Columbia Riverkeeper v. Andrew Wheeler

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.