conceded by the EPA in this action; see defendant's brief of June 6,
2000, pp. 4-6.
But this court must examine the present state of the record regarding
California's and the EPA's compliance with the CWA. That record
establishes that this is not a case of a total failure to act, by either
the state or the EPA. A few examples from the record: California has
established TMDLs for the Santa Ana River and for the Laguna de Santa
Rosa; plaintiffs contend that both are inadequate, but lists were filed
and approved. California has established TMDLs for Salt Slough, Upper and
Lower Newport Bay, and for San Diego Creek. In 2000 California
established several other TMDLs. California also in effect established
TMDLs in connection with its development of some so-called "basin plans,"
and in connection with consent decrees.
The May 2000 report of the EPA on California's TMDL Program Review
provides a comprehensive review of the TMDL program in California, its
successes and shortcomings, and the concrete plans for the future. It
demonstrates that the EPA works with California in the development of
TMDLs, even before California actually submits such lists to the EPA.
According to the report; more than 46 TMDLs have been completed for
waters on California's lists. Id. at 3. The report is also quite frank
about past deficiencies: "The State initiated work on most of the
targeted TMDLs, but adopted and submitted very few of these TMDLs in the
time frames projected in the 1992, 1994, and 1996 schedules." Id. at 9.
However, more to the point regarding plaintiffs' request for injunctive
relief, the report demonstrates that California has established a
schedule for completing all TMDLs for waters on its 1998 section 303(d)
lists within the next 12 years. Id. at 3. This schedule is consistent
with EPA's national policies concerning TMDL completion times. The report
is optimistic that the times set forth in California's present schedules
are reasonable and will be followed. Id. at 20. Specifically, "[t]he
State and EPA have workplan agreements specifying a minimum number of
TMDLs to be completed by each Regional Board. . . . In addition, the
State and EPA allocate grant funds to support TMDL development based on
an agreement that the State will complete and deliver at least one TMDL
for each $125,000 of federal funds provided." Id. at 11. According to the
report, more than 200 TMDL studies are currently underway in California.
Id. The current schedules include TMDLs for more than 98% of the listed
waterbodies. Id. at 13.
The report summarizes that "the State's TMDL schedule is comprehensive
in its coverage," and that California will meet its goal of completing
all TMDLs by 2011. Id. Moreover, California's plan for TMDL compliance
follows the CWA's goals of prioritization — the worst waterbodies
will be handled first. The only significant problem articulated in the
report is that the EPA is concerned that some Regional Boards did not
establish an even pace of TMDL development in their schedules, and
elected instead to "backload" their schedules. Id. at 15. Nonetheless,
the EPA found this decision reasonable, and decided not to question too
deeply the state's decision to backload in a setting where the state has
the primary responsibility to act. The report also shows that California
is dedicating substantial resources to its TMDL program. Specifically,
California has $7 million annually allotted to TMDL funding. Id. at 3.
The report concludes that "California has approved a substantial number
of TMDLs. The State has demonstrated its resolve to develop TMDLs for all
the waters on its Section 303(d) list. . . . EPA has
demonstrated its commitment to actively assist and oversee State TMDL
development efforts. . . ." Id. at 20. Such plans are similar to the New
York memorandum of understanding approved in NRDC III.
Plaintiffs cite to Exhibit 21 of their request for judicial notice.
That is a 1998 letter, which indeed seems inconsistent with some
statements in the EPA's report. However, the inconsistencies may be more
superficial than real; and it does not present a reason to ignore the
later May 2000 report.
Plaintiffs make one further argument in support of their constructive
submission claim. Plaintiffs argue that the EPA's duty to implement a
TMDL plan for California was triggered at the first moment that
California failed to comply with the statute, and that EPA's duty is not
extinguished by later compliance by the state. In other words, according
to plaintiffs, California constructively submitted no TMDL lists in the
early years of the program, and notwithstanding all later compliances and
corrections the EPA is required to set California TMDLs because of
California's past non-compliance.
