United States District Court, W.D. Washington, Seattle
JOHN C. COUGHENOUR, District Judge.
This matter comes before the Court on the parties' cross-motions for summary judgment (Dkt. Nos. 28, 48). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES Plaintiffs' motion (Dkt. No. 28) and GRANTS Defendant's motion (Dkt. No. 48) for the reasons explained herein.
The objective of the Clean Water Act ("the Act") "is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The Act requires states to develop water quality standards, which "define the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria necessary to protect the uses." 40 C.F.R. § 130.3. States must review their water quality standards at least once every three years and submit any new or revised standards for the approval of the Administrator of the Environmental Protection Agency ("EPA"). 33 U.S.C. § 1313(c); 40 C.F.R. § 131.21. This process is commonly known as the "triennial review." The EPA must approve or disapprove the standards. 33 U.S.C. § 1313(c)(3). If it disapproves the submitted standards, then it must eventually "promptly prepare and publish proposed regulations setting forth a revised or new water quality standard." 33 U.S.C. § 1313(c)(4). Even if a state has not submitted standards for approval, the EPA may sua sponte determine that a new or revised standard is necessary, a determination that also triggers its mandatory duty to publish proposed regulations. Id.
This case concerns the fish consumption rate established by the State of Washington. The fish consumption rate reflects one use of the waters, and is a component of the water quality standards. See 33 U.S.C. § 1313(c)(2)(A); 40 C.F.R. § 131.3(i); (Dkt. Nos. 28 at 7, 48 at 10.) Plaintiffs contend-and the EPA does not dispute-that Washington's current fish consumption rate underestimates the amount of fish consumed by Washington residents. The practical effect of this is that fish and shellfish contain more toxins than they should given how much fish some people eat. Washington State's Department of Ecology ("Ecology") is currently in the process of revising the state's human health criteria using a revised fish consumption rate. (Dkt. No. 49.)
Although this case arose out of concern about the fish consumption rate, the actual rate is not at issue. Instead these summary judgment motions implicate a narrow question about the legal effect of an email and letters sent to Ecology by individuals at the EPA. Plaintiffs contend that these communications constitute a legal determination that the fish consumption rate is inadequate. And having made such a determination, the EPA has a mandatory statutory obligation to promptly promulgate revised standards. Defendant argues that there has been no statutorily relevant determination and that this Court therefore lacks jurisdiction.
A. Summary Judgment
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those that may affect the case's outcome. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine if there is enough evidence for a reasonable jury to return a verdict for the nonmoving party. See id. at 49. At the summary judgment stage, evidence must be viewed in the light most favorable to the nonmoving party, and all justifiable inferences must be drawn in the nonmovant's favor. See Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011).
B. The Clean Water Act
Federal jurisdiction exists pursuant to 33 U.S.C. § 1365(a), which provides that "any citizen may commence a civil action... against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." 33 U.S.C. § 1365(a)(2). Absent the violation of a non-discretionary duty, this Court lacks jurisdiction. See Northwest Envtl. Advocates v. United States Envtl. Prot. Agency, 268 F.Supp.2d 1255, 1262 (D. Or. 2003) ("Because the condition precedent for bringing a citizen suit has not been met, this court lacks jurisdiction over plaintiff's second claim for relief.").
The source of any non-discretionary duty in this case is 33 U.S.C. § 1313(c)(4). That provision states:
The Administrator shall promptly prepare and publish proposed regulations setting forth a revised or new water quality standard for the navigable waters involved-
(A) if a revised or new water quality standard submitted by such State under paragraph (3) of this subsection for such waters is determined by the Administrator not to be consistent with ...