Ohio Valley Environmental Coalition v. Horinko

MEMORANDUM OPINION & ORDER

This case involves a challenge to the Environmental Protection Agency’s (the EPA’s) decision, pursuant to its authority under section 303(c) of the Clean Water Act, 33 U.S.C. § 1313(c), to approve the State of West Virginia’s antidegradation implementation procedures, a set of procedures designed to prevent the degradation of the State’s waters. For the reasons that follow, the court concludes that the EPA acted arbitrarily and capriciously in approving West Virginia’s antidegradation procedures. With respect to seven particular aspects of West Virginia’s program, the EPA failed to ensure that West Virginia’s procedures met minimum federal requirements, as defined by the Clean Water Act and the EPA’s own regulations. In some instances there is simply insufficient evidence in the administrative record to support certain aspects of West Virginia’s implementation procedures and, correspondingly, the EPA’s approval of those procedures. For example, West Virginia has classified the main segments of the Kanawha and Monongahela Rivers as Tier 1 waters, but there is almost no evidence in the record about the water quality of these rivers that would justify the decision to deny them the more stringent protection of Tier 2. See infra at IV.l. Nor is there sufficient evidence in the record explaining how Tier 2 review, which is location-specific and requires public participation, could be done at the time a general section 402 or section 404 permit was issued, rather than at the time new individual discharges are proposed. See infra at IV.4. In other instances, West Virginia’s regulations simply fail to require the minimum protections required by the EPA’s regulations, and the EPA’s approval of West Virginia’s procedures was based on an unreasonable attempt to effectively amend the plain meaning of those provisions so as to bring them into fine with federal requirements. For example, West Virginia’s procedures allow new or expanded discharges from certain wastewater treatment plants to evade Tier 2 review if the new discharge results in a “net decrease in the overall pollutant loading.” The EPA approved this provision as consistent with minimum federal standards by, in effect, amending it to apply only when there is a net decrease in *738 the pollutant loading for each pollutant parameter. See infra at IV.3.

Apart from the seven instances where the EPA failed to ensure that West Virginia’s procedures met minimum federal requirements, however, the court rejects the plaintiffs’ challenges to six other aspects of West Virginia’s procedures. The EPA’s conclusion that these six aspects of West Virginia’s procedures satisfied minimum federal requirements was reasonable and supported by the evidence in the record. For example, the EPA reasonably concluded that best management practices for nonpoint source pollution will be “achieved,” as required by EPA regulations, if those practices are “installed and maintained,” as required by West Virginia’s procedures. See infra at IV.5. Similarly, there was sufficient evidence in the record to support the EPA’s approval of a provision allowing for a de minimis ten percent reduction in the available assimila-tive capacity of Tier 2 waters before Tier 2 review is required. See infra at IV.8.

That said, because the EPA failed to ensure, in a number of respects, that West Virginia’s antidegradation implementation procedures were consistent with minimum federal requirements, the EPA’s approval of West Virginia’s procedures was arbitrary, capricious, and an abuse of discretion. Accordingly, the court VACATES the EPA’s approval of West Virginia’s an-tidegradation procedures and REMANDS to the EPA for further proceedings consistent with this opinion.

I. Background

The Clean Water Act (CWA or the Act), 38 U.S.C. § 1251 et seq., was passed by Congress “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (2003). In particular, the CWA seeks to eliminate “the discharge of pollutants into the navigable waters” of the United States, and to “provide[] for the protection and propagation of fish, shellfish, and wildlife and provide[ ] for recreation in and on the water.” Id. at §§ 1251(a)(1) & (a)(2). 1 The Supreme Court has explained that the CWA requires the Administrator of the EPA to “establish and enforce technology-based limitations on individual discharges into the country’s navigable waters from point sources,” and also “requires each State, subject to federal approval, to institute comprehensive water quality standards establishing water quality goals for all intrastate waters.” PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994). Under a 1987 amendment to the Act, State water quality standards must include an antidegradation policy, which is “a policy requiring that state standards be sufficient to maintain existing beneficial uses of navigable waters, preventing their further degradation.” Id. at 705, 114 S.Ct. 1900; see also 33 U.S.C. § 1313(d)(4)(B). Pursuant to this statute, the EPA promulgated a regulation governing antidegradation, 40 C.F.R. § 131.12. Section 131.12 requires States to “develop and adopt a statewide antidegradation policy and identify methods for implementing such policy.” 40 C.F.R. § 131.12(a) (2003). Section 131.12 further provides that “[t]he antidegradation policy and implementation methods shall, at a minimum, be consistent” with certain federal standards specified in the regulation. Id. States must submit their antidegradation policy and implementation procedures to the EPA. 33 U.S.C. § 1313(c)(2)(A). If the State’s policy and procedures are consistent with the *739 minimum federal standards, the EPA must approve the procedures within sixty days. Id. at 1313(c)(3). If not, the EPA must, within ninety days, “notify the State and specify the changes to meet such requirements. If such changes are not adopted by the State within ninety days after the date of notification, the Administrator shall promulgate such standard pursuant to paragraph (4) of this subsection.” Id.

