Natural Resources Defense Council et al v. Gina Mccarthy et al

MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim

N.D. Cal.July 18, 2016

1 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 '' 20 21 22 23 24 25 26 27 28 JOHN CRUDEN Assistant Attorney general MARTIN F. MCDERMO'I'T Trial Attorney United States Department of Justice Environment and Naturafl Resources DivYsion Environmental Defense Section 601 D Street N.V., Suite 8000 Washington, D,C. 20004 Telephone: (202) 514-4122 martin.mcdermott c(re,usdoj.gov LJNIT'ED STATES DISTRIC"I' COURT NORTHERN DISTRICT OF CALIFORNIA NATURAi, RESOURCES DEFENSE COUNCIL, BAY.ORG d/b/a T~-IE SAY INSTITUTE, and DEFENDERS OF WILDLIFE, Plaintiffs, va GINA McCARTI-iY, in her official capacity as Administrator of the iJnited States Environmental Protection Agency, and ALEXIS STRALJSS, in her official capacity as Acting Regional Administrator of the United States Environmental P~otectaon Agency Region 9, Defendants. Case No. 4:16-CV-2184 JST DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMPLAINT, NOTICE OF MOTION, AND MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS Judge: Hon. Jon S. Tigar Date: Thursday, Sept, 15, 20fl6 Tine: 2 p.~n. Crtrrn: 9 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 1 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 '~ TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii 1NTRODUCTION ...........................................................................................................................1 I. CWA STATUTORY AND REGULATORY BACKGROUND ........................................3 A. Establishing Water Quality Standards .....................................................................3 1. Purpose and Content of Water Quality Standards .............................................3 2. States' and EPA's Roles in the Development and Approval of Water Quality Standards ...............................................................................................4 B. Implementing Water Quality Standards Under The CWA ......................................4 C. CWA Citizen Suits ...................................................................................................6 II. FACTUAL BACKGROUND ..............................................................................................7 A. Federal and State Water Projects; The Bay-Delta Plan ...........................................7 B. Drought Emergency Proclamation; Executive Orders; TUCP Orders .....................9 C. Plaintiffs' Cause of Action ....................................................................................13 III. RULE 12 STANDARDS ...................................................................................................14 IV. ARGUMENT .....................................................................................................................16 A. Because The TUCP Orders Have Expired, Plaintiffs' Claim Is Moot And Plaintiffs' Request For An Advisory Opinion Should Be Rejected ...............................................................................................16 B. EPA Does Not Have A Nondiscretionary Duty Under the CWA to Review The State's TUCP Orders As Revisions To The State's Water Quality Standards ....................................................................17 IV. CONCLUSION ..................................................................................................................22 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 2 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Am. Wildlands v. Browner, 260 F.3d 1192 (10th Cir. 2001) ........................................................................................... 5, 19 Arkansas v. Oklahoma, 503 U.S. 91 (1992) ..................................................................................................................... 3 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................................. 15 Auer v. Robbins, 519 U.S. 452 (1997) ................................................................................................................. 19 Balistreri v. Pacifica Police Dept, 901 F.2d 696 (9th Cir. 1990) ................................................................................................... 16 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................................................................. 15 California v. United States, 438 U.S. 645 (1978) ................................................................................................................... 6 Cent. Delta Water Agency v. United States, 306 F.3d 938 (9th Cir. 2002) ..................................................................................................... 8 Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) ................................................................................................................. 18 EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200 (1976) .................................................................................................................... 4 Epstein v. Wash. Energy Co., 83 F.3d 1136 (9th Cir. 1996) ................................................................................................... 15 Great Basin Mine Watch v. Hankins, 456 F.3d 955 (9th Cir. 2006) ................................................................................................... 21 ii Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 3 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Intri—Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048 (9th Cir. 2007) ................................................................................................. 15 Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003) ................................................................................................... 19 McKibben v. McMahon, No. EDCV-1402171 JGB SPX, 2015 WL 10382396 (C.D. Cal. Apr. 17, 2015) .................... 15 Miccosukee Tribe of Indians of Fla. v. EPA, 105 F.3d 599 (11th Cir. 1997) ................................................................................................... 7 NRDC v. EPA, 16 F.3d 1395 (4th Cir. 1993) ..................................................................................................... 4 Or. Natural Res. Council v. U.S. Forest Serv., 834 F.2d 842 (9th Cir. 1987) ......................................................................................... 5, 19, 20 Pac. Coast Fed'n of Fishermen's Assns, 606 F. Supp. 2d 1122 (E.D. Cal. 2008) ................................................................................... 7, 8 Pine Creek Valley Watershed Assn. v. EPA, 97 F. Supp. 3d 590 (E.D. Pa. 2015) ......................................................................................... 19 Pronsolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002) ............................................................................................... 5, 6 Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990) ................................................................................................. 18 San Luis &Delta-Mendota Water Auth. v. Jewell, No. 1:13-CV-01232-LJO, 2013 WL 4402984 (E.D. Cal. Aug. 14, 2013) ................................ 6 San Luis &Delta-Mendota Water Auth. v. United States, 672 F.3d 676 (9th Cir. 2012) ..................................................................................................... 7 San Luis Unit Food Producers v. United States, 709 F.3d 798 (9th Cir. 2013) ..................................................................................................... 7 Sierra Club v. Whitman, 268 F.3d 898 (9th Cir. 2001) ..................................................................................................... 7 iii Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 4 of 30 1 2 3 4 5 6 7 8 9 10 11 12 State Water Res. Control Bd. Cases, 136 Cal. App. 4th 674 (2006) ....................................................................................... I! Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134 (9th Cir. 2000) ...................................................................................... Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir.1984) ......................................................................................... United States v. Larionoff, 431 U.S. 864 (1977) ...................................................................................................... United States v. State Water Res. Control Bd., 182 Cal. App. 3d 82 (1986) .......................................................................................... WildEarth Guardians v. McCarthy, ........... 