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Conservation Law Foundation, Inc. v. Pease Development Authority

United States District Court, D. New Hampshire

September 26, 2017

Conservation Law Foundation, Inc., Plaintiff
Pease Development Authority; David R. Mullen; George M. Bald; Peter J. Loughlin; Robert A. Allard; Margaret F. Lamson; John Bohenko; Franklin Torr; and Robert Preston, Defendants Opinion No. 2017 DNH 202


          Steven J. McAuliffe United States District Judge

         Plaintiff Conservation Law Foundation, Inc. (“CLF”) brings suit under the Clean Water Act against the Pease Development Authority (“PDA”), PDA's Executive Director, David R. Mullen, its Chairman, George M. Bald, Vice Chairman, Peter J. Loughlin, and Board members, Robert A. Allard, Margaret F. Lamson, John Bohenko, Franklin Torr, and Robert Preston (collectively, “the individual defendants”).

         CLF alleges that the PDA is discharging pollutants into waters of the United States without the proper permit. It brings this action under the citizen suit provision of the Clean Water Act, which allows private suits against any person alleged to be in violation of an “effluent standard or limitation.” 33 U.S.C. § 1365(a)(1)(A). Defendants have moved to dismiss the case under Federal R. Civ. P. 12(b)(1) and 12(b)(6). The motion is granted in part, and denied in part.


         When ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must “accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader.” SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), it must allege each of the essential elements of a viable cause of action and “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal punctuation omitted).

         In other words, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, the facts alleged in the complaint must, if credited as true, be sufficient to “nudge[] [plaintiff's] claims across the line from conceivable to plausible.” Id. at 570. If, however, the “factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” Tambone, 597 F.3d at 442.

         When considering a motion to dismiss under Rule 12(b)(1), the Court should apply a standard of review “similar to that accorded a dismissal for failure to state a claim” under Rule 12(b)(6). Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995)). However, “[w]hen considering a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), a court may need to consider extrinsic materials submitted by a plaintiff even when reviewing a facial challenge to jurisdiction.” Pitroff v. United States, No. 16-CV-522-PB, 2017 WL 3614436, at *3 (D.N.H. Aug. 22, 2017) (citing Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 37 (1st Cir. 2000)). “In contrast, the court ordinarily should confine its review to the complaint and a limited subset of documents such as those incorporated in the complaint by reference and matters of public record when determining whether the complaint states a claim for relief.” Id. (citing Trans-Spec Truck Serv. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008)).


         Accepting the allegations in the amended complaint as true, the relevant facts appear to be as follows.

         The parties dispute whether the Pease Development Authority is required to secure a small municipal separate storm sewer system permit under the Clean Water Act, also known as a “small MS4 permit.” The Clean Water Act prohibits the discharge of any pollutant by any person from any point source[1] to the waters of the United States except where expressly authorized under valid National Pollutant Discharge Elimination System (“NPDES”) permits issued by the EPA, or by an EPA-delegated State permitting authority. See Clean Water Act §§ 502(12)(A) and 502(7). In New Hampshire, the NPDES program is administered by the EPA.

         The Parties

         The Conservation Law Foundation is a non-profit, member-supported environmental advocacy organization, with approximately 3, 350 members, 450 of whom live in New Hampshire. The CLF works to protect the health of New England's water resources, and, more specifically, has worked for more than a decade to protect Great Bay, Little Bay, the Piscataqua River and other waters that collectively comprise the Great Bay estuary from pollution associated with growth and development, including stormwater pollution. In 2012, the CLF established the Great Bay-Piscataqua Waterkeeper, a program that is dedicated to restoring and protecting the health of the water bodies that make up the Great Bay estuary.

