Riverkeeper, Inc. et al v. United States Environmental Protection Agency et al

REPLY MEMORANDUM OF LAW in Support re: 17 MOTION to Dismiss for Lack of Jurisdiction.. Document

S.D.N.Y.March 28, 2007

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK RIVERKEEPER, INC., et al.., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants. Case No. 06 Civ. 12987 (PKC) ECF case INTERVENOR’S REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Russell S. Frye (RF8965) (pro hac vice) FryeLaw PLLC 3050 K Street, N.W. Suite 400 Washington, DC 20007 Phone: (202) 572-8267 Fax: (866) 850-5198 Attorney for Intervenor Cooling Water Intake Structure Coalition Case 2:06-cv-12987-PKC Document 34 Filed 03/28/2007 Page 1 of 12 TABLE OF CONTENTS I. INTRODUCTION ............................. ERROR! BOOKMARK NOT DEFINED. II. THE COURTS OF APPEALS HAVE JURISDICTION TO REVIEW EPA’S REGULATION OF INTAKE STRUCTURES UNDER CLEAN WATER ACT SECTION 316(B). ............................................................................2 III. EPA’S CASE-BY-CASE REGULATION OF CERTAIN INTAKE STRUCTURES IS CONSISTENT WITH THE STATUTE AND RELEVANT CASE LAW. ........................................................................4 IV. CONCLUSION ...........................................................................................9 Case 2:06-cv-12987-PKC Document 34 Filed 03/28/2007 Page 2 of 12 Intervenor the Cooling Water Intake Structure Coalition (“the Coalition”) states as follows in reply to the Plaintiff’s Memorandum in Opposition to Defendants’ motion to dismiss the amended complaint for lack of subject-matter jurisdiction. The Coalition also supports for the most part the arguments in Defendants’ (“EPA’s”) Reply Memorandum and EPA’s Memorandum of Law in Support of its motion to dismiss. I. INTRODUCTION Regardless of the way they characterize the argument, Plaintiffs Riverkeeper, et al. (“Riverkeeper”) are not actually arguing that EPA “failed to act” to regulate cooling water intake structures at industrial and smaller electric utility facilities; instead, they base their arguments for district court jurisdiction on an artificial distinction between the way they believe EPA should be regulating such cooling water intake structures (through issuance of detailed, nationally uniform regulations), and the way EPA has chosen to regulate them. It is only from the perspective of its own inaccurate interpretation of what the Clean Water Act requires that Riverkeeper claims that EPA has not taken action, and that its complaint is for failure to act rather than for review of limitations promulgated by EPA. But in fact, the Second Circuit has already rejected the narrow construction of the Clean Water Act Riverkeeper bases its arguments on, in an aspect of Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2d Cir. 2004) (“Riverkeeper I”). If Riverkeeper's interpretation of CWA sections 505 and 509 were the law, then the courts of appeals would almost never have exclusive jurisdiction to review EPA's approval or promulgation of an effluent limitation or other limitation under section 509(b)(1(E), because the person challenging the limitation could bring an action in a district court to “compel the promulgation of regulations” that were more to its liking. Cf. Opp. Memo at 11. Where, as here, the plaintiffs believe EPA’s regulation of cooling water intake structures under CWA sections Case 2:06-cv-12987-PKC Document 34 Filed 03/28/2007 Page 3 of 12 -2- 301 and 316(b) is inadequate, their sole remedy is to file a petition for review in one of the circuit courts of appeals.1 II. THE COURTS OF APPEALS HAVE JURISDICTION TO REVIEW EPA’S REGULATION OF INTAKE STRUCTURES UNDER CLEAN WATER ACT SECTION 316(b). Under CWA section 509(b)(1)(E), 33 U.S.C. § 1369(b)(1)(E), any challenge to an EPA action “in approving or promulgating an effluent limitation or other limitation” for point sources under CWA sections 301 or 306 can be brought solely in the courts of appeals and, generally, only within 120 days after the action. CWA section 509(b), 33 U.S.C. § 1369(b). Because CWA section 316(b) is to be implemented in conjunction with limitations imposed under sections 301 and 306, Riverkeeper has previously challenged EPA regulations establishing requirements for cooling water intake structures at new facilities (the “Phase I” regulations) and at larger electric utility generating stations that account for over 90 percent of cooling water withdrawals (the “Phase II” regulations) in the court of appeals, and indeed there was no dispute that the court of appeals has exclusive jurisdiction over those challenges.2 See Riverkeeper I, 358 F.3d at 183-84; Riverkeeper, Inc. v. EPA, 475 F.3d 83, 95 (2d Cir. 2007) (“Riverkeeper II”). 