Columbia Riverkeeper v. Andrew Wheeler ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COLUMBIA RIVERKEEPER; IDAHO No. 18-35982
RIVERS UNITED; SNAKE RIVER
WATERKEEPER, INC.; PACIFIC COAST D.C. No.
FEDERATION OF FISHERMEN’S 2:17-cv-00289-
ASSOCIATIONS; THE INSTITUTE FOR RSM
FISHERIES RESOURCES,
Plaintiffs-Appellees,
OPINION
v.
ANDREW WHEELER, in his official
capacity as Administrator of the U.S.
Environmental Protection Agency;
U.S. ENVIRONMENTAL PROTECTION
AGENCY,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted August 26, 2019
Seattle, Washington
Filed December 20, 2019
Before: Michael Daly Hawkins, M. Margaret McKeown,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge McKeown
2 COLUMBIA RIVERKEEPER V. WHEELER
SUMMARY *
Clean Water Act
The panel affirmed the district court’s judgment in favor
of environmental groups in a citizen suit under the Clean
Water Act (“CWA”) brought by environmental groups to
compel the Environmental Protection Agency to develop
and issue a long-overdue temperature “total maximum daily
loads” (“TMDL”) for the Columbia and Snake Rivers.
The plaintiff groups claimed that inaction by
Washington and Oregon amounted to a constructive
submission of no temperature TMDL, thus triggering the
EPA’s nondiscretionary duty to approve or disapprove the
TMDL.
The panel held that a constructive submission will be
found where a state has failed over a long period of time to
submit a TMDL, and clearly and unambiguously decided not
to submit any TMDL. The panel further held that where a
state has failed to develop and issue a particular TMDL for
a prolonged period of time, and has failed to develop a
schedule and credible plan for producing that TMDL, it has
no longer simply failed to prioritize this obligation. Instead,
there has been a constructive submission of no TMDL,
which triggers the EPA’s mandatory duty to act.
Applying this standard, and viewing the facts in their
totality, the panel agreed with the district court that
“Washington and Oregon have clearly and unambiguously
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
COLUMBIA RIVERKEEPER V. WHEELER 3
indicated that they will not produce a TMDL for these
waterways,” and that as a result, “the EPA has violated the
CWA by failing to issue a TMDL for the Columbia and
lower Snake Rivers.” Columbia Riverkeepers v. Pruitt, 337
F. Supp. 3d 989, 998 (W.D. Wash. 2018). The panel held
that the constructive submission of no TMDL triggered the
EPA’s duty to develop and issue its own TMDL within 30
days, which it failed to do, and the EPA must do so now.
COUNSEL
Jonathan Brightbill (argued) and Eric Grant, Deputy
Assistant Attorneys General; Jeffrey Bossert Clark,
Assistant Attorney General; Chloe H. Kolman and David
Gunter, Trial Attorneys; Environment and Natural
Resources Division, United States Department of Justice,
Washington, D.C.; for Defendants-Appellants.
Bryan Hurlbutt (argued) and Laurence (“Laird”) J. Lucas,
Advocates for the West, Boise, Idaho, for Plaintiffs-
Appellees.
OPINION
McKEOWN, Circuit Judge:
The Columbia and Snake Rivers in Washington and
Oregon are home to multiple species of salmon and
steelhead trout. These fish are particularly vulnerable to
warm water temperatures. This dispute arose when
Columbia Riverkeeper and other environmental
organizations filed a citizen suit under the Clean Water Act
(“CWA”) to compel the Environmental Protection Agency
4 COLUMBIA RIVERKEEPER V. WHEELER
(“EPA”) to develop and issue a long-overdue temperature
“total maximum daily loads” (“TMDL”) for the Columbia
and Snake Rivers. Columbia Riverkeeper argues that
Washington and Oregon’s failure to issue this TMDL
amounts to a “constructive submission” of no TMDL under
the CWA, which triggers mandatory statutory obligations
for the EPA. In response, the EPA argues that the
constructive submission doctrine does not apply to
individual TMDLs, but only to state TMDL regimes as a
whole. We take this opportunity to clarify that the
constructive submission doctrine applies to this temperature
TMDL.
