Water Act, PDA is
correct - such relief falls outside the Ex parte Young exception
to state sovereign immunity.
See, e.g., National Resources
Defense Council v. California DOT, 96 F.3d 420, 423 (9th Cir.
1996) (upholding district court’s dismissal of all claims
against state official on Eleventh Amendment grounds “for civil
penalties and declaratory relief pertaining to past violations
of the Clean Water Act.”); see also Swartz v. Beach, 229 F.
Supp. 2d 1239, 1252 (D. Wyo. 2002) (“To the extent Plaintiff
seeks monetary damages against the State Defendants in their
official capacities for past violations of the CWA, the claim is
barred by the Eleventh Amendment.”)
However, CLF’s complaint makes clear that it is also
seeking: (1) a declaration that PDA is violating the Clean Water
Act; and (2) an order enjoining PDA from continuing to violate
the Clean Water Act and requiring it to comply with the Act’s
Such prospective relief falls squarely within Ex
parte Young’s scope, as it purports only to remedy continuing
violations of federal law.
See Caesars Mass. Dev. Co., LLC v.
Crosby, No. CIV.A. 13-13144-NMG, 2014 WL 2468689, at *7 (D.
Mass. May 30, 2014), aff'd sub nom. Caesars Mass. Mgmt. Co., LLC
v. Crosby, 778 F.3d 327 (1st Cir. 2015) (“the ‘pivotal question’
in deciding the prospective or retrospective character of the
requested relief is ‘whether the requested relief would directly
bring an end to an ongoing violation of federal law.’”) (quoting
Hootstein v. Collins, 670 F. Supp. 2d 110, 114 (D. Mass. 2009))
(additional citations omitted).
PDA does not, and cannot
seriously, dispute that such relief is permissible under Ex
See Defs.’ Mem. in Supp. of Mot. to Dismiss at 15.
Instead, PDA takes the position that such relief is not
authorized by Ex parte Young, because: (1) when a statute
affords a state official a choice in how to carry out an
overarching legal mandate, that official cannot be forced to
choose one particular manner; (2) CLF fails to allege an ongoing
violation of federal law; and (3) CLF’s claims are barred under
Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997).
PDA first argues that, pursuant to the regulations at issue
here, the decision to continue coverage under an individual
permit (as PDA says it has done with its Industrial Permit), or
seek permission from the EPA to revoke that individual permit
and be covered under a general permit, is a discretionary matter
left to the permittee.
And, because that decision has been left
to the permittee, PDA argues, Ex parte Young cannot be used to
force PDA to exercise its discretion to choose an MS4 Permit
The regulations upon which both parties rely are far from
clear on this particular issue, but the weight of authority
supports CLF’s position that the Clean Water Act requires
separate permits for industrial and municipal stormwater
As previously discussed, the Clean Water Act regulates
stormwater discharges from three potential sources: municipal
separate storm sewer systems, construction activities, and
PDA’s position collapses different
permitting schemes, serving discrete purposes, into one.
it has an individual permit for one source (and type) of
stormwater discharge (industrial), does not relieve PDA from its
obligation to obtain a permit for stormwater discharges of a
different type and from a different source (municipal).
concedes that it has applied, separately, for coverage under the
general permit for construction stormwater discharges.
Def.’s Reply in Supp. of Mot. to Dismiss at 16.)
Applicable regulations impose distinct permitting
requirements for industrial6 and municipal stormwater discharges.
For example, as part of the permitting process, a regulated
small MS4 operator must provide to the permitting authority: (1)
its chosen best management practices for each of the six minimum
control measures ((i) public education and outreach on
stormwater impacts; (ii) public participation and involvement;
(iii) illicit discharge detection and elimination;
(iv)construction site runoff control; (v) post-construction
stormwater management; and (vi) pollution prevention/good
housekeeping); (2) measurable goals for each minimum control
measure; and (3) estimated months and years in which actions to
The regulations define “[s]torm water discharge associated
with industrial activity” to mean “the discharge from any
conveyance that is used for collecting and conveying storm water
and that is directly related to manufacturing, processing or raw
materials storage areas at an industrial plant.” 40 C.F.R. §
implement each measure will be undertaken.
See 40 C.F.R. §
In contrast, an applicant for stormwater discharges
associated with industrial activity must provide, inter alia, a
site map, information regarding leaks or spills of toxic or
hazardous pollutants at the facility that have taken place
within the three years prior to submittal of the application,
and significant sampling data.
See 40 C.F.R. § 122.26(c)(1)(i).
The EPA’s imposition of different permitting requirements upon
these different sources of stormwater discharges gives rise to
an inference that the two sources invoke different environmental
concerns, requiring separate monitoring and management efforts.
