United States District Court, District of New Jersey, D
March 28, 2002
AMERICAN LITTORAL SOCIETY AND NEW JERSEY PUBLIC INTEREST RESEARCH GROUP, CITIZENS LOBBY, PLAINTIFFS,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION, CHRISTINE T. WHITMAN, ADMINISTRATOR, AND UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION II, WILLIAM J. MUSZYNSKI, ACTING REGIONAL ADMINISTRATOR,[FN1A] DEFENDANTS.
The opinion of the court was delivered by: Cooper, District Judge.
[fn1a] Christine T. Whitman, Administrator, United States Environmental
Protection Agency, is substituted for Carol Browner, and William J.
Muszynski, Acting Regional Administrator, United States Environmental
Protection Agency, Region II, is substituted for Jeanne Fox pursuant to
Federal Rule of Civil Procedure 25(d).
This matter comes before the Court on (1) cross-motions for judgment on
the record pursuant to Federal Rule of Civil Procedure 52(a) on Counts
One and Two of the Fifth Amended Complaint, (2) cross-motions for summary
judgment pursuant to Federal Rule of Civil Procedure 56 on Count Four of
the Fifth Amended Complaint, and (3) plaintiffs' motion to strike.
Plaintiffs American Littoral Society and New Jersey Public Interest
Research Group, Citizens Lobby (collectively "plaintiffs") instituted
this lawsuit against defendants United States Environmental Protection
Agency ("EPA"), the Administrator of EPA, and the Regional Administrator
of the EPA (collectively referred to herein as "EPA" or "defendants") to
compel EPA to perform allegedly mandatory duties under the Clean Water
Act (the "CWA"), the Endangered Species Act (the "ESA"), and the
Administrative Procedures Act ("APA") in New Jersey.
Plaintiffs' CWA and APA claims allege that EPA failed to implement the
CWA in New Jersey following the State of New Jersey's prolonged failure
to do so. Under the CWA, the states have primary responsibility for
setting water quality standards ("WQSs") pursuant to EPA regulations and
taking steps to achieve those WQSs. Although the State of New Jersey
("New Jersey") set WQSs as required, it failed to take timely steps to
identify water quality limited segments ("WQLSs") in New Jersey not
meeting the WQSs and to establish total maximum daily loads and total
maximum daily thermal loads ("TMDTLs"; total maximum daily loads and
TMDTLs shall hereinafter be collectively referred to as "TMDLs") for
those WQLSs. WQLS means any segment of a body of water where it is known
that water quality does not meet applicable WQSs, or is not expected to
meet applicable WQSs, even after application of technology-based effluent
limitations. TMDLs represent the maximum amount of daily pollution a body
of water can absorb before it no longer complies with a particular WQS.
Under the CWA, New Jersey's obligation to identify WQLSs and establish
TMDLs came due more than twenty years ago.
Count One of the Fifth Amended Complaint alleges that EPA's decisions
approving New Jersey's deficient lists of WQLSs ("§ 303(d) Lists")
violated section 706(2)(A) of the APA because they were arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law. Count Two of the Fifth Amended Complaint alleges that EPA's failure
to establish and implement a complete § 303(d) List and TMDLs
following New Jersey's failure to do so violated section 706(1) of the
APA because such failure constituted an agency action that was
Plaintiffs' ESA claim, which is set forth in Count Four of the Fifth
Amended Complaint, alleges that EPA failed to comply with section 7 of
the ESA. Under section 7 of the ESA, an agency has a duty to confer with
the Secretary of the Department of Commerce and the Secretary of the
Department of Interior (collectively the "Secretaries")*fn1 when an
agency action is likely to jeopardize the continued existence of any
species proposed to be listed under ESA or destroy or adversely modify the
critical habitat proposed to be designated for such species.
Plaintiffs seek injunctive and declaratory relief requiring EPA to
establish a complete § 303(d) List for New Jersey and to implement
TMDLs for the WQLSs on such list under enforceable timetables, with
notice and an opportunity for comment from the public and consultation
from the Secretaries.
In two lengthy prior opinions, this Court had occasion to address
issues related to this longstanding litigation. In a Memorandum and
Order filed on June 29, 1999, we granted in part and denied in part
defendants' motion to dismiss the Second Amended Complaint pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and granted
plaintiffs leave to file a Third Amended Complaint. (Mem. & Order filed
6-29-99.) In a Memorandum Opinion filed on December 21, 2000 ("12-21-00
Memorandum Opinion"), the Court, inter alia, granted in part and denied
in part plaintiffs' motion for summary judgment, granted in part and
denied in part EPA's motion for summary judgment, and granted leave to
plaintiffs to amend the Fourth Amended Complaint to correct certain
defects in Count Four of the Third Amended Complaint. (Mem. Op. filed
For the reasons expressed below, the Court will (1) deny plaintiffs'
motion to strike, (2) grant EPA's cross motion for judgment on the record
on Counts One and Two, and (3) grant EPA summary judgment on Count Four.
This Memorandum Opinion constitutes the Court's findings of fact and
conclusions of law with respect to the issues before us pursuant to
Federal Rule of Civil Procedure 52(a).
I. STANDARDS OF REVIEW
A. Judgment on the Record on Counts One and Two: Federal
Rule of Civil Procedure 52(a)
Pursuant to Federal Rule of Civil Procedure 52(a),*fn2
for final judgment on the record on Counts One and Two of the
Fifth Amended Complaint. Rule 52(a) allows a court to decide, with the
consent of the parties, a case without a formal jury trial "based on the
record compiled in summary judgment proceedings." Acuff-Rose Music,
Inc. v. Jostens, Inc., 155 F.3d 140
, 142 (2d Cir. 1998). The Court's
main concern in our 12-21-00 Memorandum Opinion was whether genuine
issues of material fact precluded summary judgment. Concerning our
current evaluation of Claims One and Two, however, the Court now must
make findings of fact and conclusions of law with respect to the ultimate
merits of those claims. In deciding the parties' cross-motions for final
judgment, therefore, neither side is entitled necessarily to having all
reasonable inferences made in its favor. Natural Res. Def. Council,
Inc. v. Fox, 93 F. Supp.2d 531, 535 (S.D.N.Y. 2000) ("NRDC III"), aff'd
in part, vacated in part, 238 F.3d 91 (2d Cir. 2001).
B. Summary Judgment on Count Four: Federal Rule of Civil
Federal Rule of Civil Procedure 56(c) provides that summary judgment is
proper "if the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The
party moving for summary judgment bears the initial burden of showing that
there is no genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has met its initial
burden, the nonmoving party must present evidence that creates a genuine
issue of material fact making it necessary to resolve the difference at
trial. Id. at 324. In deciding a motion for summary judgment, the Court
must view the evidence in the light most favorable to the non-moving
party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
"By its very terms, the standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are only those
facts that might affect the outcome of the action under governing law.
Id. at 248; Boyd v. Ford Motor Co., 948 F.2d 283, 285 (6th Cir. 1991).
The role of the judge at the summary judgment stage is not to weigh the
evidence, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. "[T]here is no issue for trial unless there
is sufficient evidence favoring the nonmoving party for a jury to return
a verdict for that party. If the evidence is merely colorable or is not
significantly probative, summary judgment may be granted." Id. at 249-50
C. Review of Agency Action on Counts One, Two, and Four:
Administrative Procedure Act
When reviewing agency action under the APA, "[t]he reviewing court
shall . . . hold unlawful and set aside agency action, findings, and
conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law[.]"
5 U.S.C. § 706(2)(A). Furthermore, the APA authorizes courts to
"compel agency action unlawfully withheld or unreasonably delayed."
5 U.S.C. § 706(1). "Agency action," as used in section 706,
"includes the whole or a part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure to
act." 5 U.S.C. § 551(13).
The APA's standard of review is narrow and presumes the agency action
is valid, Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976), but does
not shield agency action from a "thorough, probing, in-depth review."
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971).
The APA does not give a court power "to substitute its judgment for that
of the agency," but does allow the court to "consider whether the
decision was based on a consideration of the relevant factors and whether
there has been a clear error of judgment." Id. at 416.
A decision is "arbitrary and capricious" within the meaning of the APA
if the agency has relied on factors that 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.
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29
We will next address plaintiffs' motion to strike.
II. MOTION TO STRIKE
Plaintiffs move to strike the (1) Declaration of Kathleen Callahan, (2)
Declaration of Rosella O'Connor, (3) Declaration of Wayne Jackson, (4)
Declaration of Robert Hargrove, (5) February 21, 2001 Letter from Robert
Hargrove of the EPA to Clifford Day of the United States Fish and
Wildlife Service ("FWS"), and (6) February 21, 2001 Letter from Robert
Hargrove of the EPA to Mary Colligan of the National Marine Fisheries
Service ("NMFS"). Plaintiffs argue that those materials are inadmissible
extra-record evidence. (Pls.' Reply Br. in Supp. of Pls.' Mot. for J. on
the R. for Claims 1 & 2 and in Opp'n to EPA's Cross-Mot. for J. on the
R. for Claims 1 & 2 ("Pls.' JR Reply Br.") at 5, 8-10.) Specifically,
plaintiffs argue that (1) those documents exceed the Court's ruling that
Rule 52 motions would be limited to the "present record," (2) the Court
ruled that judicial review would be limited to the administrative
record, (3) the affidavits are hearsay, (4) the affidavits lack
foundation and markers of reliability, and (5) principles of equity
suggest that EPA should be estopped from introducing extra-record
evidence. (Pls.' JR Reply Br. at 8-10.) In response, EPA argues that
(1) plaintiffs failed to identify what portions of the declarations the
Court should exclude, (2) the material in the declarations is responsive
to the Court's inquiries in our 12-21-00 Memorandum Opinion, (3) the
material in the declarations is responsive to fact-based arguments in
plaintiffs' moving papers, (4) the materials provide explanations or
analyses of record evidence, technical guidance, regulations, or the
CWA, and (5) the materials support EPA's position that New Jersey's
current efforts to comply with the CWA render judicial intervention
the Court authorized EPA to offer as evidence. (EPA's
Reply Mem. in Supp. of EPA's Cross-Mot. for J. on the R. on Claims 1 & 2
("EPA's JR Reply Br.") at 12 n. 4.)