But that argument ignores the fact that this complaint seeks present
injunctive relief. And plaintiffs incorrectly rely on Coalition for Clean
Air v. So. Cal. Edison Co., 971 F.2d 219 (9th Cir. 1992), as support for
their argument. In Coalition for Clean Air, the Ninth Circuit decided a
different issue. The court interpreted a provision of the Clean Air Act
that read: "The Administrator shall promulgate a Federal implementation
plan at any time within 2 years after the Administrator . . . finds that a
State has failed to make a required submission or finds that the plan or
plan revision submitted by the State does not satisfy the minimum criteria
established [by law]," id. at 223. The language of that statute required
the Administrator to promulgate a federal plan within two years, and that
duty cannot be extinguished by future compliance. Id. at 224. However,
under the CWA at issue here, "[t]he Act is silent as to the nature of the
EPA's obligations if a state . . . fails to make any initial submission
at all." Ace I, 762 F. Supp. at 1425. That statute does not state that
the EPA has to act if there is no initial submission. Instead, courts
have inferred that the EPA must act after there has been a "constructive
submission" of no TMDLs. But a constructive submission occurs only if the
state fails to submit any TMDLs and has no plan to remedy the situation.
There has been no constructive submission here, because California has
submitted some TMDLs and the EPA has acted upon them. The past failures
of California did not automatically trigger a duty of the EPA to act, and
do not require an injunctive remedy now that California has taken action
to correct its past failures. The constructive submission doctrine
requires the court to look at the present time, or at least at a span of
time, and not just at individual points of time in the past. This court
agrees with NRDC III, 93 F. Supp.2d at 536:
First, plaintiffs make frequent reference in their
pleadings to the long history of failure by EPA and
New York State to perform their duties under the Clean
Water Act. Although evidence of this sort may be
relevant to the reliability of these entities'
promises of future compliance, plaintiffs are wrong to
imply that recent efforts by EPA at compliance are per
se insufficient to discharge EPA's statutory duties
because of the agency's past failings. As the Court's
sole power in this context is to require EPA to
conform its present conduct to the law, EPA'S past
noncompliance is irrelevant to the question of
agency's present compliance, and to whether the Court
will grant the narrow relief prescribed by the
CWA and the APA. Plaintiffs did not, and could not,
acquire rights by virtue of EPA's past failings, and
the Court cannot, accordingly, provide any relief that
goes beyond ensuring EPA's present compliance with
statutory mandates. (emphasis added)
In summary, this court finds and concludes that California and the EPA
have both been doing something about TMDLs, albeit not as rapidly as
contemplated by the passage of the CWA. But in view of the record, this
court cannot find that there have been no filings by California and no
actions by the EPA. The record does not support plaintiffs' contention
that there has been a constructive submission of no TMDLs. And the EPA
has not failed to perform non-discretionary duties under section
1313(d)(2). Although the EPA has not acted with the speed or on the
timetable which Congress envisioned, it has acted with sufficient
diligence that this court's interference with an injunctive remedy is not
The EPA's Duties Regarding NPDES Permits
The third claim for relief asserts that the EPA has failed to
incorporate WLAs into all NPDES permits issued in California. Plaintiffs
state that this claim is a corollary to their first and second claims. It
is also based on the CWA and the APA. In their third claim, plaintiffs
are not attacking any specific permit issued in California. Rather, they
are making an overall attack on EPA's oversight of California's permits
and are seeking future relief.
This court is not well advised by the briefing on this claim. The court
is not instructed about the EPA's powers over state-issued permits, and
how and where challenges to those permits are reviewed. Plaintiffs'
citations to the CWA do not on their face pertain to the NPDES program,
and the court cannot conclude from the citations that the CWA imposes any
duty on the EPA to modify state-issued permits. Indeed, the issuance of
such permits appears to be governed by a separate and detailed section of
the CWA; 33 U.S.C. § 1342. But that section's application to this
action is not adequately explained by the briefing. And section
1369(b)(1)(D) appears to vest jurisdiction over challenges to the state
permit program in the courts of appeal rather than in the district
This court is not holding that there may not be a valid claim regarding
the EPA's control over NPDES permits under a properly plead complaint.