On April 14, 2001, the West Virginia legislature passed West Virginia’s antide-gradation implementation procedures, codified in Title 60, Series 5, of West Virginia’s Code of State Regulations. 2 West Virginia submitted those procedures to the EPA on July 5, 2001, and the EPA approved the procedures on November 26, 2001. 3 On January 23, 2002, the plaintiffs, a group of concerned citizens and environmental and recreational organizations, brought this suit challenging the EPA’s approval of West Virginia’s procedures. 4 The plaintiffs claimed that the EPA’s approval of West Virginia’s antidegradation implementation procedures was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance -with law,” 5 U.S.C. § 706(2)(A), and sought a declaration to that effect, an order setting aside the EPA’s approval and remanding the case to the EPA for further proceedings, and an award of costs and expenses, including reasonable attorneys’ and expert witness fees, under 28 U.S.C. § 2412. 5 In particular, the plaintiffs contend that a number of provisions of West Virginia’s antidegradation implementation procedures are inconsistent with EPA regulations implementing the Clean Water Act. The primary regulation at issue is 40 C.F.R. § 131.12.

The parties in this case, in addition to the plaintiffs and the EPA, include a number of defendant-intervenors. The defendant-intervenors are organized into three groups: the Industrial Intervenors 6 ; the *740 Municipal Intervenors 7 ; and the West Virginia Department of Environmental Protection (WVDEP). The parties have filed cross-motions for summary judgment, and the matter is ripe for decision.

Prior to turning to the merits of the case, the court will briefly discuss the relevant provisions of § 131.12. Section 131.12 provides, in relevant part, that a State’s antidegradation policy and procedures must ensure that:

(1) Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.

(2) Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State’s continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully. Further, the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for non-point source control.

(3) Where high quality waters constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological signifi-canee, that water quality shall be maintained and protected.

40 C.F.R. § 131.12(a)(l)-(3). These three provisions establish what are commonly referred to as three “tiers” of antidegradation protection. See Am. Wildlands v. Browner, 260 F.3d 1192, 1194 (10th Cir.2001). Tier 1 applies to all waters, and requires that existing water uses be protected. 40 C.F.R. § 131.12(a)(1). Tier 2 applies to high quality waters, defined as waters “[wjhere the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water.” Id. § 131.12(a)(2). In Tier 2 waters, water quality (as opposed to uses) “shall be maintained and protected” unless the State finds, after a process of public participation, “that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located.” Id. This process of public participation and a finding of economic or social necessity is known as Tier 2 review. Tier 3 applies to high quality waters that “constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance.” Id. § 131.12(a)(3). In Tier 3 waters, “water quality shall be maintained and protected,” with no exception for economic or social necessity. Id. The bulk of the plaintiffs’ objections to the EPA’s action here involve how West Virginia’s procedures provide for classification of waters as Tier 2 waters and the circumstances in which Tier 2 review is required.

II. Standard of Review

As noted above, this court reviews the EPA’s decision to approve West Virginia’s antidegradation implementation proce *741 dures only to ensure that the approval was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 8 This standard of review is “narrow,” and “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). That said, “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. (quotations and citation omitted). Under the arbitrary and capricious standard, the court “presume[s] the validity of Agency action,” and the court’s job is simply “to scrutinize the Agency’s activity to discern whether the record reveals that a rational basis exists for the Agency’s decision.” Reynolds Metals Co. v. EPA 760 F.2d 549, 558 (4th Cir.1985).

