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Columbia Riverkeeper v. Wheeler

United States Court of Appeals, Ninth Circuit

December 20, 2019

Columbia Riverkeeper; Idaho Rivers United; Snake River Waterkeeper, Inc.; Pacific Coast Federation of Fishermen's Associations; The Institute For Fisheries Resources, Plaintiffs-Appellees,
v.
Andrew Wheeler, in his official capacity as Administrator of the U.S. Environmental Protection Agency; U.S. Environmental Protection Agency, Defendants-Appellants.

          Argued and Submitted August 26, 2019 Seattle, Washington

          Appeal 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 Defendants-Appellants.

          Bryan Hurlbutt (argued) and Laurence ("Laird") J. Lucas, Advocates for the West, Boise, Idaho, for Plaintiffs-Appellees.

          Before: Michael Daly Hawkins, M. Margaret McKeown, and Jay S. Bybee, Circuit Judges.

         SUMMARY[*]

         Clean Water Act

         The 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 Rivers.

         The 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.

         The 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.

         Applying 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.

          OPINION

          MCKEOWN, CIRCUIT JUDGE.

         The 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.

         BACKGROUND

         I. Statutory Background

         Congress 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), (C).

         States 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).

         II. Significance of Temperature in the Columbia ...


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