Generally, judicial review of agency action is limited to review of the
record on which the administrative decision was based. Citizens to
Pres. Overton Park, 401 U.S. at 420. Certain circumstances, however, may
justify expanding review beyond the record or permitting discovery.
See, e.g., Pub. Power Council v. Johnson, 674 F.2d 791, 793 (9th Cir.
1982). A court may find it necessary to review additional material to
explain the basis of the agency's action and the factors the agency
considered. Friends of the Earth v. Hintz, 800 F.2d 822, 828-29 (9th
Cir. 1986). When such a failure to explain agency action effectively
frustrates judicial review, the court may "obtain from the agency, either
through affidavits or testimony, such additional explanation of the
reasons for the agency decision as may prove necessary." Camp v. Pitts,
411 U.S. 138, 143 (1973).
The Court will deny plaintiffs' motion to strike. The challenged
documents may be considered for several reasons. First, the Declaration
of Robert Hargrove and his letters to the FWS and NMFS relate to the
issue of whether plaintiffs' Claim Four is moot. Mootness, by
definition, relates to "events occurring after the alleged violation."
S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 729 (10th Cir.
1997). The challenged documents speak to the Court's jurisdiction to
hear Claim Four and are relevant to the determination of whether
plaintiff has already obtained the relief it seeks. See id. The Court
may consider those documents for purposes of determining jurisdiction
under the mootness doctrine.*fn3 A contrary conclusion would preclude
altogether an examination of mootness, which is concerned with how
changed circumstances in a litigation affect a court's capacity to grant
the requested relief. Therefore, the Court takes into account the
Hargrove Declaration and the two letters to the respective Services.
Second, the Court's receipt of current information is essential to the
proper exercise of our equitable jurisdiction. Because plaintiffs seek
injunctive and declaratory relief, the Court must concern itself to some
extent with events that are occurring presently. See S.F. Baykeeper v.
Browner, 147 F. Supp.2d 991, 1001 (N.D.Cal. 2001). For example, the
question of "constructive submission" is at issue in the Court's
consideration of plaintiffs' Claim Two. On that issue, because the
Court's "only power is to require EPA to conform its present conduct to
the law, EPA's past noncompliance is irrelevant to the question of an
agency's present compliance." NRDC III, 93 F. Supp.2d at 536.
Therefore, given that present compliance is the relevant issue, the Court
should consider evidence speaking to that compliance. The Declaration of
Kathleen Callahan, for example, speaks to the status of New Jersey's
submission of TMDLs, which directly relates to whether a constructive
submission has occurred. For that matter, it is not clear that the
challenged documents even constitute materials "outside the record" on
which EPA based its decisions, for the documents generally speak to
events occurring since the initiation of litigation and the Court's
12-20-00 Memorandum Opinion.
Third, the Court invited and authorized the submission of the
challenged documentation. In our 12-21-00 Memorandum Opinion, the Court
stated that the nature and extent of EPA's duty "must be assessed in
light of continuing developments, including progress in New Jersey's
efforts to submit TMDLs." (12-21-00 Mem. Op. at 42.) We also stated that
EPA would be "free to offer evidence `outside the record' supporting its
assertion that New Jersey's current efforts to comply with the CWA make
its intervention unnecessary." (Id. at 48 n. 19.) EPA would be "free to
challenge plaintiff's proofs on [water quality in New Jersey], or submit
its own proofs, prior to the Court's final determination on the merits of
plaintiffs' claim." (Id.) In light of those comments, it is not
unreasonable for EPA to submit, and the Court to consider, supplemental
materials speaking to those issues. Therefore, the Court will deny
plaintiffs' motion to strike.
III. COUNT ONE: APPROVALS
Count One of the Fifth Amended Complaint is predicated on section 303
of the CWA, which requires the establishment and implementation of WQSs.
See 33 U.S.C. § 1313. Count One alleges that EPA's approval of
allegedly deficient § 303(d) Lists of WQLSs was arbitrary,
capricious, and an abuse of discretion in violation of section 706(2)(A)
of the APA.*fn4
Section 303(d) provides the means by which states are required to
implement WQSs. Section 303(d) requires each state to identify the WQLSs
within its boundaries that do not meet or are not expected to meet
applicable WQSs even after the imposition of best-practicable
technology-based effluent limitations and other required controls.
33 U.S.C. § 1313(d)(1). WQLS "means any segment where it is known
that water quality does not meet applicable [WQSs], and/or is not
expected to meet applicable [WQSs], even after the application of the
technology-bases [sic] effluent limitations required by sections 301(b)
and 306 of the [CWA]." 40 C.F.R. § 131.3(h).
After identifying all such WQLSs, each state must establish a priority
ranking for waters within its boundaries, taking into account the
severity of the pollution and the uses to be made of such waters.
33 U.S.C. § 1313(d)(1)(A). The priority ranking of WQLSs is placed
on the state's section 303(d) List, which is ultimately submitted to EPA
for approval. 33 U.S.C. § 1313(d).
After identifying all impaired waters on its section 303(d) List, the
state must also establish TMDLs for the pollutants causing impairment of
each WQLS. 33 U.S.C. § 1313(d)(1)(C). As with § 303(d) Lists,
the state must submit TMDLs to EPA for review. 33 U.S.C. § 1313(b)(2);
40 C.F.R. § 130.7. Any EPA-approved TMDLs must be incorporated by
the state into its continuing planning processes.
33 U.S.C. § 1313(d)(2), (e). TMDLs must then be implemented through
the National Pollutant Discharge Elimination System ("NPDES") permitting
process to ensure attainment of WQSs.*fn5 33 U.S.C. § 1311(b)(1)(C);
40 C.F.R. § 122.4, 122.44, and 122.62.
The Fifth Amended Complaint seeks judicial review of EPA's approval of
New Jersey's 1992, 1994, 1996, and 1998 section
303(d) Lists submitted by
New Jersey and approved by EPA to the extent that the lists omit sixty
waters from the 1998 (and prior) lists.*fn6
Therefore, the Court will
consider plaintiffs' challenge to EPA's approval of the 1992, 1994,
1996, and 1998 lists despite the omission of approximately sixty WQLSs
from those lists.
Plaintiffs argue that section 303(d) Lists "must include all waters for
which existing pollution controls or requirements are inadequate to
provide for attainment and maintenance of water quality standards."
(Pls.' Br. in Supp. of Mot. for Summ. J. ("Pls." Summ. J. Br.") at 6
(citing Guidance for 1994 Section 303(d) Lists ("1994 Guidance") at 3).)
Plaintiffs argue that four categories of waters were improperly excluded
from New Jersey's § 303(d) Lists: (1) CWA section 319 waters, (2)
CWA section 304(l) waters, (3) waters for which CWA section 316(a)
variances have been granted, and (4) waters failing to meet
antidegradation standards. (Id. at 11-16.)*fn7
Plaintiffs argue that EPA does not have the discretion to approve New
Jersey's section 303(d) Lists when they omit such waters from the lists.
EPA, on the other hand, argues that (1) plaintiffs lack standing to sue
concerning the omission of waters, except for section 304(l) waters, and
(2) assuming that plaintiffs have standing, the relevant administrative
records support EPA's decision to approve New Jersey's 1998 (and prior)
§ 303(d) Lists excluding those waters. (Combined Mem. in Supp. of
EPA's Cross-Mot. for Summ. J. and Br. in Opp'n to Pls.' Mot. for Summ.
J. (EPA's Summ. J. Br.") at 52.)
The Court shall first address the standing issue. If the Court
concludes that plaintiffs have standing, the question then becomes
whether EPA's approval of New Jersey's section 303(d) Lists despite the
omission of some waters from the lists, which arguably under the CWA and
EPA regulations should have been on the lists, was arbitrary,
capricious, an abuse of discretion, or not otherwise in accordance with
law. See APA § 706(2)(A).
EPA argues that plaintiff lack standing to challenge EPA's approvals
concerning (1) section 319 waters, (2) section 316(a) waters, and (3)
antidegradation waters. (EPA's Mem. in Opp'n to Pls.' Mot. for J. on the
R. for Claims 1 & 2, in Opp'n to Pls.' Mot. to Enforce J., & in Supp. of
EPA's Cross-Mot. for J. on the R. on Claims 1 & 2 (EPA's JR Br.") at
14-15, 19-20.) Specifically, EPA argues that plaintiffs have failed to
establish injury in fact.
For an organization to have standing, a plaintiff-member must show (1)
injury in fact, an invasion of a legally protected interest that is
concrete and particularized and actual or imminent, (2) a causal link
between the defendant's conduct and the injury, such that the conduct is
"fairly traceable" to that conduct, and (3) the likelihood that judicial
relief will redress the plaintiff's injury. Friends of
the Earth v.
Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000); Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992); Pub. Interest Research
Group of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 119 (3d
Cir. 1997). The parties here contest only whether the injury-in-fact
prong is satisfied.
The United States Supreme Court has "held that environmental plaintiffs
adequately allege injury in fact when they aver that they use the
affected area and are persons `for whom the aesthetics and recreational
values of the area will be lessened' by the challenged activity.
