Yesterday afternoon, Judge Coughenour issued his decision on the summary judgment motions in the lawsuit brought by Earthjustice on Puget Soundkeeper‘s behalf. The motion alleged that EPA Region 10 violated the Clean Water Act by not promulgating revised water quality criteria for Washington that account for higher fish consumption rates.
The case broke just about how we predicted it would when it was filed back in October. Judge Coughenour’s thoughtful opinion concluded that he lack subject matter jurisdiction to consider Puget Soundkeeper’s challenge because the emails and letters sent to Ecology by EPA that which Puget Soundkeeper did not amount to a “determination” under Section 303(c)(4)(B) of the Clean Water Act that Washington’s water quality standards were inadequate, which would have triggered a non-discretionary duty by EPA under the CWA to promulgate new regulations. Because there was no non-discretionary duty that EPA had failed to fufill, Judge Coughenour concluded he lack subject matter jurisdiction and dismissed the case without prejudice.
Judge Coughenour spends a significant amount of his opinion analyzing the four communications between EPA and Ecology relied upon by Puget Soundkeeper in arguing EPA had a non-discretionary duty to promulgate water quality standards for toxics in Washington. If you have time, his analysis is worth the read, it begins on page three of the order issued yesterday.
In sum, he concluded that these communications did not amount to a Section 303(c)(4)(B) “determination” because:
- They were not made by the the Regional Administrator;
- The communications cannot be construed as official determinations, and instead were construed as explicitly endorsing Washington’s ongoing efforts to revise its Water Quality Standards to account for higher fish consumption rates;
- The letters never identify which standards EPA believe are deficient; and
- Judge Coughenhour disagreed with Puget Soundkeeper’s complaints that EPA had failed to act “promptly” as it is required to do under the CWA if it does make a determination that a state’s standards are deficient, noting that the first letter from EPA to Ecology even mentioning the relevant statutory provisions was written in June 2013, months before the lawsuit was filed.
Judge Coughenour got it right, and his opinion is a good summary of the state of the law on this part of the Clean Water Act.
What are the implications?
First, this lawsuit has been a bit of a cloud over the Governor Inslee’s ongoing efforts to revise Washington’s Water Quality Standards, so he may have a bit of a clearer path in doing so.
Second, some stakeholders in Washington recently petitioned EPA to make a determination that Washington’s Water Quality Standards are inadequate and have EPA take over the rulemaking process. Although that could still happen, it seems to me that EPA would be honoring the intent and delegation of powers under the Clean Water Act by letting Washington finish the process it has started (especially considering that we’ll see a draft rule by the end of the month) and then taking up any issues regarding Washington’s revised Water Quality Standards when they are submitted to EPA for review and approval.
Finally, I also seriously doubt that EPA has the staff resources or time, or political will, to quickly craft a rule and essentially shove it down Washington’s throat at this point, and if it did so, I’d expect that action to be heavily litigated by stakeholders on both sides of the aisle.