The EPA’s Final Rule accompanying the Small MS4 regulation
does not directly address the issue.
However, it does state:
“The existing NPDES storm water program already regulates storm
water from federally or State-operated industrial sources.
Federal or State facilities that are currently regulated due to
their industrial discharges may already be implementing some of
today's rule requirements.”
Regulations for Revision of the
Water Pollution Control Program Addressing Storm Water
Discharges, 64 Fed. Reg. 68,722 (Dec. 8, 1999) (codified at 40
C.F.R. pts. 9, 122, 123 and 124).
That language suggests that
those federal and state facilities “already implementing” some
of the new requirements under existing industrial permits are
not excused from also implementing “today’s rule requirements.”
Further support is found in guidance issued by the EPA to
municipalities that are also engaged in industrial activities.
An article entitled “Industrial Activities Owned or Operated by
a Municipality in New England” includes the following
With the exception of power plants, airports, and
uncontrolled sanitary landfills, storm water
discharges associated with specific industrial
activities at facilities owned or operated by
municipalities with populations of less than 100,000
were temporarily exempted from the need to obtain
coverage under an NPDES industrial storm water permit.
Under the provisions of the NPDES Storm Water Program
Phase II Final Rule, these industrial facilities now
require permit coverage as of March 10, 2003. Unless
excluded from the category definitions under
122.26(b)(14), operators of industrial facilities or
sites with activities included in one of 11 categories
must obtain coverage under an NPDES industrial storm
water permit. A description of these categories is
provided in EPA's document entitled “Who is subject to
Phase I the NPDES Storm Water Program and needs a
Permit?” These permit requirements are separate, and
are in addition to, the requirement for designated
municipalities to obtain coverage for their storm
water discharges under the General Permit for Storm
Water Discharges from Regulated Small Municipal
Separate Storm Sewer Systems (MS4s) (a.k.a. the Phase
II or MS4 Permit).
U.S. Envtl. Protection Agency, Industrial Activities Owned or
Operated by a Municipality in New England (updated August 10,
2017), available at https://www.epa.gov/npdes27
permits/industrial-activities-owned-or-operated-municipalitynew-england (last visited Sept. 14, 2017) (emphasis added).
Separate permits are, then, required for industrial and MS4
The 2003 MS4 Permit expressly states
that stormwater discharges associated with industrial activity
and construction activity, as defined by the regulations, are
not authorized by the permit.
See 2003 MS4 Permit Part
That also supports the conclusion that a separate
permit for stormwater discharges associated with each source
(municipal, industrial and construction activities) is required.
In Puget Soundkeeper All. v. Cruise Terminals of Am., LLC,
216 F. Supp. 3d 1198, 1207–08 (W.D. Wash. 2015), the court
addressed the reverse of the argument made by PDA here.
case, plaintiff alleged that defendant was discharging
industrial stormwater runoff without the required industrial
Defendant there argued that the runoff was
already covered by its municipal stormwater permit.
reached the same result - both permits are required:
The Court agrees that the Municipal Permit may not be
adequate for the discharges to the municipal separate
sewer system. The Municipal Permit itself states that
a separate NPDES permit is required for facilities
that create stormwater discharges associated with
industrial activity. . . . In a Final Rule
implementing the NPDES regulations, EPA similarly
clarified that “discharges through a municipal storm
sewer need to be covered by an NPDES permit that is
independent of the permit issued for discharges from
the municipal separate storm sewer system.” National
Pollutant Discharge Elimination System Permit
Application Regulations for Storm Water Discharges, 55
Fed. Reg. 47990, 47995 (November 16, 1990).
At issue in that case was the Phase I MS4 permit.
distinction was not critical to the court’s determination that a
separate NPDES permit was required for municipal and industrial
Similarly, in Kleinman v. City of
Austin, No. 1:15-CV-497-RP, 2017 WL 3585792, at *5 (W.D. Tex.
Aug. 18, 2017), the court found that an MS4 stormwater discharge
permit did not cover stormwater discharges from construction
activity, and that the defendant’s reliance upon its MS4
discharge permit was misplaced.
In sum, because PDA’s argument is focused on the
distinction between individual and general permits, not the
distinction between industrial permits and small MS4 permits, it
To be sure, under 40 C.F.R. § 122.28(b)(4), an
individual permit holder has the discretion to request that its
individual permit be revoked, and that it be covered instead by
a general permit.
But that discretion belongs to an individual
small MS4 permittee who seeks instead to be covered by a general
small MS4 permit.
In other words, PDA’s argument that it cannot
be required to obtain a general MS4 permit because it has chosen
instead to be covered by an individual (Industrial) permit is a
bit of a red herring.