8 ......... 16 ....:...... 5 ......... 19 ........... 7 772 F.3d 1179 (9th Cir. 2014) ........................................................................................... 17, 18 13 14 15 16' 17 18 19 20 21 22 23 24 25 26 27 28 CONSTITUTION U.S. Const., Art. III ....................................................................................................................... 16 RULES Fed. R. Civ. P. 12(b)(1) ................................................................................................................... 1 Fed. R. Civ. P. 12(b)(6) ............................................................................................................. 1, 15 Fed. R. Civ. P. 25(d) ....................................................................................................................... 1 STATUTES 33 U.S.C. §§ 1251-1387 ................................................................................................................. 2 33 U.S.C. § 1251~g) ......................................................................................................................21 33 U.S.C. § 1311 ....................................................................................................................... 5, 19 33 U.S.C. § 1311(a) ........................................................................................................................ 4 33 U.S.C. § 1311(b) ........................................................................................................................ 5 33 U.S.C. § 1313 ................................................................................................................. 2, 3, 4, 5 iv Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 5 of 30 1 2 3 4 5 6 7 8 ►!: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33 U.S.C. § 1313(c)(2) .................................................................................................................... 4 33 U.S.C. § 1313~~)~2)~A) ........................................................................................................ 3, 14 33 U.S.C. § 1313(c)(3) .............................................................................................................. 4, 14 33 U.S.C. § 1313(c)(4) .................................................................................................................. 14 33 U.S.C. § 1342 ............................................................................................................................. 4 33 U.S.C. § 1342(a)-(d) .................................................................................................................. 5 33 U.S.C. § 1362(11) ...................................................................................................................... 5 33 U.S.C. § 1362(12) ...................................................................................................................... 5 33 U.S.C. § 1362(14) ...................................................................................................................... 4 33 U.S.C. § 1362(19) ...................................................................................................................... 5 33 U.S.C. § 1365(a)(2) .................................................................................................................... 7 43 U.S.C. § 383 ............................................................................................................................... 6 STATE STATUTES Cal. Water Code § 13241 ................................................................................................................ 3 Cal. Water Code § 13247 .......................................................................................................... 6, 20 STATE CODE REGULATIONS Cal. Code Regs. tit. 23, §§ 805, 806 ............................................................................................. 11 CODE OF FEDERAL REGULATIONS 40 C.F.R. § 122.2 ............................................................................................................................ 5 40 C.F.R. § 130.3 ............................................................................................................................ 3 40 C.F.R. § 130.10(d)(4) ................................................................................................................. 3 40 C.F.R. § 131.2 ............................................................................................................................ 3 40 C.F.R. § 131.6 ............................................................................................................................ 3 40 C.F.R. § 131.10 .......................................................................................................................... 3 40 C.F.R. § 131.11 .......................................................................................................................... 3 u Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 6 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ►~:~ 40 C.F.R. § 131.12 .......................................................................................................................... 3 40 C.F.R. § 131.21(a) ...................................................................................................................... 4 vi Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 7 of 30 Defendants Mina McCarthy, in her official capacity as Administrator of the United States 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 i7 18 19 20 21 22 23 ~, 24 25 26 27 28 Envirorflrnental Protection Agency ("EPA"), and Alexis Strauss,l in her official capacity as Acting Regional Administrator of EPA Region 9 (together, "EPA"), file this Memorandum of Law in support of this Motion to Dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction or, in the alternative, under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Nonce is hereby given that this matter is currently calendared for hearing at 2 p.~n. on September 15, 2Q16. INTRODUCTION As as well known, the State of California has been (and continues to be) subjected to an extraordinary drought that has forced State regulators to make difficult water policy decisions. It is no secret that Plaintiffs take issue with many of those decisions. Coflnpl. ¶ 17 (mentioning Plaintiffs' "protests and petitions for reconsideration" of State's actions during the drought). The State of California has addressed the drought in variaus ways, one of which includes tie issaxance of temporary administrative orders in response to 66tera~porary agency change petitions" (or "TiJCPs"). As the State Water Quality Control hoard ("Water Board") explains: The State Water Board is committed to working cooperatively and diligently with water users tfliroughout the state to find appropriate and t~rnely solutions to their urgent, drought—related water needs. If you currently possess a water right and can demonstrate an ~xrgent, drought-related need to modify the terms of your permit or license, you may formally request or "petition" the State Water Board for a conditaoa~afl, temporary urgency change. Temporary urgency change orders issued by the State Water Board enable right holders to temporarily deviate from the terms of ~he~~ existing water ~ag~nt in order to provide relief Born drought conditions. www.waterboards.ca.gov/waterrights/water.../in osheets/infosheet tucp.pdf A TUCP order is limited to no more than 180 days. Most relevant here, the State has responded to the drought by issuing since January 2014 a number of TiJCl' Orders at the request of the U.S. Bureau of Recfla~aation ("Reclamation"), an ' Pursuant to Fed. R. Civ. P. 25(d), Acting Regional Administrator Alexis Strauss is substituted for former EPA Region 9 Administrator Jared Blumenfeld. DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 8 of 30 2 0 6 7 9 fl0 11 12 13 14 15 16 '' ~7 1~ 19 20 21 22 23 24 25 26 27 28 agency within the U.S. Department of the Interior that operates the Central Valley Project in coordination with the Caflifornia Department of Water Resources (6GDWR"), the State agency in charge of operatpng the parallel State Water Project (66SWP99),Z Plaintiffs believe that the State's TLTCP Orders (bnodify~ng Reclamation's and DWR's water rights per~nflts} are ill-advased, and Plaintpffs have opposed the State's orders from the outset, Having faaled to persuade the State to deny the relief sought in the urgency change petitions, Plaintiffs now bring this actbon against EPA. I~ essence,l'laint~ffs demand that EPA "revbew" the State's 2014-2015 T'UCP Orders as 66~q~flSl101YS99 to the Stake's