ELR Citation: ELR 20043
No(s). 00-5113 (10th Cir. Aug 29, 2001)

The court holds that a district court properly dismissed individuals' Clean Water Act (CWA) and Administrative Procedure Act (APA) claims against Oklahoma for failing to submit total maximum daily loads (TMDLs) to the U.S. Environmental Protection Agency (EPA) and against EPA for failing to fulfill its non-discretionary duty to develop TMDLs after Oklahoma's constructive submission of no TMDLs. The court first holds that the individuals may not proceed with their CWA citizen suit claim. The individuals argued that Oklahoma's failure to submit TMDLs resulted in a constructive submission of no TMDLs that triggered EPA's non-discretionary duty to approve or disapprove of the TMDLs. The theory of constructive submission, however, only applies when the state's actions clearly and unambiguously express a decision to submit no TMDLs for a particular impaired waterbody. Here, the uncontradicted evidence is that Oklahoma submitted a number of TMDLs and is making progress toward completing about 1,500 TMDLs over a 12-year period. The court next upholds the dismissal of the individuals' APA claim that EPA failed to fulfill its non-discretionary duty to develop its own TMDLs after Oklahoma's constructive submission of no TMDLs. The individuals' APA claim duplicates their CWA claim. Moreover, because the APA arguments the individuals advanced in their complaints differed from the arguments advanced in their brief, the district court properly declined to consider the complaint without a formal amendment. Lastly, the court holds that the district court correctly denied the individuals' leave to amend the complaint because it came more than two years after the initial complaint and 18 months after the administrative record had been filed.

Counsel for Plaintiffs
Blake K. Champlin
Shipley, Jennings & Champlin
201 W. 5th St., Ste. 400, Tulsa OK 74103
(918) 582-1720

Counsel for Defendants
Joan M. Pepin
Environment and Natural Resources Division
U.S. Department of Justice. Washington DC 20530
(202) 514-2000

Ebel, J. Before Anderson and Murphy, JJ.