United States District Court, E.D. Washington
ORDER GRANTING PERMANENT INJUNCTION AND SUMMARY
JUDGMENT IN PLAINTIFF'S FAVOR
SALVADOR MENDOZA, JR. United States District Judge.
April 13, 2017, the Court held a hearing on Plaintiff Center
for Environmental Law and Policy's (CELP) motion for
Permanent Injunction and Entry of Judgment, ECF No. 49. At
the hearing, the Court granted CELP's request for a
permanent injunction, with terms outlined by the Court. ECF
No. 74. This Order memorializes and supplements the
Court's oral ruling.
enacted the Clean Water Act (CWA) “to restore and
maintain the chemical, physical, and biological integrity of
the Nation's waters.” 33 U.S.C. § 1251(a).
Consistent with this goal, “[a] cornerstone of the
[CWA] is that the ‘discharge of any pollutant' from
a ‘point source' into navigable waters of the
United States is unlawful unless the discharge is made
according to the terms of an [National Pollutant Discharge
Elimination System (NPDES)] permit . . . .”
Ass'n to Protect Hammersley, Eld, and Totten Inlets
v. Taylor Res., Inc., 299 F.3d 1007, 1009 (9th Cir.
2002) (citations omitted). Defendants (collectively FWS) have
been violating this fundamental CWA requirement by
discharging pollutants into Icicle Creek from the Leavenworth
National Fish Hatchery (the Hatchery) without an NPDES permit
since 1979. ECF No. 42.
question now before the Court is what the appropriate remedy
for this continuing CWA violation should be. CELP
acknowledges the impracticability of enjoining all discharge
from the Hatchery and therefore seeks a narrower injunction
requiring: (1) immediate monitoring, and (2) beginning in
September 2019 if no NPDES permit is in place, compliance
with the phosphorus wasteload allocation set in the
watershed's dissolved oxygen and pH Total Daily Maximum
Load (TMDL). FWS urges the Court to stay or dismiss this
action under the doctrine of primary jurisdiction to permit
EPA to issue a final NPDES permit. FWS argues in the
alternative that the balance of hardships and public interest
do not favor injunctive relief.
doctrine of primary jurisdiction permits a Court to determine
that certain technical and policy claims should be addressed
in the first instance by an agency. Astiana v. Hain
Celestial Grp., Inc., 783 F.3d 753, 760 (9th Cir. 2015).
The Court declines to apply the doctrine for two reasons:
First, determining a remedy for FWS's CWA violation does
not require agency technical expertise. Second, given the
extraordinary delay in permitting to this point, the Court
cannot rely on FWS's representation that EPA will issue a
final NPDES permit in an acceptable timeframe. Referral to
EPA would risk unacceptable delay.
Court also finds that CELP has met its burden of
demonstrating that an injunction is necessary: CELP has
suffered irreparable injury; no adequate legal remedy is
available; and the balance of hardships and public interest
weigh very strongly in favor of granting injunctive relief.
Court recognizes that requiring immediate monitoring could
create inefficiency and unnecessary hardship if, as FWS
suggests, a final NPDES permit is in place later this year.
Accordingly, the Court will not require monitoring to begin
until January 1, 2018. The Court also recognizes that it may
be difficult for FWS to comply with the TMDL wasteload
allocation by September 2019. But FWS has had nearly four
decades to complete the NPDES permitting process and work
with EPA to develop an achievable timeline for attaining
compliance with water quality standards. The Court finds that
there is no workable alternative at this time to ordering
compliance by a set date with the wasteload allocation the
expert agencies have found necessary to protect water
quality. Accordingly, if a final NPDES permit is not
effective on September 1, 2019, FWS shall limit phosphorous
discharge from the Hatchery to the wasteload allocation set
in the dissolved oxygen and pH TMDL.
Icicle Creek and the Leavenworth National Fish
Creek originates in the Cascade Mountains and is a tributary
to the Wenatchee River, which is a tributary to the Columbia
River. ECF No. 14 at 6. Icicle Creek is home to populations
of a number of fish species, including ESA-listed steelhead
and bull trout, and Chinook salmon. Id. at 6; ECF
No. 50 at 9.
Leavenworth National Fish Hatchery (the Hatchery), which is
operated by the United States Fish and Wildlife Service, is
located on Icicle Creek approximately three miles upstream
from the point where Icicle Creek enters the Wenatchee River.
