Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Blue Water Baltimore, Inc. v. Wheeler

United States District Court, D. Maryland

March 22, 2019

BLUE WATER BALTIMORE, INC., et al., Plaintiffs,
v.
ANDREW WHEELER,[1] et al., Defendants.

          MEMORANDUM OPINION

          George L. Russell, III United States District Judge

         THIS 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, [2] 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[3] (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 Defendants' Cross-Motion.

         I.

         BACKGROUND[4]

         On 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).[5]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.).

         On May 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.

         Plaintiffs 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 No. 41).[6]

         II. DISCUSSION

         A. Standard of Review

         Summary 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)).

         Under 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)).

         B. Analysis

         1. Plaintiffs' Motion for Summary Judgment

         Plaintiffs 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[7] deference; and (3) 33 U.S.C. ยง 1342(p)(6) expands EPA's discretion in this area. Countering Plaintiffs' second contention, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.