1 Riverkeeper refers frequently to limitations under CWA section 306. Opp. Memo at 4, 9, 17. To be clear, this case relates solely to implementation of section 316(b) in conjunction with existing source effluent limitations under section 301. EPA promulgated regulations for all cooling water intake structures at new sources covered by section 306—including precisely the type of best professional judgment limitations for certain cooling water intake structures that Riverkeeper now claims are inadequate for regulation of existing facilities—in 2001, and those regulations were reviewed and largely upheld by the Second Circuit on petitions for review by Riverkeeper and others. See 66 Fed. Reg. 65,255; 40 C.F.R. § 125.80(c); Riverkeeper I, 358 F.3d at 203; see also pp. 5-9, supra. 2 Riverkeeper inaccurately implies that the environmental impact of cooling water intake structures at the industrial facilities grouped in “Phase III” is “staggering.” Opp. Memo at 3. The passage from Riverkeeper I that Riverkeeper cites actually references impacts of withdrawals of large volumes of water at large power plants, rather than intake structures at other facilities, which collectively make only a small portion of cooling water withdrawals. In fact, EPA has concluded that Phase III facilities account for only about 7 percent of existing cooling water withdrawals, and most of the benefits of regulating cooling water intake structures have already been obtained through promulgation of the Phase II rules covering large utilities. See 71 Fed. Reg. 35,006, 35,017-18 (2006). Case 2:06-cv-12987-PKC Document 34 Filed 03/28/2007 Page 4 of 12 -3- Indeed, Riverkeeper initially sought review of EPA’s action with respect to cooling water intake structures at industrial facilities and smaller electric utility generating stations (the “Phase III” facilities) in the court of appeals as well, and only after its petitions for review were randomly assigned to the Fifth Circuit did Riverkeeper begin to claim that its critiques of EPA’s regulation of cooling water intake structures at Phase III facilities were not subject to exclusive court of appeals jurisdiction under CWA section 509(b)(1)(E).3 Riverkeeper’s theory is that its challenge to EPA’s regulation of cooling water intake structures at Phase III facilities is different, because it is challenging EPA’s failure to regulate Phase III facilities, rather than challenging regulations EPA has issued. Opp. Memo at 9-11. But that simply misstates the facts. Riverkeeper’s challenge is to the form of EPA’s regulation of Phase III facilities under CWA section 316(b). Riverkeeper’s Memorandum in Opposition is filled with semantics intended to obfuscate the true nature of its claims. Thus, it speaks of EPA’s decision not to promulgate “substantive regulations” and “EPA’s continuing failure to promulgate the subject regulations,” Opp. Memo at 1 (emphasis added), or EPA’s failure to “perform the nondiscretionary duty of promulgating national BTA regulations for existing manufacturing facilities,” Opp. Memo at 21 (emphasis added), and it objects to EPA’s regulation 3 Riverkeeper’s petition for review of the Phase III rulemaking filed in the Second Circuit recited CWA section 509(b)(1) as the basis for jurisdiction, as did its Agency Appeal Pre-Argument Statement filed with the Second Circuit. By order of the Judicial Panel on Multi-District Litigation dated August 7, 2006, Riverkeeper’s petitions for review and others were consolidated in the Fifth Circuit, as ConocoPhillips, et al. v. EPA, No. 06-60662. Three days later, Riverkeeper sent EPA a 60-day notice of intent to sue, a prerequisite for bringing an action in district court under CWA section 505. Soundkeeper et al., represented by the same counsel as Riverkeeper was in its Second Circuit petition, subsequently filed an additional petition for review in the Fifth Circuit dated October 26, 2006, again listing CWA section 509(b)(1) as the basis for jurisdiction. Although Riverkeeper, et al. filed a motion to transfer the Fifth Circuit consolidated petitions for review to the Second Circuit, they did so without arguing to the Fifth Circuit that the courts of appeals lack jurisdiction to hear their challenge to the Phase III rulemaking. Cf. Pan American World Airways Inc. v. Civil Aeronautics Board, 380 F.2d 770 (2d Cir. 1967) (one of the first things a court should consider