ECF No. 1 at 7, 10; ECF. No. 14 at 3. The Hatchery was
constructed to maintain salmon stocks lost when Grand Coulee
Dam was completed on the Columbia River. ECF No. 1 at 10-11;
No. 14 at 3. It currently propagates spring Chinook salmon
and is also used for acclimation and release of Coho salmon.
ECF No. 50 at 10-11. The Hatchery operates year round.
Id. at 11.
normal operation, the Hatchery discharges water from its fish
rearing raceways, tanks, and ponds to Icicle Creek at
“Outfall 1, ” at approximately river mile 2.8.
ECF No. 14 at 4-5; ECF No. 50 at 11. This water
“contains some organic solid wastes that consist of
uneaten food and fecal matter.” ECF No. 15 at 16. The
Hatchery also regularly discharges effluent from pollution
abatement ponds at “Outfall 2, ” at approximately
river mile 2.7. ECF No. 14 at 5; ECF No. 50 at 12. The water
discharged at Outfall 2 contains “re-suspended organic
solids created when the bottom of the rearing ponds are
cleaned” including “fish food, fecal matter and
other debris.” ECF No. 15 at 16-17. Additionally, the
Hatchery began discharging effluent from a new location known
as “Outfall 6” in August 2015. ECF No. 14 at 6.
Relevant Provisions of the Clean Water Act
303 of the CWA requires states to establish water quality
standards. 33 U.S.C. § 1313(a)-(c). “A water
quality standard defines 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 that protect the
designated uses.” 40 C.F.R. § 131.2. Section
303(d) requires states to list water bodies within its
boundaries that do not meet water quality standards. 33
U.S.C. § 1313(d). For these waters, the state must
establish and submit to the EPA a total maximum daily load
(TMDL) specifying the amount of pollution that can be
discharged while still achieving water quality standards. 33
U.S.C. § 1313(d)(1)(C), (d)(2); Friends of Pinto
Creek v. U.S. Envtl. Prot. Agency, 504 F.3d 1007, 1011
(9th Cir. 2007). “Once a TMDL has been completed, a
wasteload allocation . . . for that TMDL forms the basis for
permit limitations for individual discharges.” 50 Fed.
Reg. 1774, 1774 (Jan. 11, 1985).
301(a) of the CWA makes discharge of any pollutant unlawful,
except when in compliance with other provisions of the CWA.
33 U.S.C. § 1311(a). One of those exceptions is
discharge in compliance with a permit issued under section
402 of the CWA. Section 402 establishes the National
Pollutant Discharge Elimination System (NPDES), which
authorizes EPA to issue permits for discharge of pollutants.
33 U.S.C. § 1342; EPA v. Nat'l Crushed Stone
Ass'n, 449 U.S. 64, 71 (1980). NPDES permits are a
primary means for achieving the CWA's goals. Arkansas
v. Oklahoma, 503 U.S. 91, 101-02 (1992). Before EPA can
issue an NPDES permit, the appropriate state must issue a
certification under section 401 that the activity will not
violate water quality standards. 33 U.S.C. § 1341(a).
NPDES Permitting for Discharges From the Hatchery
undisputed that the Hatchery discharges pollutants into
Icicle Creek, that portions of Icicle Creek and the
Wenatchee River have been identified as failing to meet
certain water quality standards, and that an NPDES permit is
required for discharges from the Hatchery. ECF No. 1 at
10-11; ECF No. 7 at 5-6. ECF No. 50 at 14. EPA issued an
NPDES permit authorizing discharge from the Hatchery on
December 30, 1974, which became effective on January 30,
1975. ECF No. 15 at 77. That permit, by its terms, expired on
August 31, 1979. ECF No. 15 at 77. FWS did not submit an
application for a new NPDES permit prior to that expiration
date. ECF No. 14 at 14.
submitted an application for a new NPDES permit on November
12, 1980. ECF No. 15 at 108. On May 6, 1981, FWS received a
letter from EPA advising FWS that its NPDES permit was
“automatically extended” in accordance with 40
CFR § 122.5. ECF No. 15 at 110. As discussed in the
Court's January 7, 2017 Summary Judgment order, the NPDES
permit was not automatically extended and EPA's letter
did not effectively extend the permit. ECF No. 42 at 12-15.
The Hatchery has been discharging pollutants into Icicle
Creek without an NPDES permit since September 1, 1979.
result of a settlement agreement reached in a lawsuit
concerning EPA's delay in issuing an NPDES permit, FWS
filed an application for a new NPDES permit in November
2005. ECF No. 15 at 125, 133. EPA issued a draft
NPDES permit for the Hatchery in June 2006. ECF No. 15 at
132. In ...