Laidlaw, 528 U.S. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727,
735 (1972)). EPA maintains that plaintiffs have failed to establish that
their members use "affected areas" under Laidlaw because plaintiffs fail
to allege that a member uses section 319 waters and fail to name any
specific waters omitted from the section 303(d) list despite thermal and
antidegradation concerns. (EPA's JR Br. at 14-15, 18-19.) Concerning
the injury-in-fact requirement, when a plaintiff "can show that his claim
to relief is free from excessive abstraction, undue attenuation, and
unbridled speculation, the Constitution places no further barriers
between the plaintiff and an adjudication of his rights." Friends of the
Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 155 (4th
On this standing issue, the Court finds two decisions instructive:
Alaska Center for the Environment v. Browner, 20 F.3d 981 (9th Cir.
1994), and Sierra Club, North Star Chapter v. Browner, 843 F. Supp. 1304
(D.Minn. 1993). In Alaska Center, EPA argued, as it does here, that
plaintiffs demonstrate injury in fact only with respect to the waters that
plaintiffs can establish that they use. 20 F.3d at 985. Rejecting that
argument, the court noted that the plaintiffs "established that they were
adversely affected by the inadequate water quality of a representative
number of waters throughout the state[.]" Id. Noting also that "for CWA
regulatory purposes, all waters within a state are interrelated[,]" the
court concluded that the plaintiffs "demonstrated actual injury
sufficient to present the legal issues at issue in a concrete factual
context of water pollution in Alaska as the standing requirement is meant
to ensure." Id. (internal quotation omitted).
Similarly, in Sierra Club, North Star Chapter, EPA argued that the
plaintiffs failed to produce "evidence of an injury in fact for waters not
identified in the affidavits." 843 F. Supp. at 1309. Rejecting that
contention, the court held that the plaintiffs demonstrated injury in
fact because the members' affidavits indicated that they used a large
number of waters throughout the state and that they have a personal stake
in the quality of waters throughout the state. Id. at 1310.*fn8
The present case is not one in which an organization's members allege
stigmatic injury in the form of members' mere knowledge that waters are
polluted. See Pub. Interest Research Group of N.J., Inc., 123 F.3d at
120-21. As in Alaska Center and Sierra Club, North Star Chapter,
plaintiffs here have submitted numerous affidavits in which the affiants
attest to their use of section 303(d) waters and that they are injured by
EPA's conduct. (See, e.g., Aff. of Andrew J. Willner ¶¶ 4, 12
(stating that he uses Hudson/Raritan Estuary and tributaries for
fishing, birdwatching, and educational purposes and that pollution causes
bad odors, "makes it uncomfortable to swim," and causes disappearance of
"eel grass" in estuary); Aff. of Maureen Goodsir ¶ 11 (stating that
many ponds and lakes near house in Rampo River watershed "literally
stink"); Aff. of Sheldon M. Abrams ¶¶ 6,7 (stating that he uses Sandy
Hook Bay, Arthur Kill, Navesink River, Raritan Bay, and Atlantic Ocean
and that observes while scuba diving effects of pollution on marine life
and periodically dead and diseased marine life); Aff. of Eleanor Ann Vine
¶¶ 4,6,8 (stating that she uses Cooper River and Newton Creek for
walking, biking, canoeing, birdwatching, and aesthetic enjoyment and has
observed garbage, fishkills, and algae blooms).) The Court concludes,
therefore, that plaintiffs have demonstrated the injury-in-fact element
We will now discuss plaintiffs' claims with respect to each of the four
challenged categories of waters.
B. Section 319 Waters
Section 319 of the CWA requires states to prepare and submit to EPA for
approval a report (the "§ 319 List") identifying waters ("§ 319
Waters") within the state that are water quality limited, i.e., waters
that are known not to meet applicable WQSs, or cannot reasonably be
expected to attain or maintain such standards, without additional action
to control nonpoint sources of pollution. See 33 U.S.C. § 1329(a)(1).
EPA regulations require that each state "assemble and evaluate all
existing and readily available water quality-related data and
information" to develop its section 303(d) Lists.
40 C.F.R. § 130.7(b)(5). At a minimum, "all existing and readily
available water quality-related data and information" includes "all of
the existing and readily available data and information about . . .
[w]aters identified by the [s]tate as impaired or threatened in a [§
319 List] or in any updates of the [list]."
40 C.F.R. § 130.7(b)(5)(iv). Thus, it appears that EPA regulations
require states to include waters on their section 303(d) Lists that were
identified as impaired or threatened on their § 319 Lists.
If a state chooses not to include a WQLS from its § 319 List
on its section 303(d) List, it must provide EPA with documentation
to support its decision. 40 C.F.R. § 130.7. This documentation
must at a minimum include:
(i) A description of the methodology used to develop the
[§ 303(d) List]; and
(ii) A description of the data and information used to
identify waters, including a description of the data
and information used by the State as required by
§ 130.7(b)(5); and
(iii) A rationale for any decision to not use any
existing and readily available data and information
for any one of the categories of waters as described
in § 130.7(b)(5); and
(iv) Any other reasonable information requested by
[EPA]. Upon request by [EPA], each State must
demonstrate good cause for not including a water or
waters on the list. Good cause includes, but is not
limited to, more recent or accurate data; more
sophisticated water quality modeling; flaws in the
original analysis that led to the water being listed
in the categories in § 130.7(b)(5); or changes in
conditions, e.g., new control equipment, or
elimination of discharges.
40 C.F.R. § 130.7(b)(6).
New Jersey submitted its § 319 List to EPA in 1989. (Decl. of
Felix Locicero dated 3-13-00 ("Locicero Decl.") Ex. D-1: State of
N.J. Nonpoint Assessment and Mgmt. Program dated October 1989 app.
B.) The § 319 List is entitled "Preliminary List of Waterways
Suspected of Being Impacted by Nonpoint Source Pollution." (Id.)
An introduction to the list states:
Rivers and streams that without additional action to
control nonpoint sources of pollution, cannot be
expected to attain or maintain standards. Categories
of nonpoint sources which add significant pollution to
the listed waterbodies are provided. Pollution
sources are limited to those reported to us as having
a moderate to severe impact upon the receiving
waterway. Pollution categories listed are most often
suspected and preliminary and are not based upon
(Id.) New Jersey's § 319 List is marked "Final Submittal 12-2-89."
(See Decl. of Felix Locicero filed 5-15-00 Ex. D-1.)
EPA asserts that its decision to approve New Jersey's section 303(d)
Lists despite their omission of twenty-five § 319 Waters was not
arbitrary or capricious. (EPA's JR Br. at 16-19; EPA's JR Reply Br. at
11-12; EPA Summ. J. Br. at 51-57.) EPA maintains that New Jersey was not
required to include all WQLSs appearing on its § 319 List on its
§ 303(d) Lists because (1) the § 319 List was only a
"preliminary" list, not based on any monitored data and identified waters
only "suspected" of being impaired by nonpoint sources of pollution (EPA
Summ. J. Br. at 53, 56); (2) New Jersey does not use its § 319 List
as a primary data source for its § 303(d) Lists, but rather uses the
underlying data, which New Jersey claims does not support the listing of
all § 319 Waters on its § 303(d) Lists (id. at 54-55); (3)
certain waters appearing on the § 319 Lists may be slightly impacted
but were not considered water quality limited by New Jersey (id. at 54);
and (4) the fact that some § 319 Waters were included on New Jersey's
section 303(d) Lists supports the conclusion that New Jersey considered
all existing and readily available data and information when formulating
its section 303(d) Lists (id. at 55-57.)
Plaintiffs argue that EPA's decisions to approve New Jersey's section
303(d) Lists despite omission of twenty-five waters appearing on New
Jersey's § 319 List were arbitrary and capricious, an abuse of
discretion, and contrary to law in violation of section 706(2)(A) of the
APA. (See, e.g., Pls.' Summ. J. Br. at 12-13, 18.) Plaintiffs respond
to EPA's allegations by arguing that (1) the fact that some of New
Jersey's § 319 Waters were on its § 303(d) Lists
at best (id. at 8), (2) the § 319 List was not preliminary because
New Jersey submitted and EPA approved and treated the § 319 List as
final (id. at 8-9), and (3) EPA's belief that exclusion of twenty-five
§ 319 Waters from New Jersey's § 303(d) Lists was proper is not
supported by the record because no documentation was submitted by New
Jersey to EPA to show that the waters were not really impaired (id. at
In our 12-21-00 Memorandum Opinion, the Court indicated that "a later
finding by New Jersey that the § 319 Waters are not impaired would
appear to require submission of documentation to EPA demonstrating good
cause for omission of the non-listed waters." (12-21-00 Mem. Op. at 22
(citing 40 C.F.R. § 130.7).) We also stated that "if New Jersey's
explanation that its § 319 List included waters that were not water
quality limited demonstrated good cause for not relying on the list as a
primary source of data, then EPA's decision to approve New Jersey's §
303(d) Lists despite the omission of twenty-five § 319 Waters would
not be arbitrary, capricious, an abuse of discretion, or contrary to
federal law." (Id.)
The Court concludes that EPA's approval of New Jersey's section 303(d)
Lists despite the omission of twenty-five section 319 Waters was not
arbitrary and capricious. That conclusion is consistent with regulations
requiring a state omitting a § 319 Water to provide EPA with a
"rationale" for the omission. See 40 C.F.R. § 130(b)(6)(iii). New
Jersey based its omission on factors identified in regulation.
Specifically, those factors included "more recent or more accurate data;
more sophisticated water quality modeling; [or] flaws in the original
analysis that led to the water being listed" on the § 319 Lists.