When reviewing a federal agency’s interpretation of a statute that it administers, the court “first ask[s] “whether Congress has directly spoken to the precise question at issue.’ ” Satellite Broad. & Communications Ass’n v. FCC, 275 F.3d 337, 369 (4th Cir.2001) (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). “If [the court] can discern Congress’s intent ... by using ‘traditional tools of statutory construction,’ [the court] must give effect to that intent.” Id. (quoting Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778). On the other hand, if “the statute is ‘silent or ambiguous’ about the issue, we must defer to the agency’s reasonable construction of the statute.” Id. (quoting Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778). “This analytical approach applies not only when a regulation is directly challenged, ... but also when a particular agency action is challenged,” as is the case here. Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425, 439 (4th Cir.2003) (emphasis omitted). The court also defers to the EPA’s reasonable interpretation of its regulations, unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (quotations and citation omitted).

As for an agency’s factual findings, the court “should accept the agency’s factual findings if those findings are supported by substantial evidence on the record as a whole,” even if there are “alternative findings that could be supported by substantial evidence.” Arkansas v. Oklahoma, 503 U.S. 91, 113, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992) (citation omitted), “Particular deference is given by the court to an agency with regard to scientific matters in its area of technical expertise.” Nat’l Wildlife Fed’n v. EPA 286 F.3d 554, 560 (D.C.Cir.2002).

*742 To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In this case, the only material facts are those contained in the administrative record. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Virginia Agr. Growers Ass’n v. Donovan, 774 F.2d 89, 92 (4th Cir.1985). Furthermore, as stated above, this court will accept the EPA’s factual findings “if those findings are supported by substantial evidence on the record as a whole.” Arkansas, 503 U.S. at 113, 112 S.Ct. 1046. If the administrative record does reveal some genuine issue of material fact — that is, if the evidence in the administrative record could reasonably support different factual conclusions — the court defers to the EPA’s reasonable resolution of that factual question. To put it another way, when a court reviews an agency action, the “plaintiffs burden on summary judgment is not materially different from his ultimate burden on the merits.” Krichbaum v. U.S. Forest Service, 17 F.Supp.2d 549, 556 (W.D.Va.1998). Accordingly, this matter is appropriately resolved on cross-motions for summary judgment.

III. Standing

Under Article III of the United States Constitution, “[t]he judicial Power [of the United States] shall extend to all Cases ... [and] Controversies .... ” U.S. Const, art. Ill, § 2. Among other things, the “case and controversy” requirement ensures that the federal judicial power can be exercised only when a plaintiff has standing to bring suit. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 153 (4th Cir.2000). “The standing inquiry ensures that a plaintiff has a sufficient personal stake in a dispute to render judicial resolution appropriate.” Id. In this case, the EPA has not challenged the plaintiffs’ standing to bring suit. Nor do the WVDEP or the Industrial Intervenors question the plaintiffs’ standing in this case. The only parties to challenge the plaintiffs’ standing are the Municipal Intervenors. Because Article III standing is a jurisdictional requirement, this court must satisfy itself of a plaintiffs standing regardless of whether any party has raised the issue. See Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir.2002); Skrzypczak v. Kauger, 92 F.3d 1050, 1052 (10th Cir.1996); Dan River, Inc. v. Unitex Ltd., 624 F.2d 1216, 1223 (4th Cir.1980).

To demonstrate Article III standing, a “plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envt’l Services, Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The Fourth Circuit has explained that “[i]n the environmental litigation context, the standing requirements are not onerous.” Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 517 (4th Cir.2003). In order to demonstrate their standing in this case, the plaintiff organizations filed affidavits from eight of their members articulating the types of harms they would suffer as a result of the EPA’s approval of West Virginia’s antidegradation procedures. 9

*743 Michael Hartman states that he has long participated in boating, fishing, and swimming in the Kanawha River, and plans to continue to do so. 10 Pis.’ Op. Br., App. 1. He also enjoys watching the Kanawha River from a riverside park in his hometown of St. Albans, West Virginia. Id. He expresses concern that any degradation of the water quality of the Kanawha River will impair his recreational and aesthetic enjoyment of the river. Id. He also claims that a clean environment is critical to the region’s social and economic growth, because a clean environment is a primary concern for new individuals and businesses considering relocation to West Virginia. Id. A lowering of the water quality in the river, he states, will harm his interest in the area’s continued social and economic growth and vitality. Id.

