San Francisco Baykeeper v. Whitman

Decision Date17 July 2002
Docket NumberNo. 01-16111.,01-16111.
Citation297 F.3d 877
PartiesSAN FRANCISCO BAYKEEPER; California Public Interest Research Group, Inc.; San Diego BayKeeper, Inc.; Environmental Defense Center, Plaintiffs-Appellants, and Natural Resources Defense Council; Santa Monica BayKeeper, Inc.; Western States Petroleum Association; Industrial Environmental Association of San Diego; Building Industry Legal Defense Foundation; California Building Industry Association, Intervenors, v. Christine Todd WHITMAN, Administrator of EPA, in her official capacity; Felicia Marcus, Regional Administrator; United States Environmental Protection Agency, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Michael R. Lozeau, Earthjustice Legal Defense Fund, Stanford, CA, for the plaintiffs-appellants.

David S. Beckman, Natural Resources Defense Council, Los Angeles, CA; Margaret Rosegay, Pillsbury Winthrop LLP, San Francisco, CA; Steven P. McDonald, Luce, Forward, Hamilton & Scripps LLP, San Diego, CA, for the intervenors.

Sandra Slack Glover, United States Department of Justice, Washington, DC, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California, Charles A. Legge, District Judge, Presiding. D.C. No. CV-00-00132-CAL.

Before HUG, CUDAHY,* and TASHIMA, Circuit Judges.


HUG, Circuit Judge.


The Opinion filed on April 15, 2002, and reported at 287 F.3d 764, is withdrawn and the opinion attached to this order shall be filed in its place. With the filing of the opinion, the panel unanimously votes to deny the petition for rehearing. Judge Tashima votes to deny the petition for rehearing en banc and Judges Hug and Cudahy so recommend.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on en banc rehearing. Fed.R.App.P. 35(b).


San Francisco BayKeeper, an environmental group, filed this action under the Clean Water Act ("CWA"), 33 U.S.C. § 1365(b), seeking a declaration that the State of California had failed to implement an adequate water pollution control program and failed to establish total maximum daily loads ("TMDL") of pollutants which could be introduced into polluted waters. BayKeeper contended that California was years behind in implementing a TMDL program, and consequently the U.S. Environmental Protection Agency ("EPA") had a non-discretionary duty to establish water pollution standards for California because the State had failed to make the required submissions. BayKeeper appeals the district court's dismissal of this claim on partial summary judgment, certified pursuant to Fed. R.Civ.P. 54(b). BayKeeper also challenges the district court's reliance on the EPA's Program Review document. We affirm.

A. Statutory Background

In 1972, Congress passed the Clean Water Act ("CWA" or "Act") to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. In order to attain this objective, Congress sought to eliminate the discharge of pollutants into the navigable waters by 1985. Id.

The Act focuses on two possible sources of pollution: point sources and nonpoint sources. Congress dealt with the problem of point source pollution using the National Pollution Discharge Elimination System ("NPDES") permit process. Under this approach, compliance rests on technology-based controls that limit the discharge of pollutants from any point source into certain waters unless that discharge complies with the Act's specific requirements. 33 U.S.C. §§ 1311(a), 1362(12).

When the NPDES system fails to adequately clean up certain rivers, streams or smaller water segments, the Act requires use of a water-quality based approach. States are required to identify such waters, which are to be designated as "water quality limited segments" ("WQLS"). The states must then rank these waters in order of priority, and based on that ranking, calculate levels of permissible pollution called "total maximum daily loads" or "TMDLs." 33 U.S.C. §§ 1313(d)(1)(A), (C). TMDLs are the maximum quantity of a pollutant the water body can receive on a daily basis without violating the water quality standard. The TMDL calculations are to ensure that the cumulative impacts of multiple point source discharges and nonpoint source pollution are accounted for. States may then institute whatever additional cleanup actions are necessary, which can include further controls on point and nonpoint pollution sources.

Under the Act, states are required to submit lists of WQLSs and TMDLs to the EPA at certain times; the first such submission was due by June 26, 1979. Sec. 303(d), 33 U.S.C. § 1313(d)(2).1 Once a state makes the required submission, certain mandatory duties by EPA are triggered. Within 30 days, EPA must review the state's submissions. If approved by EPA, the submissions are incorporated by the state into its continuing planning process established under § 1313(e)(3). If EPA does not approve the submission, however, the EPA has 30 days after disapproval to make its own identification of waters and establish TMDLs necessary to implement the applicable water quality standards. 33 U.S.C. § 1313(d)(2). The Act is silent as to the nature of EPA's obligations if a state, such as California here, fails to make any initial submission at all.

B. California's TMDL Program

As this is a review of summary judgment, we must construe the facts in the light most favorable to BayKeeper, the non-moving party in this case. BayKeeper contends that California did not submit any TMDLs until 1994, which was over 15 years after the initial deadline for making a submission pursuant to § 303(d) of the Act.

Since that time, however, California has dedicated substantial resources to the development of its TMDL program. According to the May 2000 report of the EPA on California's TMDL Program Review, the state has completed more than 46 TMDLs for waters on California's lists. In addition, the report demonstrates that California has established a schedule for completing all TMDLs for waters on its 1998 § 303(d) lists within the next 12 years. Finally, the state has dedicated substantial resources to its TMDL program, allotting $7 million annually to TMDL funding.


This Court reviews a grant of summary judgment de novo. Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir.2001). This Court reviews a district court's decision to consider a particular piece of evidence for abuse of discretion. Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 665 (9th Cir.1998).

A. Clean Water Act

BayKeeper argues that California's failings under the CWA have triggered a duty on the part of the EPA to establish TMDLs for the entire state. In order to prevail on this claim, BayKeeper must prove that EPA has a nondiscretionary duty to establish TMDLs for the State of California. See 33 U.S.C. § 1365(a)(2) (limiting citizen-suits against EPA to suits alleging EPA has failed to perform a duty "which is not discretionary"). In attempting to prove such a duty, BayKeeper relies upon § 303(d) of the CWA. That section reads as follows:

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 under paragraphs (1)(A), (1)(B), (1)(C), and (1)(D) of this subsection. 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 under subsection (e) of this section. 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 applicable to such waters and upon such identification and establishment the State shall incorporate them into its current plan under subsection (e) of this section.

33 U.S.C. § 1313(d)(2) (emphasis added).

BayKeeper argues that EPA's duty under this statute has been triggered by both California's failure to submit a TMDL between 1980 and 1994 and EPA's failure to disapprove of several of California's § 303(d) submissions. We find these arguments unpersuasive.

1. California's Submission of TMDLs

The district court, in construing § 303(d) of the CWA, noted that the statute only requires the EPA to act if it disapproves of a state's TMDL submission. BayKeeper, however, argues that this same duty is also invoked when a state either fails to submit or submits an inadequate TMDL listing. Although not a novel issue, it is one that nonetheless has received little attention within this Court. However, we note that other courts faced with this same issue have dealt with it using what has been termed the "constructive submission" doctrine. Under this doctrine, a complete failure by a state to submit TMDLs will be construed as a constructive submission of no TMDLs, which in turn triggers the EPA's nondiscretionary duty to act.

The first case to employ this doctrine was the Seventh Circuit's decision in Scott v. City of Hammond, 741 F.2d 992 (7th Cir.1984). Scott was a citizen-suit against the EPA for failure to prescribe TMDLs...

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