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Ohio Valley Environmental Coalition, Inc. v. Pruitt

ELR Citation: 48 ELR 20099
Nos. 17-1430, (4th Cir., 06/20/2018)

The Fourth Circuit reversed a lower court's grant of summary judgment requiring EPA and West Virginia to address coal mining-related water pollution. Environmental groups argued that EPA failed to perform its nondiscretionary duty under the CWA to promulgate TMDLs for biologically impaired waters in West Virginia. The lower court applied the doctrine of "constructive submission," concluding that, since West Virginia had not submitted any TMDLs for the biologically impaired waters, EPA had failed to perform its discretionary duty to approve or disapprove West Virginia's constructive submission of no TMDLs. But the appellate court disagreed. West Virginia has established some TMDLs that address biological impairments and has signed a Memorandum of Agreement with EPA demonstrating that West Virginia has a plan to develop and implement biological impairment TMDLs, including for ionic toxicity. Because West Virginia has demonstrated that it is making good-faith efforts to address its biologically impaired waters, and because West Virginia has a credible plan with EPA to produce ionic toxicity TMDLs, the court reversed the lower court's grant of summary judgment.