The opinion of the court was delivered by: Legge, District Judge.
Plaintiffs in C-00-0132 have moved to file a second amended complaint.
The proposed amendment is not opposed, and IT IS THEREFORE ORDERED that
plaintiff's proposed second amended complaint be filed. All further
references in this order to plaintiffs' claims are to those in the second
amended complaint (the "SAC").
Generally speaking, the plaintiffs in C-00-0132 are several public
interest groups which "seek to remedy the failure of the EPA to perform
its non-discretionary duties to identify and restore water quality for
polluted waters throughout the state of California." SAC ¶ 1. More
specifically, the plaintiffs allege that the EPA has failed to discharge
its non-discretionary duties under section 303(d)(2) of the Clean Water
Act to establish total maximum daily loads of pollutants for water
quality limited segments of waters of the United States located in
Again generally speaking, the plaintiffs in C-00-0424 are public
sanitation agencies and treatment works in California, acting through
their associations. They allege that the EPA has violated both federal
and state law by improperly approving submissions by the state of
California to the EPA. The specific causes of action alleged in C-00-0424
are not identical to those in C-00-0132, nor is the relief sought
identical. The cases are consolidated, but this order specifically
discusses only the claims in C-00-0132. The third action in this group of
related cases is Western States Petroleum Association v. Browner, No.
C-00-1815. That action is proceeding on a schedule separate from the
above two consolidated cases, and this order makes no direct rulings on
the cause of action in that case.
The motions now before this court are the following, listed in the
order of their filing: (1) Defendant's*fn1 motion for judgment on the
pleadings regarding the third and fourth claims; however, the fourth claim
has now been amended by the SAC. And this motion is for practical
purposes subsumed within the motions for summary judgment. (2) Plaintiffs'
motion for summary judgment. The motion seeks summary judgment on the
issues of liability only, and it pertains to all four of plaintiffs'
claims in the SAC. (3) Defendant's cross motion for summary judgment on
all claims in the SAC.
The motions have been briefed, argued, and submitted for decision. The
court has reviewed: the moving and opposing papers, the record of the
case, the records submitted in support of and in opposition to the
motions, the records of which this court can take judicial notice, and
the applicable authorities. The court is resolving these motions under
the standard of Rule 56 of the Federal Rules of Civil Procedure; that
is, resolving issues of law and issues of fact where there is no genuine
issue of material fact. The parties agree that the issues are primarily
ones of law.
These suits specifically concern section 303(d) of the CWA;
33 U.S.C. § 1313(d). That section requires the states to identify
waterbodies within their boundaries that do not meet water quality
standards, and to establish a priority for ranking those polluted
waterbodies based on the severity of the pollution and the type of use of
that waterway. 33 U.S.C. § 1313(d)(1)(A). The regulations use the
term "water quality limited segments" (WQLSs) to identify such waters.
See 40 C.F.R. § 130.2(j).
Section 303(d) requires each state to determine how much of a pollutant
a WQLS can endure before its quality becomes impaired. This determination
is known as the Total Maximum Daily Load ("TMDL") calculation. The TMDL
calculation must be made on a waterbody-specific and a pollutant-specific
basis wherever a pollution problem has been identified and other
regulatory approaches are not resolving the problem. The TMDL
contemplates establishing Waste Load Allocations ("WLAs") and Load
Allocations ("LAs") for the sources of the pollutants, to ensure that the
sum of all pollutants does not exceed the TMDL.
In other words, the CWA requires each state to identify the maximum
amount of each type of pollutant that a waterbody can handle without
violating water quality standards. See 33 U.S.C. § 1313(d)(1)(C).
A National Pollutant Discharge Elimination System ("NPDES") permit is
required for all discharges of a pollutant. See 33 U.S.C. § 1342(a).
Those permits are issued by the states; 33 U.S.C. § 1342(a)(5) and
(b). Under the regulations to the CWA, there can be no "new source" or
"new discharger," if the discharge will contribute to a violation of
water quality standards. 40 C.F.R. § 122.4(i). Thus, there cannot be
a new source or a new discharger if the waterbody is a WQLS impaired
waterway unless the state completes a TMDL for that WQLS beforehand. Id.