         Defendant Pease Development Authority owns and operates the Pease International Tradeport and Airport, which is a 3, 000-acre property with 40 percent of its land in the City of Portsmouth, and 60 percent of its land in the Town of Newington (“Pease International”). The property was previously owned by the federal government, operating as Pease Air Force Base, which closed in 1991. In April of 1989, the New Hampshire Legislature established the Pease Redevelopment Commission to plan for the closure and redevelopment of the Base. The Commission's work led to the creation of the Pease Development Authority on June 1, 1990, by the New Hampshire Legislature, as a “body politic and corporate of the state, ” “deemed to be a public instrumentality.” Compl. ¶ 15 (quoting NH RSA § 12-G:3, I).[2] In 1992 and 1997, the United States Air Force transferred its interest in the Pease Air Force Base to the PDA.

         The Authority is governed by a board consisting of seven members, who are charged with appointing an Executive Director. See NH RSA 12-G:4. Four members of the Board are appointed by the Governor and legislative leaders. Id. Three members are appointed by the City of Portsmouth and the Town of Newington. Id. The Chairman of the Board is appointed by and serves at the pleasure of New Hampshire's Governor. Id.

         The Stormwater Runoff Permit

         Stormwater runoff contains a wide variety of pollutants. It is a major cause of water quality impairment in rivers, lakes, estuaries and coastal areas in New Hampshire and across the United States. Stormwater runoff impacts water quality because it contributes significant amounts of pollution to receiving waters, changes natural hydrologic patterns, accelerates stream flows, destroys aquatic habitat, and elevates pollutant concentrations and loading. Stormwater runoff is a particularly significant source of water pollution in New Hampshire, causing or contributing to 83 percent of water quality impairments documented by the New Hampshire Department of Environmental Services. And, in the Great Bay estuary, stormwater accounts for the delivery of a substantial amount of nitrogen (the pollutant of greatest concern to the estuary's health). The New Hampshire Department of Environmental Services and the EPA have identified the reduction of nitrogen and other pollutants as a top priority for the Great Bay estuary.

         CLF's complaint asserts that “PDA is an agency of the State of New Hampshire with jurisdiction over disposal of sewage, industrial wastes, stormwater or other wastes.” Compl. ¶ 53. So, says CLF, it is PDA's responsibility to manage stormwater at Pease International in compliance with the Clean Water Act.

         Pease International generates stormwater runoff from its streets, roofs, municipal buildings and infrastructure, and parking lots, which contain a variety of pollutants. The EPA, which compiles Waterbody Quality Assessment Reports, has determined that water quality is being impaired in a number of the waters into which Pease International directly or indirectly discharges stormwater.

         On August 8, 2000, the EPA issued an NPDES permit to PDA that authorizes the discharge of wastewater and industrial stormwater to five different outfalls: the Piscataqua River, Hodgkins Brook, Flagstone Creek, McIntyre Brook, and Harvey's Creek (hereafter, the “Industrial Permit”). That permit, which had a term of five years, became effective on September 7, 2000, and expired on September 7, 2005. Since its expiration in 2005, the Industrial Permit has been administratively continued, and is still in effect.

         But, according to the CLF, the Authority's Industrial Permit alone is no longer sufficient to maintain PDA's compliant status. Instead, asserts CLF, PDA was also required to obtain a small municipal separate storm sewer system permit. Pursuant to Section 402(p)(6) of the Clean Water Act, operators of small municipal separate storm sewer[3] systems[4] are required to obtain NPDES permit coverage for their stormwater discharges. In May 2003, the EPA issued a General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems applicable to small municipal separate storm sewer systems in New Hampshire (the “2003 MS4 Permit”). The 2003 MS4 Permit expired on May 1, 2008, but remains in effect until the EPA issues a new permit.[5]The 2003 MS4 Permit imposes certain requirements on small municipal separate storm sewer system operators to, inter alia, develop implement and enforce a stormwater management plan that details practices that will be implemented by the operator to reduce the discharge of pollutants from the storm sewer systems to the maximum extent practicable. According to CLF, PDA's existing Industrial Permit fails to impose those requirements.

         CLF alleges that PDA owns and operates a small municipal separate storm sewer system at Pease International. More specifically, CLF alleges that Pease International is located in an urbanized area, and owns and operates a system of conveyances discharging pollutants (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man- made channels or storm drains), which are (1) designed or used for collecting or conveying stormwater that is not a combined sewer or publically owned treatment works, and (2) owned or operated by a public body created pursuant to state law and having jurisdictional authority over stormwater. Therefore, says CLF, PDA is required to obtain coverage under a small MS4 permit.

         Based on the foregoing, the CLF asserts eight violations of the Clean Water Act by PDA, all of which stem from PDA's failure to obtain a small municipal separate storm sewer system permit, and to comply with that permit's additional requirements. CLF asks the court to, inter alia, declare PDA to be in violation of the Clean Water Act for its unpermitted discharge of pollutants into the waters of the United States; order PDA's compliance with all applicable MS4 requirements; and order PDA to pay civil penalties.


         The PDA's response falls into three categories. First, PDA argues that, as a state agency, it is immune from suit under the Eleventh Amendment. And, it says, the individual defendants, state officers sued in their official capacity, are immune as well, both from claims for money damages, and from the declaratory and injunctive relief sought by the CLF. Second, PDA argues it is prohibited from applying for an MS4 permit because: (1) it already has a stormwater permit under the Clean Water Act, and (2) the 2003 MS4 Permit expired in 2008. Therefore, says PDA, CLF lacks standing because its injury (stormwater discharge in the absence of a 2003 MS4 Permit) is not redressable by the Court. Finally, PDA contends, even if CLF has standing, its claims fail as a matter of law.

         The Clean Water Act and Stormwater Regulation

         Before examining the substance of the parties' respective positions, some background concerning the Clean Water Act may prove helpful. The Clean Water Act was enacted by Congress in 1972, to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” Decker v. Northwest Envtl. Def. Ctr., 568 U.S. 597, 602 (2013) (additional citations omitted). “A central provision of the Act is its requirement that individuals, corporations, and governments secure National Pollutant Discharge Elimination System (NPDES) permits before discharging pollution from any point source into the navigable waters of the United States.” Id. (citing 33 U.S.C. §§ 1311(a), 1362(12) (additional citations omitted). “A permit may be granted from the EPA or from the state where the discharger is located, if the state has developed a program and has received permitting authority from the EPA.” U.S. Pub. Interest Research Grp. v. Atl. Salmon of Maine, LLC, 215 F.Supp.2d 239, 246 (D. Me. 2002) (citing 33 U.S.C. § 1342(a), (b)).

         “NPDES permits come in two varieties: individual and general.” NRDC v. United States E.P.A., 279 F.3d 1180, 1183 (9th Cir. 2002). As the Court of Appeals for the Ninth Circuit has explained:

“An individual permit authorizes a specific entity to discharge a pollutant in a specific place and is issued after an informal agency adjudication process.” Natural Res. Def. Council, 279 F.3d at 1183 (citing 40 C.F.R. §§ 122.21, 124.1-124.21, 124.51-124.66). A general permit, by contrast, is issued for an entire class of hypothetical dischargers in a given geographical region and is issued pursuant to administrative rulemaking procedures. See id. § 122.28. Once a general permit has been issued, an entity seeking coverage generally must submit a “notice of intent” to discharge pursuant to the permit. Id. § 122.28(b)(2). The date on which coverage commences depends on the terms of the particular general permit, such as, inter alia, upon receipt of the notice of intent or after a specified waiting period. Id. § 122.28(b)(2)(iv). Additionally, the permit issuer may require a potential discharger to apply for an individual permit. Id. § 122.28(b)(3).

Alaska Cmty. Action on Toxics v. Aurora Energy Servs., LLC, 765 F.3d 1169, 1171 (9th Cir. 2014).

         In 1987, Congress added Section 402(p) to the Act, which requires implementation of a two-phase comprehensive regulatory program to address stormwater discharge. Phase I of the program required NPDES permits for large discharge sources, specifically: (1) operators of “large” and “medium” municipalities (those generally serving populations of 100, 000 or more): (2) stormwater discharges associated with industrial activity; (3) certain other discharges designated by state or EPA officials as causing a violation of water quality standards; and (4) those entities for which permits had been issued prior to the enactment date of the amendment. See Conservation Law Found. v. Hannaford Bros. Co., 327 F.Supp.2d 325, 328 (D. Vt. 2004), aff'd sub nom. Conservation Law Found. v. Hannaford Bros., 139 Fed.Appx. 338 (2d Cir. 2005), (citing 33 U.S.C. § 1342(p)(2)). Phase II required the EPA to “identify and address sources of pollution not covered by the Phase I Rule.” Envtl. Def. Ctr., Inc. v. E.P.A., 344 F.3d 832, 842 (9th Cir. 2003).