BACKGROUND
I. Statutory Background
Congress enacted the CWA in 1972 to “restore and
maintain the chemical, physical, and biological integrity of
the Nation’s waters.” 33 U.S.C. § 1251(a). To reduce the
discharge of pollutants into navigable waters, the CWA first
regulates point-source pollution directly with technology-
based permitting requirements. Id. §§ 1311(a), 1362(12).
When these controls fail to adequately improve polluted
waters, the CWA uses a holistic, water-quality based
approach. See id. § 1313. Under § 1313, states must identify
qualifying “water quality limited segments” (“impaired
waters”) within their borders and rank them in order of
priority. A water may be impaired because of a high level
of a specific pollutant such as nitrogen, or a condition such
as temperature or turbidity. These rankings are referred to
as “§ 303(d) lists.” Once a state has submitted a § 303(d)
list, it must then submit a TMDL to the EPA for approval for
each pollutant in each impaired water segment. This TMDL
sets the maximum amount of a pollutant that each segment
COLUMBIA RIVERKEEPER V. WHEELER 5
can receive without exceeding the applicable water quality
standard. Id. §§ 1313(d)(1)(A), (C).
States are required to send the EPA their initial priority
ranking of impaired waters and completed TMDLs within
180 days of the agency’s identification of covered pollutants.
Id. § 1313(d)(2). The EPA published its list of covered
pollutants in December of 1978, so the original priority
rankings and TMDLs were due in June of 1979. The CWA
requires states to update their priority rankings and submit
remaining TMDLs “from time to time.” Id. The EPA “shall
either approve or disapprove” a TMDL within thirty days of
its submission. Id. If approved, the TMDL goes into effect.
Id. If the EPA disapproves, the agency “shall” produce and
issue its own TMDL within thirty days. Id. These duties
under the CWA are not discretionary. To this end, the CWA
authorizes citizen suits in federal court against the EPA if it
fails to perform any nondiscretionary duty imposed under
the statute. Id. § 1365(a).
II. Significance of Temperature in the Columbia and
Snake Rivers
The Columbia and Snake Rivers are home to multiple
native species of salmon and steelhead trout, but several
species have gone extinct, and 65 percent of remaining
populations face a high risk of extinction. These species are
suited to cold water, and they depend on cold water
temperatures for migration and spawning on the Columbia
and Snake Rivers.
Water exceeding 68º F is particularly dangerous for
salmon and trout. Above this temperature, they have
difficulty migrating upstream, and they instead remain
downstream where they are more likely to die of disease and
spawn with far less frequency. The parties agree that dams
6 COLUMBIA RIVERKEEPER V. WHEELER
and more than 100 point-source discharges into the two
rivers are a primary cause of rising water temperatures,
which in recent years have consistently exceeded 68º for
much of the summertime salmon and steelhead runs.
Temperatures are projected to rise with increased human
activity on the rivers, further endangering salmon and trout
populations. This situation led Washington and Oregon to
include both rivers on their lists of § 303(d) impaired waters.
III. Washington and Oregon’s TMDL Programs
Like many states, Washington and Oregon did not
immediately satisfy their obligations under the CWA,
missing—by years—the June 1979 deadline for initial
submissions. In the mid-1990s, both states sent priority
rankings to the EPA, noting that numerous segments of the
Columbia and Snake Rivers failed to meet temperature
quality standards, thus threatening the once-robust salmon
and trout populations.
When Washington and Oregon first submitted their
§ 303(d) lists in the mid-1990s, neither state had developed
a functioning TMDL program, and so in 2000 they entered
into a Memorandum of Agreement (“MOA”) with the EPA.