Liz Garland, a resident of Elkins, West Virginia, states that she is an avid whitewater canoeist and that she paddles on a number of the State’s rivers and streams. 11 Pis.’ Op. Br., App. 2. She expresses concern over contact with pollutants in the waters where she canoes and states that a reduction in the quality of these waters would cause her to limit or end her canoeing activities in those waters. Id.

Deborah Wise, a resident of Morgan-town, West Virginia, states that the main source of her drinking water is the Monongahela River. 12 Pis.’ Op. Br., App. 3. In addition, she serves as a raft guide in the Gauley, Cheat, Cherry, and New Rivers. Id. She expresses concern that degradation of these waters would cause her loss of income as well as loss of her own recreational enjoyment. Id.

Leslee McCarty, a resident of Hillsboro, West Virginia, states that she operates a bed and breakfast near the Greenbrier River and frequently swims or kayaks in the Greenbrier and other rivers in the State. 13 Pis.’ Op. Br., App. 4. She states that her bed and breakfast guests are often concerned about the quality of the Greenbrier River. Id. She expresses concern that any decline in the quality of water in these rivers would decrease her aesthetic enjoyment of these rivers, as well as the economic and recreational benefits that the rivers provide her. Id. A number of other individuals claim similar aesthetic, recreational, and economic interests in the water quality of a number of the State’s water bodies. Pis.’ Op. Br., App. 5-8.

The Municipal Intervenors argue that the plaintiffs cannot demonstrate a concrete and particularized injury because West Virginia’s implementation procedures fully require the State to maintain and protect existing instream water uses. So long as existing uses are protected, they argue, any failure by the State to adequately protect water quality cannot cause any concrete, actual harm. The Municipal Intervenors’ argument boils down to the *744 position that no party can ever have standing to challenge the EPA’s approval of a State’s antidegradation plan on the grounds that the plan does not comply with the minimum requirements of Tier 2 or Tier 3, which protect water quality, as opposed to Tier 1, which protects existing uses. This is because, they argue, no actual, concrete injury can ever flow from a State’s failure to protect water quality, so long as the State adequately protects the existing uses of a water body.

The court disagrees. The Supreme Court has explained that “[t]he actual or threatened injury required by Art. Ill may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing ....’” Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). That is to say, Congress may, by statute, create cognizable legal interests, the injury of which suffices for Article III standing. Contrary to the Municipal Intervenors’ assumption, the Clean Water Act is not concerned solely with protecting existing uses of the nation’s waters. The Act is intended to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). In addition to protecting wildlife and recreation, id. § 1251(a)(2), the Act seeks to eliminate “the discharge of pollutants into the navigable waters.” Id. § 1251(a)(1). These provisions make clear that the Act is not concerned solely with the uses of waters, but also with the quality of waters. The plaintiffs in this case have “alleged precisely those types of injuries that Congress intended to prevent by enacting the Clean Water Act.” Gaston Copper, 204 F.3d at 156. Specifically, they have alleged a threat of harm to their aesthetic, recreational, and economic interests protected by the Clean Water Act’s goal of maintaining water quality. See id. at 154 (holding that damage to aesthetic, recreational, or economic interests can constitute injury in fact). Even if the lowering of water quality does not affect existing uses, such as fishing or swimming, that lower water quality could still affect the plaintiffs’ aesthetic and economic interests. “[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Laidlaw, 528 U.S. at 183, 120 S.Ct. 693 (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)).

The plaintiffs state that they enjoy and value the visual beauty of the State’s rivers. Water degradation, even degradation that does not result in the elimination of aquatic life or danger to human use or consumption, could still impact a water body’s clarity and appearance. In addition to damaging the plaintiffs’ aesthetic interests, such degradation could also injure their economic interests, which depend on the aesthetic enjoyment of others. Deborah Wise’s work as a whitewater raft guide would be affected by a decrease in her clients’ aesthetic enjoyment of the water. The same is true of Leslee McCarty and the guests that frequent her bed and breakfast. The individual affidavits, the factual content of which is not contested, illustrate how West Virginia’s antidegradation procedures will “affect the plaintiff[s] in a personal and individual way,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n. 1, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and serve to “differentiate [the plaintiff organizations] from the mass of people who may find the conduct ... objectionable only in an abstract sense.” Gaston Copper, 204 F.3d at 156.

