United States District Court, S.D. West Virginia, Huntington Division
OHIO VALLEY ENVIRONMENTAL COALITION, INC., SIERRA CLUB, WEST VIRGINIA HIGHLANDS CONSERVANCY, INC. and VIRGINIA RIVERS COALITION, Plaintiffs,
ANDREW WHEELER, Administrator, United States Environmental Protection Agency and CECIL RODRIGUES, Regional Administrator, United States Environmental Protection Agency, Region III, Defendants.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs', Ohio Valley
Environmental Coalition, Inc., Sierra Club, West Virginia
Highlands Conservancy, and Virginia Rivers Coalition, Motion
for an Award of Attorney's Fees and Expenses. ECF No.
114. For the foregoing reasons, the Court GRANTS, in
part, insofar as Plaintiffs are awarded
attorney's fees and costs, and HOLDS IN ABEYANCE,
in part, as to the calculation of those fees and
brought suit against the Environmental Protection Agency
(“EPA”), claiming it had neglected its duty
pursuant to the Clean Water Act (“CWA”) to
address the West Virginia Department of Environmental
Protection's (“WVDEP”) refusal to produce
Total Maximum Daily Load (“TMDL”) limits for
streams designated biologically impaired.
fully set out in the Court's February 14, 2017 Memorandum
Opinion and Order, (ECF No. 87), the CWA requires states to
develop water quality standards (“WQS”), identify
waterbodies that are “impaired” under the WQS,
and create a TMDL for each offending body of water. 33 U.S.C.
§ 1313(d)(1)(C); 40 C.F.R. § 130.7(c)(1). TMDLs
“establish[ ] the maximum daily discharge of pollutants
into a waterway” from all sources. Hayes v.
Whitman, 264 F.3d 1017, 1021 (10th Cir. 2001) (citing
Scott v. City of Hammond, 741 F.2d 992, 996 (7th
Cir. 1984)). The state must then submit those TMDLs to EPA
for approval within thirty days. Id. If EPA
disapproves a TMDL, EPA must then produce that TMDL within
thirty days of disapproval. 33 U.S.C. § 1313(d)(2).
Where a “state's actions clearly and unambiguously
express a decision to submit no TMDL for a particular
impaired waterbody, ” Hayes, 264 F.3d at 1024,
known as a “constructive submission, ” EPA must
approve or disapprove of the absence within thirty days of
the state's failure. § 1313(d)(2). Were it to
disapprove the missing TMDL, meaning EPA believed a TMDL to
be necessary, EPA is obliged to produce the TMDL within
thirty days. Id. If it approves the constructive
submission, EPA need not take any further action.
2012, the West Virginia Legislature passed legislation to
require WVDEP to develop a new methodology to determine which
bodies of water are considered biologically impaired pursuant
to the state's narrative WQS. Letter from Randy C.
Huffman, Cabinet Sec'y, WVDEP, to Jon M. Capacasa, Dir.,
Water Prot. Div., EPA Region III (Apr. 6, 2012), J.A. 3298
[hereinafter Huffman Letter]. WVDEP interpreted the 2012
legislation, known as SB 562, to prohibit WVDEP from
developing TMDLs to address streams that were deemed to be
biologically impaired as indicated by a failing West Virginia
Stream Condition Index (“WVSCI”) score until it
could develop a new methodology. Huffman Letter, J.A. 3298.
EPA, conversely, does not interpret SB 562 to preclude WVDEP
from developing TMDLs for biologically impaired streams.
Draft TMDL for Selected Streams in the Monongahela River
Watershed, W.Va. EPA Comments-Oct. 24, 2013, J.A. 188.
filed claims against EPA pursuant to the citizen suit
provision of the CWA, 33 U.S.C. § 1365(a)(2), arguing
that WVDEP's refusal to develop TMDLs for biological
impairment until it developed a new testing methodology was a
constructive submission which triggered EPA's duty to
approve or disapprove of the submission of no TMDLs for
biologically impaired bodies of water. Second Am.
