I. INTRODUCTION

The factual history of California’s and EPA’s failure to establish TMDLs in this state is virtually identical to the factual basis for the decisions by the District Court and the Ninth Circuit Court of Appeals that EPA had a nondiscretionary duty to establish TMDLs in Alaska. The State of California, like Alaska, failed to submit any TMDLs to EPA by 1990. ACE I, II, and III held that the state’s 11 year delay triggered EPA’s duty to establish TMDLs for all of Alaska’s impaired waters. ACE III is binding on this court.

EPA does not contest that it has a nondiscretionary duty to establish TMDLs where a state constructively submits no TMDLs for a long period of time beyond section 303(d)’s deadline of June 26, 1979. EPA Brief at 10-11. Nor does EPA seriously argue that this duty was never triggered. Id. at 19. Instead, the agency seeks to shield itself from judicial intervention by an eleventh hour attempt to recast the state’s and EPA’s decades-long record of delay and recalcitrance as somehow consistent with Congress’ intent. Moreover, in arguing that its section 303(d) duty to establish TMDLs has somehow been extinguished, EPA relies on district court decisions that are both outside the Ninth Circuit and inconsistent with binding Ninth Circuit authority in ACE III.

The EPA’s principal defense to Plaintiffs’ first and second claims for relief is that there has been no "constructive submission" of no TMDLs by California because, EPA alleges: (1) California has submitted and EPA has approved 21 TMDLs in the state and (2) California has committed to a schedule and funding for establishing the remaining TMDLs. The EPAs proffered "evidence" to support these contentions is its so-called "Program Review," completed on May 5, 2000, in which the EPA argues that it reasonably determined that California is close enough to establishing TMDLs to justify EPA’s refusal to establish TMDLs for the state. This defense fails for several reasons.

First, with respect to Plaintiffs’s Clean Water Act claims in count 1 of each their first and second claims for relief, the reasonableness of EPA’s judgment that California is "close enough" is irrelevant, because EPA’s nondiscretionary duty to establish TMDLs in California was triggered years ago and cannot be extinguished by any action that falls short of establishing TMDLs for all water quality limited segments ("WQLSs"). This is especially true where, as will be shown here, EPA’s action is an error ridden, post hoc rationalization that EPA cooked up after plaintiffs filed this action solely to convince this Court not to intervene.

Second, EPA’s Program Review is mostly inadmissible hearsay which Plaintiffs move to strike. The Program Review includes two components: (1) it sets forth a record of EPA’s May 5, 2000 determination that it need not establish TMDLs in California; and (2) it makes representations about the history of California’s and EPA’s efforts to establish TMDLs in the state. These representations are offered for the truth of the matters asserted therein and are therefore inadmissible hearsay.

Third, even if the Program Review is admissible to prove the truth of the matters asserted therein, many of those assertions are demonstrably false. For example, no TMDLs were ever submitted and/or approved by EPA in the 1970's and 1980's. EPA’s assertion that some uncertain number of TMDLs were submitted and approved is directly contradicted by EPA’s own documents. For example, in 1998, Alexis Strauss, the Director of Region 9's Water Division and the staff person delegated with responsibility to oversee the TMDL program in Region 9, admitted as much, writing to the Executive Director of the State Water Resources Control Board ("State Board" or "SWRCB") that, as of the date of that letter (January 29, 1998), EPA determined that "only 2 TMDLs have been submitted and approved by EPA for the entire State." (Even then, these two purported TMDLs fail to meet the statutory criteria for true TMDLs.)

Fourth, EPA also does not dispute that the state’s timelines are admittedly "tentative" and include numerous caveats. More important, the state has already failed to adhere to its own schedule established in 1998. Thus, reliance on proposed schedules is inadequate to ensure compliance with the Clean Water Act, judicial intervention is necessary.