PDA does not have an individual small MS4
PDA does not have discretion to choose between applying for
an industrial stormwater discharge permit or a small MS4
stormwater discharge permit.
If PDA does, in fact, qualify as
an operator of an industrial facility under the regulations, and
as an operator of a regulated small municipal separate storm
sewer system, PDA is required to secure permit coverage to
discharge both its industrial and its municipal stormwater.
Obtaining a municipal stormwater permit under the Clean
Water Act is not a matter committed to PDA’s discretion.
Ongoing Violation of Federal Law
Defendant next argues that CLF’s claims for injunctive
relief all arise out of PDA’s purported failure to obtain
coverage under the 2003 MS4 Permit. But, PDA says, that 2003 MS4
Permit expired after five years, on May 1, 2008.
Once the 2003
MS4 Permit expired, no one, including PDA, could seek coverage
under the permit.
So, PDA argues, even if the court were to
conclude that PDA’s failure to secure coverage under the 2003
MS4 Permit violated the CWA, there is “nothing to ‘prospectively
enjoin’ because there is no general permit in place to secure.”
Def.’s Mem. in Supp. of Mot. to Dismiss at 20.
PDA’s argument rests upon a misunderstanding of the
majority of CLF’s claims.
PDA is likely correct with respect to
CLF’s claim that PDA violated the Clean Water Act by failing to
submit a Notice of Intent to be covered under the 2003 MS4
Permit (Count III) prior to its expiration in 2008.
can only be characterized as a past violation.
Mass. Dev. Co., LLC v. Crosby, 2014 WL 2468689, at *7 (finding
Gaming Commission’s determination that plaintiff was not a
suitable applicant did not constitute a “continuing violation of
federal law but, rather, at most a past violation the record of
which continues to be available and have ongoing effects. . . .
In light of the allegation that the suitability investigation
was conducted unconstitutionally, plaintiff's requested relief
cannot ensure future compliance with a substantive legal
However, the majority of CLF’s claims are not so narrow.
CLF more broadly asserts that PDA is currently violating the
Clean Water Act in an ongoing manner by continually discharging
water without complying with the Act’s permitting requirements
for small municipalities, and by discharging municipal
stormwater into the waters of the United States without the
See, e.g., Compl. Count I, Count II.
sufficiently alleged an ongoing violation of federal law for Ex
parte Young purposes at this stage of the litigation.
v. Alta Verde Indus., Inc., 931 F.2d 1055, 1063 (5th Cir. 1991)
(addressing standing requirement for citizen suit under the
Clean Water Act that plaintiffs allege a “continuous or
intermittent violation,” and finding that a discharger operating
without a permit "remains in a continuing state of violation
until it either obtains a permit or no longer meets the
definition of a point source.”).
Core Sovereignty Interests
Finally, PDA argues that CLF’s claims are barred under
Idaho v. Coeur d’Alene Tribe, a case in which the Supreme Court
created an exception to Ex parte Young when a suit for
prospective relief from an ongoing violation of federal law
“implicates special sovereignty interests.”
521 U.S. at 307.
PDA contends that “special sovereignty interests” exist here, as
the New Hampshire Legislature has recognized that it is “in the
public interest and to be the policy of the state to foster and
promote the redevelopment of Pease Air Force Base.”
in Supp. of Mot. to Dismiss at 23 (quoting NH RSA 12-G:1, II).
As PDA points out, and as addressed herein, several of
CLF’s claims are duplicative.
Subjecting PDA’s redevelopment efforts to some of the small MS4
stormwater permitting requirements (such as implementation of
controls on new development and construction, as well as “smart
growth” provisions) could result in “significant potential
brakes on economic development,” PDA argues.
Id. at 24.
PDA contends, CLF is seeking to require PDA to adopt
regulations, ordinances and rules that are decidedly
inconsistent with what New Hampshire had determined to be in its
interest, i.e. the “speedy and proper redevelopment” of the
Pease Air Force Base.
Id. at 25.
Because redevelopment of
Pease implicates New Hampshire’s sovereign interest in its use
and regulation of its land, as well as the state’s authority to
protect its citizens from “economic catastrophe,” id. at 26, PDA
argues that Ex parte Young does not apply under the Coeur
D’Alene Tribe rule.
Coeur D’Alene does not apply to the facts of this case.
Its application is plainly limited to “egregious” situations in
which the relief requested would completely divest the state of
sovereign control over its land.
Mot. to Dismiss at 38.
Pl.’s Mem. in Supp. of Obj. to
The relief CFL seeks does not threaten
New Hampshire’s sovereignty.