Under the MOA, the EPA would “produce” a temperature
TMDL for both the Columbia and Snake Rivers, and the
states would have responsibility for issuing that TMDL. The
states would then assist the EPA in “significant portions” of
implementing the temperature TMDL. In light of the states’
inadequate resources and relative lack of expertise, the states
and the EPA agreed that the states would retain primary
responsibility for producing and issuing the total dissolved
gas TMDL that was also incomplete, while the EPA would
develop the temperature TMDL in place of the states.
COLUMBIA RIVERKEEPER V. WHEELER 7
In April of 2001 the EPA prepared a Work Plan to further
clarify responsibilities under the MOA, and to set key dates
that it planned to meet. The EPA stated that it would develop
the temperature TMDL, which the states would then issue.
The states would retain sole responsibility for developing
and issuing the gas TMDL. With these responsibilities
clearly outlined, the EPA set February 1, 2002 as the date it
would submit a draft temperature TMDL, with the
expectation that a final TMDL would be released in July or
August of 2002.
In September and October of 2001, respectively,
Washington and Oregon each sent letters to the EPA
requesting that the EPA not only develop the temperature
TMDL, but also issue it. Both states acknowledged that they
would then implement the EPA-produced TMDL.
Washington’s letter stated that it “would like to clarify that
our expectation and desire is that EPA both lead the
development of and issue the TMDLs for temperature in
Washington.” (emphasis in original). In a letter to the
Columbia River Inter-Tribal Fish Commission in January of
2002, the EPA, consistent with Washington’s and Oregon’s
letters, stated that “at the request of the states of Oregon and
Washington, EPA will be doing the technical analysis and
issuing temperature TMDLs for the Columbia/Snake River
Mainstem in Oregon and Washington.”
In accordance with the MOA and Work Plan, the EPA
published a draft temperature TMDL for the Columbia and
Snake Rivers in July of 2003, which specified that a final
TMDL would be forthcoming after a 90-day public comment
period. Due to opposition from other federal agencies,
however, the EPA did not take any further steps to develop
or issue a final temperature TMDL. Since 2003, no progress
has been made on the development of the temperature
8 COLUMBIA RIVERKEEPER V. WHEELER
TMDL by the EPA or either state, although as late as 2007,
the EPA continued to acknowledge that it was responsible
for the development of the temperature TMDL in a letter to
the U.S. Army Corps of Engineers.
Despite the lack of progress on the temperature TMDL,
Washington and Oregon each developed robust TMDL
programs. Each state produced and submitted for EPA
approval more than 1,200 TMDLs for other pollutants and
other bodies of water. However, neither state took further
steps to develop or issue the temperature TMDL for the
Columbia and Snake Rivers. And while both states have
maintained priority rankings with target dates of completion
for remaining TMDLs, neither list includes the required
temperature TMDL.
IV. District Court Proceedings
In February of 2017, Columbia Riverkeeper, Idaho
Rivers United, Snake River Waterkeeper, Inc., Pacific Coast
Federation of Fishermen’s Associations, and the Institute for
Fisheries Resources (collectively, “Columbia Riverkeeper”)
sued the EPA under the CWA’s citizen-suit provision,
claiming that inaction by Washington and Oregon amounted
to a constructive submission of no temperature TMDL, thus
triggering the EPA’s nondiscretionary duty to approve or
disapprove the TMDL. The district court granted Columbia
Riverkeeper’s motion for summary judgment 1 and ordered
the EPA to approve or disapprove the constructive
submission within thirty days, and upon disapproval, to issue
1
The district court declined to rule on Columbia Riverkeeper’s
claim that the EPA’s conduct amounted to unreasonable delay under the
Administrative Procedure Act (“APA”). Because we affirm summary
judgment under the CWA, we likewise do not address this additional
claim.
COLUMBIA RIVERKEEPER V. WHEELER 9
a final TMDL within thirty days. The EPA disapproved the
submission, filed this appeal, and sought a stay of the order
requiring prompt issuance of the TMDL. The district court
granted the stay pending appeal. After litigation began, the
EPA revived development of the temperature TMDL and
contacted the states, but the EPA has not developed or issued
the temperature TMDL for the two rivers.