wader equality standards, and ta~Ce "appropriate" acti~ra, presumably~, disappr~va~ of such. alleged revisions under the federal Clean Water Act, 33 ~J,S.C. §§ 1251- 13 7 (the "CWA" or "Act"), Compl. ¶¶ 1, 9, 22, 53, Plaintiffs, f~o~n the oaztset, have understood that: (1) the State did jog (argd still does not) deem ads ~'IJCP Orders as constitutpng new or revised water qual~t~ standards; ~2) accordingly, the State did not submit any of its TUCP Orders to EPA for revYew under CW~1 section 303(c), 33 ~1.S.Ce § 1313; and (3) EPA has not subjected any of tfliose State Orders to EPA review as new o~ revised water quality standa~°°ds,3 Thus, the materflal facts of thbs matter age not disputed in this motion; i~ is the legal conclusion that follows from those facts that as at tissue. If the TI1CP Orders constitute revfls~ons to the State's water qualIlty standards, EPA has a statutory du 2 BZec~a~aataon's aid DWR's TiJCP petitions vointly-filed with the ~IVa~e~ Board) s~u~ht temporary modifications to their water rights, allowing ~2eclaaa~at~o~n and DWR to reduce ins~~°eam fl~vv req~aaregraen~s in t ae Say Delta (as hereafter de~fl~e~) ~n ogler to conserve water for fine use, 3 Indeed, fog more than 30 yeas the Vilater Board has been ~ss~~ng drought reflated orders approving temporary urgency petgtions, without EPA review under the CWA. See, for example, WR Order 2004-005-D~VR (February 24, 2004) (grar~tIl~g Reclarnatgon's request for TUCP orde ternporarifly relaxing San Joaquin River flow requirements designed to protect migratory fish), available at http://www.waterboards.ca.gov/waterrights/board decisions/adopted orders/orders/2004/wro20 4 OOOS.pdf. See generally htt~://www.waterboards.ca.~ov/waterrights/water issues/programs/drought/droughtorders (discussing the long history of drought orders and TUCPs). Plaintiffs do not contend that they (or any other party) ever brought suit challenging EPA's failure to "review" any of those State orders as a breach of a nondiscretionary CWA duty. DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 2 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 9 of 30 1 2 3 4' 5 ~ 6 71 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to review and act on those State decisions. If the Orders do not constitute revisions to the standards, Plaintiffs' claim fails as a matter of law. As explained herein, the latter Ys true. Plaintiffs' legal theory amounts to a flawed attempt to manufacture and impose on EPA a non- discretionary duty that does not exist under the federal Clean Water Act. EPA has many mandatory duties under the Act, but not here. Also, Plaintiffs" claim is moot, as the TUCP Orders they complain about have exppred. The Complaint should be dismissed, with prejudice. CWA STATUTORY AND REGULATORY BACKGROUNDI. A. Establishing Water Quality Standards 1. Purpose and Content of Water Quality Standards As the Supreme Cour-~ stated znArkansas v. OkdahoYna, 503 U.S. 91, 101 (1992), water quality standards are, "in general, promulgated by the States and establish the desired condition of a waterway° See [33 U.S.C.] § 1313." See also 40 C.F.R. § 131.2 ("A water quality standard defines the water quality goals of a water body.") Water quality standards have three elements: (1) "designated uses" of the water (e.g., recreation or protection ~f a~~aatic life); (2) criteria thag specify the amounts of various pollutants (or "pollutant parameters") that may be present in the water without impairing the designated uses, expressed either in the form of numeric limits or in narrative form (e.g., "no toxics in toxic amounts"); and (3) the antidegradation policy, requiring states to develop and adopt statewide policies to protect against the lowering of water quality. 33 tJ.S.C, § 1313(c)(2)(A); 40 C.F.R. §§ 130,3, 13Qe10(d)(4), 131.6, 131.10, 131.11, and 131012. The CWA does not require that states make their water quality standards directly enforceable but once the standards have been adopted by a state and approved by EPA, effluent limits contained in CWA "point source" discharge permits (see discussion on "Implementing Water Quality Standards," infra at Sec~aon I.(B)) must be established at levels that will attain anc maintain water quality standards. See Arkansas v. OklahonZa, 503 U.S. at 101.4 4 While the CWA refers to "water quality standards," the synonymous term in the State's Cologne Act is 6̀ water quality objectives." (Cal. Water Code § 13241.) DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 3 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 10 of 30 1 2 3 4 5 6 7 9 10 11 12 13 14 15 ~6 17 l~ 19 20 24 22 23 24 25 26 27 28 2e States' and EPA's Roles in the Development and Approval of Water Quality Standards It ~s firrg~ly established that "states have the prgflnary rote, under § 303 of the CWA (33 LJ.S,C, § 1313), in establislvng water quality standards. EPA's sole function, in this respect, is review those sta~daxds for approval." NRDC v. EPA, 16 F.3d 1395, 1401 (4th Cyr, 1993) (internal c~ta~ion omgtted). The CWA thus affords EPA a lirnzted role in the developrrgent and ~stabflflshment o~ water° c~~ality standards. If and whey a state "revises or adopts a new standard," the state mazst saxbm~t that revised or new standa~°d to EPA for a decision whether Il~ fs consistent with the Act, Section 303(c)(2), 33 U.S,C. § 1313(c)(2~; 40 C,F,R, § fl31.2~(a). EPA must ei~~er approve the standard within 60 days or, if EPA dete fines that the sta~da~d is inconsistent wi~Y~ the CIA, disapprove ~t within 90 days and notify the state of eha,nges ~.ecessa~y to gafln EPA's approval. 33 IJ,S,C. § 1313(c)(3). If the state fads ~~ make the changes, EPA must progn~lgate the standards for the state. Id. § 1313(c~(3)-(4)(A). S. Implementing Water Quality Standards Under The CWA Water° qualify standards are established without consideration of any source of water qualigy flr~pafla-ment. In defining approaches to ~gnplementflng prograans to attagn water quality imp~rove~en~s, Congress took significantly different approaches in the CWA depending upon ~he~her or ~n~t aa~ bmpa~rn~ent zs caused by a discharge of po~~utants horn a 66point source." C~r~gress def ned bbpobnt source" to mean "any discernible, confined and dflscrete conveyance , . . ~~~n ~rfl~gch pmllu~tamts aye or may be discharged," 33 LT.S.C, § 1362(14), anc~ prohibited the discharge from a point source of any pollutant into the waters of the United States unless that discharge cornplfles with the Act's requirements, Id. § 13 ~ 1(a). Most point source dischargers achieve CVVA compliance by obtaining and adhering to the terms of a Natponal Pollutant discharge Eflimana~Yon Systerrr~ ("NPDES") discharge permit issued pursuant to CWA section 402, 33 ~T.S.C, §X342. See EPA v. California ex gel. Slate Water Resources Control Bd., 426 ~JoS. 2~~, 205 (1976), In ~aliforn~a, pursuant to EPA authorization, NPDES permits are issued DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS L! Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 11 of 30 1 2 3 4 5 6 7 9 ~0 11 12 13 14 fly 16 17 18 19 20 21 22 23 24 25 26 27 28 by the State Water Resources Control Board (66SWRCB" OT 66Water Board") and the nine Regional Water Quality Control Boards, subject to EPA review. See 33 U.S.C. § 1342(a)-(d). NPDES permits contain (1) technology-based effluent limitations that reflect the pollution reduction achievable through particular equipment ar process changes, without reference to the effect on the receiving water; and (2} where necessary, more stringent effluent limitations to ensure that the receiving waters achieve "water quality standards" adopted pursuant to CWA section 303, 33 U.S.C. § 1313. See section 301(b), 33 U.S.C. § 1311(b). To establish enforceable controls on a pobr~t source as necessary to achieve water quality staa~dards, the permit-writer translates the relevant water quality standards into "effluent limitations," which are restrictions on the quantitfles, discharge rates, and concentrations of the pollutants discharged from the point source. 33 U,S.C. § 1362(11); 40 C.F.R. § 122.2. Congress "drew a distinct line between point and nonpoint pollution sources." Oregon NatuNal Res. Council ("ONRC") v. U. S. Fo~°est Serv., 834 F.2d 842, 849 (9th Cir. 197}. As the Ninth Circuit explained, "[n]onpoint source pollution is not specifically defined in the Act, but is pollution that does not result from the ̀ discharge' ox ̀ addition' of pollutants from. a poant source." Id. at 849 n.9 (citing Trustees for Alaska v. EPA, 749 F.2d 549, 558 (9th Cir, 1984)), Thus, CWA effluent limitations (inclaxding lirnitat~ons to meet water quality standards) are not required for discharges of pollutants from nonpoint sources of pollution. 