349 F. Supp. 3d 703
N.D. Ohio
2018
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Background

  • Lake Erie Western Basin has recurring summer Harmful Algal Blooms (HABs) caused by phosphorus runoff from agricultural sources; microcystin from HABs threatens drinking water and public health (Toledo 2014 water crisis).
  • Ohio EPA repeatedly declined to assess or list Lake Erie open waters on its §303(d) impaired-waters lists (2012, 2014) despite EPA data and the 2014 crisis.
  • Ohio submitted a 2016 §303(d) list that omitted open-water assessment units; EPA initially approved with caveats, then withdrew approval after litigation and remand.
  • Ohio then submitted an amended 2016 Integrated Report (May 4, 2018) that added open-water assessment units and labeled them impaired, but stated it would pursue GLWQA/Domestic Action Plan collaboration rather than immediately developing phosphorus TMDLs.
  • EPA issued a May 10, 2018 letter approving Ohio’s amended 2016 §303(d) list (limited to listing decision). Plaintiffs sought to supplement their complaint to challenge that letter as (a) final agency approval of Ohio’s refusal to develop TMDLs and/or (b) an EPA failure to act (citizen-suit).
  • The court denied leave to supplement, granted defendants’ summary judgment on the original APA claim (because EPA had withdrawn its earlier approval and thus no final action remained to challenge), and denied Lucas County’s intervention as moot.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether EPA’s May 10, 2018 letter is final agency action approving Ohio’s decision not to develop phosphorus TMDLs May 10 letter constitutes final agency approval of Ohio’s TMDL approach (so APA review is available) Letter only approves Ohio’s §303(d) listing amendment, not any TMDL decision; EPA did not approve or disapprove TMDLs Not final action as to TMDLs; letter approved only §303(d) list, so no APA claim based on TMDL approval
Whether plaintiffs may bring a CWA citizen suit based on EPA’s alleged failure to disapprove Ohio’s ‘‘no-TMDL’’ position (constructive submission) Ohio’s statements and long inaction amount to a "constructive submission" of no TMDLs, triggering EPA’s nondiscretionary duty to act and permitting citizen suit Constructive-submission doctrine applies only where a state’s conduct clearly and unambiguously shows intent not to submit TMDLs; Ohio only recently listed open waters (May 2018) and did not unequivocally abandon TMDLs Constructive-submission claim fails; months since listing insufficient to show a clear, unambiguous refusal to submit TMDLs
Whether leave to supplement complaint under Rule 15(d) should be granted to add APA and CWA claims based on May 10 letter and Ohio’s TMDL statements Supplement should be allowed because new agency action (May 10 letter) and Ohio’s TMDL stance present new grounds for relief Proposed claims are legally deficient (no final action; no constructive submission); supplementation would be futile Motion to supplement denied as futile
Whether plaintiffs’ original APA challenge to EPA’s earlier approval of Ohio’s 2016 list remains reviewable after EPA withdrew that approval Plaintiffs contend prior approval was unlawful and seek review EPA withdrew approval before final agency action remained; plaintiffs lacked a live final action to challenge; procedural notice issues for citizen suit also problematic Summary judgment for defendants granted on original APA claim (no final agency action to review); prior EPA withdrawal mooted the APA challenge

Key Cases Cited

  • Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210 (D.D.C. 2011) (describing §303(d) impaired-waters listing duty)
  • Hayes v. Whitman, 264 F.3d 1017 (10th Cir. 2001) (constructive-submission doctrine requires clear, unambiguous state refusal)
  • Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984) (origin of constructive-submission doctrine)
  • San Francisco BayKeeper v. Whitman, 297 F.3d 877 (9th Cir. 2002) (states need not submit TMDLs simultaneously with §303(d) lists)
  • Ohio Valley Envtl. Coalition, Inc. v. Pruitt, 893 F.3d 225 (4th Cir. 2018) (TMDL timelines and constructive-submission context)
  • Jama v. Dep't of Homeland Security, 760 F.3d 490 (6th Cir. 2014) (final agency action standards)
  • Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: courts need not accept legal conclusions)
  • Marquette County Road Commission v. EPA, 188 F. Supp. 3d 641 (W.D. Mich. 2016) (challenge requires a final agency action)
  • Sierra Club v. Hankinson, 939 F. Supp. 865 (N.D. Ga. 1996) (state-wide TMDL program evidence weighs against constructive submission)
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