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Ohio Valley Environmental Coalition, Inc. v. Wheeler

United States District Court, S.D. West Virginia, Huntington Division

January 15, 2020

ANDREW WHEELER, Administrator, United States Environmental Protection Agency and CECIL RODRIGUES, Regional Administrator, United States Environmental Protection Agency, Region III, Defendants.



         On June 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.

         I. BACKGROUND

         Plaintiffs 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 biologically impaired.

         The CWA 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 further action.

         In 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.

         Plaintiffs 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.

         On June 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.

         The 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.

         On June 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.


         Calculating 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).


         A. Step One: Determining ...

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