ELR Citation: ELR 20493
No(s). 94 Civ. 8424 (PKL) (S.D.N.Y. May 2, 2000)

The court holds that although the U.S. Environmental Protection Agency (EPA) is not required under the Clean Water Act (CWA) to set total maximum daily loads (TMDLs) for waters in New York State when the state failed do so, EPA must approve or disapprove 10 TMDLs submitted by the state for Agency approval. The court first holds that EPA's failure to declare the state's slow progress in promulgating TMDLs a "constructive submission" was not arbitrary, capricious, or not in accordance with the law. The administrative record amply supports the conclusion that the state is making progress in formulating TMDLs, and an agency intervention that amounts to a vote of no confidence is inappropriate and potentially counterproductive. Additionally, while the state has not promulgated TMDLs for every water body on its CWA § 303(d) list, it has formulated and submitted some TMDLs, has dedicated substantial resources to the problem, and has amply demonstrated its good-faith interest in collaborating with EPA to bring the state's TMDL program to completion. Further, the record amply supports EPA's conclusion that the state has not in the past refused and is not presently refusing to act in furtherance of the TMDL program mandated by the CWA, and as long as the state continues to act, EPA is under no duty to declare a "constructive submission" of inadequate TMDLs by the state. Moreover, the determination as to whether the state's participation is active and meaningful is one for EPA to make based on the record before it.

The court next holds that EPA did not unlawfully withhold agency action under the Administrative Procedure Act (APA) by declining to declare a "constructive submission" by New York State. EPA did not unlawfully withhold agency action because EPA's duty to declare a "constructive submission" has no formal deadline. Also, the court has held it unclear when such a duty arises, and the CWA does not explicitly impose such a duty. Further, based on the standard set forth in Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984), the court holds that EPA did not unreasonably delay agency action in violation of the APA by failing to declare a "constructive submission." The court also holds that EPA did not act arbitrarily or capriciously in failing to promulgate TMDLs for the water bodies on New York's CWA §303 list. This duty arises only after the state's proposed TMDLs have been disapproved by EPA, but because EPA acted consistently with the CWA and the APA in not declaring a "constructive submission" of inadequate TMDLs by the state, EPA is under no duty to approve or disapprove the yet nonexistent "constructive submission."

The court next holds that EPA's approval of eight TMDLs submitted by the state for the New York City reservoir is rationally supported by the administrative record. The TMDLs implemented applicable water quality standards, contained a margin of safety, comprised wasteload allocation and load allocation components, established daily pollution limits, and accounted for seasonal variations. The court goes on to hold, however, that EPA breached its non-discretionary duty to approve or disapprove 10 TMDLs submitted by New York to EPA for approval. Rather than taking action on the submittal, EPA classified the TMDLs as "informational" because it concluded that the TMDLs addressed water bodies that were not water quality-limited and, thus, did not require action. However, having approved New York's CWA §303 list in its entirety, including the 10 reservoir segments, EPA triggered a duty to approve or disapprove the proposed TMDLs submitted by the state for each of these segments. The CWA unambiguously requires agency action on any proposed TMDLs submitted to EPA for water quality level standards included on a state's CWA § 303 list, and it leaves no room for EPA to define subsets of listed water quality level standards that deserve differential treatment. The court holds, however, that the environmental groups' claim under the APA based on EPA's failure to act on the 10 reservoir TMDLs is moot because it duplicates a claim on which relief was already granted under the CWA.

Prior decisions in this litigation are published at 29 ELR 20592 and 26 ELR 20732.]

Counsel for Plaintiffs
Mark A. Izeman, Eric A. Goldstein
Natural Resources Defense Council, Inc.
40 W. 20th St., New York NY 10011
(212) 727-2700

Counsel for Defendants
Mary Jo White, U.S. Attorney
U.S. Attorney's Office
One St. Andrew's Plaza
100 Church St., New York NY 10007
(212) 637-2200

Leisure, J.: