ELR Citation: ELR 21305
No(s). C90-595R (W.D. Wash. Apr 15, 1991)

The court rules that §303(d) of the Federal Water Pollution Control Act (FWPCA) imposes a nondiscretionary duty on the U.S. Environmental Protection Agency (EPA) to promulgate total maximum daily load (TMDL) water pollution limits when a state fails to propose such limits. An environmental organization filed an FWPCA citizen suit to compel EPA to implement water quality protection measures after the state of Alaska failed for 11 years to establish TMDLs, which specify the greatest amount of a pollutant a water body can receive daily without violating a state's water quality standard. The court first holds that the matter is ripe for summary judgment. Turning to the merits, the court holds that Alaska's failure to submit proposed TMDLs under the FWPCA for more than a decade amounts to constructive submission of no limits and triggers a mandatory duty for EPA to promulgate the limits. The court notes that the FWPCA is silent on the nature of EPA's obligations when a state fails to make any TMDL submission. However, the court reasons that Congress' repeated use of the term "shall" in §303(d), and EPA's mandatory duty to take action after disapproving a state's unacceptable submission demonstrate that EPA's mandatory duty is triggered by a state's failure to submit any TMDLs. Further, precedent favors construing the FWPCA in a manner that comports with its purpose, and it is consistent with that purpose to conclude that the inadequacy of a state's submission includes deliberate, silent inaction. In a footnote, the court also finds that statutory construction of the FWPCA based on prosecutorial discretion is inapplicable, because prosecution and sanctions are not at issue. Finally, the court holds that EPA must initiate its own process of promulgating TMDLs, and Alaska's failure to compile data does not alleviate EPA's duty to initiate the factfinding process.

Counsel for Plaintiff
Brian Faller, Ass't City Attorney
City Attorney's Office, Utilities and Environmental Protection Section
1111 Third Ave., Ste. 2640, Seattle WA 98101
(206) 233-2199

Michael Wenig
Office of U.S. Trustee
605 W. Fourth Ave., Ste. 258, Anchorage AK 99501
(907) 271-2600

Counsel for Defendant
Susan L. Barnes
U.S. Attorney's Office
3600 Seafirst Plaza Bldg., 800 Fifth Ave., Seattle WA 98104
(206) 442-7970

Christopher S. Vaden
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000