United States District Court, D. Maryland
L. Russell, III United States District Judge
MATTER is before the Court on Plaintiffs Blue Water
Baltimore, Inc., Natural Resources Defense Council, and
American River's Motion for Summary Judgment (ECF No. 38)
and Defendants Andrew Wheeler, Cosmo Servidio,  and the U.S.
Environmental Protection Agency's (“EPA” or
“the Agency”) Cross-Motion for Summary Judgment
(ECF No. 39). This case arises from EPA's November 3,
2016 denial of Plaintiffs' Petition for a Determination
that Stormwater Discharges from Commercial, Industrial, and
Institutional Sites Contribute to Water Quality Standards
Violations in the Back River Watershed (Baltimore,
Maryland) and Require Clean Water Act Permits (the
“Petition”). The Motions are ripe for
disposition, and no hearing is necessary. See Local
Rule 105.6 (D.Md. 2018). For the reasons outlined below, the
Court will grant Plaintiffs' Motion and deny
September 17, 2015, Plaintiffs petitioned EPA under 40 C.F.R.
§ 122.26(f)(2) (2018). (Compl. ¶ 33; Joint Appendix
[“J.A.”] Ex. VI at 75-106, ECF No.
45-6).Plaintiffs asked EPA to determine whether
“stormwater discharges from privately-owned commercial,
industrial, and institutional [(“CII”)] sites are
contributing to violations of water quality standards in the
Back River watershed.” (J.A. Ex. VI at 76). On November
3, 2016, EPA denied Plaintiffs' Petition. (Id.
at 119-39). EPA based its decision on three factors: (1) the
“[l]ikelihood of exposure of pollutants to
precipitation at sites in the categories identified in the
[P]etition”; (2) the “[s]ufficiency of available
data to evaluate the contribution of stormwater discharges to
water quality impairment from the [CII sites]”; and (3)
“[w]hether other federal, state, or local programs
adequately address the known stormwater discharge.”
(Id. at 126). EPA also considered “resources,
workload, and [Maryland's] preferred means of addressing
stormwater-related pollution.” (Id.).
8, 2017, Plaintiffs sued Defendants alleging: a violation of
the Clean Water Act (the “CWA”), 33 U.S.C. §
1365(a)(2) (2018) (Count I); and two violations of the
Administrative Procedure Act (the “APA”), 5
U.S.C. § 706(2)(A) (2018) (Counts II-III). (Compl.
¶¶ 70-83). Count II alleges that EPA's denial
of the Petition was arbitrary and capricious because it
relied on a factor that Congress did not authorize it to
consider. (Id. ¶ 78). Count III, which is pled
in the alternative, alleges that EPA's denial of the
Petition was arbitrary and capricious because the decision
ran counter to the evidence before the Agency. (Id.
¶¶ 81-82). Plaintiffs seek a declaration that EPA
violated the CWA and the APA, and an order directing EPA to
determine “whether CII discharges contribute to
violations of water quality standards in the Back River
watershed.” (Id. at 15). On February 5, 2018,
the Court granted Defendants' Motion to Dismiss Count I
of the Complaint. (ECF No. 20). As a result, only
Plaintiffs' APA Counts remain.
filed their Motion for Summary Judgment on June 25, 2018.
(ECF No. 38). On August 6, 2018, Defendants filed an
Opposition and Cross-Motion for Summary Judgment. (ECF No.
39). On September 4, 2018, Plaintiffs filed a Reply. (ECF No.
40). On September 21, 2018, Defendants filed a Reply. (ECF
Standard of Review
judgment is proper when “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). A district court properly decides APA claims on
summary judgment because the facts are contained in the
administrative record and are undisputed. Citizens for
the Scenic Severn River Bridge, Inc. v. Skinner, 802
F.Supp. 1325, 1332 (D.Md. 1991) aff'd sub nom.
Citizens for Scenic Severn River Bridge, Inc. v.
Skinner, 972 F.2d 338 (4th Cir. 1992). The district
court decides as a matter of law, “whether the agency
action is supported by the administrative record and
otherwise consistent with the APA standard of review.”
Red Wolf Coal. v. U.S. Fish & Wildlife Serv.,
346 F.Supp.3d 802, 809 (E.D. N.C. 2018) (quoting Sierra
Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C. 2006)).
the APA, the Court must “hold unlawful and set aside
agency action” that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2). An agency decision is
arbitrary and capricious if:
the agency relied on factors which Congress has not intended
it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency,
or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.
Ohio River Valley Envtl. Coal., Inc. v. Kempthorne,
473 F.3d 94, 102 (4th Cir. 2006) (quoting Motor Vehicle
Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983)).
Plaintiffs' Motion for Summary Judgment
allege that EPA acted arbitrarily and capriciously because:
(1) it improperly considered whether other federal, state, or
local programs adequately address stormwater discharge from
private CII sites; and, in the alternative, (2) EPA's
conclusion that existing programs adequately address the
stormwater discharges at issue runs counter to the evidence
before the Agency. Countering Plaintiffs' first
contention, Defendants advance three main arguments: (1) EPA
may consider existing programs because the text of the CWA
does not delineate the factors that EPA must consider before
issuing permits under 33 U.S.C. § 1342(p)(2)(E); (2)
EPA's interpretation of the CWA-that Congress did not
preclude its consideration of existing programs-is entitled
to Chevron deference; and (3) 33 U.S.C. §
1342(p)(6) expands EPA's discretion in this area.
Countering Plaintiffs' second contention, ...