33 U.S.C. § 1362(11); 40 C.F.R. § 122.2. See 019~RC', X34 F.2d at X49-50.5 Further, the CWA does not give EPA the power to directly regulate nonpoint sources. See, e.g., 33 LJ.S.C. §§ 1311, X362(41}, (12); P~onsolino v. Nastri, 291 F.3d 1123, 1126 (9th Cir. 2002); Anz. Wildlands v. Browner, 260 F.3d 1192, 1197 (10th Cir. 2001). California's regulatory implementation of water quality programs under State law in the nonpoint source context has two basic coralponents. First, Regional Water Boards carn issue "waste discharge requirements" for nonpoint source discharges affecting water quality. Second, 5 CWA section 502(19) defines "pollution" broadly as meaning "the man-made or rrian-induced alteration of the chemical, physical9 biological, and radiological integrity of water." 33 U.S.C. § 1362(19}. DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 12 of 30 1 2 3 4 5 6 7 9 10 I'' 11 12 b3 14 IS 16 17 fl8 19 20 21 22 23 24 25 26 27 2~ the State Water Board uses its authority to condition water rights permits to address any water quality impairments resulting from water ~ivers~ons effected by water projects —the changes in salinity, temperature and flows created by the water diversion facilitges found on almost all major river systems in the State. The underlying water r~~hts permits spell out when, how much, and where watep care be diverted and where and under what conditions it may be used for consumptive purposes. When California Water Code Section 13247 is operative, the Water hoard is required by State law to comply with the water quality standards contained in the water quality control plans when the Board issues and revises water rights permbts, and when it imposes operational constraints (diversion rates, reservoir release schedules, etc.) to address water quality impairments. Federal law (the Reclarr~ation Act, 43 U.S.C, § 383) requires IZeclaxnation "to follow state law as to the ~on~rol, appropriation, use, or distributio~a of water used in irrigation and to obtain state-issued water rights permits for its projects." San Luis & Delta-1Vlendota Water Auth. v. Jewell, No. 1:13-CV-01232-LJO, 2013 WL 4402984, at *4 (E.D. CaL Aug. 14, 2013) (citing 43 U.S.C. § 383; Cczlaf~rnia v. Zlnited States, 438 X1.5. 645 (1978)). "~Tnder Cali~orn~a law, any entity seeking to dgvert and use water must obtaan a perrmlYt from the SWRC~. Iri turn, the SWRCB grants water rights permits a~ad imposes conditions upon them." San Luis &Delte-Mendota Wt~. Auth., 2013 WL 4402984, at *4 (cflting Cal. Water Code §1350). This lbtigation primarily concerns the ~Nater hoard's actions (taken while California Water Code Section 13247 is not operative) temporarily ame~dang certain water rights permflts as the State grapples with the drought° EPA has ~o author~~y wader the CWA for objecting to n~odif~cations of State water rights permits or to State nonpoing source implementation measures ors the bases that such permits ox measures are insufficiently strflngent to meet the State's water quality standards° In stark contrast to its direct au~horaty over the State's issuance of point source discharge permits, EPA ultimately has only the "threat acid promise of federal grants" to influence the State's control of nonpoint source pollution. Pv~onsolino, 291 F,3d at 1126-27. C. CWA Citizen Suits CV~TA section 505 provides that citizens bray bring suet against the EPA Administrator faglimg "t~ perforr~~ any act o~ duty99 required by tie Apt, 33 IJ.S.C, § 1365(a)(2). See Sierv~a DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 13 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Club v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001} ("Congress has waived [sovereign] immunity in § 1365(a)(2) only for suits alleging a failure of the Administrator to perform a non- discretionary duty."). Thus, 66[a] clearly mandated, nondiscretionary duty imposed on the Administrator is a prerequisite for federal jurisdiction under the Clean Water Act citizen suit provision." Miccosukee Trabe oflndians of Fla. v. EPA, 105 F.3d 599, 602 (l lth Cir. 1997) (citations omitted) (emphasis added). FACTUAL BACKGROUNDII. A. Federal and State Water Projects; The Bay-Delta Plan. The Central Valley Project ("CVP") is "a system of dams, reservoirs, flevees, canals, pumping stations, hydropower plants, and other infrastructure [that] distributes water throughout California's vast Central Valley." ,San Luis Unit Food Froduce~s v. United States, 709 F.3d 798, 801 (9th Cir. 2013) (internal citataon arnd quotation omitted). As noted, the CVI' is administered by Reclamation, which operates the CVP in coordination with the California DWR, the State agency in charge of operating the parallel SWP). Pac. Coast Fed'n of FisheNmen's Assns ("PCFFA ") v. Gutierrez, 606 F, S~ap~. 2d 1122, 1133 (E.D. Cal. 2008). The Sacramento-San Joaquin River Delta ("Delta") lies at the convergence of the Sacramento, San Joaquin, and other rivers. See San Luis & Delta-Mendota Water Auth. v. United States, 672 F.3d 676, 6~2 (9th Cir. 20 2). The Delta serves as a conduct for the transfer of water by the statewide water projects (the CVP and SWP), which divert water from the rivers that flow into the Delta and store that ~va~er in large reservoirs. Quantities of this stored water are periodically released into the Deflta, and pumps at the Delta's southearg edge also lift the water into canals for transport south to Central Valley farmers and Southern California municipalities. Water that is neither stored nor exported south passes through the Delta., where it is used by farbners, industries and municipalities, with any excess flowing into Sarb Francisco Bay, United States v. State Water Res. Control Bd., 182 Cal. App. 3d 82, 97 (1986). See also Compl. ¶ 5 (Reclamation and DWR operate "the vast systems of dams, reservoirs, canals, and purraaps in the CVP and SWP that control how water moves into, through and out of the Delta."). DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 7 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 14 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 ~5 16 17 18 19 2~ 21 22 23 24 25 26 27 28 In 1995, the SWRCB completed a major update of the San Francisco Bay/Sacramento- San Joaquin Delta Estr~ary Water Quality Control Plan ("1995 Bay-Delta Plan"). Compl. ¶ 31. The 1995 Bay-Delta Plan identifies the beneficial uses to be served by the Delta's waters and identifies water quality objectives with respect to those uses, whpch c f̀ail into three broad categories: municipal and industrial, agricultural, and fish. and wildlife." State Water Res. Control ~d. Cases, 136 Cal. App. 4th 674, 701 (2006): The [Water] Board established ~aargous salinity objectives "for the reasonable protection of [agriculture as a beneficial used from the effects of salinity intnasion and agricultural drainage ~n the western, interior, and southern Delta," To protect fish and wildlife uses, the ~oar~'s Plan established objectives for six parameters: dissolved oxygen, salinity, arnou~ts ~f I~eflta outflow, river flows, export limits, and Delta cross-channel gaffe operation. The plan also included a na~ative objective for salmon protection. Id, S'ee also Corripl, ¶ 33 (the Bay-Delta Plan states that the Water hoard "implements" water quality objectives "for flows, export limits, salinity, d~ss~Yved oxygen, and DCC [Delta Cross- Channel] gate closures"), Pursuant to CdVA sect~ora 303, EPA revflewed the revIlsed or new wa c~ualflty standards included in the 1995 Bay-Delta Plan and approved then in September 1995. Pursuant to the water rights perga~i~s issued by the Water Board, Reclamation (along with DWR) "appropriates water from various [] sources, and delbvers it for beneficial uses to central California areas." Cent. Delta Water° Agency v. tlnated States, 306 F.3d 938, 943 (9th Cir. 2002), The operation of the CVP and SWP fac~~fl~fles in the Delta is subject to various conditgons, inc~udimg the Water Board's 66VVater fights Decision 1641 99 ~~T, 66~_ ~ x,41 "), adopted in 1999 follow4ng a public water rights proceedbng. See PC'~'FA, 606 F. Supp, Zd at 1133.6 D-1641 impfle~nen~s the Bay-Delta Plan through modafacat~ons to the CHIP and S~ (and other) water ~°flg~ats pets by, among other things, regu~at~ng salinity levels an the Delta, se4~ang minirn~x~a 6 The text of D-1641 is available at: http://www,swrcb.ca.gov/waterrights/water_issueas/programs/bay_delta/decisior~ 1641/i ml (last visited July 18, 2016). DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS $ Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 15 of 30 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Delta outflow requirements, and regulating the export rates of the CVP and SWP.