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Ninth Circuit Affirms Lower Court Decision to Apply Constructive Submission Doctrine and Compel EPA to Issue a Temperature TMDL for Rivers in Washington and Oregon

Under the Clean Water Act (CWA), a TMDL establishes the maximum amount of each pollutant that an impaired water segment can receive while still meeting identified water quality standards. After EPA receives a proposed TMDL from the state, it has a non-discretionary duty to either “approve or disapprove” the TMDL. See 33 U.S.C. § 1313(d)(2). If EPA approves the TMDL, it becomes effective. If EPA disapproves the TMDL, it must produce and issue its own TMDL within thirty days. Just before the close of 2019, the Ninth Circuit affirmed the decision of the District Court for the Western District of Washington to compel the Environmental Protection Agency (EPA) to issue a temperature total maximum daily load (TMDL) for the Columbia and Snake Rivers. Columbia Riverkeeper v. Wheeler, No. 18-35982 (9th Cir., Dec. 20, 2019). At issue in the litigation was whether the “constructive submission doctrine” applied when Washington and Oregon failed to submit required temperature TMDLs and whether that failure triggered a non-discretionary duty for EPA to issue the TMDL itself.

The Columbia and Snake Rivers are important habitats for several species of salmon and trout – species which require cold water temperatures for survival. If the water is not cold enough, the fish have difficulty migrating upstream and spawning future generations. Over the years, dams and point-source discharges into the two rivers have resulted in rising water temperatures. It was determined, therefore, that a temperature TMDL should be issued to protect the fish and other aquatic life that depend on cold water for survival. (EPA considers “heat” to be a pollutant for purposes of issuing TMDLs under the CWA). In 2000, Washington and Oregon entered into a Memorandum of Agreement with EPA under which EPA assumed responsibility for issuing the temperature TMDL. Although a draft temperature TMDL was issued in 2003, EPA did not take any additional steps to finalize the rule.

The original suit in district court was brought by several environmental groups under the citizen suit provision of the CWA. The citizen suit provision allows for such suits when it is alleged that EPA has failed to perform a non-discretionary duty. See 33 U.S.C. § 1365(a)(2). The suit alleged that when Washington and Oregon failed to issue temperature TMDLs for the two rivers, that absence became a “constructive submission” of no TMDL, which in turn triggered a non-discretionary duty for EPA to itself issue a temperature TMDL.

Because the CWA is silent as to EPA’s duty when states fail to submit TMDLs, courts rely on the “constructive submission doctrine” to trigger EPA’s duty. The Ninth Circuit had previously interpreted the doctrine to hold that EPA is “under a mandatory duty to establish a TMDL when a State fails over a long period of time to submit a TMDL; this prolonged failure can amount to the constructive submission of an inadequate TMDL, thus triggering the EPA’s duty to issue its own.” Columbia Riverkeeper at 10 (citing City of Arcadia v. EPA, 411 F.3d 1103, 1105 (9th Cir. 2005) (internal quotation marks omitted)).

EPA argued that the constructive submission doctrine should be read narrowly to include only those instances where states fail to issue any TMDLs at all per precedent set in San Francisco BayKeeper v. Whitman. In BayKeeper, the Ninth Circuit adopted the constructive submission doctrine, noting that when a state has “‘clearly and unambiguously’ decided that it will not submit TMDLs for the entire state,” EPA has a non-discretionary duty to act. Columbia Riverkeeper at 10 (citing San Francisco BayKeeper v. Whitman, 297 F.3d 877, 883 (9th Cir. 2002)). EPA argued that the correct application of BayKeeper meant that the constructive submission doctrine did not apply because Washington and Oregon had submitted more than 1,200 TMDLs for other pollutants and other bodies of water. The fact that the states had not yet submitted a temperature TMDL, EPA argued, was not enough to trigger its duty to issue a temperature TMDL on its own.

The Ninth Circuit rejected that reasoning, noting that the Memorandum of Agreement between the states and EPA clearly and unambiguously demonstrated that the states would not take further action, thereby constructively submitting no TMDL and triggering EPA’s duty to act. The court cited the language and purpose of the CWA to support their holding, noting that the purpose of the CWA “would be dramatically undermined if we were to read into § 1313(d)(2) a loophole by which a state, and by extension the EPA, could avoid its statutory obligations by a mere refusal to act.” Id. at 13. By that logic, the Ninth Circuit held that “[b]ecause Washington and Oregon have conclusively refused to develop and issue a temperature TMDL for the Columbia and Snake Rivers, the EPA is obligated to act…This constructive submission of no TMDL triggers the EPA’s duty to develop and issue its own TMDL within 30 days, and it has failed to do so. The time has come—the EPA must do so now.” Id. at 16.