ANALYSIS
I. Constructive Submission Under the Clean Water Act
Section 1313(d)(2) of the CWA outlines the
nondiscretionary statutory duties at issue in this case:
Each State shall submit to the Administrator
from time to time, with the first such
submission not later than one hundred and
eighty days after the date of publication of the
first identification of pollutants under section
1314(a)(2)(D) of this title, for his approval
the waters identified and the loads
established . . . . The Administrator shall
either approve or disapprove such
identification and load not later than thirty
days after the date of submission. If the
Administrator approves such identification
and load, such State shall incorporate them
into its current plan . . . . If the Administrator
disapproves such identification and load, he
shall not later than thirty days after the date
of such disapproval identify such waters in
such State and establish such loads for such
waters as he determines necessary to
implement the water quality standards
10 COLUMBIA RIVERKEEPER V. WHEELER
applicable to such waters and . . . shall
incorporate them into its current plan . . . .
There is no dispute that under this scheme, a state has a
nondiscretionary duty to submit to the EPA a TMDL for
each of the waters identified on its § 303(d) list. Nor is it
disputed that the EPA has a nondiscretionary duty to approve
or disapprove this submission within 30 days. If the EPA
disapproves the submission, it must develop and issue its
own TMDL for the impaired water within 30 days. On its
face, however, § 1313(d)(2) is silent as to what duties the
EPA has when a state simply fails to submit a TMDL
altogether.
In San Francisco BayKeeper v. Whitman
(“BayKeeper”), we adopted the constructive submission
doctrine to fill this statutory gap. 297 F.3d 877 (9th Cir.
2002). In Baykeeper, we acknowledged that where a state
has “clearly and unambiguously” decided that it will not
submit TMDLs for the entire state, that decision will be
“construed as a constructive submission of no TMDLs,
which in turn triggers the EPA’s nondiscretionary duty to
act.” Id. at 883, 880. We reaffirmed this principle in City of
Arcadia v. U.S. Environmental Protection Agency, holding
that “[t]he EPA is also 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.” 411 F.3d 1103,
1105 (9th Cir. 2005) (internal quotation marks omitted).
Our precedent accords with the treatment of constructive
submission in other circuits. In Scott v. City of Hammond,
the Seventh Circuit held that “if a state fails over a long
period of time to submit proposed TMDL[s], this prolonged
COLUMBIA RIVERKEEPER V. WHEELER 11
failure may amount to the ‘constructive submission’ by that
state of no TMDL[s].” 741 F.2d 992, 996 (7th Cir. 1984)
(per curiam). The Tenth Circuit followed Scott in Hayes v.
Whitman and agreed that though not triggered on the facts
before it, a state’s failure to submit a TMDL could trigger
the EPA’s nondiscretionary duty to develop and issue its
own TMDL. 264 F.3d 1017, 1024 (10th Cir. 2001).
Taken together, our precedent and the case law of other
circuits consistently holds that a constructive submission
will be found where a state has “fail[ed] over a long period
of time to submit a TMDL,” City of Arcadia, 411 F.3d at
1105, and “clearly and unambiguously decided not to submit
any TMDL[s].” BayKeeper, 297 F.3d at 883.
II. Triggering Constructive Submission
The EPA urges us to read this precedent narrowly,
reasoning that “at most, EPA’s duty to establish a TMDL
arises only when a State completely fails to submit any
TMDLs for approval.” In this case, the EPA argues,
Washington and Oregon have submitted more than 1,200
TMDLs, and therefore cannot be found to have clearly and
unambiguously decided not to submit any TMDLs.
According to the EPA, only where a state has exhibited a
wholesale failure to submit any TMDLs for the entire state
regime should constructive submission be found under
§ 1313(d)(2). By contrast, where a state has abandoned a
particular TMDL, no constructive submission of that TMDL
should be found.