New Hampshire will have no lesser
claim of title or regulatory control over PDA’s land than it had
In Coeur D’Alene Tribe, the tribe filed suit against Idaho
state officials, arguing an interest under federal law to the
banks, beds and submerged lands of Lake Coeur d’Alene, and the
rivers and streams forming its waterway.
521 U.S. at 264-65.
The court found that the Tribe’s action was not permitted by Ex
Id. at 281.
“Because of the historical and legal
importance of submerged lands to state sovereignty, the Court
held that ‘if the Tribe were to prevail, Idaho's sovereign
interest in its lands and waters would be affected in a degree
fully as intrusive as almost any conceivable retroactive levy
upon funds in its Treasury.’”
Lacano Investments, LLC v.
Balash, 765 F.3d 1068, 1073 (9th Cir. 2014) (quoting Coeur
d’Alene, 521 U.S. at 287-88).
Because the Tribe sought to
“divest the State of all regulatory power over submerged land —
in effect to invoke a federal court’s jurisdiction to quiet
title to sovereign lands — it simply cannot be said that the
suit is not a suit against the State.”
at 296 (O’Connor, J., concurring).
Coeur d’Alene, 521 U.S.
“Thus, ‘[t]he dignity and
status of its statehood allow[ed] Idaho to rely on its Eleventh
Amendment immunity,’ and the Court ordered the Tribe's action
Lacano Investments, 765 F.3d at 1073 (quoting Coeur
d’Alene, 521 U.S. at 287-88).
While our court of appeals has not directly considered what
types of action might implicate the “special sovereignty
interests” of a state, in Neo Gen Screening, Inc. v. New England
Newborn Screening Program, the court seemed to limit Coeur
d’Alene’s application to circumstances involving transfers of
187 F.3d 24, 28 (1st Cir. 1999) (“It is quite true
that Ex Parte Young avoids the Eleventh Amendment defense where
prospective injunctive relief, not involving damages or property
transfer, is sought against named state officials for a
violation of federal law.”) (citing Coeur d'Alene, 521 U.S. at
276–77) (emphasis added).
And, the majority of courts that have
directly addressed the issue have defined a state’s “special
sovereignty interests” quite narrowly.
See Charles Alan Wright,
Arthur R. Miller, & Edward H. Cooper, 17A Fed. Prac. & Proc.
Juris. § 4232 (3d ed.) (“Lower courts have been reluctant to use
the special state sovereignty interest rationale to limit Ex
Parte Young relief.”) (collecting cases).
While not directly on point, Clean Air Council v. Mallory,
226 F. Supp. 2d 705 (E.D. Pa. 2002), is nevertheless
In that case, an environmental organization sought
to enforce certain Clear Air Act requirements arising out of the
state’s failure to implement the motor vehicle inspection and
maintenance program required by the state’s EPA-approved
The defendants in that case argued that
the state had a “special sovereignty interest” in the design of
its vehicle inspection and maintenance program, and “enforcing
(or not enforcing) state regulations.”
Id. at 717.
found that argument unpersuasive, noting: “[t]he discrete
remedial action sought by plaintiff in this case –
implementation of the final emission cutpoints contained within
the EPA-approved Pennsylvania [state implementation plan] – does
not amount to the type of expansive and permanent intrusion on
sovereignty interests sought by plaintiffs in Coeur d’Alene.”
CLF’s complaint makes clear that it is not seeking to
divest the State’s interests in Pease International or impede
its regulatory control.
CLF simply wants PDA to abide by the
Clean Water Act’s small MS4 permitting requirements.
the relief requested does not implicate “special sovereignty
interests” similar to those in Coeur d’Alene.
See Rhode Island
Res. Recovery Corp. v. Rhode Island Dep't of Environmental
Mgmt., No. CA 05-4151 ML, 2006 WL 2128904, at *5 (D.R.I. July
26, 2006) (“It is clear from its prayer for relief that
[plaintiff] does not seek to remove the Superfund Site from all
state authority or control.
For that reason, the ‘special
sovereignty interests’ implicated in the Coeur d'Alene decision
are not invoked, 521 U.S. at 281–82, and the Ex parte Young
exception to sovereign immunity functions normally.”)
Along similar lines, PDA argues that imposition of the MS4
regime would require the state to pass certain ordinances and
regulations to accomplish a federal mandate, which, says PDA,
would create “grave Tenth Amendment concerns.”
Def.’s Mem. in
Supp. of Mot. to Dismiss at 27.
PDA concedes that the two circuit courts of appeal to have
addressed the issue have concluded that the MS4 regulations at
issue do not violate the Tenth Amendment.