in deciding a motion to transfer is whether the transferee court would have jurisdiction). By order dated March 22, 2007, the Fifth Circuit denied Riverkeeper’s motion to transfer. Case 2:06-cv-12987-PKC Document 34 Filed 03/28/2007 Page 5 of 12 -4- of Phase III facilities as “not…a present ‘promulgation,’” Opp. Memo at 17 (emphasis added). The translation is: Riverkeeper cannot deny that EPA is regulating cooling water intake structures at Phase III facilities, it just thinks EPA should do so in a different manner. III. EPA’S CASE-BY-CASE REGULATION OF CERTAIN INTAKE STRUCTURES IS CONSISTENT WITH THE STATUTE AND RELEVANT CASE LAW. As the Second Circuit noted in Riverkeeper I, EPA has long required that discharge permits imposing effluent limitations on industrial sources under CWA section 301 include requirements, imposed on a case-by-case, Best Professional Judgment (“BPJ”) basis, that associated cooling water intake structures use the best technology available for minimizing adverse environmental impact. 358 F.3d at 181-82, 202-203. EPA reinforced this in a memorandum issued by Michael Cook on December 28, 2000 (annexed as Exhibit 1 to the declaration of Russell S. Frye, dated March 28, 2007 (“Frye Decl.”)). This approach was further memorialized in regulations EPA published in 2004, 69 Fed. Reg. 41,683. Although described as regulating “Phase II” facilities, i.e., electric generating stations that withdraw 50 million gallons per day or more of cooling water (see 40 C.F.R. § 125.91 (defining Phase II facilities)), that rulemaking also formalized EPA’s regulation of cooling water intake structures at other facilities subject to effluent limitations under CWA section 301: It adopted 40 C.F.R. § 125.90(b), which provides that “[e]xisting facilities that are not subject to requirements under” 40 C.F.R. pt. 125 subpart J, Requirements Applicable to Cooling Water Intake Structures for Phase II Existing Facilities Under Section 316(b) of the Act, or another subpart “must meet requirements under section 316(b) of the CWA determined by the Director on a case-by-case, best professional judgment (BPJ) basis.” In other words, “Phase III facilities,” which are all those not covered by the standards for large utilities in subpart J or the standards for new facilities in 40 C.F.R. pt. 125 subpart I, are subject to BPJ limitations implementing the section Case 2:06-cv-12987-PKC Document 34 Filed 03/28/2007 Page 6 of 12 -5- 316(b) requirement to utilize the Best Technology Available for minimizing adverse environmental impact.4 Riverkeeper did not challenge this regulation providing for BPJ requirements for existing facilities. See Riverkeeper II, 475 F.3d 83.5 Nothing in section 316(b) compels its implementation through the kind of uniform nationwide regulations Riverkeeper envisions. Limitations implementing section 316(b) on a case-by-case, BPJ basis are no less “effluent limitations or other limitations” reviewable under CWA section 509(b)(1)(E) than are limitations imposed on a more uniform basis.6 The language from Riverkeeper II cited in Riverkeeper’s Memorandum in Opposition says nothing to the contrary. Cf. Opp. Memo at 4. More importantly, the Riverkeeper I decision is directly contrary to Riverkeeper’s view of section 316(b). In Riverkeeper I, industry groups challenged a provision of the Phase I rules that explicitly required case-by-case, BPJ limitations for cooling water intake structures at those new facilities that are not covered by uniform national requirements imposed in 40 C.F.R. pt. 125 subpt. I because they are below the size threshold for applicability of those requirements. See 40 C.F.R. § 125.80(c) (“New facilities that do not meet the threshold requirements regarding 4 Existing facilities subject to the subpart J regulations are essentially any facilities that do not constitute “new facilities” covered by the subpart I regulations. See 40 C.F.R. § 125.91 and § 125.93 (definition of “existing facility”). 5 EPA has brought to the Court’s attention a March 20, 2007 memorandum from the EPA Assistant Administrator for Water, indicating that, because numerous provisions of the Phase II regulations were remanded by the Second Circuit in Riverkeeper II, EPA intends to suspend the Phase II regulations pending further rulemaking. EPA Reply Memo n.8; see Frye Decl. Exhibit 2. This EPA memorandum does not specifically state that the portion of that rulemaking imposing BPJ requirements for facilities other than those covered by Phase I and Phase II requirements would be suspended, as well, and the Coalition has asked EPA to clarify that it does not intend to suspend 40 C.F.R. § 125.90(b). See Frye Decl. Exhibit 3. In any event, EPA has not yet promulgated a suspension of the Phase II rule, and, even if it had and if EPA had included 40 C.F.R. § 125.90(b) in the suspension, EPA has clearly stated in the preamble to the Phase II rule that it intends to continue to regulate Phase III facilities on a case-by-case, BPJ basis. 