Columbia Riverkeeper; Idaho Rivers United; Snake River Waterkeeper, Inc.; Pacific Coast Federation of Fishermen's Associations; The Institute For Fisheries Resources, Plaintiffs-Appellees,
Andrew Wheeler, in his official capacity as Administrator of the U.S. Environmental Protection Agency; U.S. Environmental Protection Agency, Defendants-Appellants.
and Submitted August 26, 2019 Seattle, Washington
from the United States District Court No. 2:17-cv-00289-RSM
for the Western District of Washington Ricardo S. Martinez,
District Judge, Presiding
Jonathan Brightbill (argued) and Eric Grant, Deputy Assistant
Attorneys General; Jeffrey Bossert Clark, Assistant Attorney
General; Chloe H. Kolman and David Gunter, Trial Attorneys;
Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C.; for
Hurlbutt (argued) and Laurence ("Laird") J. Lucas,
Advocates for the West, Boise, Idaho, for
Before: Michael Daly Hawkins, M. Margaret McKeown, and Jay S.
Bybee, Circuit Judges.
panel affirmed the district court's judgment in favor of
environmental groups in a citizen suit under the Clean Water
Act ("CWA") brought by environmental groups to
compel the Environmental Protection Agency to develop and
issue a long-overdue temperature "total maximum daily
loads" ("TMDL") for the Columbia and Snake
plaintiff groups claimed that inaction by Washington and
Oregon amounted to a constructive submission of no
temperature TMDL, thus triggering the EPA's
nondiscretionary duty to approve or disapprove the TMDL.
panel held that a constructive submission will be found where
a state has failed over a long period of time to submit a
TMDL, and clearly and unambiguously decided not to submit any
TMDL. The panel further held that where a state has failed to
develop and issue a particular TMDL for a prolonged period of
time, and has failed to develop a schedule and credible plan
for producing that TMDL, it has no longer simply failed to
prioritize this obligation. Instead, there has been a
constructive submission of no TMDL, which triggers the
EPA's mandatory duty to act.
this standard, and viewing the facts in their totality, the
panel agreed with the district court that "Washington
and Oregon have clearly and unambiguously indicated that they
will not produce a TMDL for these waterways," and that
as a result, "the EPA has violated the CWA by failing to
issue a TMDL for the Columbia and lower Snake Rivers."
Columbia Riverkeepers v. Pruitt, 337 F.Supp.3d 989,
998 (W.D. Wash. 2018). The panel held that the constructive
submission of no TMDL triggered the EPA's duty to develop
and issue its own TMDL within 30 days, which it failed to do,
and the EPA must do so now.
MCKEOWN, CIRCUIT JUDGE.
Columbia and Snake Rivers in Washington and Oregon are home
to multiple species of salmon and steelhead trout. These fish
are particularly vulnerable to warm water temperatures. This
dispute arose when Columbia Riverkeeper and other
environmental organizations filed a citizen suit under the
Clean Water Act ("CWA") to compel the Environmental
Protection Agency ("EPA") to develop and issue a
long-overdue temperature "total maximum daily
loads" ("TMDL") for the Columbia and Snake
Rivers. Columbia Riverkeeper argues that Washington and
Oregon's failure to issue this TMDL amounts to a
"constructive submission" of no TMDL under the CWA,
which triggers mandatory statutory obligations for the EPA.
In response, the EPA argues that the constructive submission
doctrine does not apply to individual TMDLs, but only to
state TMDL regimes as a whole. We take this opportunity to
clarify that the constructive submission doctrine applies to
this temperature TMDL.
enacted the CWA in 1972 to "restore and maintain the
chemical, physical, and biological integrity of the
Nation's waters." 33 U.S.C. § 1251(a). To
reduce the discharge of pollutants into navigable waters, the
CWA first regulates point-source pollution directly with
technology-based permitting requirements. Id.
§§ 1311(a), 1362(12). When these controls fail to
adequately improve polluted waters, the CWA uses a holistic,
water-quality based approach. See id. § 1313.
Under § 1313, states must identify qualifying
"water quality limited segments" ("impaired
waters") within their borders and rank them in order of
priority. A water may be impaired because of a high level of
a specific pollutant such as nitrogen, or a condition such as
temperature or turbidity. These rankings are referred to as
"§ 303(d) lists." Once a state has submitted a
§ 303(d) list, it must then submit a TMDL to the EPA for
approval for each pollutant in each impaired water segment.
This TMDL sets the maximum amount of a pollutant that each
segment can receive without exceeding the applicable water
quality standard. Id. §§ 1313(d)(1)(A),
are required to send the EPA their initial priority ranking
of impaired waters and completed TMDLs within 180 days of the
agency's identification of covered pollutants.
Id. § 1313(d)(2). The EPA published its list of
covered pollutants in December of 1978, so the original
priority rankings and TMDLs were due in June of 1979. The CWA
requires states to update their priority rankings and submit
remaining TMDLs "from time to time." Id.
The EPA "shall either approve or disapprove" a TMDL
within thirty days of its submission. Id. If
approved, the TMDL goes into effect. Id. If the EPA
disapproves, the agency "shall" produce and issue
its own TMDL within thirty days. Id. These duties
under the CWA are not discretionary. To this end, the CWA
authorizes citizen suits in federal court against the EPA if
it fails to perform any nondiscretionary duty imposed under
the statute. Id. § 1365(a).
Significance of Temperature in the Columbia ...