The CWA requires each state to submit to the EPA a list of WQLSs, and
to establish TMDLs "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)," and from "time to time" thereafter. See
33 U.S.C. § 1313(d)(2). The EPA first identified the pollutants on
December 28, 1978. See 43 Fed.Reg. 60,662. Thus, the states were required
to submit to the EPA a list of WQLSs and to establish TMDLs no later than
June 26, 1979. The EPA regulations require the states to make section
303(d) submissions biennially, by October 22, 1992 and by April 1 for
every even-numbered year thereafter. See 40 C.F.R. § 130.7(d)(1).
These cases concern the duties of the EPA with respect to the lists
submitted or not submitted by the states. The EPA is obligated to approve
or disapprove the states' section 303(d) lists within 30 days. See
40 C.F.R. § 130.7(d)(2). And the EPA may approve a submission only if
it meets the requirements set forth in paragraphs 1 and 2 of section
303(d) of the Act. Id. According to plaintiffs, the EPA has a
nondiscretionary duty to establish TMDLs for the identified WQLSs if a
state does not meet the requirements of the CWA. See
33 U.S.C. § 1313(d)(2); 40 C.F.R. § 130.2(g), (h) and (i) and
Allegations Regarding Waters in California
Plaintiffs bring this action against the EPA under the authority of
33 U.S.C. § 1365(a)(2). That section allows a citizen's suit against
the EPA for an alleged failure of that agency to perform any act or duty
"which is not discretionary" with the EPA. Id. Plaintiffs allege that the
EPA has failed to perform such duties. See Alaska Center for the
Environment v. Browner, 20 F.3d 981 (9th Cir. 1994).
The essence of plaintiffs' complaint is that California has failed to
establish TMDLs for most of its polluted water bodies. More
specifically, plaintiffs assert that California's lists of its WQLSs did
not include the TMDLs as required by the CWA. See SAC ¶¶ 55-57. The
EPA has allegedly taken no action or has approved defective TMDL lists
for the WQLSs. See SAC ¶¶ 59-61. Plaintiffs contend that as a result
of California's failures under the CWA, the EPA had and has a
non-discretionary duty to establish TMDLs for the WQLSs within
California. And plaintiffs assert that the EPA also has a duty to revoke
California's NPDES permit-issuing authority until such time as California
complies with the CWA.
The record is clear that the EPA has approved some of California's
lists, or has issued some documents defining TMDLs for several of
California's waterbodies. The EPA has also entered into consent decrees
relating to the establishment of TMDLs in several regions of the state.
On May 4, 2000 the EPA issued a report regarding the California's TMDL
program. That report is discussed in more detail below.
The SAC in C-00-0132 makes four claims for relief. The first alleges
that the EPA has failed to disapprove of California's inadequate section
303(d) submissions. The second alleges that the EPA has failed to
establish TMDLs for California. The third alleges that the EPA has failed
to incorporate WLAs into all NPDES permits in California. The fourth
alleges that the EPA improperly approved California's submissions for two
of its waterways. In addition to asserting that the EPA has violated the
CWA, plaintiffs also contend that the EPA's actions or failures to act
are violations of the Administrative Procedure Act; 5 U.S.C. § 706
The SAC asks for declaratory and injunctive relief. Plaintiffs' present
motion for summary judgment deals only with the issues of liability, and
not with remedies. But because the claims of the complaint all seek
equitable relief, the issues of liability and remedy are not so neatly
divided. Defendant EPA's cross motion in essence seeks a summary judgment
of no liability on all four claims.
This type of litigation is not unique to California or to this
district. Similar issues, if not identical in their facts and their
procedures, have arisen in the state of Alaska and have been addressed by
a district court and the Ninth Circuit; Alaska Center for Environment v.
Browner, 20 F.3d 981 (9th Cir. 1994) (ACE III); 796 F. Supp. 1374
(W.D.Wash. 1992) (ACE II); 762 F. Supp. 1422 (W.D.Wash. 1991) (ACE I).
Similar issues have also arisen in two other states in this circuit.
Friends of the Wild Swan v. U.S.E.P.A, 1999 WL 33229980 (D.Mont. 1999),
now on appeal to the Ninth Circuit; and Idaho Sportsmen's Coalition v.
