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Center for Biological Diversity v. United States Environmental Protection Agency

United States District Court, W.D. Washington, Seattle

February 18, 2014

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

ORDER DENYING MOTION TO INTERVENE

JAMES L. ROBART, District Judge.

I. INTRODUCTION

Before the court is the Western States Petroleum Association and the American Petroleum Institute's (collectively, "Proposed Intervenors") motion to intervene pursuant to Federal Rule of Civil Procedure 24. ( See Mot. (Dkt. #14).) In this case, Plaintiff Center for Biological Diversity ("CBD") challenges the United States Environmental Protection Agency's ("EPA") decision to approve Washington's and Oregon's lists of "impaired waters" under Section 303(d) of the Clean Water Act, 33 U.S.C. 1313(d). ( See generally Compl. (Dkt. #1).) CBD opposes the motion to intervene in its entirety; Defendants oppose the motion to the extent it requests intervention as of right under Federal Rule of Civil Procedure 24(a)(2). ( See CBD Resp. (Dkt. #18); EPA Resp. (Dkt. #19).) Having considered all submissions in favor of and against the motion, the balance of the record, and the relevant law, and no party having requested oral argument, the court denies the motion to intervene, but grants amicus curiae status to the Proposed Intervenors.

II. BACKGROUND

A. Clean Water Act

Congress enacted the Clean Water Act ("CWA") "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" and to attain "water quality which provides for the protection and propagation of fish, shellfish, and wildlife." 33 U.S.C. § 1251(a). The CWA prohibits discharges of pollutants from point sources into water bodies absent compliance with a national pollution discharge elimination system ("NPDES") permit. 33 U.S.C. § 1311(a); 1362(12), (14). A NPDES permit allows the holder to discharge pollutants at levels below thresholds incorporated in the permit; a permit may include both technology-based and water quality criteria standards. 33 U.S.C. § 1311(b), 1342(a); 40 C.F.R. § 122.1 et seq. The states of Washington and Oregon administer NPDES permits for point sources within their jurisdiction. See generally Wash. Admin. Code 463-76-005 et seq.; Or. Admin. R. XXX-XXX-XXXX et seq.

1. Water quality standards

The CWA also requires each state to establish water quality standards for bodies of water within the state's boundaries. 33 U.S.C. § 13131(a)-(c). These standards include (1) designated beneficial uses for waters, (2) narrative and/or numeric water quality criteria, which define the amounts of pollutants permissible to maintain the designated beneficial uses, and (3) anti-degradation requirements, which protect existing in-stream uses and high quality waters. 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 131.10-12.

2. Section 303(d) list of impaired waters

Section 303(d) of the CWA requires states to establish a list of impaired or threatened water bodies within their boundaries for which existing pollution controls are not stringent enough to meet the applicable water quality standards. 33 U.S.C § 1313(d)(1); 40 C.F.R. § 130.7. States must submit this list every two years to EPA for approval; EPA must approve, disapprove, or partially disapprove a state's list within 30 days of its submission. 33 U.S.C. § 1313(d)(2); 40 C.F.R. § 130.7(d)(2). If EPA disapproves a state's list, EPA must within 30 days of the date of disapproval establish a list of waters that should have been listed as impaired. 33 U.S.C. § 1313(d)(2); 40 C.F.R. § 130.7(d)(2). EPA must solicit and consider public comment on such listings. 40 C.F.R. § 130.7(d)(2).

3. Total maximum daily loads

For waters listed as impaired on the section 303(d) list, the state must establish a total maximum daily load ("TMDL") for a pollutant "preventing or expected to prevent attainment of water quality standards." 40 C.F.R. § 130.7(c)(1)(ii); 33 U.S.C. § 1313(d)(1)(C). A TMDL defines the maximum amount of a pollutant that can be added to an impaired water body from all combined sources without exceeding water quality standards. See Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1520 (9th Cir. 1995). EPA must approve or disapprove TMDLs established by states. 33 U.S.C. § 1313(d)(2). TMDLs themselves do not regulate specific sources of pollutants, but instead inform the design and implementation of other pollution control measures, such as individual discharge permits and state water quality management plans. See Pronsolino v. Nastri, 291 F.3d 1123, 1129 (9th Cir. 2002); 33 U.S.C. § 1313(e); 40 C.F.R. § 130.6.

B. CBD's Allegations

Ocean acidification occurs when the chemistry of seawater is altered such that it becomes more acidic and its pH declines. (Compl. ¶ 40.) Absorption of carbon dioxide from the atmosphere is one cause of ocean acidification. ( Id. ) Ocean acidification can pose a threat to marine animals and ecosystems because, among other things, it impairs the ability of organisms, such as oysters and coral, to build calcium-carbonate-based shells and other skeletal structures. ( Id. ¶ 50.) CBD alleges that Washington's and Oregon's coastal waters are especially vulnerable to ocean acidification. ( Id. ¶ 43.)

Both Washington and Oregon have established water quality standards that are relevant to ocean acidification. ( Id. ¶¶ 56-57, 67 (citing Wash. Admin. Code Ch. 173-201a; Or. Admin. R Ch. 340-041).) CBD alleges that because Washington and Oregon's ocean waters do not attain certain of these water quality standards, "each segment" of the states' coastal waters should be included the states' respective Section 303(d) lists of impaired waters. ( Id. ¶¶ 66, 75.)

EPA approved Washington's Section 303(d) list of impaired waters on December 21, 2012, and Oregon's Section 303(d) list of impaired waters on December 14, 2012. ( Id. ¶¶ 36, 39.) Neither of these lists identifies any coastal waters as threatened or impaired by ocean acidification. ( Id. ¶¶ 34, 38.)

Accordingly, CBD filed this action requesting (1) a declaration that EPA's decision to approve Washington and Oregon's Section 303(d) lists of impaired waters was arbitrary and capricious and either (2) an order compelling EPA to disapprove of Washington and Oregon's lists and identify waters impaired by ocean acidification within 30 days or (3) an order vacating and remanding the approvals to EPA for a new determination. ( Id. § VIII.)

C. Motion to Intervene

The Western States Petroleum Association and the American Petroleum Institute (collectively, "Proposed Intervenors") now move to intervene in this action. ( See generally Mot.) The Western States Petroleum Association is a non-profit private trade association that represents the interests of the petroleum and petroleum-products industry in Washington, Oregon, Arizona, California, Nevada, and Hawaii. (Holmes Dec. (Dkt. #15).) The American Petroleum Institute is a national trade association representing over 500 member companies involved in all aspects of the oil and natural gas industry. (Schild Dec. (Dkt. #17).) Both organizations include member companies who own and operate refineries in the State of Washington that discharge treated industrial wastewater into marine waters pursuant to NPDES permits issued by the State of Washington. (Holmes Dec. ¶¶ 5-7; Schild Dec. ¶¶ 3-5, Exs. A-D.) CBD ...


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