~ Compl. ¶ 32 (asserting that "D-1641 contains terms and conditions for permits under which water rights holders operate to rrneet the flow- and operations-dependent objectives in the 1995 Bay-Delta Plan" and that Reclamation and DWR are the "largest and most significant water rights holders that control the reservoirs, dams, canals, pumps, and other infrastructure used to control and move water throezgh the Delta"). According to the Complaint (¶ 33), the current (2006) Bay- Delta Plan did not substantively change the 1995 Plan, and the SWRCB continues to "use D- 1641" to "implement" the water quality objectives in the Bay-Delta Plan. B. Drought Emergency Proclamation; Executive Orders; TUCP Orders. T1us case stems from actions taken by the State following Governor Edmond G. Brown, Jr.'s January 17, 2014, Proclamation of a "State of Emergency" throughout California due to severe drought conditions. In the Emergency Proclamation, issued pursuant to Section 8625 0~ the California Government Code, Governor Brown explained that the State's water supplies had dipped to "alarming levels," as indicated by vastly diminished snowpack in California's mountains (about 20 percent of normal average); low water levels in California's largest reservoirs; significantly reduced flows in the State's major river systems (including the Sacramento and San Joaquin river systems); and greatly diminished groundwater levels statewide. The Ernergemcy Proclamation cited a host of urgent drought-related problemse at-risk drinking water supplies; threats to crops, and consequently to farmers' long-term investments and to low-income communities dependent on agricultural employment; threats to animals and plants (including species facing poss~b~e extinction); and greatly increased wbld£ire ris~C. The Water Board is currently engaged in a multi-phase process of developing and implementing updates to the day-Delta Plan and how objectives for priority tributaries to the Delta to protect beneficial uses in the Bay-Delta. watershed. Phase 1 involves updating San Joaquin River flow and southern Delta water quality requirements included in the Bay-Delta Plarfl; Phase 2 involves changes to the Plan to protect beneficial uses not addressed in Phase 1 (Delta outflows, Sacramento River inflows, Suisun Marsh salinity, Delta Cross Channel Gate closure, export limits, reverse flows); Phase 3 involves changes to water rights and other measuxes to implement changes to the Plan from Phases 1 and 2; Phase 4 involves developing and implementing flow objectives for priority Delta tributaries outside of the Plan updates. DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 9 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 16 of 30 The Governor's Proclamation authorized the Water hoard to consider making changes to 2 4 5 6 7 8 9 10 11 12 13 l4 15 16 17 1~ 19 2Q 2~ 22 23 24 25 26 27 28 water rights permits in order to conserve water for future use, stating, among other things: The Water Board will consider modifying requirements for reservoir releases or diversion limitations, where existing requirements were established to implement a water quality control plan. These changes would enable water to be conserved upstream later in the year to protect cold water pools for salmon ar~d steelhead, mafl~tain water supply, and improve water quality. Office ~f Governor Edmund G. gown, Jr,, Gove~n~~ Brown Decicea~es DNought State of Eane~gency, Jam. 17, 2014, at ¶ 8, available at h~tpse//wwvvogov,ca.gov/news,php?id=1X379 Mast visflted July l ~, 2016). T~.e Emergency Pr~cla~r~.ation aflso suspended operation of Calflfornia Water Code Section. 13247 (which, if not suspended, would require State agencies to comply with water quality control plans approved by tl~e Water ~oard).8 On December 22, 2014, Governor gown issued Executive Order ~-28-~.4, which extended the suspension of Water Code Section 13247 and the California E~vgronmental Qualgty Act ("CEQA) through May 31, 2016. Office of Governor Edmund Ge Brown, Jr,, Executive Order B-2~-14, Dec. 22, 2014, available at https://www,gov,ca.gov/~evas, Ph?pid=18815 (last vasbted July 18, 2016 , As day condbtions persisted, ~n April ~, 2015, Caovernor gown acknowledged the drought's continuing magnitude and iss~.ed ExecutIlve Order B-29-15, which required the orders and provisions of the prior proclamations and exec~a~Ilve orders to remain fln effect Hess otheawise rriodifed. On November 13, 2015, Governor ~rovvn issued Executive Order B-36-15, wYnich required the orders and provisions con~afl~aed im ghe ~anuaryy 17, 20141'roc~arnat~on, the Apa~°i125, 2014 Proclamation, aid Ex~cutbve Orde~°s B-2~-14 and ~-29-15 to remafln in effect. $ Section 13247 provides: State offices, departanents, and boards, g~ carrying out activities which may affect water quality, shall comply with water qualify control plans approved or adopted by the state board unless otherwise directed or authorized by statute, in which case they shall indicate to the regional boards in writing their authority for not complying with such plans. DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 1 O Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 17 of 30 Consistent with the Governor's first Executive Order, in January 2014 Reclamation and 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DWR (as authorized under State law) petitioned the Water Board for changes to their water rights permits. Reclamation's and DWR's jointly-filed TUCP sought temporary modifications their water rights permpts to, among other things, authorize them to reduce instream flow requirements in the Delta in order to conserve water for future use. Reclamation's and DWR's stated purpose in requesting these changes was to allow them to "provide minimum human health and safety supplies and conserve water for later protections of instream uses and water quality."9 The Water Board recognized that absent the suspension of Cal. Water Code Section 13247, it could mot have approved such a petition to modify water right permits and licenses, even during a drought emergency, because it did not provide for full attainment of the water quality objectives specified in the Bay-Delta Plan.lo The Water Board responded with an order on January 31, 2014.11 See Comp1. ¶ 43. The Board acted after considering data, information and comments provided by a wide-range of interested parties, including the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, ar~d the California Department of Fish and Wildlife (collec~~vely, "f she~Iles agencies"), as well as these Plaintiffs and other interested parties. In granting (in substantial measure) the initial ~'UCP, the Water Board found that temporary adjustments to the ~2eclan~ation and DW~Z 9 Letter frorrb M, Cowan (DWR) axed D. Murillo (Reclamation) to T. I-~owaa°d, State Water Board, submitting Temporary Urgency Change Petition Regarding Delta Water Quality (Jan. 29, 2014) available at http://www.waterboards.ca.gov/waterrights/water issues/programs/ dro ~ ght/tucp/index. shtml. '°Order Approving a Temporary Urgency Change in License and Permit Terms and Condations Requiring Compliance with Delta Water Quality Objectives in Response to Drought Conditions (Jan. 31, 2014) (661/3fl/2014 TUCP Order") at 13, available at http://www.waterboards. ca. gov/waterrights/water_issues/programs/drought/docs/tucp/bd_chang _order.pdf. "Water Code section 1435 provides that a perm~Ytee or licensee who has an argent need to change the point of diversion, place of use, or purpose of use from that specified in the permit or license may petition for a conditional temporary change order. The Water Board's regulations set forth the filing and other procedural requirements applicable to such petbtions. Cal. Code Regs. tit. 23, § § 805, X06. DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 11 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 18 of 30 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 ~9 20 21 22 23 24 25 26 27 28 water rights permits were urgently needed to balance the protection of all beneficial uses of the water including protecting the separate needs of fish and wildlife in the Delta and upstream areas}. 1/31/2014 T~JCP Order at 11. More broadly, the Water Board found that these temporary adjustments were in the public interest. Id. at 12. Due to changed circumstances and pursuant to subsequent requests from DWR and Reclamation, the State Water Board modified the TUCP Order on several occasions throughout 2014. See Compl. ¶ 6. The Complaint (id.) states, accurately, that the State did not submit any of ads 2014 TUCP Orders to EPA for review, and that EPA did not require or request any such subrniss~~n by the State. Nor did the S~a~e or ESA deem the Orders to constitute 66TMPW99 ~r "revised" water quality standards.