944 F.3d 1204
9th Cir.2019Background:
- Columbia and Snake Rivers host native salmon and steelhead; temperatures above 68°F harm migration and spawning and threaten populations.
- Washington and Oregon listed temperature impairment under §303(d) but did not produce a temperature TMDL; in 2000 they entered an MOA delegating temperature TMDL development to the EPA.
- EPA released a draft temperature TMDL in July 2003 but then shelved it; no final temperature TMDL has been issued by EPA or the states since.
- Both states developed and submitted thousands of other TMDLs (>1,200) and maintain priority lists, yet the temperature TMDL is absent and no credible state plan exists to produce it.
- Columbia Riverkeeper sued under the CWA citizen-suit provision; the district court ordered the EPA to act, and the Ninth Circuit affirmed that the states’ conduct amounted to a constructive submission of no TMDL, obligating EPA to issue one.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of the constructive-submission doctrine | Applies to individual TMDLs; a state’s refusal to produce a particular TMDL triggers EPA duty | Doctrine should apply only to wholesale/statewide failure to submit any TMDLs | Doctrine can apply to a specific TMDL when the state clearly and unambiguously decides not to submit it |
| Whether WA/OR constructively submitted no temperature TMDL | States’ inaction, MOA delegating the TMDL to EPA, and EPA’s shelved draft show a clear refusal to act | States have produced many other TMDLs, so they did not abandon TMDL program; no constructive submission | Washington and Oregon clearly and unambiguously indicated they would not produce the temperature TMDL; EPA therefore has a nondiscretionary duty to act |
Key Cases Cited
- San Francisco BayKeeper v. Whitman, 297 F.3d 877 (9th Cir. 2002) (adopted constructive-submission doctrine where a state clearly declines to submit TMDLs)
- City of Arcadia v. U.S. Envtl. Prot. Agency, 411 F.3d 1103 (9th Cir. 2005) (held EPA duty triggered by prolonged state failure to submit TMDLs)
- Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984) (prolonged state failure may amount to constructive submission)
- Hayes v. Whitman, 264 F.3d 1017 (10th Cir. 2001) (constructive-submission inquiry focuses on whether state determined not to submit a TMDL for a given waterbody)
- Columbia Riverkeeper v. Pruitt, 337 F. Supp. 3d 989 (W.D. Wash. 2018) (district court ordered EPA to approve/disapprove and, if disapproved, issue TMDL)