The EPA is certainly correct that the constructive
submission doctrine was developed initially in the context of
states’ wholesale failures to make any progress in the
development and issuance of TMDLs. In BayKeeper, for
example, the plaintiffs argued that California had failed to
12 COLUMBIA RIVERKEEPER V. WHEELER
issue any TMDLs between 1980 and 1994, and these
“failings under the CWA have triggered a duty on the part of
the EPA to establish TMDLs for the entire state.” 411 F.3d
at 881 (emphasis added). We therefore were asked to
conclude that California had clearly and unambiguously
decided to abandon its entire state TMDL program, rather
than any individual TMDL. We declined to do so, noting
that California had more recently (1) “completed 46 TMDLs
for waters on [its] lists,” (2) “established a schedule for
completing all TMDLs,” and (3) “dedicated substantial
resources to its TMDL program.” Id. at 880. California
clearly had not abandoned its state-wide TMDL program,
and so the EPA’s mandatory duty to develop its own TMDL
regime for the state was not triggered.
But our holding in BayKeeper does not limit the
application of the constructive submission doctrine to a
wholesale failure by a state to submit any TMDLs. Such a
limitation is not supported by either the language and
purpose of the CWA or the logic of our case law.
First, we look to the text of § 1313(d)(2). The language
of this subsection is clear: “each state shall submit to the
Administrator” the applicable TMDL. Congress did not
create a discretionary opportunity for states to submit a
TMDL for applicable waters or waterways: it created a
nondiscretionary obligation to submit each required TMDL.
Were a state allowed to avoid submitting a required TMDL
by simply failing to do so, it would defeat the clear objective
of the CWA by a mere refusal to act.
An interpretation of § 1313 that provides states and the
EPA with the opportunity to avoid their statutory obligations
is incompatible with both the mechanics and purpose of the
entire statute. Congress enacted the CWA “to restore and
maintain the chemical, physical, and biological integrity of
COLUMBIA RIVERKEEPER V. WHEELER 13
the Nation’s waters,” and with the “goal that the discharge
of pollutants into the navigable waters be eliminated by
1985.” 33 U.S.C. § 1251(a), (a)(1). That purpose 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.
This interpretation is bolstered by the expedited timeline
mandated elsewhere in the same subsection. The EPA must
“approve or disapprove [a TMDL] not later than thirty days
after the date of submission” by a state. § 1313(d)(2). And
“[i]f the [EPA] disapproves such identification and load, [it]
shall not later than thirty days after the date of such
disapproval identify such waters in such State and establish
such loads for such waters . . . .” Id. An interpretation of
§ 1313(d)(2) that allows the EPA to indefinitely avoid
compliance with the requirements of the statute would
undermine the clear expediency that Congress mandated
throughout the subsection and would be difficult to reconcile
with the purpose of the statute.
Our previous treatment of the constructive submission
doctrine reflects this interpretation of the CWA. Although
the court in BayKeeper considered only the question of when
a statewide failure to submit any TMDLs constitutes a
constructive submission, nothing in that opinion limited the
doctrine’s application to statewide failures. Rather, it
affirmed that § 1313 creates a statutory regime of
nondiscretionary duties for both the states and the EPA.
BayKeeper, 297 F.3d at 881–83. And when we next
addressed constructive submission in City of Arcadia, we
held that “[t]he EPA is also under a mandatory duty to
establish a TMDL when a State fails over a long period of
time to submit a TMDL.” 411 F.3d at 1105 (citing
14 COLUMBIA RIVERKEEPER V. WHEELER
BayKeeper, 297 F.3d at 880–84). This language
contemplates that a state could constructively submit a
single, specific TMDL for a body of water or waterway.
This approach is also consistent with other circuits that
have addressed this issue. The most thorough examination
of this question is found in Hayes v. Whitman, where the
Tenth Circuit concluded that “[t]he constructive-submission
theory turns on whether the state has determined not to
submit a required TMDL for a given impaired waterbody.”
264 F.3d at 1023 (emphasis added). The court went on to
explain that constructive submission occurs “when the
state’s actions clearly and unambiguously express a decision
to submit no TMDL for a particular impaired waterbody.”