~~~ On September 24, 2014, the Water hoard adopted Order WR 2014-0029, addressing objections to its January 29, 2014 initial TiJCP Order and subsequent modifications thereto, While Order WR 2014-0029 der~ed requests for reconsideration of the ~'IJCP Order, the September 2014 Order did rgaake some modifications to the prior TUCP Order in response to issues raised by various parties "in order t~ improve planning and coordination of dry condgtions were to continue." For exarrflple, the September 2014 Order required preparation of a Water Year 2015 "Drought Contingency Plan" in the event of continued drought conditions that would identify "planned mbnimum monthly flow and storage conditions that consider Delta sal~nflty control, fishery protection, and supplies for rna~n~cipal water users related to projected flow and storage conditions." In response to cont~nu~~g dg°ought condfltgo~s, bn 2015 and 2016 DWR a.~d Reclamation submitted additional T~JCPs requesting ternp~rary modification of specified D-1641 requirements to allow management o~ rese~v~ir releases so as to conserve upstream storage for fish and wildlife protection and Deflta salini$y control later in the year while also provflding for critical water supply needs.12 T'he Water Board granted these petitions in substantiafl part. See 12 In addition, the Water Board required DWR and Declamation to consult regularly with Board representatives and the f sheries agencies to coordinate real-bane project operations based on current conditions and fisherfles inforrnatgon t~ ensure that the temporary changes do mot unreasonably affect fish, wildlife, and other instrean~ water uses. DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIOly TO DISMISS 12 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 19 of 30 1 2 3 4 5 6 7 8 9 10 11 12 Z3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Compl. ¶¶ 7, 9. Consistent with their approach to the 2014 TUCPs, the State did not submit its 2015 or 2016 TUCP Orders to EPA for review, and EPA (again) did not require or request any such submission by the State. See Compl. ¶ 9. And, as the Complaint also reflects (¶ 10), neither the State nor EPA has deemed the Orders to constitute "new" or "revised" water quality standards requiring EPA review under CWA section 303(c). The TUCP Orders have all expired. C. Plaintiffs' Cause of Action. Plainti#'fs, a coalition of three environmental organizations, filed this suit against EPA on Apri122, 2016. Their Complaint focuses on certain actions taken by the State between January 2014 and mid-April 2016 to address California's drought conditions, and EPA's subsequent action (or, in Plaintiffs' view, inaction) in response. See Comp1. ¶¶ 42-51. While the Complaint is lengthy and detailed, the relevant facts are undisputed for purposes of this motion. Plaintiffs' legal theory is novel and articulated in several different ways. According to the Complaint (¶ 42), by "amending" D-1641 through several TUCP Orders, now expired, the Water hoard should as a matter of law be deemed to have "made numerous revisions" to the water quality standards contaaned in the Bay-Delta and Central Valley Plans. See CoYnplaint ¶ 6 (`Begir~n~ng on January 31, 2014, in response to requests from Reclamation and DWR, SWRCB revised the Bay-Delta water quality standards by amending D-1641."). These Water Board actions, the Complaint alleges (¶ 1), triggered a mandatory duty by EPA to "review and take approprflate" action with respect to these alleged revisions. Accorcflr~~ to Plaintiffs' legal theory, EPA repeatedly breached that alleged CWA duty because it "did not review, nor [sic] approve" any of these alleged "revisions" to the State's water quality standards contained in the Bay-Delta and Central Valley Plans. Compl. ¶ 52. Near the end of the Coanplaint (¶ 67), however, Plaintiffs put the matter somewhat differently, acknowledging that the Water Board did not actually "amend the text of the Bay- Delta and Central Valley Plans themselves." Rather, according to Plaintiffs' theory, whenever the Water Board 66decides not to implement" a water quality standard, the Board should be deemed to be "making a ̀de facto amendment"' to water quality standards, even if the change is "temporary ~n duration." Id. DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 13 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 20 of 30 Paragraph 67 offers yet another characterization of events, alleging that the Board 2 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "worked a ̀de facto amendment"' to the existing water quality standards, not by deciding not to ifnplefnent a water quality standard but rather by "modifying the conditions of Reclamation's and DWR's licenses and permits under D-1641" such that those agencies could opeNate the CVP and SWP "in violation of the Bay-Delta and Central Valley Plans." Id. (Emphasis added). Regardless of their precise characterization of events, according to Plaintiffs (Complaint ¶ 69) EPA "failed to carry out its mandatory federal oversight role" by "ignoring" the Board's alleged "ongoing and intermittent pattern of rev~sang the Bay-Delta Plan and Central Valley Plan water quality standards." Plaintiffs allege that EPA "thus violated, and continues to vgolate, CWA section 303(c), 33 LJ.S.C, §1313(c)(2)(A}, (c)(3)-(c)(4)99 by "failing to review and take appropriate action in response ~o" the Water hoard's actions. Compl, ¶ 69. In their Prayer for Relief, I'laIlntiffs ask for various forms of declaratory and injunctive relief, including an order requbring EPA to (1) bypass review of the alleged "revisions" and "immediately notify" the Water Board that the hoard's alleged "revisions" to State water qualaty standards "are in violatgon off' CVUA section 303(c); and (2) immediately notify the Water Soard that any "current or planned rev~sian" by the State rrbay not go into effect or be implementedTT until EPA reviews and approves such ̀6TeiVIS1OTIlS~~ (Prayer ¶ C). In addition, Plaintiffs ask the Court to require EPA to review and take "appropriate" action in response to any "future revision" that the Water Board night someday pnake to the water quality standards contained in the day-Delta and Central Valley Plarns before such "revisions" ̀bgo into effect99 (Prayer ¶ D~. III. RULE 12 STANDARDS EI'A brings this motion ender Rule 12(b)(1) for lack of subject rriatter jurisdiction or, in the alternative, under Rule 12(b)(6) for failure to state a claim. In reviewing a Rule 12(b)(1) facial challenge to a court's subject matter jurisdiction, the court accepts all well-pleaded allegations ira the complabnt as tree and views them in the light most favorable to the plaintiff.13 13 EPA requests that the Court take judicial notice of public documents referred to herein, ire addition to those cited in the Complaint. "[A] court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment, as long as DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 14 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 21 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In such an attack, the challenger asserts that the complaint's allegations are insufficient on their face to invoke federal jurisdiction. Here, this Court should construe EPA's challenge as a facial one, as this matter presents solely a question of law: Does EPA have a nondiscretionaxy duty under the CWA to review the State's actions set forth in the Complaint? See, e.g., McKibben v. McMahon, No. EDCV1402171JGBSPX, 2015 WL 10382396, at *6 (C.D. Cal. Apr. 17, 2015) ("Whether an enactment is intended to impose a mandatory duty is a question of law."). Because EPA has no nondiscretionary duty under the CWA here, the Court lacks subject matter jurisdiction over Plaintgffs' claim. Further, given that the TUCP Orders that underlie Plaintiffs' claim have all expired, this matter is moot and the Court lacks subject matter jurisdiction on that basis, as well. Alternatively, the Complaint should be dismissed under Rule 12(b)(6). To survive such challenge, the Complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Igbal, 556 U.S, 662 (2009). A claim is facially plausible when there are sufficient factual allegations to draw a reasonable inference that a defendant is liable for the misconduct alleged. However, while a court "must take all of the factual allegations in the complaint as true," it is "not bound to accept as true a legal conclusion couched as a factual allegation." Igbal, 556 U.S. at 678 (quoting Bell Atl. Copp. v. Twombly, 550 U.S. 544, 555 (2007)). "[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." Epstein v. Wash. Energy Co., ~3 F.3d 1136, 1140 (9th Cir. 1996). Dismissal