See Envtl. Def. Ctr.,
Inc. v. EPA, 344 F.3d at 847-48; City of Abilene v. United
States EPA, 325 F.3d 657, 663 (5th Cir. 2003).
In Envtl. Def.
Ctr., Inc. v. EPA, 344 F.3d at 847, the Court of Appeals for the
Ninth Circuit noted that the small MS4 regulations give
operators “a choice: either implement the regulatory program
spelled out by the Minimum Measures described at 40 C.F.R. §
122.34(b), or pursue the Alternative Permit option and seek a
permit under the Phase I Rule as described at 40 C.F.R. §
Thus, the court concluded, the “Phase II Rule does
not violate the Tenth Amendment.”
The court went on to
Pursuing a permit under the Alternative Permit
option does require permit seekers, in their
application for a permit to discharge, to propose
management programs that address substantive concerns
similar to those addressed by the Minimum Measures.
See 40 C.F.R. § 122.26(d). However, § 122.26(d) lists
the requirements for an application for a permit to
discharge, not the requirements of the permit itself.
Therefore, nothing in § 122.26(d) requires the
operator of an MS4 to implement a federal regulatory
program in order to receive a permit to discharge,
because nothing in § 122.26(d) specifies the contents
of the permit that will result from the application
Similarly, in City of Abilene v. EPA, 325 F.3d 657, the
Court of Appeals for the Fifth Circuit stated:
Even assuming arguendo that the Cities'
storm water discharge permits require them to
implement a federal regulatory program, the
Cities cannot establish a Tenth Amendment
violation without demonstrating that they had no
other option but to regulate according to federal
standards. Here, the Cities were offered a
choice between the permits at issue, which
require implementation of the challenged
management programs, and the numeric end-of-pipe
permits, which would have required compliance
with rigid effluent limitations. The Cities
chose the former. Thus, the Cities' Tenth
Amendment challenge fails unless the alternative
numeric end-of-pipe permits presented by the EPA
would also have exceeded the Federal Government's
authority under the Constitution
Id. at 662–63.
The Fifth Circuit then concluded that because
“the Cities voluntarily chose the management permits over
permits that did not require the Cities to regulate according to
federal standards, the Cities have not been compelled to
implement a federal regulatory scheme.
Amendment challenge fails.”
Accordingly, their Tenth
Id. at 663.
While not binding,
Envtl. Def. Ctr. and City of Abilene v. EPA provide persuasive,
well-reasoned analysis supporting the court’s conclusion that
the small MS4 requirements do not violate the Tenth Amendment.
PDA persists, however, suggesting that this action is
distinguishable from both Envtl. Def. Ctr. and City of Abilene
v. EPA because here, CLF seeks to require PDA to obtain coverage
under the 2003 MS4 Permit, which would not allow PDA the option
of applying for an Alternative Permit instead.
discussed, however, PDA misinterprets CLF’s complaint.
not simply challenging PDA’s failure to obtain the 2003 MS4
Permit, but rather PDA’s continuing failure to comply with the
Clean Water Act’s small MS4 permitting requirements.
In sum, to the extent CLF is seeking civil penalties
against PDA, and claiming that PDA violated the CWA by its
failure to submit an NOI to be covered by the 2003 MS4 Permit
(Prayers for Relief (e), (f); Claim III), such relief and claims
are barred by the Eleventh Amendment.
However, CLF’s remaining
claims seeking prospective equitable relief fall within the Ex
parte Young exception to the Eleventh Amendment.
PDA next argues that CLF’s claims must be dismissed for
lack of standing.
That is because, PDA contends, CLF’s
allegations are insufficient to establish injury, or that its
members’ purported injuries were caused by the alleged Clean
Water Act violations.
PDA further contends that, even if CLF
had adequately alleged injury or causation, CLF lacks standing
because the court cannot redress CLF’s alleged injuries.
Our court of appeals has recognized that
the injury-in-fact component of the constitutional standing
analysis “may be satisfied by environmental or aesthetic
Dubois v. United States Dept. of Agric., 102 F.3d
1273, 1281 (1st Cir. 1996) (citing United States v. Students
Challenging Regulatory Agency Procedures, 412 U.S. 669, 686
(1973)); Sierra Club v. Morton, 405 U.S. 727, 734 (1972)).
Further, the injury alleged “need not be ‘significant’; a
‘small’ stake in the outcome will suffice if it is ‘direct.’”
Dubois, 102 F.3d at 1281.
The Supreme Court has held “that
environmental plaintiffs adequately allege injury in fact when
they aver that they use the affected area and are ‘persons for
whom the aesthetic and recreational values of the area will be
lessened’ by the challenged activity.”
Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183,
(2000) (quoting Sierra Club v. Morton, 405 U.S. at 735, and
citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 562–63
(1992) (“Of course, the desire to use or observe an animal
species, even for purely esthetic purposes, is undeniably a
cognizable interest for purposes of standing.”)).
PDA argues that, without supporting affidavits detailing
how its members were injured, CLF cannot establish injury.
Def.’s Mem. in Supp. of Mot. to Dismiss at 29.
In response, and
in support of its opposition to PDA’s motion to dismiss, CLF
submitted declarations from two of its members: Helen Frink, coowner of a family farm located near Pease International, who
uses Little Bay and the Piscataqua River for recreational
purposes and has consumed fish from its waters; and Mitchell
Kalter, a New Hampshire Seacoast resident who is a longtime user
of the Great Bay estuary for recreational purposes.
Opp. to Mot. to Dismiss, Exhs. A and B.
Both Frink and Kalter
express concerns regarding increased pollution of the waters of
the Great Bay estuary, and aver that the pollution has adversely
affected their use and enjoyment of the estuary.
Kalter both say that potential pollution from Pease
International will impact their future enjoyment of the waters,
and that their use and enjoyment of the estuary would be
enhanced were the waters less polluted.
Those declarations sufficiently establish that Frink and
Kalter, as CLF members, have suffered actual injury.
Conservation Law Found., Inc. v. Cont’l. Paving, Inc., No. 16CV-339-JL, 2016 WL 7116019, at *4 (D.N.H. Dec. 6, 2016); see
also Conservation Law Found., Inc. v. Plourde Sand & Gravel Co.,
No. 13-CV-214-SM, 2014 WL 5781457, at *7 (D.N.H. Nov. 6, 2014).
Consequently, CLF has satisfied the “injury-in-fact” requirement
of Article III standing.
PDA argues that CLF has not sufficiently
alleged that its members were exposed to more pollutants, or
pollutants of a different quality, because of PDA’s purportedly
The court addressed a nearly identical
argument in Conservation Law Found., Inc. v. Plourde Sand &
Gravel Co., 2014 WL 5781457, at *7-8:
A plaintiff alleging permitting violations under the
CWA . . . is not required to demonstrate, or even
allege, that the defendant's discharge of pollutants
would be any less had it obtained a permit in order to
sufficiently allege standing, or even state a claim
under the CWA. See Dubois, 102 F.3d at 1281–83, 1296.
In Dubois, the court recognized that the “most
important component of the [Clean Water Act] is the
requirement that an NPDES permit be obtained” before
discharging pollutants from any point source into
waters of the United States. Id. at 1294, 1296. That
interpretation is confirmed by the Supreme Court and
the statutory language itself. See 33 U.S.C. §
1342(p) (requiring a permit for “discharge associated
with industrial activity”); Laidlaw, 528 U.S. at 174
(stating “Noncompliance with a permit constitutes a
violation of the [Clean Water Act]”).
In this case, brought under the CWA, CLF alleges that
Plourde's discharge of any storm water associated with
industrial activity and pollutants is illegal activity
because Plourde is required to obtain a permit to
discharge any amount. . . . Since CLF has adequately
alleged that Plourde is, without the requisite permit,
discharging pollutants from point sources, including
site grading, surface water channels, subsurface
hydrological connections, and detention ponds, into
waters of the United States, and that the unlawful
discharges have caused it and its members harm, CLF
has also sufficiently alleged, at least at the
pleading stage, that its injury is “fairly traceable”
to Plourde's allegedly illegal conduct.
Id. at *8.
So too, here.
Nothing more need be said at this
stage of the litigation.
Moving to PDA’s redressability argument,
PDA contends that the requested injunctive relief will not
redress CLF’s alleged injuries.
That is because, PDA says,
CLF’s requested injunction requiring PDA to comply with the 2003
MS4 Permit will not redress any injuries already suffered.
The court has largely resolved PDA’s contentions regarding
the ongoing effect of its purported violations of the CWA.
stated supra, PDA’s argument in that regard generally rests on a
misunderstanding of the majority of CLF’s claims, which
challenge PDA’s ongoing discharge of stormwater associated with
municipal activity without having first obtained the requisite
permit, and not merely PDA’s past failure to file an NOI for the
2003 MS4 Permit.
PDA next argues that an injunction would not prevent future
injuries because, if the court ordered PDA to comply with the
MS4 regulations, the only way that PDA could secure coverage
under the MS4 regime would be to file a Notice of Intent with
EPA to request coverage under the 2003 MS4 Permit.
says, EPA would necessarily deny that coverage because (1) EPA
cannot authorize coverage under a general permit to an entity
like PDA that holds an individual permit; and (2) EPA cannot
authorize discharges under an MS4 Permit because there is
currently no effective MS4 Permit (because the 2003 MS4 Permit
expired in 2008).
