Courts Limit EPA's Obligation to Establish and Implement
Jason Dare, 3L
Over the last decade, federal courts have issued decisions and approved
consent decrees that have made the total maximum daily load (TMDL) "requirement"
under the Clean Water Act a reality. When a state does not establish
or implement TMDLs, the total amount of pollutants a waterbody can receive
from all sources, the Environmental Protection Agency (EPA) may do so.
Two recent circuit court decisions from the 11th and 9th Circuits provide
guidance regarding the establishment and implementation of TMDLs.
Constructive Submission Doctrine
San Francisco Baykeeper v. Whitman, 2002 U.S. App LEXIS 14394 (9th Cir.
July 17, 2002).
In its recent ruling, the Ninth Circuit held that the EPA has a non-discretionary
duty to establish TMDLs when a state makes little or no effort to establish
the TMDLs itself. In Baykeeper, various environmental groups (hereinafter
"Baykeepers") filed suit in the U.S. District Court for the
Northern District of California to compel the EPA to establish TMDLs
for California. Originally, states were required to identify all impaired
water bodies in the state or Water Quality Limiting Segments (WQLS)
and calculate TMDLs for them on or before June 26, 1979. In 1994, fifteen
years after the deadline, California submitted its first TMDL. Since
1994, however, it submitted at least eighteen TMDLs and scheduled to
complete all remaining ones within the next twelve years. The district
court ruled that the EPA was required to establish a state's TMDLs only
when it objected to a TMDL the state submitted. Baykeepers appealed
to the Ninth Circuit and argued that the EPA had a duty to act both
when a state fails to submit TMDLs or submits inadequate ones.
Baykeepers relied on the Constructive Submission Doctrine which states
that "when a state fails over a long period of time to submit proposed
TMDL's, this prolonged failure may amount to the constructive
submission' by that state of no TMDL's."1
Once a state is deemed to have submitted no TMDLs, the EPA has a non-discretionary
duty to establish TMDLs for the state. However, the Constructive Submission
Doctrine is very narrowly interpreted. In fact, courts will apply the
doctrine only "when the state's actions clearly and unambiguously
express a decision not to submit TMDLs."2
Following persuasive authority by other circuits, the Ninth Circuit
ruled that the Constructive Submission Doctrine did not apply.3
Because California submitted at least eighteen TMDLs and had plans to
submit its remaining TMDLs within twelve years, the court held the state's
actions were not a clear and unambiguous expression against submitting
TMDLs.4 Therefore, the EPA merely had a
discretionary duty to establish TMDLs for California's polluted water
Baykeepers also contended that, based on the unambiguous language of
§ 303(d)(2), California was required to simultaneously submit both
its water quality limiting segment (WQLS) priority list and its TMDLs.5
Because California made several WQLS submissions from 1980 through 1991,
but did not simultaneously submit TMDLs, Baykeepers argued that the
EPA had a non-discretionary duty to establish TMDLs for California.
The EPA previously interpreted the language of § 303(d)(2) to mean
that submissions of WQLS priority lists were due every two years since
June 26, 1979, the original deadline for WQLSs and TMDLs. The EPA never
set a definite schedule for TMDL submissions. Supreme Court precedent
directs that when statutory language is ambiguous, "courts should
defer to reasonable agency interpretations."6
The Ninth Circuit held that the EPA's interpretation of § 303(d)(2)
was reasonable and that the EPA's interpretation did not require simultaneous
submission of WQLSs and TMDLs. Accordingly, the EPA did not have a non-discretionary
duty to establish TMDLs for California when the state submitted WQLS
priority lists without submitting TMDLs.
Sierra Club v. Meiburg, 296 F.3d 1021 (11th Cir. 2002). The Eleventh
Circuit recently held in Meiburg that there is a difference between
establishing and implementing TMDLs. From 1979 to 1994, Georgia established
only two TMDLs for its approximately 340 listed WQLS water bodies. In
1994, Sierra Club and numerous other environmental entities (hereinafter
"Sierra Club") filed suit in the U.S. District Court for the
Northern District of Georgia to compel the EPA to establish TMDLs for
the remaining water bodies. The district court ruled that the EPA must
both establish and implement TMDLs for all of Georgia's limited segments
by June 2001. While the EPA's appeal was pending, the EPA and Sierra
Club agreed to different terms under a consent decree.7
Even though the EPA proposed 124 TMDLs for Georgia's WQLSs, Georgia
failed to implement any of them and within the next two years, only
one water body met TMDL standards. Sierra Club motioned for the district
court to re-open the consent decree and order the EPA to prepare implementation
plans for the 124 TMDLs. Georgia, however, created implementation plans
for all of its TMDLs within nine months of the motion. The EPA subsequently
filed a motion to dismiss Sierra Club's action as moot, because no question
existed concerning the implementation plans. The district court denied
the EPA's motion and held that the EPA was obligated to ensure Georgia's
implementation plans were adequate. If not, the EPA was required to
create its own TMDL implementation plans. The EPA appealed the decision
to the Eleventh Circuit.