Id. at 1024. Although the Tenth Circuit in Hayes declined to
find such a clear and unambiguous expression on the facts
before it, the court recognized the statute’s provision for the
constructive submission of a particular TMDL under a
different set of facts. Id. at 1024.
To be clear, the constructive submission doctrine does
not prevent a state from prioritizing the development and
issuance of a particular TMDL. See BayKeeper, 297 F.3d at
885 (“To interpret [§ 1313(d)(1)(C)] as a requirement of
simultaneous submission of the list of polluted waters with
the TMDL to correct each polluted water would render
meaningless the provision that the TMDLs are to be
established in accordance with priority ranking of the listed
polluted waters.” (internal quotation marks removed)). The
CWA itself requires states to “establish a priority ranking”
of impaired waters and then develop and issue TMDLs “in
accordance with the priority ranking.” § 1313(d)(1)(C).
Reading the constructive submission doctrine in this way
does not rob states of this ability to prioritize particular
TMDLs. Rather, it recognizes a meaningful difference
COLUMBIA RIVERKEEPER V. WHEELER 15
between affording less priority to a particular TMDL and
declining to develop and issue that TMDL at all. Where a
state has failed to develop and issue a particular TMDL for
a prolonged period of time, and has failed to develop a
schedule and credible plan for producing that TMDL, it has
no longer simply failed to prioritize this obligation. Instead,
there has been a constructive submission of no TMDL,
which triggers the EPA’s mandatory duty to act.
III. Unambiguous Statement of No TMDL by
Washington and Oregon
Having clarified the scope of constructive submission,
we next consider whether Washington and Oregon have
clearly and unambiguously decided not to produce and issue
a temperature TMDL for the Columbia and Snake Rivers,
which in turn triggers nondiscretionary obligations for the
EPA.
Since at least the late-1990s, both Washington and
Oregon have recognized the need for temperature and gas
TMDLs for the Columbia and Snake Rivers. In 2001,
Washington and Oregon asked the EPA to produce the
temperature TMDL on their behalf. The EPA agreed that it
alone would do so, while Washington and Oregon focused
on their overdue gas TMDL. The EPA subsequently
acknowledged that it had agreed to develop and issue the
temperature TMDL under the MOA. In 2003, pursuant to
the MOA and the EPA’s own Work Plan, the EPA released
a draft TMDL and explained that a final version would be
forthcoming after the public comment period. Then, nothing
happened.
The EPA shelved its draft, and neither the EPA,
Washington, nor Oregon took further steps to develop the
temperature TMDL. Since the early 2000s, each state has
16 COLUMBIA RIVERKEEPER V. WHEELER
developed and issued more than 1,200 TMDLs, including
other TMDLs for the Columbia and Snake Rivers. Both
states have maintained priority lists with target dates of
completion for outstanding TMDLs. Yet the Columbia and
Snake Rivers temperature TMDL is conspicuously absent
from the priority rankings. The states appear to believe that
the EPA is the party responsible for the development and
issuance of the TMDL. There is no credible plan to produce
or issue this TMDL by the states. The states’ continued
inaction amounts to a clear “refusal to act” and a “prolonged
failure” to produce the temperature TMDL. BayKeeper, 297
F.3d at 882, 887 (quoting Scott, 741 F.2d at 996–97). This
refusal to act is further underscored by the nature of the
MOA and the EPA’s own Work Plan, which stipulate that
the states do not intend to develop the temperature TMDL
themselves, and instead understand that the EPA will do so.
Viewing these facts in their totality, we agree with the
district court that “Washington and Oregon have clearly and
unambiguously indicated that they will not produce a TMDL
for these waterways,” and that as a result, “the EPA has
violated the CWA by failing to issue a TMDL for the
Columbia and lower Snake Rivers.” Columbia Riverkeeper
v. Pruitt, 337 F. Supp. 3d 989, 998 (W.D. Wash. 2018).
CONCLUSION
Because 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
under § 1313(d)(2). 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.
AFFIRMED.