Therefore, PDA says, CLF’s requested
equitable relief is unattainable, and the injuries complained of
(discharge without a permit) are not redressable.
PDA’s argument is unpersuasive because it is not consistent
with the relevant regulatory scheme.
Pursuant to 40 C.F.R. §
122.33(b), an operator of any regulated small MS4 must seek
authorization to discharge under a general or individual NPDES
permit, as follows: (1) through a Small MS4 general permit; (2)
through an individual NPDES permit meeting the requirements of
40 C.F.R. § 122.34(b)(1)-(6); or (3) through an individual NPDES
permit that meets the requirements for large and medium
municipal separate storm sewer systems pursuant to 40 C.F.R. §
PDA is seemingly correct that it cannot now
secure coverage under the general 2003 MS4 Permit.
offers no explanation as to why it cannot secure MS4 permit
coverage by applying for an individual NPDES permit, or by
submitting an NOI to be covered under the general 2017 MS4
Permit, or, for that matter, by pursuing an alternative permit
pursuant to 40 C.F.R. § 122.33(b)(2)(ii).
To satisfy redressability, plaintiffs must show “a
likelihood that the requested relief will redress the alleged
Steel Co. v. Citizens for a Better Environment, 523
U.S. 83, 103 (1998).
Here, CLF has complained of harm to the
quality of the waters of the Great Bay estuary resulting from
PDA’s purported failure to obtain a permit for its municipal
Should PDA be required to obtain a small
MS4 permit for those discharges and comply with that permit’s
terms, as is likely, those discharges (and, consequently,
pollution in the Great Bay estuary) will presumably decrease or
at least be monitored and amenable to future controls.
Accordingly, the court finds that CLF has adequately alleged
that their members’ injuries are “likely to be redressed by a
favorable decision” in this action.
Valley Forge Christian
Coll. v. Americans United for Separation of Church & State,
Inc., 454 U.S. 464, 472 (1982).
In sum, CLF’s allegations that CLF is discharging municipal
stormwater into waters of the United States, including the
waters of the Great Bay estuary, without having first obtained
the requisite permit, and without complying with regulatory
requirements, and that those illegal discharges result in harm
to at least two of its identified members, are sufficient, at
this stage, to confer standing.
Failure on the Merits
PDA makes three arguments in support of its position that
the Court should dismiss CLF’s claims on the merits under Fed.
R. Civ. P. 12(b)(6).
First, PDA argues, it did not violate the
CWA by not seeking coverage under the 2003 MS4 Permit because:
(1) the CWA does not allow individual permittees (like PDA) to
be covered by a general permit; and (2) the 2003 MS4 Permit has
been expired since 2008, and PDA was therefore precluded from
seeking coverage since that time.
The court has addressed both
of those arguments supra, and, for the reasons given, neither
argument is persuasive.
Second, PDA argues that its stormwater discharges cannot
violate the CWA as a matter of law because it always had a
permit for those discharges.
PDA points out that, at the time
of the permit’s issuance, an industrial stormwater permit was
the only existing regulatory mechanism for regulating discharges
from entities like PDA that were not covered by any of the other
“Phase I” categories (like large and medium MS4s).
PDA applied for an industrial stormwater permit, PDA was
actually applying for authorization to discharge what CLF now
labels “municipal” stormwater.
Therefore, PDA argues, its individual Industrial Permit
comprehensively covers its stormwater discharges, “including
what is now called municipal stormwater and stormwater from
industrial activities, before the 2003 Small MS4 Permit even
Pl.’s Reply in Supp. of Mot. to Dismiss at 16.
because its existing permit covers all stormwater discharges
from Pease International, PDA says, its discharges were in
compliance with the Clean Water Act.
In other words, PDA
contends, “PDA’s permit allowed it to discharge stormwater from
the entire site through Outfalls 001-004 and continuing to do so
cannot result in a violation.”
Id. at 18.
“Although the statute authorizes the court to enforce the
Clean Water Act against violators, it also provides — in the socalled shield provision — that compliance with an effective
permit is compliance with the statute.”
U.S. Pub. Interest
Research Grp. v. Atl. Salmon of Maine, 339 F.3d 23, 29 (1st Cir.
2003) (citing 33 U.S.C. § 1342(k)) (additional citations
That provision is set out in Section 402(k) of the
Clean water Act, 33 U.S.C. § 1342(k), “which defines compliance
with a NPDES . . . permit as compliance with Section 301 for the
purposes of the CWA's enforcement provisions.”
