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
4, 2019, the Court granted in part Plaintiffs' Motion for
an Award of Attorney's Fees and Expenses. ECF Nos. 114,
127. While the Court awarded fees and costs, it held in
abeyance their calculation to allow for supplemental
briefing. ECF Nos. 119, 127. After consideration of the
parties' briefing, the Court AWARDS
Plaintiffs $100, 648.45 in attorney's fees and $696.59 in
costs, for a total of $101, 345.04.
brought suit against the Environmental Protection Agency
(“EPA”), claiming it neglected its duty under 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
requires states to develop water quality standards, identify
waterbodies that are “impaired” under those
standards, 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.” 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. Id. If EPA disapproves a TMDL, EPA
must produce its own TMDL within thirty days of disapproval.
33 U.S.C. § 1313(d)(2). A “constructive
submission” exists when 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. If a constructive
submission occurs, EPA must approve or disapprove the absence
of a TMDL within thirty days of the state's failure.
§ 1313(d)(2). If EPA were to disapprove the missing
TMDL, meaning EPA believes a TMDL is necessary, it must
produce the TMDL within thirty days. Id. If EPA
approves the constructive submission, it need not take
2012, the West Virginia Legislature passed Senate Bill 562,
which required WVDEP to develop a new methodology to
determine which bodies of water are biologically impaired
under the state's narrative water quality standards.
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 SB 562 to prohibit WVDEP from developing TMDLs to
address streams deemed biologically impaired due to a failing
West Virginia Stream Condition Index score until WVDEP
developed a new methodology. Huffman Letter, J.A. 3298. EPA,
conversely, did 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 under the citizen suit provision of
the CWA arguing that WVDEP's refusal to develop TMDLs for
biological impairment until it developed a new testing
methodology was a constructive submission that triggered
EPA's duty to approve or disapprove the submission of no
TMDLs for biologically impaired bodies of water. ECF No. 78.
The Court agreed and granted summary judgment in favor of
Plaintiffs. 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. at 39. EPA
appealed, and the Fourth Circuit denied EPA's motion for
stay pending appeal. ECF No. 106, at 1.
13, 2017, EPA conditionally approved WVDEP's constructive
submission of no TMDLs. ECF No. 107-1, at 3. EPA stated it
would “not take the action required by the district
court (to approve or disapprove 573 “no TMDLs”)
if it had not 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 that 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 8.
Fourth Circuit reversed this Court's order and found that
even if the doctrine of constructive submission applied, it
was not satisfied here. ECF No. 108, at 12. The circuit court
founded its rationale on WVDEP's “good-faith
efforts to comply with SB 562, and because West
Virginia has a credible plan in concert with EPA to produce
ionic toxicity TMDLs[.]” Id. (emphasis in
original). The “credible plan” referenced 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 11, n.3 (memorializing EPA's
affirmation that 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.
4, 2019, the Court held Plaintiffs were a
“substantially prevailing” party under the CWA
and awarded Plaintiffs attorney's fees and costs. ECF No.
127, at 7-12; see 33 U.S.C. § 1365(d). The
Court ruled “fees are only ‘appropriate' up
until Plaintiffs attained the relief that they sought”
when EPA and WVDEP entered the MOA. ECF No. 127, at 12. The
Court held in abeyance the calculation of those fees and
costs to allow for supplemental briefing. Id. at 13.
Having received the parties' briefing, the Court now
turns to the calculation of fees and costs.
attorney's fees is a three-step process. Jones v.
Southpeak Interactive Corp. of Del., 777 F.3d 658,
675-76 (4th Cir. 2015). First, “the court must
determine the lodestar figure by multiplying the number of
reasonable hours expended times a reasonable rate.”
Id. (citation omitted). Second, “the court
must subtract fees for hours spent on unsuccessful claims
unrelated to successful ones. [Third], the court should award
some percentage of the remaining amount, depending on the
degree of success enjoyed by the plaintiff.”
Id. at 676 (citation omitted).
Step One: Determining ...