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TMDL Lawsuit Information

Summary of 303(d) Litigation

Recent CWA Section 303(d) Cases

Amigos Bravos v. Green (PDF, 148KB, 18 pages)

On March 3, 2004, Judge Reggie B. Walton of the United States District Court for the District of Columbia granted EPA's cross-motion for summary judgment and dismissed plaintiff environmental group's challenge to EPA's alleged approval of the implementation plan associated with New Mexico's total maximum daily load ("TMDL") for Cordova Creek. Plaintiff had argued that EPA's alleged approval of the implementation plan was unlawful because the plan, which addressed nonpoint source pollutants entering Cordova Creek, did not contain "reasonable assurances" that it would be implemented. Finding that EPA had not, in fact, "approved" the implementation plan (even though it did approve the TMDL), the Court concluded there was no "final agency action" with respect to the plan and dismissed the case for lack of jurisdiction.

Friends of the Wild Swan v. EPA (PDF, 648KB, 14 pages)

On July 25, 2003, the Ninth Circuit Court of Appeals affirmed the District Court's finding that EPA's approval of Montana's 1996 section 303(d) list was arbitrary and capricious, rejecting EPA's argument that it was not required to consider and approve Montana's pace of TMDL development. In 1999, the District Court had held that EPA's approval of Montana's 1996 list was arbitrary and capricious in light of Montana's pace of TMDL development. As a remedy, the District Court ordered EPA to ensure that all TMDLs for waters on Montana's 1996 list are established by May 2007. The Ninth Circuit affirmed this aspect of the remedy and also upheld the District Court's prohibition on the issuance of NPDES permits for new or increased discharges into listed waters until all necessary TMDLs are established. EPA prevailed on two aspects of its appeal. First, the Court of Appeals held that the District Court abused its discretion in ordering that any failure by EPA to meet interim milestones in the TMDL schedule would be final agency action. Second, the Court of Appeals agreed with EPA that the order to develop TMDLs for all listed waters should not require TMDLs for waters that are removed from subsequent lists.

Sierra Club v. Meiburg

  • 11th Circuit Court of Appeals decision in Sierra Club v. Meiburg issued on July 2, 2002

    On July 2, 2002 the 11th Circuit Court of Appeals ruled that a consent decree between EPA and the Sierra Club does not require EPA to include implementation plans in the total maximum daily loads (TMDLs) it establishes for polluted waters in Georgia. The appellate court determined that the district court had improperly modified the consent decree to require EPA preparation of implementation plans. Such modification was not needed, the 11th Circuit said, because the decree is achieving its purpose, which is the establishment of TMDLs.

Pronsolino v. Nastri

City of Arcadia v. EPA (PDF, 2.1MB, 27 pages)

On May 19, 2003, Judge Saundra Armstrong of the Northern District of California dismissed plaintiffs' challenge to EPA's establishment and approval of TMDLs for trash in the Los Angeles River Basin. Pursuant to a 1999 consent decree, by March 2002, EPA was required either to have approved California's TMDLs for trash in the Los Angeles River Basin or to have established the TMDLs itself. While awaiting final action by California on its own TMDLs, EPA established TMDLs for trash for the Los Angeles River Basin on March 19, 2002. On August 1, 2002, EPA approved California's TMDLs. The court dismissed plaintiffs' claim that EPA lacked authority to establish its own TMDLs for trash because Plaintiffs conceded that California's establishment of its own TMDLs mooted that claim. Plaintiffs also claimed that EPA lacked authority to approve California's TMDLs for trash because it had already established its own TMDLs. The court found that "no authority supports the conclusion that EPA lacks authority to approve state-submitted TMDLs after EPA has established its own TMDLs . . ." The Court dismissed plaintiffs' challenge to the merits of EPA's approval of the State TMDLs as unripe.

San Francisco Baykeeper v. Whitman (PDF, 30KB, 14 pages)

On April 15, 2002, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's decision to dismiss BayKeeper's claim that EPA had a nondiscretionary duty to establish TMDLs for California because the State failed to make required submissions of TMDLs. BayKeeper argued that California's inaction constituted a "constructive submission" of no TMDLs under the CWA, triggering a duty on the part of EPA to establish TMDLs for the entire State. The district court had interpreted the constructive submission line of cases to stand for the proposition that the constructive submission doctrine is viable only when "the state fails to submit any TMDLs and has no plans to remedy this situation." The Ninth Circuit found that the district court's ruling was consistent with how other circuits have analyzed the constructive submission doctrine, and concluded: "California has submitted at least eighteen TMDLs and has established a schedule for completing its remaining TMDLs. Under the constructive submission doctrine, then, these actions on the part of California preclude any finding that the state has ‘clearly and unambiguously' decided not to submit any TMDLs."



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