But this complaint is not sufficient for that purpose. Analysis of such
an allegation will have to be for another day, or perhaps it will be
raised in one of the other cases in this series.
For purposes of resolution of the present cross motions, the court
accepts plaintiffs' statement that the third claim is a corollary to the
first and second. As such, it must be denied for the same reasons. That
is, the EPA does not now have a nondiscretionary duty to establish TMDLs
for California's waters. And plaintiffs' assertions do not justify the
issuance of injunctive relief.
Has The EPA Violated The Administrative Procedures Act?
Plaintiffs also invoke the jurisdiction of this court under the APA.
Plaintiffs contend that the EPA's failure to act, or to take adequate
action, violates section 706 of the APA. Plaintiffs rely on both the
theory of "arbitrary and capricious" actions by the EPA (§
706(2)(A)), and alternatively that the EPA "unlawfully withheld" or
"unreasonably delayed" action (§ 706(1)). The analysis of
claims under the APA must be distinct from the analysis under the CWA.
(1) Arbitrary and Capricious
In order to uphold an agency's discretion, section 706(2)(A) requires a
finding that the choice made by the agency was not "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
416, 91 S.Ct. 814, 28 L.Ed.2d 136(1971) (quoting 5 U.S.C. § 706(2)(A));
(Citizens to Preserve Overton Park subsequently overruled on other
grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192
(1977)). See also Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517 (9th
Cir. 1995). The court "must consider whether the decision was based on a
consideration of the relevant factors and whether there has been a clear
error of judgment." Citizens to Preserve Overton Park, 401 U.S. at 416,
91 S.Ct. 814. And "[a]lthough this inquiry into the facts is to be
searching and careful, the ultimate standard of review is a narrow one.
The court is not empowered to substitute its judgment for that of the
agency." Id. In other words, an agency action can be set aside only "if
the agency has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise."
Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443(1983); see also Beno v.
Shalala, 30 F.3d 1057, 1073 (9th Cir. 1994). Plaintiffs bear the burden
of overcoming the presumption of the validity of the EPA's actions. See,
e.g., Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 283
In considering APA claims with respect to CWA issues, courts have
examined the record to determine if there was a violation by the EPA even
where a state submitted some TMDLs. This compares with the analysis under
the CWA, where courts have declared a constructive submission if the
state has submitted no TMDLs at all.
The decision of the district court in NRDC III, which analyzed a
state's inadequate TMDL submissions under the APA, is again instructive
here. That court granted defendants' motion for summary judgment on
plaintiffs' APA claim, concluding that, "[t]he Court cannot say, however,
based on the administrative record, that EPA has acted arbitrarily or
capriciously in concluding that New York's participation has been
sufficiently active and meaningful to obviate resort to" judicial
intervention under the APA. NRDC III, 93 F. Supp.2d at 542. New York had
not submitted any TMDLs to the EPA prior to the filing of the suit. The
record did indicate that New York was actively engaged in the preparation
of TMDLs as early as the mid-1980s, and maintained close communications
with the EPA during that time regarding its progress. Even the EPA
Administrator acknowledged that "the TMDL program was consciously
neglected by EPA until recent years, while resources were dedicated to
other components of EPA's water quality control efforts under the CWA."
See NRDC III, 93 F. Supp.2d at 539 (quoting Testimony of Carol Browner,
Feb. 23, 2000, before the Senate Committee on Agriculture).
The NRDC III court noted that New York and the EPA had entered into a
memorandum of understanding, which established an eight-year schedule for
promulgation of TMDLs for all 129 WQLSs included on the state's 1996
section 303(d) list. After the agreement was entered into
and during the pendency of the lawsuit, New York amended its WQLS list by
adding almost 300 more polluted waterways. After the state amended the
list, the EPA and New York agreed to extend the timetable to complete the
As noted by the NRDC III court, the EPA reevaluated the total TMDL
program, and proposed changing the time frames for compliance, giving the
states nearly 15 years to submit TMDL lists for all of their WQLS
While EPA's early record on TMDLs is far from
admirable, it is clear that EPA is now taking its
responsibilities in New York very seriously and taking
reasonable strides to bring the TMDL program to
fruition. At present, EPA is working closely with New
York State to develop TMDLs for each of the State's
§ 303(d) listed waterbodies, and to honor its
obligations under the CWA. Moreover, as noted above,
EPA plans to implement extensive changes to the TMDL
program later this year.
