ELR Citation: ELR 20772
No(s). 01-16111 (9th Cir. Jul 17, 2002)

The court affirms a district court dismissal of an environmental group's Clean Water Act (CWA) citizen suit claiming that the U.S. Environmental Protection Agency (EPA) had a non-discretionary duty to establish total maximum daily loads (TMDLs) for the state of California. The CWA TMDL program required states to submit lists of affected waters and TMDLs by 1979. Once submitted, EPA must either approve the TMDL or disapprove it, after which EPA must establish the TMDLs for the state. The CWA is silent as to the nature of EPA's obligations if a state fails to make any initial submission. Here, California did not submit any TMDLs until 1994, but since that time has completed TMDLs for listed state waters. Nevertheless, the group claimed that the state's failure to submit any TMDLs before 1994 constituted constructive submission of no TMDLs, thereby triggering a non-discretionary duty on EPA's part to establish TMDLs for the entire state.

The court first holds that EPA does not have a nondiscretionary duty to submit TMDLs for the state. Although several circuits have recognized or employed the doctrine of constructive submission of no TMDLs, the doctrine applies only when a state fails to submit any TMDLs and has no plans to remedy the situation. California submitted at least 18 TMDLs and established a schedule for completing the state's remaining TMDLs. These actions preclude any finding that the state has clearly and unambiguously decided not to submit any TMDLs. The group also argued that California's CWA §303(d) submissions that listed water quality limited segments (WQLS) but not TMDLs were incomplete and, therefore, should have been disapproved by EPA. The court holds, however, that although states must submit both WQLS identifying the polluted waters, and TMDLs specifying the action to be taken, nothing in the statute requires that they be submitted simultaneously. Nor does the statute state or imply that a submission will be incomplete unless it contains both a WQLS and a corresponding TMDL. The court further holds that EPA did not violate the Administrative Procedure Act duty to avoid unreasonable delay in agency action by failing to assure the establishment of the state's TMDLs because the Agency had no statutory duty to act with regard to the state's failure to submit TMDLs until 1994. In addition, because the group's suit alleged agency inaction, the district court's review was not limited to the administrative record and it permissibly relied on an EPA program review of the state's TMDLs.

A prior decision in this litigation is published at 32 ELR 20601.]

Counsel for Plaintiffs
Michael R. Lozeau
Earthjustice Legal Defense Fund
180 Montgomery St., San Francisco CA 94104
(415) 627-6700

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

Hug, J. Before Cudahy ^* and Tashima, JJ.

* Honorable Richard D. Cudahy, Senior United States Circuit Judge for the Seventh Circuit, sitting by designation.