40 C.F.R. § 130(b)(6)(iv). The § 319 List that New Jersey
submitted in 1989 was preliminary, and an introduction to the list states
that the "[p]ollution categories listed are most often suspected and
preliminary and are not based on monitored data." (Locicero Decl. Ex. D-1
app. B.) As part of a wider evaluation of nonpoint source waters, the
State used the 319 Report in conjunction with other sources to develop
its section 303(d) Lists. (Decl. of Rosella T. O'Connor dated 7-11-01
("O'Connor Decl.") ¶ 8.)
New Jersey explained that primary reliance was placed on "quality
assured data" acquired during its full evaluation and that sole reliance
was not on the 319 Report, which was based mainly on unmonitored
information, for purposes of listing waters affected by nonpoint source
discharges under section 303(d). (See, e.g., Locicero Decl. Ex. C-13:
New Jersey's Response to Comments at 6 (indicating that New Jersey's 319
Nonpoint Assessment and Management Program "is not used as a primary
source of date to delineate WQLSs. . . . However, when segments are
determined to be water quality limited, using quality assured data
generated under the 319 grant program, they are included in this list").)
New Jersey's quality assured data included several types of monitoring
data and macroinvertebrate assessment data. (Locicero Decl. Ex. D-21 at 4
(informing EPA that "all available information was used in the listing
process, including ambient water quality; source and loading data;
macroinvertebrate assessment data; shellfish growing water classification
monitoring data; and fish tissue data").) The State informed EPA that
the omission of a water identified in the 319(a) Report from the 303(d)
Lists was based on a subsequent determination that such a water was not
water quality limited, although perhaps slightly affected by a nonpoint
source discharge. (Id.) Because New Jersey indicated to EPA that "when
segments are determined to be water quality limited, using quality
generated under the section 319 grant program, they are
included in the 303(d) list" (Locicero Decl. Ex. C-17 at 3), EPA
concluded that New Jersey had addressed satisfactorily any concerns that
the State was disregarding section 319 — related information. The
result of New Jersey's subsequent evaluation of § 319 Waters was the
inclusion of more than ninety such waters on the section 303(d) List and
the exclusion of approximately fifty others, including the twenty-five
waters about which plaintiff's complain. (O'Connor Decl. ¶ 7.)
Although the lack of monitoring supporting a section 319 listing is
insufficient reason to omit § 319 waters from the section 303(d) List
(12-21-00 Mem. Op. at 21 n. 9), New Jersey provided good cause for its
omissions based on the supplementation of preliminary information with
subsequent intensive data. Thus, the Court finds that EPA's decision to
approve New Jersey's section 303(d) Lists despite omission of twenty-five
§ 319 Waters was not arbitrary and capricious because New Jersey
demonstrated good cause for its omissions.
C. Section 304(l) Waters
Section 304(l) of the CWA requires states to prepare and submit to EPA
for approval a list ("§ 304(l) List") identifying waters ("§
304(l) Waters") within the state that cannot reasonably be anticipated to
attain or maintain WQSs due to toxic pollutants, to identify point source
dischargers of these pollutants, and to develop individual control
strategies for these dischargers. 33 U.S.C. § 1314(l). § 304(l)
Waters must be included on a state's section 303(d) Lists.*fn10 See
Guidance for Water Quality Based Decisions: The TMDL Process ("TMDL
Guidance") at 45 ("When developing [a § 303(d) List] a state should,
at a minimum, use  waters listed under section 304(l).").
Plaintiffs claim that EPA's approval of New Jersey's section 303(d)
Lists despite omission of thirty § 304(l) Waters from the lists was
arbitrary and capricious, an abuse of discretion, and contrary to law in
violation of section 706(2)(A) of the APA. (Pl.'s Summ. J. Br. at 6.)
Under the arbitrary and capricious standard of review, "a reviewing court
may not set aside an agency [action] that is rational, based on
consideration of the relevant factors and within the scope of the
authority delegated to the agency by statute." See Motor Vehicle Mfrs.
Ass'n, 463 U.S. at 42-43. An agency is required to examine the relevant
evidence and articulate a satisfactory explanation for its action. See
id. at 43. Agency action will be deemed arbitrary and capricious if the
evidence proves that the agency failed to consider an important aspect of
the problem. See id.
EPA argues that the thirty waters were justifiably omitted from New
Jersey's section 303(d) Lists because the waters appeared only on
preliminary drafts of New Jersey's § 304(l) List that were never
approved, and the waters did not appear on New Jersey's final § 304(l)
List, which was approved. (EPA's JR Br. at 22-25; EPA's Summ. J. Br. at
57-60.) Although EPA did not list New Jersey's "final" § 304(l) List
in the administrative record or produce it during the course of
discovery, EPA amended the index to the administrative record in response
to plaintiffs' motion for summary judgment and cites references in the
record to the "final" § 304(l) List.
At the summary judgment stage, we noted that "if New Jersey's §
303(d) Lists omitted those thirty waters because the waters appeared only
on preliminary drafts of New Jersey's § 304(l) List that were never
approved, and not on New Jersey's final § 304(l) List, which was
approved, then EPA's decision to approve New Jersey's section 303(d) Lists
despite omission of the thirty remaining § 304(l) Waters would not be
arbitrary and capricious." (12-21-00 Mem. Op. at 27.) Because the Court
finds that the disputed waters do not appear on New Jersey's final §
304(l) Lists, we now conclude that EPA's decision to approve the State's
section 303(d) Lists despite the omission of thirty section 304(l) Waters
was not arbitrary and capricious.
The parties' dispute concerning § 304(l) Waters centers on the
relative significance of "mini" and "short" lists, on the one hand, and
the "long" list, on the other. Section 304(l) Lists in the states
emanate from several preliminary lists: (1) the "mini" lists of
waterbodies under section 304(l)(A)(I) that the states did not expect to
achieve water quality standards ("WQSs") due to discharges of toxic
pollutants from point or nonpoint sources; (2) the "short" lists of
waterbodies under section 304(l)(b) that the states did not expect to
achieve WQSs due to discharges of toxic pollutants from only point
sources; and (3) the "long" lists of waterbodies under section
304(l)(A)(ii) that the states did not expect to achieve WQSs due to
almost any impairment from point or nonpoint sources.
In February 1989, New Jersey submitted to EPA a report entitled
"Development of the Final 304(l) Short List," which contained New
Jersey's short and mini lists. (Decl. of Melaine A. Williams, Esq.,
dated 3-13-00 Ex. T.) Following public notice and comment, EPA approved
that list. (58 Fed. Reg. 58,548 (Nov. 2, 1993); Decl. of Wayne F.
Jackson dated 7-6-01 ("Jackson Decl.") ¶¶ 11-13.) A comparison of
New Jersey's final short and mini lists and plaintiffs' § 304(l) List
reveals that none of the thirty-five waters about which plaintiffs
originally complained are on the State's final short or mini lists of
waters impaired by toxic pollutants, with the exception of five omitted
waters and the Signac River.*fn11 The short and mini lists are the two
final lists required by section 304(l) that deal exclusively with waters
impaired by toxic pollutants. (Jackson Decl. ¶ 7.) The long list
is a broader list identifying waterbodies not expected to achieve water
quality standards due to virtually any impairment from nonpoint or point
sources. (Id.) Insofar as waters listed under section 304(l) due to
toxic impairment are concerned, the long list merely duplicates the final
short and mini lists. (Id.) Because the record indicates that the waters
identified by plaintiffs were not on New Jersey's final § 304(l)
lists of water impaired by toxic pollutants, the Court concludes that EPA
did not act arbitrary or capriciously in approving New Jersey's section
303(d) List despite the omission of thirty remaining 304(l) Waters.
D. Section 316(a) Waters
Section 301(a) of the CWA provides that the discharge of any pollutant
shall be unlawful unless otherwise authorized by the CWA.
33 U.S.C. § 1311(a). Section 303(d) of the CWA requires states to
identify those waters or parts thereof within its boundaries for which
controls on thermal discharges under section 301 are not stringent enough
to assure protection and propagation of a balanced and indigenous
population of shellfish, fish, and wildlife. 33 U.S.C. § 1313(d)(1)(B).
Section 316(a) of the CWA and New Jersey's water quality regulations
allow for point source dischargers to receive a variance from the
requirements of section 301 if the dischargers can show that any effluent
limitation proposed for the control of the thermal component of any
discharge from such source will require effluent limitations more
stringent than necessary to assure the protection and propagation of a
balanced, indigenous population of shellfish, fish, and wildlife in and
on the body of water into which the discharge is made. See
33 U.S.C. § 1326(a); N.J. Admin. Code tit. 7, § 14A-11.7. Any
such variance must assure the protection and propagation of a balanced,
indigenous population of shellfish, fish, and wildlife in and on that
body of water. See 33 U.S.C. § 1326(a); N.J. Admin. Code tit. 7,
Plaintiffs claim that waters subject to a thermal variance do not meet
WQSs. (Pls.' Summ. J. Br. at 16.) Plaintiffs argue that waters that do
not meet thermal WQSs because of the presence of a point-source
discharger (subject to a variance) must be included on a state's section
303(d) Lists. (Id. at 7, 16.) Plaintiffs claim that EPA's approval of New
Jersey's section 303(d) Lists despite the omission of an undisclosed
number of § 316(a) Waters from the lists was arbitrary and
capricious, an abuse of discretion, and contrary to law in violation of
section 706(2)(A) of the APA. (Id. at 16, 18.)
EPA argues that plaintiffs' claims based on section 316(a) must fail
because (1) they did not identify any waters that are impaired as a
result of New Jersey's grant of a section 316(a) variance (EPA's Summ.
J. Br. at 62) and (2) "New Jersey responded to Plaintiffs' 1998 list
316(a) comments by observing that `if data indicates that the receiving
waters have in fact been impaired, the Department [New Jersey] has the
option to deny the renewal of the variance. Such mechanisms make listing
in section 303(d) unnecessary as a direct feedback loop exists to monitor
for and if necessary address any thermal pollution brought about by
section 316(a) variances.' Under the circumstances, EPA does not believe
it was arbitrary and capricious to have approved New Jersey's 1998 (and
pre-1998) lists." (Id. at 62 n. 45 (quoting Locicero Decl. Ex. B-28 at
In reply, plaintiffs argue that (1) there is "readily available"
information from which to identify waters that are impaired as a result
of New Jersey's grant of section 316(a) variances, (2) it is the duty of
the State, not the public, to identify such impaired waters, and (3) the
CWA does not provide an exemption to section 303(d)'s listing requirement
for waters subject to a section 316(a) variance because of other
"feedback loops." (Pls.' Summ. J. Reply Br. at 13-14 & n. 13.)
The Court finds that plaintiffs' claim has no basis. EPA's approval of
New Jersey's § 303(d) Lists despite omission of WQLSs subject to
§ 316(a) variances was not arbitrary and capricious. As we stated in
our 12-21-00 Memorandum Opinion (12-21-00 Mem. Op. at 30), "[a] state is
only required to list WQLSs for which controls on thermal discharges are
not stringent enough to assure protection and propagation of a balanced
and indigenous population of
shellfish, fish, and wildlife." See
33 U.S.C. § 1313(d)(1)(B); 40 C.F.R. § 130.7(b)(2). A §
316(a) variance must assure the protection and propagation of a
balanced, indigenous population of shellfish, fish, and wildlife in and
on that body of water. See 33 U.S.C. § 1326(a). Therefore, WQLSs
subject to § 316(a) variances should not be water quality limited,
and plaintiffs have failed to identify any § 316(a) Waters that are
impaired or threatened by thermal discharges. New Jersey has issued only
three thermal variances, and no resulting impairment of the receiving
waters has occurred. (O'Connor Decl. ¶ 5.) Therefore, EPA's
decision to approve New Jersey's section 303(d) Lists despite omission of
§ 316(a) Waters was not arbitrary or capricious.
E. Antidegradation Waters
Federal antidegradation requirements found at 40 C.F.R. § 131.12
require states to develop, adopt, and implement a statewide
antidegradation policy. Antidegradation standards ensure that the level
of water quality needed to protect existing uses is maintained and that
water quality better than necessary to protect existing uses shall be
maintained and protected unless lower water quality is necessary to
accommodate important economic or social development in the area.
40 C.F.R. § 131.12. New Jersey's antidegradation policy is found at
N.J. Admin. Code tit. 7, § 9B-1.5(d). A state is required to include
waters that fail to meet CWA's antidegradation standards
("Antidegradation Waters") on its section 303(d) Lists. See
40 C.F.R. § 130.7(b)(3) ("For the purposes of listing waters [states
must include waters that fail to meet WQSs] established under section 303
of the [CWA], including numeric criteria, narrative criteria, waterbody
uses, and antidegradation requirements."); see also
40 C.F.R. § 131.6(d) (requiring state's WQSs to include an
antidegradation policy consistent with 40 C.F.R. § 131.12).
Plaintiffs claim that EPA's approval of New Jersey's section 303(d)
Lists despite omission of an undisclosed number of Antidegradation Waters
from the lists was arbitrary and capricious, an abuse of discretion, and
contrary to law in violation of section 706(2)(A) of the APA. (Pls.'
Summ. J. Br. at 16-18; Pls.' Summ. J. Reply Br. at 16-17.) EPA argues
that plaintiffs' claims based on New Jersey's failure to identify any
Antidegradation Waters on its § 303(d) Lists must fail because
plaintiffs did not identify any Antidegradation Waters that were
improperly omitted. (EPA's Summ. J. Br. at 64.).
Plaintiffs have not identified whether New Jersey has any
Antidegradation Waters requiring protection. If New Jersey has no such
waters whose high quality is threatened, or if alternative controls
ensure that those waters will attain New Jersey's antidegradation
standards in the near future, then EPA's approval of New Jersey's §
303(d) Lists would not be arbitrary or capricious. In Sierra Club v.
United States Environmental Protection Agency, 162 F. Supp.2d 406 (D.Md.
2001), the plaintiffs alleged that Maryland's 1996 and 1998 section
303(d) lists failed to include thermal-variance waters and
antidegradation waters. In rejecting that claim, the court stated:
Plaintiffs fail to identify any such impaired water,
nor do they identify any available data that contains
such information that Maryland did not consider.
Because EPA's decision is presumed valid and
Plaintiffs bear the burden of overcoming this
presumption, Plaintiff's failure to provide any
evidence to support their position provides no basis
upon which the Court could find that EPA's approval
was arbitrary and capricious, or an abuse of
Id. at 416. We agree with that reasoning and conclude that EPA's actions
arbitrary and capricious with regard to the Antidegradation
III. COUNT TWO: CONSTRUCTIVE SUBMISSION & UNREASONABLE DELAY
Count Two of the Fifth Amended Complaint is predicated on EPA's alleged
failure to implement New Jersey's TMDL program over the last twenty years
after New Jersey failed to do so. Plaintiffs allege that EPA's failure
constitutes an unreasonable delay of agency action in violation of
section 706(1) of the APA.*fn12
Congress passed the CWA in 1972. Section 303(d) established the TMDL
program, which required states to identify impaired waters and create
TMDLs for pollutants that were impairing the waters. States were
required to submit initial 303(d) Lists and accompanying TMDLs to EPA
within 180 days of EPA's 1978 identification of pollutants suitable for
TMDL calculation. 33 U.S.C. § 1313(d)(2); 43 Fed. Reg. 60,662, 60,666
(Dec. 28, 1978); Scott v. City of Hammond, 741 F.2d 992, 996 n. 10 (7th
Cir. 1984). Thereafter states were required to submit section 303(d)
Lists and TMDLs to EPA for review and approval "from time to time."
33 U.S.C. § 1313(d)(2). Since 1992, EPA has required states to
submit section 303(d) Lists and TMDLs by April 1 in every even numbered
year.*fn13 See id.; see also 30 C.F.R. § 130.7(d)(1); 57 Fed. Reg.
33,040, 33,050 (July 24, 1992). In practice, however, many states,
including New Jersey, resisted the TMDL mandate. Diane K. Conway, TMDL
Litigation: So Now What?, 17 Va. Envtl. L.J. 83, 90 (1997).
EPA must approve or disapprove a state's section 303(d) List or TMDL
within thirty days of its submission. Id. If EPA disapproves a §
303(d) List, it must identify the WQLSs that should be on the list within
thirty days from the date of disapproval. Id. Similarly, if EPA
disapproves a TMDL, it must establish the TMDL, within thirty days from
the date of disapproval. Id. Conspicuously absent from the language of
the statute is what, if any, duty EPA has where a state fails to submit
§ 303(d) Lists and TMDLs to EPA for review as required.
The courts began to determine that at some point, states would be
deemed to have constructively submitted a defective § 303(d) List and
TMDLs, requiring EPA to disapprove such list and TMDLs and step into the
shoes of the states and establish lists within thirty days of such
disapproval. See, e.g., Natural Res. Def. Council v. Fox,
909 F. Supp. 153, 156-58 (S.D.N.Y. 1995).
Plaintiffs filed this lawsuit against EPA in 1996 to enforce the TMDL
program in New Jersey. Count Two of the Fifth Amended Complaint alleges
that "EPA's failure to disapprove New Jersey's submission of no
TMDLs . . . and to establish TMDLs . . . for all New Jersey WQLSs,
constitute[s] the unreasonable delay of agency action." (Compl. ¶
78.) Plaintiffs seek to compel EPA to carry out the actions that were
unreasonably delayed, namely the disapproval of New Jersey's constructive
submission of no TMDLs and the establishment of TMDLs
appearing on New Jersey's current § 303(d) List.
For plaintiffs to show that EPA's actions under section 303(d) have
been unreasonably delayed pursuant to section 706(1) of the APA,
plaintiffs must first show that New Jersey constructively submitted
defective TMDLS. As we held in our June 29, 1999 decision, EPA's
decision concerning when to step into the shoes of a state and establish
TMDLs in the face of inaction by that state is discretionary. (Mem. &
Order filed 6-29-99 at 8.) We also held, however, that EPA's discretion
as to when to deem state inaction a "constructive submission" is not
unfettered. (Id. at 12.)
The triggering conduct forming the basis of plaintiffs' unreasonable
delay claim against EPA is New Jersey's failure to comply with CWA
requirements to establish TMDLs. EPA was aware of the states'
obligations to comply with such requirements and of New Jersey's failure
to comply. See 33 U.S.C. § 1313(d)(2). Thus, a state's inaction in
carrying out the state's obligations under the CWA can form the predicate
act (or in this case inaction) by which any unreasonable delay claim
against EPA may be measured.
In addressing the factors relevant to the Court's consideration of this
issue, the Court must be mindful of the remedies available to plaintiffs
should they be successful in proving their claim. The Court's power in
this context is limited to compelling agency action that has been
unreasonably delayed. See NRDC III, 93 F. Supp.2d at 531. Although
evidence of the long history of the failure of EPA and New Jersey to
perform their duties under the CWA is relevant to the reliability of these
entities' promises of future compliance, such evidence is not
dispositive. See id. As the Court's sole power in this context is to
require EPA to conform its present conduct to the law, EPA's past
noncompliance is irrelevant to the question of the agency's present
compliance, and to whether the Court will compel EPA to act in a
particular manner. See id. Even if EPA's duty to intervene has been
triggered, the nature and extent of that duty must be assessed in light
of continuing developments, including progress in New Jersey's efforts to
submit TMDLs. See id. Sufficient progress by New Jersey, even after a
period of delinquency, can reduce the extent of EPA intervention required
or even render moot the need for any intervention. See id. Thus, the
issue can be decided by answering two questions: (1) was EPA's refusal
to recognize New Jersey's failure to submit TMDLs as a "constructive
submission" of defective TMDLs arbitrary, capricious, or an abuse of
discretion; and if so, (2) is EPA's delay in taking steps to develop
TMDLs unreasonable in light of the present circumstances.