is proper if there is either a "lack of a cognizable legal theory" or 66the absence of sufficient facts alleged under a cognizable legal theory." ~alist~eri v. ~'acifica Police Dept, 901 F,2d 696, 699 (9th Cir, 1990), Plaintiffs' proffered legal conclusion —that the State's actions constitute "de facto" new or revised water quality standards — is fatally flawed and warrants disrraissal of their case. the facts noticed are not subject to reasonable dispute." Intri—Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (internal quotation marks and citation omitted). DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 15 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 22 of 30 11 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IIV. ARGUMENT A. Because The TUCP Orders Have Expired, Plaintiffs' Claim Is Moot And Plaintiffs' Request For An Advisory Opinion Should Be Rejected. The judicial power of the federal courts is limited to "cases" or "controvers4es." U.S, Const., Art. III, sec. 2. Because of this constitutional limitation, federal jurisdiction may not be invoked simply because two litigants have differing views of the law. The court's "role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies consistent wath the powers granted the judiciary in Article III of the Constitution." Thomas v. Anchorage Equal Raghts Comm'n, 220 F.3d 1134, 1 Y38 9th Cir. 2000) (en banc). Here, as stated in the Complaint (¶¶ 42-52), the SWRC~ issued several TUCP Orders, beginning with the anitaal one in January 2014 and then on several occasions over the next two years. Each of these Orders, according to Plaintiffs, should be legally construed as a clear "revision" to water quality standards. However, these Orders forming the basfls for Plaintiffs' claim have all expflred, and there gs no replacement TUCP order in effect. Nor do Plaintiffs even contend that Reclamation or DWR has a currently filed or pending petition for such are urgency order at this time (and EPA is aware of no such filed or pending petition). Thus, in its current posture, this case concerns a hypothetical, rather than an "actual," legal dispute concerning water quality standards "revisions" that cold theoretically be effected through a T~JCP order bf one is eventually sought and if the Water Board decides to issue one at some unknow~a and flncalculable futuxe date, Given that no T~TCP order is currently in effect (and that no proceeding has been initiated that might result in flssuance of such an order), there is nothing for EPA to review and thus no live controversy before the Court. The question of whether a future action by the Water Board could possibly requare EPA review hinges on contingencies that might not occur. Plaintiffs' claim is grounded on orders that have expired and is therefore rrioot. Further, given that context, their prayers for relief amount to impermissible requests for an advisory opinion from the Court. DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 23 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 fly 16 17 18 19 20 21 22 23 24 25 26 27 28 B. EPA Does Not Have A Nondiscretionary Duty Under The CWA To Review The State's TUCP Orders As Revisions To The State's Water Quality Standards. This Court has jurisdiction only if the Complaint alleges that EPA has failed to perform an act or duty that is nondiscretionary under the CWA. The Complaint alleges that such a duty exists because the State decided in its expired temporary TUCP Orders not to fully implement the State's water quality standards and then declined to submit such orders to EPA as "revisions" to the State standards. In such situations, Plaintiffs aver, EPA has nondiscretionary duty to review such actions, deem them illegal, and presumably disapprove them. but the undisputed facts reveal that the Water Board has not adopted any "new" or "revised" water quality standards here. Indeed, Plaintiffs acknowledge that the water quality standards that EPA approved in 1995 for the waters at issue in this case are intact and remain as approved by EPA. See Compl. ¶ 67, stating that Water Board's TUCP Orders "did not amend the text of the day-Delta and Central Valley Plans themselves." Absent a bona fide State revision of its water quality standards, EPA has no statutory duty under CWA section 303(c) to review and approve or disapprove the State's actions. The Court therefore lacks subject matter over the Complaint, which for the same reason fails to state a valid legal claim against EPA. That should be the end of the matter, and the Court need not engage in the logical gymnastics embodied in the Complaint as Plaintiffs attempt to craft a legal theory that would impose an obligation on EPA where none exists under the Act. In that vein, Plaintiffs appear to be of the opinion that if a matter is important enough, courts have broad authority under the CWA to impose on Efl'A mandatory dutbes that are not found in the statute itself Such an approach would run afoul of the Ninth Circuit's "clear statement rule." WildEa~th Guardians v. McCarthy, 772 F.3d 1179, 1182 (9th Cir. 2014). Under that rule, when a plaintiff sues EPA for failure to perform an act or duty that is not discretionary, "the nondiscretionaxy nature of the duty must be clear-cut —that is, readily ascertainable from the statute allegedly giving rise to the duty." (citations omitted). Further, the Court ~f Appeals made clear, the court "must be able to identify a ̀specific, unequivocal DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 17 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 24 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 command' from the text of the statute at issue using traditional tools of statutory interpretation; it's not enough that such a command could be teased out" of various statutory provisions and other plaintiff submissions. Id. (citations omitted). Plaintiffs' claim amounts to an assertion that whenever a state makes a decision or issues an order — even a temporary one —that is inconsistent with the state's vaater quality standards, the state may be deemed by a court to have irrbplicitly or constructively (or, in Plaintiffs' phasing, "de facto") "revised" the standards themselves. See, e.g., Compl. ¶ 67 (alleging that when the State Water hoard 66decides not to implement a water quality objective, it is making a ̀de facto amendment to a water quality objective in a water quality control plan,' even if it is temporary in duration."), But a court's task is not to broaden the statute's list of nondis~retionary duties, it is to mandate Agency compliance only when the nature of the duty is clear-cut, Plaintiffs' clazan fails that test. EPA disagrees with Plaintiffs' interpretation of the CWA as givgng rise to a nondbscretionary duty whenever t1~e Water Board, in the context of droughty 6GTTIOUI~ZCiS] lllei conditions" that attach to Reclamation's and DWR's water rights permits and thereby allows actions that conflict with water q~.al~ty standards. See Compl, ¶ 67, EPA's interpretation of the scope of its responsibilities under the statute ~s entitled to deference under well-established principles of statutory interpretation. In reviewflng an agency's construction off' a statute it administers, courts rraust first decide "whether Congress has directly spoken to the precise question a~ issue," Chevron U.S.A., Inc. v. NRDC, 467 LT.S. X37, X42 (1984) ("Chevron"). ~f so, "that is the ernd of the matter; for the court, as welfl as the agency, must give effect to the ~aambiguousfly expressed intent of Congress°" Id. at 842-43. However, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843. Particular deference is due "where the Agency's decision on the meaning or reach of the Clean Water Act involves reconciling conflicting policies committed to the Agency's care and expertise under the Act," IZybachek v. EPA, 904 F.2d 1276, 1284 (9th Cir. ~ 99~), In addition, a reviewing court must defer to EPA's interpretation of its own regulations unless that interpretation is "plainly erroneous or inconsistent wath the regu~at~on," Kentuckians fog the DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 18 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 25 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 439 (4th Cir. 2003) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal quotation marks omitted)). See also United States v. LaNionoff, 431 U.S. 864, 872 (1977). There is no indication in the CWA that Congress intended to address the manner in EPA is to interpret the term "water quality standard," see Pine Creek Valley Watershed Ass 'n v. EPA, 97 F. Supp. 3d 590, 598-99 (E.D. Pa. 2015), let alone that Congress dictated precisely how EPA should determine if