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Center for Environmental Law and Policy v. United States Fish and Wildlife Service

United States District Court, E.D. Washington

May 3, 2017

CENTER FOR ENVIRONMENTAL LAW AND POLICY, Plaintiff,
v.
UNITED STATES FISH AND WILDLIFE SERVICE; and JAMES W. KURTH, in his official capacity as Acting Director of the United States Fish and Wildlife Service, Defendants.

          ORDER GRANTING PERMANENT INJUNCTION AND SUMMARY JUDGMENT IN PLAINTIFF'S FAVOR

          SALVADOR MENDOZA, JR. United States District Judge.

         On 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.

         I. INTRODUCTION

         Congress 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.

         The 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.

         The 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.

         The 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.

         The 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.

         II. BACKGROUND

         A. Icicle Creek and the Leavenworth National Fish Hatchery

         Icicle 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.

         The 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.

         During 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.

         B. Relevant Provisions of the Clean Water Act

         Section 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).

         Section 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).

         C. NPDES Permitting for Discharges From the Hatchery

         It is undisputed that the Hatchery discharges pollutants into Icicle Creek, [1]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.

         FWS 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.

         As a 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.[2] ECF No. 15 at 125, 133. EPA issued a draft NPDES permit for the Hatchery in June 2006. ECF No. 15 at 132. In ...


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