Fifth, EPA fails to rebut several grounds for liability that plaintiffs’ argue in support of their Clean Water Act claims in their first and second claims for relief that are independent of the particular variant of the "constructive submission" theory recognized in ACE III. For example, plaintiffs argue that even if the Court finds that California has established a few token TMDLs, these inadequate submissions do not excuse EPA’s nondiscretionary duty under section 303(d) to establish TMDLs for the remaining 99.7% of California’s impaired waters. (Plaintiffs’ Opening Brief ("Pls. Br."), § IV.B.1.a.2). Plaintiffs also argue that EPA’s § 303(d) duty to establish TMDLs was triggered at the latest in 1991 and has not been extinguished by subsequent events. (Pls. Br., § IV.B.1.b). In addition, Plaintiffs argue that EPA’s § 303(d) duty to establish TMDLs was triggered by its express disapproval of California’s 1992, 1996 and 1998 submissions and has not been extinguished by subsequent events. (Pls, Br., § IV.B.1.c).

To the extent it makes any response to these grounds, EPA argues that the Court should look only at what the state and EPA are doing now, citing the recent District Court decision in NRDC v. Fox, 93 F.Supp.2d 531 (S.D. N.Y. 2000). EPA’s argument is misplaced. The decision in NRDC v. Fox merely points out that just because EPA violated the CWA in the past does not mean that its current conduct is in violation. However, the EPA takes this language out of context. In NRDC v. Fox the Court had already dismissed the plaintiffs’ CWA claim based on a "constructive submission of no TMDLs" theory because the Court held that the EPA had discretion to decide at what point a state’s "intransigence" amounts to a constructive submission of no TMDLs. This result is inconsistent with the Ninth Circuit’s view of "constructive submission" in ACE III, which is that it triggers a nondiscretionary duty to establish TMDLs.

In sum, EPA’s response underscores the undisputed fact that the agency’s nondiscretionary duty to establish TMDLs for all the impaired waters of California has been triggered. Despite the existence of that mandatory duty, EPA has continued to let California’s TMDL program languish, watching the states WQLS list grow longer and longer. Only under the pressure of three prior citizen suits seeking TMDLs for certain waterbodies in different parts of the state and this pending action have EPA and the State begun to make some progress. Plaintiffs respectfully request the Court to assure that the rest of the state’s troubled waters don’t get left behind and that EPA’s longstanding violations of its statutory obligations are fully remedied.

//

//

II. ARGUMENT

A. THE EPA HAS NOT MET ITS BURDEN TO SHOW THAT GENUINE ISSUES OF FACT REMAIN FOR TRIAL.

 

The Court should grant Plaintiffs’ motion for summary judgment because EPA has failed to meet its burden to set forth "specific facts showing that genuine issues remain for trial." Great Hawaiian Financial Corp. v. Aiu, 863 F.2d 617, 619 (9^th Cir. 1988). "Simply raising ‘some metaphysical doubt’ as to the material facts will not suffice. Allstate Insurance Co. v. Gilbert, 852 F.2d 449, 453 (9^th Cir. 1988). "T[]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Facts are not material if not "identified by the controlling substantive law as an essential element that will affect the outcome of the suit." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

B. EPA’s NONDISCRETIONARY DUTY TO ESTABLISH TMDLs UNDER CWA SECTION 303(d) WAS TRIGGERED BY CALIFORNIA' FAILURE TO SUBMIT ANY TMDLs FROM 1979 THROUGH 1994.

1. EPA’s Eleventh Hour Re-Characterization of it’s § 303(d) Compliance History Does Not Raise any Issue of Material Fact.

 

EPA’s Opposition relies almost exclusively or its May 5, 2000 "Program Review" of California’s Section 303(d) program. The Review is not sufficient evidence to overcome plaintiffs’ motion for summary judgment. The Review and the documents it references do not help defendant, but instead support plaintiffs’ motion for summary judgment.

a. The Review is Inadmissible Hearsay.

EPA’s Program Review is mostly inadmissible hearsay which Plaintiffs move to strike. The Program Review includes two components: (1) it sets forth a record of EPA’s May 5, 2000 determination that it need not establish TMDLs in California; and (2) it makes representations about the history of California’s and EPA’s efforts to establish TMDLs in the state. These representations are offered for the truth of the matters asserted therein and are therefore inadmissible hearsay. Therefore, Plaintiffs move to strike the Review.

b. The EPA has Submitted No Evidence That EPA Approved TMDLs prior to 1994.

