ELR Citation: ELR 20702
No(s). C90-595R (9th Cir. Mar 30, 1994)

The court affirms a district court decision requiring the U.S. Environmental Protection Agency (EPA) to establish total maximum daily loads (TMDLs) for Alaska's water quality-limited segments on a specified schedule and to submit to the district court a report on ambient water quality monitoring in the state. The court first holds that plaintiffs have standing to challenge EPA's failure to promulgate TMDLs for Alaska, because Congress has determined that the relief they seek—establishing the TMDLs—is the appropriate means of achieving desired water quality. Thus, plaintiffs' injury is likely to be redressed by a decision in their favor. Moreover, plaintiffs established that they are adversely affected by the inadequate water quality of a representative number of waters throughout the state, and that their injuries result from EPA's failure to establish Alaska's TMDLs. Plaintiffs need not show injury as to every water body that would be affected by the statewide TMDLs program. The court holds that the district court acted within its discretion in rejecting EPA's challenge to the sufficiency of the plaintiffs' interrogatory answers to establish injury. Any objection to use of the interrogatory answers should have been made at the summary judgment stage, not after a final judgment had been entered. Finally, the court holds that the district court acted within its equitable powers to remedy EPA's noncompliance with its mandatory duty under Federal Water Pollution Control Act (FWPCA) §303(d). The district court acted with restraint in setting deadlines more lenient than the FWPCA's for developing TMDLs, and was careful to leave entirely to EPA's discretion the substance and manner of achieving compliance with the Act.

[Prior decisions in this litigation are published at 21 ELR 21305 and 22 ELR 21204.]

Counsel for Plaintiffs
Michael M. Wenig
Trustees for Alaska
725 Christensen, Ste. 4, Anchorage AK 99501
(907) 248-3958

Counsel for Defendants
John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000