6 Even effluent limitations under CWA section 301 need not be, and often are not, effectuated through uniform national effluent limitations guidelines. See, e.g., Waterkeeper Alliance, Inc. v. U.S. EPA, 399 F.3d 486, 512-15 (2d Cir. 2005); Consolidation Coal Co. v. Costle, 604 F.2d 239 (4th Cir. 1979). Case 2:06-cv-12987-PKC Document 34 Filed 03/28/2007 Page 7 of 12 -6- amount of water withdrawn or percentage of water withdrawn for cooling water purposes in Sec. 125.81(a) must meet requirements determined on a case-by-case, best professional judgement (BPJ) basis”). The challenged provision used the same approach EPA had been following prior to that time and the same approach that EPA codified for existing facilities in 40 C.F.R. § 125.90(b). The industry petitioners argued that 40 C.F.R. § 125.80(c) was inconsistent with CWA section 316(b) because the requirements it imposed on cooling water intake structures at smaller new facilities were not uniform nationwide standards. The Second Circuit squarely rejected the notion that CWA section 316(b) has to be implemented through uniform national standards: We see no textual bar in sections 306 or 316(b) to regulating below- threshold structures on a case-by-case basis. Section 316(b) merely directs the EPA to require every cooling water intake structure subject to regulation under section 306 (which below-threshold structures indisputably are) to reflect the “best technology available.” It does not compel the EPA to regulate either by one overarching regulation, or based on categories of sources (as does section 306), or on a case-by-case basis (which, incidentally, was the tack the EPA took in its first crack at regulations pursuant to section 316(b), see Appalachian Power Co. v. Train, 566 F.2d 451, 454-55 & n. 4 (4th Cir. 1977))…. Although we recognize that Congress envisioned uniform regulations when it amended the Clean Water Act, other courts have recognized, as Ralph Waldo Emerson did, that a foolish consistency is the hobgoblin of small minds. The Clean Water Act does not forbid the EPA from addressing certain environmental problems on a case-by-case basis where categorical regulation is not technologically feasible, see National Wildlife Federation, 286 F.3d at 566-67 (upholding the EPA’s decision to regulate color discharges on a case-by-case basis), or when it does not violate the statute’s language and is otherwise consistent with Congress’s overriding goal of improving the quality of the Nation’s waters, see Natural Res. Def. Counsel [sic] v. EPA, 859 F.2d 156, 201- 02 (D.C. Cir. 1988) (upholding the continued enforcement of best professional judgment permit limits established prior to the promulgation of categorical effluent limitations).... [W]here the EPA is justified in not regulating uniformly, we see no reason why the EPA should have to avoid all regulation. Given a choice between not regulating below-threshold structures because of technical impracticalities and regulating them on a case-by-case basis, we think the EPA reasonably chose the latter course. Riverkeeper I, 358 F.3d at 203. Case 2:06-cv-12987-PKC Document 34 Filed 03/28/2007 Page 8 of 12 -7- This decision supports the granting of EPA’s Motion to Dismiss in two ways: First, it is contrary to Riverkeeper’s insistence that only uniform national standards constitute the sort of “substantive regulations” under CWA section 316(b) that are reviewable in the courts of appeals under CWA section 509(b)(1)(E). Cf. Opp. Memo at 14, 16-17. Secondly, it rejects Riverkeeper’s assertion that case-by-case determinations cannot be used to fulfill an EPA duty to implement CWA section 316(b). Cf. Opp. Memo at 22-24. First, since “Section 316(b) merely directs the EPA to require every cooling water intake structure subject to regulation under section 306…to reflect the ‘best technology available’” and it “does not compel the EPA to regulate either by one overarching regulation, or based on categories of sources,” Riverkeeper I, 358 F.3d at 203, court of appeals jurisdiction under CWA section 509(b)(1) applies because EPA has in fact regulated Phase III facilities under CWA section 