Columbia Riverkeeper v. Wheeler, No. 18-35982 (9th Cir. 2019)
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A constructive submission will be found where a state has failed over a long period of time to submit a "total maximum daily loads" (TMDL), and clearly and unambiguously decided not to submit any TMDL. Where a state has failed to develop and issue a particular TMDL for a prolonged period of time, and has failed to develop a schedule and credible plan for producing that TMDL, it has no longer simply failed to prioritize this obligation. Instead, there has been a constructive submission of no TMDL, which triggers the EPA's mandatory duty to act.
The Ninth Circuit affirmed the district court's judgment for environmental groups in a citizen suit brought under the Clean Water Act, seeking to compel the EPA to develop and issue a long-overdue temperature TMDL for the Columbia and Snake Rivers. The panel held that Washington and Oregon have clearly and unambiguously decided not to produce and issue a temperature TMDL for the Columbia and Snake Rivers. Therefore, the EPA was obligated to act under section 1313(d)(2) of the Act.
Court Description: Clean Water Act. The panel affirmed the district court’s judgment in favor of environmental groups in a citizen suit under the Clean Water Act (“CWA”) brought by environmental groups to compel the Environmental Protection Agency to develop and issue a long-overdue temperature “total maximum daily loads” (“TMDL”) for the Columbia and Snake Rivers. The plaintiff groups claimed that inaction by Washington and Oregon amounted to a constructive submission of no temperature TMDL, thus triggering the EPA’s nondiscretionary duty to approve or disapprove the TMDL. The panel held that a constructive submission will be found where a state has failed over a long period of time to submit a TMDL, and clearly and unambiguously decided not to submit any TMDL. The panel further held that where a state has failed to develop and issue a particular TMDL for a prolonged period of time, and has failed to develop a schedule and credible plan for producing that TMDL, it has no longer simply failed to prioritize this obligation. Instead, there has been a constructive submission of no TMDL, which triggers the EPA’s mandatory duty to act. Applying this standard, and viewing the facts in their totality, the panel agreed with the district court that “Washington and Oregon have clearly and unambiguously COLUMBIA RIVERKEEPER V. WHEELER 3 indicated that they will not produce a TMDL for these waterways,” and that as a result, “the EPA has violated the CWA by failing to issue a TMDL for the Columbia and lower Snake Rivers.” Columbia Riverkeepers v. Pruitt, 337 F. Supp. 3d 989, 998 (W.D. Wash. 2018). The panel held that the constructive submission of no TMDL triggered the EPA’s duty to develop and issue its own TMDL within 30 days, which it failed to do, and the EPA must do so now.
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