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Columbia Riverkeeper v. Wheeler

ELR Citation: 50 ELR 20012
Nos. 18-35982, (9th Cir., 12/20/2019)

The Ninth Circuit affirmed judgment for environmental groups in a CWA challenge to compel EPA to develop and issue long-overdue temperature TMDLs for the Columbia and Snake Rivers. The groups argued that inaction by Oregon and Washington to issue TMDLs for the two rivers amounted to a "constructive submission" of no TMDL under the CWA, triggering the Agency's nondiscretionary duty to act. The district court found that the states had clearly and unambiguously indicated they would not develop TMDLs for the two rivers, and thus that EPA violated the CWA by failing to issue TMDLs for them. The Agency appealed, arguing that the constructive submission doctrine applies only where a state exhibits a wholesale failure to submit any TMDLs for the entire state regime, and Oregon and Washington have submitted more than 1,200 TMDLs. The appellate court disagreed, holding that where a state has failed to develop and issue a particular TMDL for a prolonged period of time, and has failed to develop a schedule and credible plan for producing that TMDL, there has been a constructive submission of no TMDL, which triggers EPA's mandatory duty to act. Because Oregon and Washington conclusively refused to develop and issue temperature TMDLs for the Columbia and Snake Rivers, EPA is obligated to develop and issue its own. The court therefore ordered the Agency to develop and issue the TMDLs within 30 days.