The court is also satisfied that these threatened injuries are “actual or imminent, not conjectural or hypothetical.” Laidlaw, 528 U.S. at 180, 120 S.Ct. 693. Here, the individual affiants currently use *745 a number of West Virginia’s waterways for a variety of specific activities and have demonstrated a legally protected interest in maintaining the quality of that water. There is no doubt that West Virginia’s regulations would permit a greater reduction in water quality than what would be permitted under the plaintiffs’ version of the minimum federal requirements. For example, if the plaintiffs’ claims are correct on the merits, West Virginia cannot allow a twenty percent cumulative reduction in the assimilative capacity of a given water body without conducting Tier 2 review. 14 See infra part IV.8. Similarly, if the Kanawha and Monongahela Rivers should be classified as Tier 2 water bodies, West Virginia’s classification of those rivers as Tier 1 will certainly permit greater degradation of those rivers’ water quality. See infra part TV.l. Accordingly, the court concludes that the threatened injury to the plaintiffs caused by the EPA’s approval of West Virginia’s antidegradation procedures is actual and imminent. 15

The United States District Court for the District of Colorado reached the same conclusion in a case involving almost identical circumstances. In American Wildlands v. Browner, 94 F.Supp.2d 1150 (D.Colo.2000), the court held that the plaintiffs, a group of environmental organizations, had standing to bring suit challenging the EPA’s approval of revisions to Colorado’s water quality standards, including Colorado’s an-tidegradation implementation procedures. Id. at 1155-56. The court found standing based on affidavits, filed by individual members of the organizations, detailing those individuals’ “aesthetic, conservation, and economic interests in preserving Montana’s waters” and the individuals’ “use of these waters in the form of drinking, fishing, swimming, and agricultural and household use.” Id. at 1155. The supporting affidavits are very similar to those submitted here. Id. The court held- that the affidavits “suffice[d] to establish [the individuals] have suffered an injury in fact to their aesthetic, conservation, and economic interests.” Id. at 1156. 16

Having satisfied itself of the plaintiffs’ injury in fact, the court has little trouble concluding that “the injury is fairly traceable to the challenged action of the defendant” and that “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Laidlaw, 528 U.S. at 180-81, 120 S.Ct. 693. The Municipal Intervenors do not contest these elements (nor does any other party). If, as this court has concluded, the plaintiffs will suffer injury in fact from a reduction in water quality in West Virginia’s rivers, it is clear that this injury is traceable to the EPA’s approval of West Virginia’s allegedly substandard antidegradation procedures, and that a favorable judicial decision could redress this injury by causing the promulgation (either by the State or *746 the EPA) of stricter regulations. Accordingly, the court concludes that the plaintiffs in this case have standing to challenge the EPA’s approval of West Virginia’s an-tidegradation procedures.

IV. Merits

The court now turns to the merits of the plaintiffs’ claims. In the plaintiffs’ motion for summary judgment, the plaintiffs allege ten specific instances in which West Virginia’s antidegradation implementation procedures are inconsistent with minimum federal requirements, and in which the EPA’s approval of West Virginia’s procedures was therefore arbitrary and capricious. 17 Each of the challenges involves a particular aspect of West Virginia’s procedures. For the most part the challenges are independent of one another and therefore resist a general summary. Without attempting a summary, then, the court will address these issues in the order raised by the plaintiffs.

1. Classification of segments of the Ka-nawha and Monongahela Rivers as Tier 1 waterways

Section 60-5-4.3 of West Virginia’s antidegradation implementation procedures provides that:

In determining whether a water segment is afforded only Tier 1 protection, the agency will focus on whether the water segment is meeting or failing to meet minimum uses, except that, notwithstanding any other provision of this rule, the main stems of the Monongahela River, and the Kanawha River from milepoint 72 to the confluence with the Ohio River shall be afforded Tier 1 protection only.

The plaintiffs argue that there is insufficient evidence in the administrative record to permit the EPA to conclude that these segments of the Monongahela and Kana-wha Rivers are not entitled to Tier 2 protection. In fact, the plaintiffs state that the only evidence in the record regarding the water quality levels in these river segments indicates that they should be categorized as Tier 2 waterways. The plaintiffs point to a letter by Jeffrey Towner of the United State Fish and Wildlife Service (USFWS) written to the EPA in response to the EPA’s request for comments on West Virginia’s proposed antidegradation implementation procedures. In this letter, the USFWS objects to the classification of these river segments as Tier 1 waters, stating