316(b). Riverkeeper’s arguments that EPA should not have chosen to regulate Phase III facilities on a BPJ basis are therefore arguments about the form of effluent limitations or other limitations that EPA is imposing under section 316(b), not that EPA has failed to act under section 316(b).7 In that regard, it is also significant that the Second Circuit has already reviewed, under 7 Riverkeeper’s response to the clear ramifications of Riverkeeper I is basically to ignore the parts of that decision inconsistent with its claims. Compare, e.g., Riverkeeper I, 358 F.3d at 203 (section 316(b) “does not compel the EPA to regulate either by one overarching regulation, or based on categories of sources (as does section 306), or on a case-by-case basis”) with Opp. Memo at 22 (“EPA’s contention that Section 316(b) neither mandates that EPA promulgate national categorical BTA standards nor directs EPA to take any other approach in implementing the BTA standard…is simply incorrect.” (internal quotation marks omitted). Riverkeeper also seizes on the Riverkeeper I Court’s citation to Nat’l Wildlife Federation v. EPA, 286 F.3d 554 (D.C. Cir. 2002), which discusses case-by-case limitations where categorical regulation is not technically feasible, Opp. Memo at 23, as if the Riverkeeper I decision accepted case-by- case regulation to implement Section 316(b) only in cases of technological infeasibility. Even a cursory review of the language of Riverkeeper I quoted in the text above shows that to be untrue. (And in any event, even under that selective interpretation of Riverkeeper I, the question of whether uniform regulation of the vast variety of sources in the Phase III grouping was “technically feasible” would be for the court of appeals, not the district court, to decide.) Case 2:06-cv-12987-PKC Document 34 Filed 03/28/2007 Page 9 of 12 -8- CWA section 509(b)(1), a very similar attack on EPA regulation of cooling water intake structures through BPJ limitations, in Riverkeeper I. If the court of appeals was the proper court for review of industry’s claim in the Phase I litigation that EPA’s case-by-case approach for small facilities was not authorized by section 316(b), then it should also be the proper court for Riverkeeper’s claim that EPA was obligated to issue uniform national regulations for Phase III facilities rather than relying on case-by-case standards.. The cases Riverkeeper cites where courts have held that the CWA section 509(b)(1) does not give the courts of appeals jurisdiction to review EPA’s failure to issue effluent limitations were all in situations, unlike here, where EPA had not acted at all.8 See Opp. Memo at 9-10, 13. In contrast, in Consolidation Coal Co. v. Costle, 604 F.2d 239 (4th Cir. 1979) the court reviewed, under CWA section 509(b)(1)(E), EPA’s decision not to include a segment of coal mines (those in western states) in nationwide effluent limitations guidelines for the discharge of suspended solids from coal mines, choosing instead to impose effluent limitations on western coal mines based on Best Practicable Control Technology established on a case-by-case basis. Similar to Riverkeeper’s claims here, Opp. Memo at 4, 22-24, the petitioners in Consolidation Coal claimed that EPA’s case-by-case approach to limitations for mines in western states was contrary to the CWA “requirement of uniformity in effluent limitations,” 604 F.2d at 246. The Fourth Circuit rejected that contention. 8 Riverkeeper’s reliance on Am. Paper Inst. v. EPA, 882 F.2d 287 (7th Cir. 1989) is a good example. Cf. Opp. Memo at 13, 17. In that case, industry sought judicial review of a statement, issued by an EPA regional office, about how certain permit limitations should be written. That statement was not binding on permit writers, not contained in any regulation, and not published in the Federal Register. In fact, the Seventh Circuit described the challenged policy statement as not being a final agency action at all (and therefore not reviewable in any court). 