As to the first question, EPA argues that it did not abuse its
discretion in refusing to recognize New Jersey's failure to submit TMDLs
as a "constructive submission" of defective TMDLs. New Jersey submitted
four TMDLs in 1987, which EPA approved. In addition, New Jersey began
taking active steps in 1994 toward complying with its obligations under
section 303(d) of the CWA. For example, in 1994, New Jersey cooperated
with EPA and the New York State Department of Environmental Conservation
in the preparation of TMDLs for copper, mercury, nickel, and lead in the
NY-NJ Harbor. (Administrative Record for EPA's Decision Not to Undertake
Establishment of TMDLs for New Jersey ("Admin. R.") #12; Locicero Decl.
Ex. A-58 at 12.) In 1996, New Jersey prepared a proposed Comprehensive
Water Resources Management Program Rule. (Admin. R. #16.) In 1997, New
Jersey and EPA prepared a performance partnership agreement, presumably
outlining New Jersey's commitment to fulfilling its section 303(d)
(Id. #23.) Also in 1997, New Jersey prepared a draft
Statewide Watershed Management Framework Document for New Jersey. (Id.
#24.) Drafts of a Memorandum of Agreement ("MOA") were prepared by New
Jersey and EPA in 1998 dealing with New Jersey's commitment to fulfill
New Jersey's TMDL obligations. (Id. #30, 32, 34, 39, 40.) A final MOA
was signed in 1999. (Locicero Decl. Ex. A-58.) Finally, New Jersey began
submitting TMDLs to EPA for approval pursuant to the MOA. (Id. Ex. H-3
to H-7, I.)
The question is whether that action (or relative inaction) constitutes
a constructive submission. The constructive submission doctrine is an
exercise in judicial lawmaking, existing only by judicial gloss on the
CWA. NRDC III, 93 F. Supp.2d at 537 n. 3, 542. The intent behind that
judicially created doctrine "is to ensure that EPA will ultimately bear a
mandatory duty to act in furtherance of the goals of the CWA if a state
refuses to act." Id. at 542.
The doctrine of constructive submission "is necessarily a narrow"
doctrine, applying "only when a state's actions clearly and unambiguously
express a decision to submit no TMDL for a particular impaired
waterbody." Hayes v. Whitman, 264 F.3d 1017, 1024 (10th Cir. 2001)
(emphasis added). A constructive submission occurs "only if the state
fails to submit any TMDLs and has no plan to remedy the situation."
S.F. Baykeeper, 147 F. Supp.2d at 1001. Therefore, the standard for
constructive submission is stringent, requiring both that a state submit
no TMDLs and have no plan to remedy that total failure. For a
constructive submission to be deemed to have occurred, it must be
demonstrated that a state "entirely failed" to act Hayes v. Browner,
117 F. Supp.2d 1182, 1194 (N.D.Okla. 2000), aff'd, 264 F.3d 1017 (10th
Cir. 2001), or has "flatly chosen not to act." Sierra Club v. United
States Envtl. Prot. Agency, 162 F. Supp.2d 406, 418 n. 18 (D.Md. 2001).
When "a state has submitted or soon plans to submit TMDLs for its
impaired waters, the constructive-submission analysis would be factually
inapplicable." Hayes, 264 F.3d at 1023. That principle is illustrated
in a number of recent federal decisions. In Sierra Club v. United States
Environmental Protection Agency, the district court held that the
constructive submission doctrine was inapplicable because Maryland had
made several TMDL submissions. 162 F. Supp.2d at 418 n. 18. In Hayes v.
Whitman, the Tenth Circuit held inapplicable the constructive submission
doctrine because EPA produced evidence "that Oklahoma ha[d] in fact
submitted (and the EPA ha[d] approved) a small number of TMDLs and ha[d]
a schedule to develop many more TMDLs over the next twelve years." 264
F.3d at 1020. In Idaho Sportsmen's Coalition v. Browner, the district
court concluded that no constructive submission had yet occurred, even
though Idaho had submitted only three TMDLs and its schedule for future
submissions was inadequate. 951 F. Supp. 962, 968 (W.D.Wash. 1996). The
doctrine was inapplicable also in Sierra Club, North Star Chapter v.
Browner because forty-three TMDLs had been submitted and approved.
843 F. Supp. 1304, 1313(D.Minn. 1993).
Defendants argue that the recent decision in San Francisco Baykeeper,
Inc. v. Browner, 147 F. Supp.2d 991 (N.D.Cal. 2001), is particularly on
point (EPA's JR Br. at 4-6; EPA JR Reply Br. at 4-6), and the Court
agrees. In that case, as in this one, plaintiff contended that a state
had constructively submitted TMDLs through its failure to act. S.F.
Baykeeper, 147 F. Supp.2d at 999. The issue was whether the court should
exercise its equitable power to compel EPA to take action when
California had submitted some TMDLs, (2) EPA had taken some action,
although allegedly inadequate, on those submissions, and (3) EPA was
taking steps with California to bring that state's TMDL program into
compliance with the CWA. Id. The court summarized its position:
[T]his court finds and concludes that California and
the EPA have both been doing something about TMDLs,
albeit not as rapidly as contemplated by the passage
of the CWA. But in the view of the record, this court
cannot find that there have been no filing by
California and no actions by the EPA. The record does
not support plaintiffs' contention that there has been
a constructive submission of no TMDLs. . . . Although
the EPA has not acted with speed or on the timetable
which Congress envisioned, it has acted with
sufficient diligence that this court's interference
with an injunctive remedy is not appropriate.
Id. at 1002 (emphasis added).
Plaintiffs argue that San Francisco Baykeeper is distinguishable
because California had a "vibrant" program developing a "substantial
number" of TMDLs, whereas New Jersey's development has been nearly
nonexistent. (Pls.' JR Reply Br. at 22-23.) The standard set out in
San Francisco Baykeeper, however, is clear: A constructive submission
"occurs only if the state fails to submit any TMDLs and has no plan to
remedy the situation." 147 F. Supp.2d at 1001. Therefore, the fact that
California submitted more TMDLs than has New Jersey is not decisive.
What matters is that both states submitted some TMDLs and have plans to
remedy past failures, which means that no constructive submission has
occurred under the relevant standard. The record here, as in San
Francisco Baykeeper, "establishes that this is not a case of a total
failure to act, by either the state or the EPA." Id. at 1000. As
recounted above, New Jersey submitted four TMDLs in 1987, which EPA
approved. New Jersey began taking active steps in 1994 toward complying
with its obligation under section 303(d) of the CWA. In 1996, New Jersey
prepared a proposed Comprehensive Water Resources Management Program
Rule. In 1997, New Jersey and EPA prepared a performance partnership
agreement, presumably outlining New Jersey's commitment to fulfilling its
section 303(d) obligations. Also in 1997, New Jersey prepared a draft
Statewide Watershed Management Framework Document for New Jersey. Drafts
of the MOA were prepared by New Jersey and EPA in 1998 dealing with New
Jersey's commitment to fulfill New Jersey's TMDL obligations. A final
MOA was signed in 1999. Finally, New Jersey began submitting TMDLs to
EPA for approval pursuant to the MOA. In light of those developments, it
cannot be concluded that the relevant standard is satisfied, namely, that
New Jersey has submitted no TMDLs and has no plans to do so. The
district court in NRDC III depicted a similar set of circumstances:
[T]o date, while New York has not promulgated TMDLs
for every waterbody on its most recent § 303(d)
list, it has unquestionably formulated and submitted
some TMDLs, and has dedicated substantial resources to
the problem and amply demonstrated its good-faith
interest in collaborating with EPA to bring the
State's TMDL program to completion. On this basis
alone, the Court can conclude that EPA's decision not
to declare a "constructive submission" of "no TMDLs"
by New York is well-supported by the record.
93 F. Supp.2d at 540. New Jersey has evidenced sufficient indicia of
compliance, and the record indicates that EPA's decision not to declare a
"constructive submission" of no TMDLs by New Jersey was not arbitrary,
capricious, or unreasonable.
The record further indicates that compliance is presently improving.
EPA's intervention is not necessary in light of New Jersey's current
efforts to further comply with its TMDL obligations. New Jersey is
working with EPA toward compliance with New Jersey's TMDL requirements.
During the past five years, New Jersey has added more than 1000 WQLSs to
its § 303(d) List and has implemented five TMDLs. (Locicero Decl.
Ex. H-3 to H-7, I.) In the last two years, New Jersey has submitted, and
EPA has approved, a number of other TMDLs. (Decl. of Kathleen Callahan
dated 7-10-01 ("Callahan Decl.") ¶ 5 and App. B (listing several
TMDLs for segments of various waters).) New Jersey has also dedicated
substantial resources to the problem and has demonstrated its good-faith
interest in collaborating with EPA to bring New Jersey's TMDL program to
completion. (See Locicero Decl. Exs. A-58 at 12-13, H-1, H-9.) New
Jersey accelerated the date for completion of TMDLs under the 1999 MOA,
advancing by thirteen months — to May 2006 — the final date
for submission of New York/New Jersey TMDLs, that last scheduled TMDLs to
be submitted for waters on the 1998 section 303(d) List. (Callahan
Decl. ¶ 4 and App. A-A-1.) New Jersey and EPA have entered into an
agreement under which future modifications to the MOA would not extend
the current schedule past March 31, 2011. (Id. ¶ 4.) The proposed
schedule for implementing New Jersey's TMDLs is consistent with EPA's
proposed TMDL regulations, which would require that states establish TMDLs
as expeditiously as practicable, but, in any event, within fifteen years
(see 64 Fed. Reg. 46,012, 46,027 (Aug. 23, 1999)), and the
recommendations of the Federal Advisory Committee ("FACA"), which
recommends that states complete their TMDL development activities within
an eight to fifteen year period.*fn14 (Locicero Decl. Ex. A-36.)