Legal Found., Inc. v. Eastman Kodak Co., 12 F.3d 353, 357 (2d
Cir. 1993), as amended (Feb. 3, 1994).
In another words, while
the Clean Water Act prohibits the discharge of any pollutant
into the waters of the United States, an “NPDES permit sets out
the allowable departures from the CWA’s baseline of total
liability for discharges of effluent.”
Piney Run Assn. v.
County Comm'rs, 268 F.3d 255, 266 (4th Cir. 2001) (citation
“Assuming that [permit holders] follow the terms of
their NPDES permits, . . . permit holders avoid CWA liability.”
Id. at 265.
“The purpose of the [permit] shield is ‘to insulate permit
holders from changes in various regulations during the period of
a permit and to relieve them of having to litigate in an
enforcement action the question whether their permits are
Sierra Club v. ICG Hazard, LLC, 781 F.3d
281, 285 (6th Cir. 2015) (quoting E.I. du Pont de Nemours & Co.
v. Train, 430 U.S. 112, 138 n. 28 (1977)).
the defense have held that a permittee will be shielded from
liability under the Clean Water Act, if: (1) it complies with
its existing permit’s terms; and (2) only discharges pollutants
disclosed to the permitting agency and within the “reasonable
contemplation” of the Agency during the permitting process.
Piney Run, 268 F.3d at 259.
CLF argues that PDA’s municipal discharges and operations
are not addressed under PDA’s Industrial Permit (which focuses
on industrial activity), and were not intended to be covered
under that permit because: (1) the permitting program for small
MS4s did not exist at the time of PDA’s industrial permit
application; and (2) PDA’s development of Pease International
into an MS4 had not yet occurred.
However, CLF fails to explain
how those factors impact PDA’s assertion of the permit shield
As previously discussed, the EPA’s permitting schemes for
industrial and municipal stormwater discharges are separate and
Therefore (assuming that PDA is a regulated small
MS4), PDA’s permit for its industrial stormwater discharges does
not obviate the Clean Water Act’s requirement that PDA also
obtain a permit for municipal stormwater discharges.
as PDA points out, PDA is in a seemingly unique position.
Def.’s Reply in Supp. of Mot. to Dismiss at 16.
That is because
PDA currently has a pre-Phase II industrial stormwater permit
which it contends covers all stormwater discharges from the
And, assuming that PDA’s Industrial Permit
does account for pollutants that are discharged by the Pease
International as a result of stormwater (or that pollutants
resulting from those discharges were within the reasonable
contemplation of EPA), and that PDA is in full compliance with
that permit, PDA’s discharge of stormwater pollutants in
compliance with its NPDES industrial permit would likely qualify
for the permit shield defense.
But, says CLF, PDA has not, in fact, complied with the
requirements for asserting the permit shield defense.
argues that PDA did not disclose its discharges of pollutants to
the EPA, or comply with the Industrial Permit’s terms.
argument in that regard makes clear that the applicability of
the permit shield defense cannot be resolved on a motion to
dismiss in this case.
The parties’ arguments regarding the
defense raise questions well beyond the factual allegations in
CLF’s complaint, and draw support from extrinsic evidence not
properly before the court at this early stage of the litigation.
Accordingly, at this juncture, the court denies PDA’s motion to
dismiss CLF’s claim on the basis of the permit shield defense.
PDA is, of course free to raise the defense at the summary
judgement stage, supported by a fully developed record and
Finally, PDA argues that many of the violations asserted by
CWA are duplicative.
The court agrees, specifically with
respect to counts 4 through 7.
Each of those counts rely on 40
C.F.R. § 122.34(a)’s requirement that a permittee develop a
stormwater management plan designed to reduce the discharge of
pollutants from its MS4 to the “maximum extent practicable.”
PDA points out, it does not have, nor did it ever have, an MS4
permit, and therefore cannot have violated a permitting
obligation to develop a stormwater management plan.
critically, whether that purported violation can be remedied in
a citizen suit under 33 U.S.C. § 1364 is a question to which
neither party devotes sufficient attention.
court declines to address PDA’s argument that CLF’s claims are
duplicative until the parties have adequately briefed the issue.
For the foregoing reasons, as well as those set forth in
CLF’s briefing, PDA’s motion to dismiss CLF’s complaint
(document no. 10) is GRANTED in part, as set forth herein, but
is otherwise DENIED.
Steven J. McAuliffe
United States District Judge
September 26, 2017
Trisha Grant, Esq.
Matthew Wisnieff, Esq.
Seth Kerschner, Esq.
Thomas F. Irwin, Esq.
Zachary K. Griefen, Esq.
Dianne H. Martin, Esq.
James P. Harris, Esq.
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