Id. at 541.
In sum, that court concluded that such future planning was sufficient,
and rejected plaintiffs' request for judicial oversight:
While plaintiffs are correct to point out that New
York's promises of future action are by themselves
insufficient to avoid declaration of a "constructive
submission," the Court considers the future plans
established by New York and EPA to be an important
sign, informed by New York's diligence in the past,
that the intrusive injunctive remedies requested by
plaintiffs are not warranted here . . . . The Court
cannot conclude, based on the record before it, that
EPA has acted arbitrarily or capriciously, or
otherwise contrary to law, in declining to declare a
"constructive submission" by New York of no TMDLs.
A contrary decision is Sierra Club v. Hankinson, 939 F. Supp. 865
(N.D.Ga. 1996). That court also analyzed whether the EPA had acted
arbitrarily or capriciously under the APA by failing to declare a
constructive submission of Georgia's TMDL lists. The court there agreed
with plaintiffs, and concluded that there was a constructive submission
of no lists. Id. at 872. At the time of the decision, Georgia had
completed just two TMDLs, both of which were completed after the case was
filed. Georgia was working on a plan to develop two TMDLs for each of
Georgia's fourteen major river basins by the year 2005. The court noted
that Georgia did not have any current plans to develop TMDLs for all
WQLSs as required by CWA. "Defendants state that Georgia has promised to
develop approximately 25 complex TMDLs for its major river basins within
the next eight years. At this pace, Georgia will take over a hundred
years to complete TMDLs for the approximately 340 WQLSs identified on the
1994 WQLS list." Id. at 871. The court therefore concluded that the
"EPA's failure to disapprove of Georgia's inadequate TMDL submissions was
arbitrary and capricious in violation of the [APA]. . . ." Id. at 872.
The record in our present case is much closer to NRDC III than to
Hankinson. As discussed above, California has supplied some TMDLs, and
did so prior to this litigation. California and the EPA are working
together to meet the goals for identifying TMDLs for all of the state's
WQLS waterways, and funding to do so has been agreed upon.
(2) "Unlawfully Withheld" or "Unreasonably Delayed"
Section 706(1) grants this court jurisdiction to "compel agency action
unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). The
prongs of section 706(1) — that is, "unreasonably delayed" and
"unlawfully withheld" — are mutually exclusive. See Forest
Guardians v. Babbitt, 164 F.3d 1261, 1272 (10th Cir. 1998). An agency
action may be deemed "unreasonably delayed" where the governing statute
does not require action by a date certain, whereas an action is
"unlawfully withheld" if an agency fails to meet a clear deadline
prescribed by Congress. See id.
However, both prongs require that the agency have a statutory duty in
the first place. See Madison-Hughes v. Shalala, 80 F.3d 1121, 1124 (6th
Cir. 1996). Here, as discussed above, the EPA has no present duty to
define the TMDLs for California under the CWA, because there has not been
a constructive submission of no TMDLs. As stated in NRDC III, 93 F.
Supp.2d at 544:
Of course, the Court can only compel EPA to take an
action that it is under a duty to perform. See
generally 5 U.S.C. § 706. The Court has held, both
on plaintiffs' CWA claim and on their § 706(2) APA
theory . . . that EPA was entitled to conclude that
its duty to declare a "constructive submission" of no
TMDLs had not been triggered. As the Court finds that
EPA is not presently under a duty to declare such a
"constructive submission," it is illogical, and
perhaps therefore unnecessary, to consider whether EPA
unreasonably delayed such a declaration.
This court also concludes that the EPA has not violated the APA because
of its alleged failure to establish TMDLs for waters within the state of