In NRDC III, because New York was cooperating and had pledged itself to
a reasonable timetable for completion, the district court concluded that
the "intrusive injunctive remedies requested by plaintiffs" were not
warranted. 93 F. Supp.2d at 541. Even in Scott v. City of Hammond, in
which the Seventh Circuit first articulated the "constructive submission"
doctrine, the court made clear that the duty to declare a constructive
submission could be avoided if "EPA promptly comes forward with
persuasive evidence indicating that the states are or will soon be, in the
process of submitting TMDL proposals." 741 F.2d at 997 n. 11. In this
case, EPA has come forward with evidence that New Jersey has submitted
TMDLs and will be making such submission, and EPA therefore has avoided a
duty to declare a constructive submission.
In sum, New Jersey has submitted TMDLs and has a firm plan and funding
to complete outstanding TMDLs, and EPA is working to fulfill that plan.
Therefore, it was not arbitrary or capricious for EPA to conclude that
its duty to declare a constructive submission of no TMDLs had not been
triggered. Accordingly, the Court need not reach the second element of
whether agency action constituted "unreasonable delay," which requires
that an agency have a duty in the first place. See S.F. Baykeeper, 147
F. Supp.2d at 1005; NRDC III, 93 F. Supp.2d at 544 ("As this Court finds
that EPA is not presently under a duty to declare such a `constructive
submission,' it is illogical, and perhaps therefore unnecessary, to
consider whether EPA unreasonably delayed such a
declaration."). A claim
of unreasonable delay "is not legally viable because it is premised upon
an assumption that the EPA has an affirmative duty to identify . . .
WQLSs and . . . TMDLs. For agency action to be unreasonably delayed or
unlawfully withheld, there must be a duty imposed upon an agency to
undertake a particular action." Friends of the Wild Swan, Inc. v. United
States Envtl. Prot. Agency, 130 F. Supp.2d 1184, 1192 (D.Mont. 1999).
III. COUNT FOUR: FAILURE TO CONSULT UNDER ESA
Count Four of the Fifth Amended Complaint is predicated on EPA's
alleged failure to comply with section 7 of the ESA before approving New
Jersey's section 303(d) Lists and TMDLs. (Fifth Am. Compl. Count Four.)
Section 7 contains the procedural safeguards of the ESA. Section
7(a)(2) imposes a procedural duty on federal agencies to consult with the
FWS or the NMFS, depending on the protected species, to "insure that any
action authorized, funded, or carried out by such agency . . . is not
likely to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification"
of critical habitats of listed species. 16 U.S.C. § 1536(a)(2). An
agency proposing an action*fn15 must determine first whether the action
"may affect" listed species. 50 C.F.R. § 402.11, 402.14. If an
agency determines that its actions "may affect" a protected species or
its habitat, then the agency must enter into consultation with the FWS or
NMFS to ensure that the action is not likely to jeopardize the continued
existence of any listed species. 50 C.F.R. § 402.14.*fn16
Two forms of consultation exist: informal and formal. Informal
consultation "is an optional process that includes all discussions,
correspondence, etc., between the Service and the Federal agency in
determining whether formal consultation is required."
50 C.F.R. § 402.13(a). If the agency determines during informal
consultation, with the written concurrence of the Service, "that the
action is not likely to adversely affect listed species or critical
habitat, the consultation process is terminated, and no further action is
necessary." 50 C.F.R. § 402.13(a). If, however, the agency
determines during informal consultation that its action may have adverse
effect on a protected species, then the agency must request initiation of
formal consultation with the Service. Also, if formal consultation is
required, then the Service must prepare a biological opinion to advise
the agency whether jeopardy is likely to occur and, if so, whether
prudent and reasonable alternatives exist to avoid a "jeopardy"
situation. 50 C.F.R. § 402.13, 402.14(a),(b). The consultation
obligation is on-going. 50 C.F.R. § 402.16. Specifically, the agency
is required to reinitiate consultation whenever a new species is listed.
Defendant argues that Claim Four is moot because it has initiated
consultation with the FWS and NMFS. Article III of the United States
Constitution requires that a cause of action must present a case or
controversy. DeFunis v.
Odegaard, 416 U.S. 312, 316 (1974). Under
Article III, a district court "lacks subject matter jurisdiction over a
dispute that is moot." Vestcom Int'l, Inc. v. Chopra, 114 F. Supp.2d 292,
296 (D.N.J. 2000). Mootness is a jurisdictional issue that "a federal
district court must resolve before it assumes jurisdiction." North
Carolina v. Rice, 404 U.S. 244, 246 (1971). Article III demands "that a
plaintiff's claim be live not just when he first brings the suit but
throughout the entire litigation, and once the controversy ceases to
exist the court must dismiss the case for lack of jurisdiction." Lusardi
v. Xerox Corp., 975 F.2d 964, 974 (3d Cir. 1992). The "case or
controversy" requirement applies to an action for injunctive or
declaratory relief. Williams v. Alioto, 549 F.2d 136, 141 n. 4 (9th Cir.
The Third Circuit has held that a case becomes moot in two instances:
(1) when the alleged violation has ceased, and no reasonable likelihood
exists that the violation will recur, and (2) when interim relief or
other events completely and irrevocably eradicated the effects of the
alleged violation. N.J. Turnpike Auth. v. Jersey Cent. Power & Light,
772 F.2d 25, 31 (3d Cir. 1985). The second instance is at issue in this
matter. The doctrine of mootness "is centrally concerned with the
court's ability to grant effective relief: `If developments occur during
the course of adjudication that eliminate a plaintiff's personal stake in
the outcome of the suit or prevent a court from being able to grant the
requested relief, the case must be dismissed as moot." County of Morris
v. Nationalist Movement, 273 F.3d 527, 533 (3d Cir. 2001) (quoting
Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996)).
Therefore, the main question in determining mootness "is whether a change
in circumstances since the beginning of the litigation precludes any
occasion for meaningful relief." Old Bridge Owners Coop. Corp. v.
Township of Old Bridge, 246 F.3d 310, 314 (3d Cir. 2001). Mootness "is
fundamentally a matter of degree; there is no precise test for
ascertaining with precision whether a particular claim has become moot."
Int'l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths Forgers &
Helpers v. Kelly, 815 F.2d 912, 915 (3d Cir. 1987).
Defendant argues that Claim Four is rendered moot because EPA initiated
consultation on the 1998 CWA section 303(d) List for New Jersey and on
the approved CWA TMDLs in the State by letters to the FWS and NMFS dated
February 21, 2001. In light of those documents, the Court determines
that Claim Four is moot. In so ruling, the Court finds particularly
persuasive the reasoning in two parallel decisions: Southern Utah
Wilderness Alliance v. Smith, 110 F.3d 724 (10th Cir. 1997), and
Southwest Center for Biological Diversity v. United States Forest
Service, 82 F. Supp.2d 1070 (D. Ar. 2000).
In Southern Utah, an environmental organization brought suit against
the Bureau of Land Management ("BLM") and the Secretary of the Interior,
claiming that the defendants violated section 7(2)(a) of the ESA by
failing to consult with the FWS prior to implementing a land management
guidance schedule. 110 F.3d at 726. As relief, the plaintiff requested
a declaration that the defendants violated section 7(a)(2) of the ESA and
an injunction ordering the BLM to consult with FWS. Id. at 727. After
suit was filed, the BLM informally consulted the FWS and received its
concurrence. Id. at 728. The court ruled that "[a]n injunction ordering
consultation is no longer warranted. There is no point in ordering an
action that has already taken place." Id. The court noted that the
plaintiff failed to explain "how an injunction ordering another round of
would provide any meaningful relief" and "how any injury
still flows from the alleged violation." Id. at 728, 729. The court
concluded that the defendants satisfied the consultation requirement of
section 7(a)(2) and that the plaintiff failed to show that an injunction
would redress any injury. Id. at 729. The court added that its
conclusion "merely recognize[d] that the changed circumstances of [that]
particular case no longer present[ed] an opportunity for meaningful
relief." Id. Concerning the requested declaratory judgment, the court
determined that "[f]or the same reasons that injunctive relief is not
available, a declaratory judgment also is not available." Id. at 730. A
declaratory judgment "would serve no purpose[,] . . . would not affect
the matter, and would be in the nature of an advisory opinion." Id.
Therefore, the court held that the plaintiff's claims were moot.
Similar conclusions were reached in the second decision, Southwest
Center. There, an environmental group sought a declaratory judgment that
the United States Forest Service ("USFS") failed to fulfill its
obligation to consult with the FWS under section 7(a)(2) of the ESA
before the USFS issued livestock grazing permits within a national
forest. 82 F. Supp.2d at 1071. The defendants initiated consultation
with the FWS after the commencement of the suit and only one day before
the USFS's opposition to the plaintiff's motion was due. Id. at 1072.
The USFS argued that the plaintiff's section 7(a)(2) was moot because the
defendants had begun consultation. Id. at 1079. The court noted that
"courts should not examine claims that become moot because of changed
factual circumstances during the litigation." Id. The court agreed that
it would be merely academic for the court to order the defendants to
engage in consultation, as the plaintiff's complaint requested, when the
defendants already were consulting. Id. Therefore, the court held that
the plaintiff's claim for violation of section 7(a)(2) was moot.