882 F.2d at 289 (“Until the EPA puts polluters under the gun, compelling them to do something they would rather not, the ‘final’ agency action lies ahead.” Id. (citations, holding various actions not to be “final agency action” under the Administrative Procedure Act, omitted)). Riverkeeper cannot simultaneously claim EPA has not acted to impose any limitations on intake structures at Phase III facilities and also claim that EPA has taken binding final agency action that triggers jurisdiction under the APA. Case 2:06-cv-12987-PKC Document 34 Filed 03/28/2007 Page 10 of 12 -9- Secondly, Riverkeeper I clearly allowed EPA to make site-specific determinations of whether a facility has implemented effective measures for minimizing adverse environmental impact. See Riverkeeper I, 358 F.3d at 182-83. Riverkeeper claims that EPA’s regulation of Phase III facilities on a BPJ basis cannot constitute an action promulgating an effluent limitation or other limitation under section 316(b) because Phase III facilities will not be subject to uniform national standards, but the Riverkeeper I rejected just such an assertion in approving “Track II” of the section 316(b) regulations for new facilities. Under the Track II portion of the Phase I rules, EPA does not impose any specific technology requirements, but rather relies on the permit writer’s review of a facility’s demonstration of the effectiveness of its measures for minimizing adverse environmental impact. See Riverkeeper I, 358 F.3d at 182-83. The Court rejected Riverkeeper’s claim that Track II is inconsistent with section 316(b) because, Riverkeeper asserted, section 316(b) requires standards for cooling water intake structures that are more nationally uniform. Id. at 187, 191 (rejecting environmental petitioners’ claim that, because the Track II approach “requires a demonstration study, Track II involves precisely the sort of site- specific, case-by-case determination that Congress moved away from in the 1972 amendments when it chose a national, technology-based standards regime.” Id. at 187.). IV. CONCLUSION Thus, it should be clear from the discussion above that Riverkeeper’s claims actually are objections to the way EPA is implementing CWA section 316(b) for facilities not covered by the Phase I or Phase II facility standards, not that EPA unlawfully failed to act. Riverkeeper’s arguments against court of appeals jurisdiction (which is exclusive9) and in favor of district court 9 See, e.g., Virginia Elec. & Power Co. v. Costle, 566 F.2d 446, 447 (4th Cir. 1977) (upholding district court’s dismissal for lack of jurisdiction, because review of limitations under CWA section 316(b) lies in the courts of appeals). Case 2:06-cv-12987-PKC Document 34 Filed 03/28/2007 Page 11 of 12 -10- jurisdiction are all based on Riverkeeper’s inaccurate characterization of EPA’s regulation of cooling water intake structures at Phase III facilities as a failure to regulate. That characterization, in turn, is based on Riverkeeper’s inaccurate assertion that CWA section 316(b) mandates a certain kind of regulation that EPA has not issued, a uniform nationwide set of requirements. Nothing Riverkeeper cites in its opposition to EPA’s motion to dismiss supports a conclusion that this sort of dispute over whether EPA’s regulation of point sources should have been more explicitly prescribed should be heard in the district courts. Accordingly, Riverkeeper’s claims should be dismissed for lack of jurisdiction.10 . Dated: March 28, 2007 Respectfully submitted, __________/s/____________________ Russell S. Frye (RF8965) (pro hac vice) FryeLaw PLLC 3050 K Street, N.W. Suite 400 Washington, DC 20007 Phone: (202) 572-8267 Fax: (866) 850-5198 Attorney for Intervenor Cooling Water Intake Structure Coalition 10 Should the Court decide that it has jurisdiction to consider Riverkeeper’s claims under CWA section 505, however, the Cooling Water Intake Structure Coalition wishes to make one observation now in that regard. During the January 19, 2007 pretrial conference, in response to a question from the Court, Riverkeeper took the position that a decision that the Court has jurisdiction to hear Riverkeeper’s claim that EPA failed to complete a non-discretionary duty would effectively resolve that claim in Riverkeeper’s favor, as well. Riverkeeper now apparently has abandoned that position, arguing in its Memorandum in Opposition to EPA’s motion to dismiss that a decision that the district courts have subject-matter jurisdiction over its claims does not require resolving any of its claims, but only determining that its claims are not frivolous. See, e.g., Opp. Memo at 19-20. Although the Coalition agrees with EPA that, in assessing whether the specific language of CWA sections 505 or 509 applies to Riverkeeper’s claims, the Court needs to determine whether those claims meet the criteria of those CWA sections, rather than just determining whether the claims are frivolous, Riverkeeper should now be estopped from asserting that a decision in its favor on jurisdiction also resolves any of its claims on the merits. 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