893 F.3d 225
4th Cir.2018Background
- Plaintiffs (environmental groups) sued EPA under the Clean Water Act alleging EPA failed to perform a nondiscretionary duty to promulgate TMDLs for 573 biologically impaired West Virginia waters after the State declined to develop them.
- West Virginia stopped using its prior biological-assessment Index after 2010 and, following SB 562 (2012), postponed developing biological-impairment TMDLs pending a new methodology; the State projected completion dates from 2020–2025 but had not promulgated the new methodology or TMDLs.
- Plaintiffs submitted declarations showing concrete use/injury for about 50 of the challenged waters across 23 watersheds; district court found standing for Plaintiffs and granted summary judgment for Plaintiffs.
- District court applied the “constructive submission” doctrine, treating the State’s prolonged non-submission as a constructive submission of no TMDLs that would trigger EPA’s mandatory duty to issue TMDLs.
- On appeal, the Fourth Circuit agreed Plaintiffs had standing for many streams but reversed summary judgment, holding West Virginia had produced some TMDLs and entered a Memorandum of Agreement with EPA setting deadlines (through 2026), so the facts did not meet the clear-and-unambiguous abdication standard required to invoke constructive submission.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (injury-in-fact to challenge 573 waters) | Plaintiffs suffer diminished use/enjoyment from biologically impaired waters and thus have injury across the listed waters | EPA: Plaintiffs showed injury only for ~50 waters; must show specific interest in each challenged water | Court: Plaintiffs have standing for many streams (the subset they declared); no need here to define full scope of relief |
| Applicability of "constructive submission" doctrine | Prolonged state failure to submit biological TMDLs equals constructive submission of no TMDLs, triggering EPA’s mandatory duty to issue TMDLs | EPA: Constructive submission doctrine need not be applied; if applied, facts here do not meet clear abdication standard because WV has some TMDLs and an MOA schedule | Court: Reversed district court — WV has submitted some TMDLs and entered a credible MOA/schedule; not a clear and unambiguous refusal, so constructive submission not satisfied here |
Key Cases Cited
- S.F. Baykeeper v. Whitman, 297 F.3d 877 (9th Cir. 2002) (recognizing constructive-submission doctrine when a state fails to submit TMDLs)
- Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984) (discussing EPA duties triggered by state non-submission of TMDLs)
- Hayes v. Whitman, 264 F.3d 1017 (10th Cir. 2001) (holding doctrine applies only where state clearly and unambiguously refuses to submit TMDLs)
- Alaska Ctr. for the Env’t v. Browner, 20 F.3d 981 (9th Cir. 1994) (district court applied constructive-submission doctrine where state submitted no TMDLs for many years)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires concrete, particularized, actual or imminent injury)
- Lewis v. Casey, 518 U.S. 343 (1996) (standing requires causal connection between injury and challenged conduct)