In this case, we concur with the reasoning of the courts in Southern
Utah and Southwest Center in holding that the EPA's commencement of
consultation is sufficient to moot plaintiffs' claim for failure to
consult as required by section 7(a)(2) of the ESA. Plaintiffs seek
prospective relief in the form of an declaration that EPA is in violation
of the ESA for failing to comply with section 7 and an injunction
ordering EPA to comply with section 7. (Fifth Am. Compl. Ninth Count
¶¶ 2, 4.) Such a declaration or injunction "would serve no purpose
today." Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 194 (3d Cir. 2001
(holding that claims for declaration and injunction were moot when
amendment to statute removed objectionable elements). EPA has provided
plaintiffs "with what they sought to attain in bringing this suit."
Rosetti v. Shalala, 12 F.3d 1216, 1233 (3d Cir. 1993). By letters to the
FWS and NMFS dated February 21, 2001, EPA initiated consultation on the
1998 CWA 303(d) list for New Jersey as well as for all approved CWA TMDLs
in New Jersey (nine specific TMDLs for New Jersey waters).*fn17 (Decl.
of Robert W. Hargrove dated 7-16-01 ¶ 5 & Ex. A & B.) EPA indicated
expressly that it was "writing to initiate informal consultation" under
section 7 of the ESA for those specific actions, indicated that EPA's
approval of those CWA actions was not likely to adversely affect any
listed species, and sought the concurrence of the FWS and the NMFS.
(Id.) The letters seek
information concerning listed and proposed
species from those agencies.*fn18 (Id.) EPA described the relevant
actions in the letters and forwarded copies of the pertinent 303(d) list
and TMDLs. (Id.) Those actions constitute informal consultation, for
such consultation "includes all discussions, correspondence, etc.,
between the Service and Federal agency . . ., designed to assist the
Federal agency in determining whether formal consultation or a conference
is required." 50 C.F.R. § 402.13(a).
The Third Circuit has stated that "it would be impossible for the court
to grant effectual relief for a wrong that has already been remedied.
Thus, if a favorable decision by a federal court could not provide the
plaintiffs with more than the defendant has already given them, the entire
case . . . would be moot." Rosetti, 12 F.3d at 1232; see also Black
United Fund of N.J., Inc. v. Kean, 763 F.2d 156, 160-61 (3d Cir. 1985)
(holding that amendment mooted plaintiff's claims because "raison d'etre
for the injunction no longer exists" and noting that amendment "will give
plaintiff substantially the relief it sought in the district court").
Other courts have reasoned similarly. In Greenpeace Foundation v.
Mineta, 122 F. Supp.2d 1123 (D.Haw. 2000), the district court held a
section 7 claim moot because the defendant agency had "already
acquiesced" in requested reinitiation of section 7 consultation. Id. at
1128. The claim was moot because "[i]t would serve no purpose to order
[the defendant] to do what it has already done." Id. In Klamath
Siskiyou Wildlands Center v. Babbitt, No. CV-99-1044-ST, 2000 WL 236366,
at *6-*7 (D.Or. Feb. 15, 2000), the district court held that the
plaintiffs' claims for injunctive relief and a declaratory judgment were
moot. Id. at *6. The plaintiff sought an injunction ordering the
defendant to publish final regulations for six challenged species within
thirty days and a declaration relating to the same activity. Id. at
*5-*7. The defendant had published the regulations; therefore, the
challenged government activity of unreasonably delaying publication of
final regulations had "evaporated," rendering moot the requests for
injunctive and declaratory relief. Id. at *6-*7.
Plaintiffs argue that EPA's post-hoc correspondence fails to comply
with the procedural requirements of the ESA, which requires that
consultation occur prior to relevant agency action. (Pls.' Br. in Supp.
of Summ. J. on Claim 4 ("Pls. Claim 4 Summ. J. Br.") at 12, 13-14.) The
plaintiffs in Southern Utah made a similar argument to the Tenth Circuit.
110 F.3d at 729. That court rejected the argument, stating that it "begs
the question. Subsequent consultation is precisely the relief [the
plaintiff] seeks." Id. Plaintiffs here also beg the question; they seek
consultation, and EPA is engaging in consultation.
Plaintiff also argue that even if post-hoc consultation is permitted,
such consultation is not concluded in New Jersey. (Pls.' Claim 4 Summ.
J. Br. at 12, 14.) Completion, however, is not required for a finding of
mootness. EPA has initiated informal consultation in accordance with the
relevant regulations. EPA will have to proceed to formal consultation
only if the informal consultation reveals that the EPA's activities are
"likely to adversely affect any listed species or critical habitat."
50 C.F.R. § 402.14(b)(1); see also 50 C.F.R. § 402.13 ("If during
informal consultation it is determined by the Federal agency, with the
written concurrence of the Service, that the action is not likely to
adversely affect listed species or critical habitat, the consultation
process is terminated, and no further action is necessary.") That
contingency must be satisfied, and the Court declines to order EPA to
complete formal consultation absent a finding flowing from informal
A litigant "may invoke an exception to the mootness doctrine to gain
judicial review." Chong v. Dist. Dir., Immigration & Naturalization
Serv., 264 F.3d 378, 384 (3d Cir. 2001). One such exception is when the
issue is deemed a wrong capable of repetition yet evading review. Id. at
384. Plaintiffs rely on that exception, arguing that Claim Four is not
moot on that basis. (Pls.' Reply Br. in Supp. of Pls.' Mot. for Summ. J.
on Claim 4 and in Opp'n to EPA's Cross-Mot. for Summ. J. on Claim 4
("Pls.' Claim 4 Reply Br.") at 14-16.)
"The exception from the mootness doctrine for cases that are
technically moot but `capable of repetition, yet evading review' is
narrow and available `only in exceptional circumstances.'" County of
Morris, 273 F.3d at 534 (quoting City of Los Angeles v. Lyons, 461 U.S. 95,
109 (1983)). The Supreme Court has "permitted suits for prospective
relief to go forward despite abatement of the underlying injury only in
the `exceptional situations,' Lewis v. Cont'l Bank Corp., 494 U.S. 472,
481 (1990) (quoting Lyons, 461 U.S. at 109), when the following two
circumstances are present simultaneously: "(1) the challenged action was
in its duration too short to be fully litigated prior to its cessation or
expiration, and (2) there was a reasonable expectation that the same
complaining party would be subjected to the same action again." United
States v. Criden, 675 F.2d 550, 553 (3d Cir. 1982) (quoting Murphy v.
Hunt, 455 U.S. 478, 482 (1982)).*fn19
Plaintiffs have not demonstrated that this case involves such an
exceptional situation because plaintiffs fail to satisfy the second
condition, even if the Court assumes the first condition is met.*fn20
Concerning the second condition, plaintiffs argue that
[t]here is also more than a "reasonable likelihood"
that EPA's review of New Jersey's next § 303(d)
List will reflect the same deficiencies, and that EPA
will approve it anyway. This case alone bespeaks its
certainty. The record shows that EPA has never
engaged in § 7 consultation on New Jersey's §
303(d) Lists. Nor has the agency committed to consult
about subsequent future § 303(d) Lists or accepted
that it has a legal obligation to do so.
(Pls.' Claim 4 Reply Br. at 16-17) (citation omitted). Plaintiffs would
have the Court look retrospectively to speculate about future compliance
on future lists. However, "[p]ast exposure to illegal conduct does
not in itself show a present case or controversy . . . if unaccompanied by
any continuing, present adverse effects." O'Shea v. Littleton,
414 U.S. 488, 495-96 (1974). The Court "will not speculate on what
[defendants] might do at some future time." S.F. Baykeeper, 180 F.
Supp.2d at 1122-23. The Supreme Court "has repeatedly recognized that
claims predicated upon . . . speculative contingencies afford no basis
for finding the existence of a continuing controversy as required by
Article III. Blanciak, 77 F.3d at 700. Plaintiffs must demonstrate an
"injury, or threat thereof, `of sufficient immediacy and ripeness' to
satisfy the jurisdictional requirements of the federal courts." Id.
(quoting Warth v. Seldin, 422 U.S. 490, 516 (1975)). Plaintiff have not
made such a demonstration, as any relevant injury "is contingent upon a
host of occurrences, each of which is just too speculative to fulfill the
requirement of a present `case or controversy.'" Id. at 699-700.
Plaintiff has not shown that EPA is likely to violate section 7(a)(2) in
connection with some future action. See S. Utah, 110 F.3d at 729
(determining that exception to mootness doctrine inapplicable because
plaintiff failed to show likely future violation). "Broad-based `obey the
law' injunctive relief is generally prohibited." Mannington Mills, Inc.
v. Shinn, 877 F. Supp. 921, 929 (D.N.J. 1995). More importantly, the
alleged violation cannot be repeated; consultation is initiated with
respect to the 1998 list and TMDLs, and plaintiffs therefore cannot be
"subjected to the same action again." See Klamath Siskiyou Wildlands
Ctr., 2000 WL 236366, at *7. Because "Article III does not permit
federal courts to decide moot cases[,]" Rosetti, 12 F.3d at 1223, we must
grant summary judgment in favor of EPA on Count Four.
For the reasons expressed above, the Court will deny plaintiffs' motion
to strike certain documents. As to Counts One and Two of the Complaint,
the Court will deny plaintiffs' motion for judgment on the record
pursuant to Federal Rule of Civil Procedure 52(a). On those same Counts,
the Court will grant defendants' cross-motion for judgment on the
record. As to Count Four of the Fifth Amended Complaint, the Court will
deny plaintiffs' motion for summary judgment, but grant defendants'
cross-motion for summary judgment.
An appropriate Order accompanies this Memorandum Opinion.