Browner, 951 F. Supp. 962 (W.D.Wash. 1996). Similar cases from other
states are: Natural Resources Defense Council v. Fox, 909 F. Supp. 153
(S.D.N Y 1995) (NRDC I); 30 F. Supp.2d 369 (S.D.N.Y. 1998) (NRDC II);
93 F. Supp.2d 531 (S.D.N.Y. 2000) (NRDC III); Hayes v.
Browner, 117 F. Supp.2d 1182 (N.D.Okla. 2000); Sierra Club v. Hankinson,
939 F. Supp. 865 (N.D.Ga. 1996) Sierra Club v. Browner, 843 F. Supp. 1304
(D.Minn. 1993) Sierra Club v. U.S.E.P.A, WMN 97-3838 (D.Md. 2000); Scott
v. City of Hammond, 741 F.2d 992 (7th Cir. 1984) (arising from Illinois
There are several important procedural points which this court must
consider in its analysis of the substance of these motions.
First, the allegations of the SAC and the parties' motions must be
considered under both the Clean Water Act and the Administrative
Procedure Act. Plaintiffs sue under both statutes. And this court's
jurisdiction and powers are different under each. Under the CWA,
plaintiffs must establish that the EPA has failed to perform a
non-discretionary duty. While under the APA, plaintiffs must establish
that the EPA either failed to act or took inadequate action in violation
of 5 U.S.C. § 706. Under that section, plaintiffs must establish (1)
that the EPA's actions were "arbitrary and capricious" under Section
706(2)(A), or (2) that the EPA "unlawfully withheld" or "unreasonably
delayed" its actions under Section 706(1). The standards of analysis are
different under those statutes.
It is also important that the relief sought in this action is entirely
declaratory and injunctive relief. No damages are sought. This court must
therefore be concerned with what is or what is not being done presently.
The past failures of the EPA to take action or to act adequately are of
course relevant to the present circumstances. But the primary time-frame
for the analysis of the need for declaratory or injunctive relief is the
present level of performance by the EPA of its statutory duties. This
point was noted by the district court in NRDC III, 93 F. Supp.2d at 536.
The present level of performance of their statutory duties by both the
state of California and the EPA is described in the EPA's report of May
2000, U.S. EPA Region 9, California TMDL Program Review (2000).
Plaintiffs assert that the report is inadmissible hearsay. But the report
is a part of the administrative record of the EPA, which the court must
analyze in its review of plaintiffs' claims under the APA. It also
identifies the actions and inactions of the EPA which are being attacked
under the CWA. And it is admissible evidence of the functioning
California's TMDL program at the present time, which is the relevant time
for consideration of equitable relief. The district court in New York
considered a similar document, an agreement between the state of New
York. and the EPA, in evaluating whether injunctive relief was
appropriate; NRDC III, 93 F. Supp.2d at 549.
Does EPA Have A Non-Discretionary Duty To Establish TMDLs For Waters in
The issue that is central to plaintiffs first, second and third claims
of the SAC is whether the EPA has a non-discretionary duty to establish
TMDLs for California's waters, because of California's alleged failures
to do so in compliance with the CWA. The parties' cross motions focus on
this key issue. The issue arises from section 303(d) of the CWA, and
primarily subsection 303(d)(2); 33 U.S.C. § 1313(d)(2). That
subsection reads as follows:
33 U.S.C. § 1313(d)(2) (emphasis added).
The statute is silent as to what the EPA's obligations are if a state
fails to make a required submission. See ACE I, 762 F. Supp. at 1425. And
the statute is silent as to the consequences if a state's submissions are
made, but are arguably not in conformity with the CWA. The statute says
only that the EPA must approve or disapprove of the state's submission
within thirty days. As to the EPA's alleged obligation to itself
establish a state's TMDLs, the statute says that such an obligation
exists only "if the [EPA] disapproves" of the state's submissions;
Plaintiffs contend that the EPA's duty to establish TMDL's for a state
is triggered by either the failure of the state to submit a listing, or
by the state submitting an inadequate listing.
The first case to conclude that the EPA has such a duty under the CWA
if a state fails to submit any TMDL lists was the Seventh Circuit's
decision in Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984).
Scott was a citizen's suit against the EPA for failure to prescribe TMDLs
for pollutants discharged into Lake Michigan, after Illinois and Indiana
had failed to do so. Because of the lengthy absence of any submissions by
the states, the Seventh Circuit concluded that the EPA had an affirmative
duty to treat the ...