         In 1990, the EPA promulgated rules establishing Phase I of the NPDES stormwater program, setting forth permit application requirements for those large discharge sources covered by Phase I. National Pollutant Discharge Elimination System Permit Application Regulation for Stormwater Discharges, 55 Fed. Reg. 47, 990 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 122-24). In December, 1999, EPA promulgated the Phase II rule. Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68, 722 (Dec. 8, 1999) (codified at 40 C.F.R. pts. 9, 122, 123 and 124). Phase II required NPDES permits for stormwater discharges from regulated small municipal sewer systems (small MS4s located in “urbanized areas” as defined by the Bureau of the Census), and small construction sites. 40 C.F.R. § 122.26(a)(9)(i).

         Eleventh Amendment Immunity

         Defendants argue that the Eleventh Amendment bars all claims against them. ”The Eleventh Amendment provides that the ‘Judicial power of the United States shall not be construed to extend to any suit . . . commenced or prosecuted against one of the States by citizens of another State, U.S. Const., Amdt. 11, and [as interpreted] by its own citizens.'” Lapides v. Bd. of Regents, 535 U.S. 613, 618 (2002) (quoting Hans v. Louisiana, 134 U.S. 1, 10 (1890)). “As a general matter, ‘states are immune under the Eleventh Amendment from private suit in the federal courts.'” Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 99 (1st Cir. 2002) (quoting Greenless v. Almond, 277 F.3d 601, 606 (1st Cir. 2002)). That “immunity applies only to the states themselves and entities that are determined to be arms of a state.” Pastrana-Torres v. Corporacion De P.R. Para La Difusion Publica, 460 F.3d 124, 126 (1st Cir. 2006) (citations omitted). As the entity asserting immunity, PDA “bears the burden of showing that it is an arm of the state.” Wojcik, 300 F.3d at 99 (citations omitted).

         A. PDA as an “Arm of the State ”

         Our court of appeals has developed a two-step analysis to be used in determining whether an entity is an arm of the state. See Irizarry-Mora v. University of Puerto Rico, 647 F.3d 9, 12 (1st Cir. 2011). Under that two-step analysis:

a court must first determine whether the state has indicated an intention - either explicitly by statute or implicitly through the structure of the entity - that the entity share the state's sovereign immunity. If no explicit indication exists, the court must consider the structural indicators of the state's intention. If these point in different directions, the court must proceed to the second stage and consider whether the state's treasury would be at risk in the event of an adverse judgment.

Id. (quoting Redondo Constr. Corp. v. P.R. Highway & Transp. Auth., 357 F.3d 124, 126 (1st Cir. 2004)) (additional citations omitted).

         PDA argues that, as “an agency of the State of New Hampshire, ” compl. ¶ 53, it is entitled to Eleventh Amendment immunity. In support of that argument, PDA contends that its status is made clear by statutory language creating it, that explicitly declares the PDA to be a “body politic and corporate of the state, ” and providing that “the exercise by the authority of the powers conferred by this chapter shall be deemed and held to be the performance and essential governmental functions of the state.” NH RSA 12-G:3, I (emphases added).

         PDA also draws support from New Hampshire statutes that govern the State's sovereign immunity, including NH RSA 541-B, which creates a limited waiver of the State's sovereign immunity with respect to tort suits in state court, and includes PDA as a state agency; and NH RSA 99-D, which codifies the State's sovereign immunity, and specifically includes “directors, officers, and employees of the Pease development authority.” So, says PDA, because New Hampshire has explicitly indicated its intent that PDA share its sovereign immunity, the structural factors on which CLF ...

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