and when a water quality standard has been constructively or implicitly "revised" by a state so as to trigger a clear nondiscretionary duty to revnew the state action. The Court should defer to EPA's reading of the Act as not imposing a nondiscretionary duty on EPA in this instance, particularly given that EPA has never subjected the State's TUCP orders to review under CWA section 303(c). Further, Plaintiffs' expansive interpretation of the CWA, which would impose on EPA a duty that is not unambiguously articulated in the statute, contravenes the principle that nondiscretionary duties must be narrowly construed. The Court should reject Plaintiffs' novel interpretation of the statute for several additi reasons, First, Plaintiffs' reading of the Act would flnappropriately expand the scope of the CWA's obligations on the Agency while simultaneously undermining the Act's assignment of the primary role under CWA section 303 to establish water quality standards to the states. See Afn. Wildlands, 260 F.3d at 1194. Second, in addition to not constituting revisions to water quality standards, the TUCP Orders do not fall within the purview of any other provision of the CWA that would require those orders to conform to water quality standards. The CWA requares permits under section 402 of the Act for discharges of pollutants from point sources into waters of the United States, and requires that such permits meet water quality standards. 33 U.S,C. § 1311. But the ~'UCP Orders were not issued pursuant to the State's permitting authority under CWA section 402, nor could they be, because that permitting requirement is "applicable only to point sources." ONRC, 834 F.2d at 850. The mere fact that these water rights permits may affect water quality conditions (rates of inflow and outflow from the Delta can influence salinity and water DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 19 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 26 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 ~I 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 temperatures) does not bring them within the scope of federal permitting because that requirement is "applicable only to point sources." ONRC, 834 F.2d at 850. The ~'UCP Orders, in other words, are not of a type that EPA has authority to overturn under the CWA, EPA has never asserted authority to review and object to these TUCP Orders under the CWA on the theory that they are "de facto revisions" to state water quality standards, or on any other theory.14 Construing any state decision that could have an effect on the attainment of water quality standards as itself being a "revision to water quality standards" would work a dramatic expansion of EPA's duties and authorities not contemplated by the statute. Congress' express grant of specific authority for EPA to review and overtupn state chaa~ges to water quality standards would be transformed into an implicit irnposfltion of general authority to review and overturn any state decision bearing on the attainment of water quality standards. The CWA sp~rnpiy does not brr~pose on EPA a statutory requirement to review a state water rights permit implementation decision whenever such a decision can have are effect on the attainment of water quality standards, As noted above, the Water Board premised its issuance of the TIJCP Orders on its view that its obla~ation to fully implement state water quality standards in its issuance of water rights permits was suspended when the application of State Water Code Sectiom 13247 was suspended. Fairly read, Plaintgffs' Complaint advocates for a contrary interpretation in which the State remains sub~ec~ to a federal CWA duty to issue its orders consistent wgth ~ set of water quality standards, but no such duty exists. From this error, Plaintiffs take the view that the T~JCI' Orders must be now operating pursuant to soave sort of "de facto" revised water qualaty standards established by the State and that EPA therefore has a mandatory duty to revgew the supposed revisions. But the actual circumstances are far simpler than Plaintiffs theorflze. In the absence of state law to the contrary (i.e., State Water Code Section 13247), water rights permits affecting the Delta are not subject to any CWA requirement to achieve water quality standards. 14 Even if the TbJCP orders were permits issued by the State under sect~ora 402 of the CWA, the only claim that PlaintIlffs could assert was that specific orders must comply vaith the standards, not that the orders then~seives "revised99 water quality standards. DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 20 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 27 of 30 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 See Great Basin Mine Watch v. Hankins, 456 F.3d 955, 963 (9th Cir. 2006) ("It is clear that the Clean Water Act does not supersede, abrogate, or otherwise impair ̀ the authority of each state to allocate quantities of water within its jurisdiction.' 33 U.S.C. § 1251(g). States are responsible for enforcing water quality standards on intrastate waters. See 33 U.S.C. § 1319(a)"). Third, EPA did not review D-1641 (the State decision that implements the Bay-Delta Plan through modifications to the CVP and SWP water rights permits by, among other things, setting minimum Delta outflow requirements and regulating the export rates of the CVP and SWP) when it was originally issued by the Water Board. Nor did EPA incorporate D-1641 or any of the water permit conditions imposed by that decision into the Bay-Delta Plan's water quality standards that EPA approved in 1995. It would make little sense to deem temporary adjustments to the water rights conditions set forth in D-1641 to be "revisions" to the standards that require EPA review. Fourth, any interpretation of the TUCP Orders as "de facto" amendments to the water quality standards in the Bay-Delta. Plan ~vould be inconsistent with California's intent when it adopted the Bay-Delta Plan in the first place. When California developed the Bay-Delta Plan, it made clear that it was not "establishing the responsibilities of water rights holders" or "the quantities of water that any particular water right holder or group of water right holders may be required to release or forego to meet objectives in this plan." Bay-Delta. Plan at 3. The extent of any such responsibilities would be addressed by the Water Board in future water rights proceedings, with the Board retaining the discretion to decide whether to impose such conditions or the conditions to be imposed. Bay-Delta Plan (1995) at 4. The Board's actions here — temporarily adjusting water rights conditions to accommodate emergency conditions —simply do not equate to changing designated beneficial uses or water quality objectives. EPA's interpretation of the CWA (and of the State's action in question) is fully consistent with Congress's intent that states retain discretion in deciding how to manage nonpoint sources of pollution and how to allocate quantities of water within their jurisdictions under state law. Contrary to Plaintiffs' position, the CWA imposes no obligation on states or EPA to ensure that state water rights permits ensure attainment of state water quality standards. The DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 21 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 28 of 30 1 2 3 4 5 6 7 8 9 10 11 I' 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CWA leaves it to the states to decide how and to what extent each will use water quality standards to guide its water rights permit decisions. This Court should decline Plaintiffs' invitation to contort the statute in order to reassign these decisions to EPA over its objection. CONCLUSION For the foregoing reasons, Plaintiffs' Complaint should be dismissed, with prejudice. Respectfully submitted, this 18th day of July, 2016: lsl Martan F. McDermott MARTIN F. MCDERMOTT Trial Attorney United States Department of Justice Environment and Natural Resources Division Environmental Defense Section Attorney fog° Defendants David Berol, attorney U.S. EPA Office of General Counsel Melanie Shepherdson, attorney U.S. EPA Office of Regional Counsel, Region 9 I DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 22 Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 29 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SER VICE I certify that on July 18, 2016, a true and correct copy of the foregoing Memorandum wa: filed through the Court's ECF system, and thereby served on all counsel of record for Petitioners in the consolidated cases. /s/ Martin F. McDermott Martin F. McDermott Attorney for Defendants Case 3:16-cv-02184-JST Document 38 Filed 07/18/16 Page 30 of 30