Courts Limit EPA's Obligation to Establish and Implement TMDLs

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 bodies.

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.

Implementing 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

ENDNOTES
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 Cir. 2001)).
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 at 1027.
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, 384-91 (1992)).
11. Meiburg, 296 F.3d at 1034.