Compl., ECF No. 78. The Court agreed and granted summary
judgment in favor of Plaintiffs. Mem. Op. &
Order, ECF No. 87. The Court ordered EPA to
“approve or disapprove WVDEP's constructive
submission of no TMDLs for all biologically impaired bodies
of water for which no TMDL has been developed to address that
impairment within thirty days.” Id. EPA
appealed and the Fourth Circuit denied EPA's motion for
stay pending appeal on May 30, 2017. Order of 4th
Cir., p. 1, ECF No. 106.
13, 2017, EPA acted under § 303(d)(2) of the CWA, (33
U.S.C. § 1313(d), and conditionally approved WVDEP's
constructive submission of no TMDLs. EPA Decision Part
One, at 3, ECF No. 107-1. In its decision, EPA stated it
would “not take the action required by the district
court (to approve or disapprove 573 “no TMDLs”)
if it not had been ordered to do so.” Id. The
“most significant” basis for accepting the
protracted delay on the part of WVDEP was the Memorandum of
Agreement (“MOA”) between EPA and WVDEP, which
established a schedule to develop TMDLs “regardless of
the availability of a new biological assessment
methodology.” Id. The MOA was an outgrowth of
Plaintiffs' suit, as it was “[i]n response to [this
C]ourt's finding that WVDEP has ‘constructively
submitted' ‘no' TMDLs addressing the biological
impairment in the Attachment 1 waterbodies, EPA worked with
WVDEP to establish through an MOA a reasonable and
expeditious schedule for the development of the TMDLs.”
Id. at 6.
appeal, the Fourth Circuit reversed the order of this Court
and found that even if the doctrine of constructive
submission applied,  it was not satisfied here. Op. of 4th
Cir., at 12, ECF No. 108. The circuit court's
rationale was founded on WVDEP's “good-faith
efforts to comply with SB 562, and because West
Virginia has a credible plan in concert with the EPA to
produce ionic toxicity TMDLs[.]” Id. (emphasis
in original). The credible plan referenced therein is the
MOA, which EPA further assured it will continue to implement
beyond its appeal in this matter. Id. at 11-12;
see also Id. at n. 3 (memorializing EPA's
affirmation the MOA was the basis for EPA's conditional
approval, which in turn was an outgrowth of this Court's
order). After denying Plaintiffs' petition for panel
rehearing, the Fourth Circuit issued its mandate on August
27, 2018. ECF No. 113. Plaintiffs timely filed their motion
for attorney's fees and costs. ECF No. 114.
the CWA, a citizen can sue “where there is alleged a
failure of the Administrator to perform any act or duty under
this chapter which is not discretionary[.]” 33 U.S.C.
§ 1365(a)(2). A court “may award costs of
litigation (including reasonable attorney and expert witness
fees) to any prevailing or substantially prevailing party,
whenever the court determines such award is
appropriate.” 33 U.S.C. § 1365(d).
argue they are “substantially prevailing” parties
within the meaning of the CWA and an award of fees and costs
are appropriate here. Mem. Supp. Mot. Att'y
Fees, ECF No. 115. Defendants contest that Plaintiffs
must have received an enforceable judgment or court-ordered
decree, as required by the United States Supreme Court in
Buckhannon. Resp. to Mot. Att'y Fees,
p. 1, ECF No. 117 (citing Buckhannon Board & Care
Home, Inc. v. W.Va. Dep't of Health & Hum. Res.,
532 U.S. 598 (2001)). Defendants further claim that even if
Buckhannon is not applicable, fees are not
“appropriate” in this case. Id. at 16.
Categories of Fee-Shifting Statutes
the “American Rule, ” “[e]ach litigant pays
his own attorney's fees, win or lose, unless a statute or
contract provides otherwise.” Hardt v. Reliance
Standard Life Ins. Co., 560 U.S. 242, 253 (2010) (citing
Ruckelshaus v. Sierra Club, 463 U.S. 680, 683
(1983)). The Supreme Court has clarified that there are, at
least, three categories for fee-shifting provisions.
Statutory changes to this [American] rule take various forms.
Most fee-shifting provisions permit a court to award
attorney's fees only to a “prevailing party.”
Others permit a “substantially prevailing” party
or a “successful” litigant to obtain fees. Still
others authorize district courts to award attorney's fees