On appeal, the EPA claimed that the district court abused its discretion
when it modified the consent decree.8 Sierra
Club countered that language in the consent decree gave the district
court authority to modify the decree, specifically: (1)"the court
retains jurisdiction over the action and may issue orders to modify
the terms of the decree and grant further relief as justice requires"
and (2)"nothing in the decree shall be construed to limit the equitable
powers of the Court to modify those terms upon a showing of good cause
by any party."9 According to the Eleventh
Circuit, however, this was merely boilerplate language. A district court
can only modify a consent decree by finding (1)"a significant change
either in factual conditions or in law" and that (2)"the proposed
modification is suitably tailored to the changed circumstance."10
Applying these factors, the Eleventh Circuit noted that the Sierra
Club based its argument on a law that was published as a final rule
in July, 2000, but was never implemented. Congress never appropriated
the necessary funds to implement the law and consequently, EPA withdrew
the rule. Therefore, since EPA withdrew the rule, there had been no
significant change in the law and the court could not modify the decree
based on those grounds. Next, the Eleventh Circuit found no change in
factual circumstances. Georgia was currently and had always been delinquent
in its CWA obligations. The state's unwillingness to comply with the
CWA had not changed. Finally, Sierra Club argued that because the consent
decree had not reached its purpose, which presumably was clean water
in Georgia, the failure was a changed circumstance that justified modification.
The Eleventh Circuit reasoned that clean water was not the purpose of
the consent decree. Even though Sierra Club wanted cleaner water, the
deal it made with the EPA was merely to establish TMDLs. Therefore,
the court held that the EPA could not be forced to implement TMDL plans
in Georgia through its consent decree and Sierra Club would have to
look "to the [CWA] and regulations, and perhaps to additional litigation,
to achieve [its] worthy goals."11
1. San Francisco Baykeeper v. Whitman, 2002 U.S. App LEXIS 14394, *9
(9th Cir. July 17, 2002).
2. Id. at *10-*11 (citing Hayes v. Whitman, 264 F.3d 1017, 1024 (10th
3. See Hayes, 264 F.3d at 1022-24 (ruling that Oklahoma's submission
of between three and twenty-nine TMDLs, and its plans to complete 1400
TMDLs by the year 2010, meant that the Constructive Submission Doctrine
did not apply); Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984)
(holding that Indiana and Illinois submitted no TMDLs for Lake Michigan,
unless there was "evidence indicating that the states' [were],
or soon [would] be, in the process of submitting TMDL proposals").
4. Moreover, the court ruled that Baykeepers had no right to seek relief
for EPA's failing to establish California's TMDLs from 1980 until 1994.
Baykeeper, 2002 U.S. App. LEXIS 14394, at *13-*14 (citing N.R.D.C. v.
Fox, 93 F. Supp. 2d 531, 536 (S.D.N.Y. 2000)). The court also held that
the Administrative Procedures Act, which authorizes courts to "compel
agency action . . . unreasonably delayed," was not applicable because
the agency must first have a statutory duty. Baykeeper, 2002 U.S. App.
LEXIS 14394, at *20-*21 (citing 5 U.S.C. § 706(1) (2002)); See
Madison-Hughes v. Shalala, 80 F.3d 1121, 1124-25 (6th Cir. 1996).
5. 33 U.S.C. § 1313(d)(2) (2002) ("Each state shall submit
to the Administrator from time to time . . . for his approval the waters
identified and the loads established under 1(A), 1(B), 1(C), and 1(D)
of this subsection.").
6. Baykeeper, 2002 U.S. App. LEXIS 14394, at *18 (citing Chevron v.
N.R.D.C., 467 U.S. 837 (1984)).
7. The terms of the consent decree stated that EPA would establish TMDLs
for 20% of Georgia's limited segments by 1998, and all TMDLs by 2004
if Georgia failed to do so; review Georgia's continuing TMDL planning
process; propose specific terms for Georgia/EPA Performance Partnership
Agreements; review Georgia's TMDL program twice a year; and submit annual
compliance reports to the court and to Sierra Club. Meiburg, 296 F.3d
8. Because only final orders can be appealed and the district court's
ruling was not a final order, the Eleventh Circuit could have jurisdiction
over this suit only if it determined the district court modified the
consent decree. Appellate courts will determine that a district court's
holding modified a consent decree when it "changes the legal relationship
among the parties." 28 U.S.C. § 1293 (2002). Implementation
plans "were not found within [the consent decree's] four corners,"
or its specific language. Meiburg, 296 F.3d at 1025 (citing United States
v. Atlantic Refining Co., 420 U.S. 223, 233 (1975)). The Eleventh Circuit
held that requiring EPA to implement TMDLs was a change in its legal
relationship. Therefore, the consent decree had been modified and the
Eleventh Circuit had jurisdiction.
9. Meiburg, 296 F.3d at 1030.
10. Id. (citing Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367,
11. Meiburg, 296 F.3d at 1034.
is a TMDL?
A TMDL or Total Maximum Daily Load is the maximum amount of pollutants
a water body can receive daily without impairing activities such
as fishing, shellfish cultivation, primary or secondary recreational
contact or incidental contact.
A TMDL is calculated by adding all discernable discharges of
pollutants (load allocation), such as factories, all indistinguishable
sources of pollution (waste load allocation), such as farms and
subdivisions, and a margin of safety. Factory A and Factory B,
for example, have pollution discharge pipes emptying into the
river. These pipes can be specifically tested for discharges and
therefore the factories have point source discharges. Farm A,
Farm B, and the subdivision, on the other hand, have runoff that
empties into the river, called non-point source discharge. The
TMDL for this river segment must account for all of these sources
To learn more about TMDLs, visit EPA's Office of Water website