Riverkeeper v. Wheeler, 18-35982

• Decision Date: 20 December 2019
• Docket Number: No. 18-35982,18-35982
• Parties: COLUMBIA RIVERKEEPER; Idaho Rivers United ; Snake River Waterkeeper, Inc.; Pacific Coast Federation of Fishermen's Associations; The Institute for Fisheries Resources, Plaintiffs-Appellees, v. Andrew WHEELER, in his official capacity as Administrator of the U.S. Environmental Protection Agency; U.S. Environmental Protection Agency, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

944 F.3d 1204

COLUMBIA RIVERKEEPER; Idaho Rivers United ; Snake River Waterkeeper, Inc.; Pacific Coast Federation of Fishermen's Associations; The Institute for Fisheries Resources, Plaintiffs-Appellees,

v.Andrew WHEELER, in his official capacity as Administrator of the U.S. Environmental Protection Agency; U.S. Environmental Protection Agency, Defendants-Appellants.

No. 18-35982

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 26, 2019 Seattle, Washington

Filed December 20, 2019

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.

Before: Michael Daly Hawkins, M. Margaret McKeown, and Jay S. Bybee, Circuit Judges.

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 ("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 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 68° 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 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.

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 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 judgment¹ and ordered the EPA to approve or disapprove the constructive submission within thirty days, and upon disapproval, to issue 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,...