337 F. Supp. 3d 989
W.D. Wash.2018Background
- The Columbia and lower Snake Rivers support multiple salmon and steelhead runs but have experienced dramatic declines; many populations are listed under the ESA and are highly vulnerable to elevated water temperatures (>=68°F).
- Washington and Oregon listed segments of the rivers as temperature-impaired under Clean Water Act (CWA) §303(d); both states asserted "natural conditions" criteria in their temperature standards.
- In 2000 the EPA and states (WA, OR, ID) signed an MOA assigning the EPA primary responsibility to develop and issue a temperature TMDL for the Columbia/Snake mainstem; states were to assist with implementation planning.
- The EPA released a preliminary draft temperature TMDL in July 2003 but never issued a final TMDL; work stalled amid interagency disagreements and related legal and technical issues, while river temperatures and fish mortality events continued.
- Plaintiffs sued, seeking declaratory and injunctive relief that EPA violated CWA §303(d)(2) (and the APA) by failing to issue a TMDL after the states effectively "constructively submitted" that they would not produce it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a "constructive submission" occurred such that EPA has a non‑discretionary duty to act under CWA §303(d)(2) | States clearly and unambiguously relinquished responsibility (MOA, letters), creating a constructive submission and triggering EPA's mandatory duty to approve/disapprove and, if needed, issue the TMDL | Constructive‑submission doctrine applies only to wholesale, programmatic state failures; allowing it here would override state prioritization and is extraordinary | Court: Constructive submission can apply to an individual TMDL where a state has clearly abandoned it; found constructive submission occurred and EPA violated §303(d)(2) |
| Appropriate remedy / timing for EPA action | Plaintiffs ask for a court‑ordered deadline (preferably within one year) to compel EPA to issue the temperature TMDL | EPA: relief limited to statutory remedy—EPA must approve/disapprove within 30 days and, if disapproving, issue a TMDL within 30 more days | Court: Remedies limited to statute; ordered EPA to approve/disapprove within 30 days and, if disapproved, to issue a TMDL within 30 additional days |
| Whether the Court must resolve the APA unreasonable‑delay claim | Plaintiffs seek relief under APA for 17+ years of inaction | EPA argued delay claims but primary dispute is CWA violation | Court: Did not reach APA claim after finding CWA violation |
| Whether EPA is entitled to summary judgment | EPA moved for summary judgment arguing no constructive submission and no CWA violation | Plaintiffs opposed, arguing constructive submission and statutory duty | Court: EPA's summary judgment denied; Plaintiffs' motion granted in part on CWA claim |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burdens)
- BayKeeper v. Whitman, 297 F.3d 877 (constructive submission doctrine applied in programmatic context)
- City of Arcadia v. U.S. EPA, 411 F.3d 1103 (ninth circuit precedent on EPA/state TMDL roles)
- Alaska Ctr. for the Env't v. Reilly, 762 F. Supp. 1422 (constructive submission where state abandoned obligations)
- Hayes v. Whitman, 264 F.3d 1017 (distinguishing prioritization from abandonment)
- Scott v. City of Hammond, 741 F.2d 992 (constructive submission applied to an individual waterbody TMDL)