 

Even if the Program Review is admissible to prove the truth of the matters asserted therein, many of those assertions are demonstrably false. For example, no TMDLs were ever submitted and/or approved by EPA in the 1970's and 1980's. EPA’s assertion that some uncertain number of TMDLs were submitted and approved is directly contradicted by EPA’s own documents. The EPA offers no evidence whatsoever for its bald assertion that it "reviewed and approved" TMDLs prior to 1986. See EPA Brief at 7, line 13. In addition, EPA concedes that no TMDLs were submitted by the state to EPA between 1987 and 1993. EPA Brief at 7, line 19. Therefore, EPA has not satisfied its evidentiary burden to show that its duty to establish TMDLs was not triggered.

(1) 1979 through 1986

Table A-1 on page 45 of the Review shows that prior to 1980 not one of the state’s Basin Plan submissions "met" 303(d) requirements for listing water quality limited segments or developing TMDLs. The Review’s textual reference on page 47 to EPA approval of "TMDLs" in these pre-1980 Basin Plans appears to have been invented of whole cloth; it is unsupported and inconsistent with Table A-1. Where they can be found, the actual EPA review documents for the Basin Plan submissions discussed on page 47 show that no TMDL approvals occurred.

For example, EPA’s Review claims that EPA "approved" a TMDL in connection with the 1975-1976 basin plan for San Francisco Bay, citing an April 16, 1976 letter from Paul De Falco, EPA Region 9, to Governor Brown ("De Falco SF letter"). Prog. Rev. at 44. In fact, Enclosure 4 to the DeFalco letter indicates, contrary to EPA’s assertion, that the basin plan does not meet the requirements of then current TMDL regulations at 40 C.F.R. § 131.11 (f)(1), (f)(3) and (g)" ((See Plaintiffs’ Supplemental Request For Judicial Notice ("SRJN") Exh. P.) (At that time the regulations at 40 C.F.R. § 131.11(f)(1), (f)(3)and (g) set forth various requirements for the states’ submission of TMDLs to EPA. The earlier versions of these regulation are substantively similar to the current version. (See SRJN, Exh. P.))

The other TMDLs that EPA’s review claims to have unearthed from the mid-1970's are equally inconsistent with the actual record. EPA makes brief reference to an alleged TMDLs submitted in 1975-76 for the Santa Ana River (Reach 3) and in the San Diego Region. Prog. Rev. at 47. Despite the "inferred" TMDLs in San Diego recently discerned by EPA staff (id.), a quick review of the EPA letter which EPA asserts approved those TMDLs, again shows exactly the opposite. On July 26, 1976, EPA Region 9 found that the basin plan for San Diego did not meet the applicable TMDL regulations. Letter from Paul De Falco, EPA Region 9, to Gov. Edmund G. Brown, Jr., Enclosure 4 (July 26, 1976) (SRJN, Ex. Q).

EPA’s assertion that a TMDL covering four pollutants in the Santa Ana River, Reach 3, was submitted and approved also finds no support in the record. Prog. Rev. at 47. Again, it is clear from the plain terms of the EPA letter setting forth the results of its review of the 1975 Santa Ana River Basin Plan that EPA did not approve any TMDLs within that region. Letter from Paul De Falco, EPA Region 9, to Gov. Edmund G. Brown, Jr., Enclosure 4 (May 7, 1976) ("De Falco SA Letter") (addressing the 1975 Santa Ana River Basin Plan) (SRJN, Ex. R). The letter, at best, notes that 40 C.F.R. §§ 131.11(b), (f) & (g) "have been addressed." Id., Encl. 4. The letter specifically does not find that the Santa Ana plan either meets or does not meet those regulations. Id. Nor does that letter make mention of any such TMDL or its merits or demerits. Id.

Table A-2 on page 46-47 of the Review contains hearsay quotations from EPA letters purporting to approve certain Basin Plans between 1980 and 1986. The quotations are apparently from form-type letters, repeating the same EPA refrain for different Basin Plans. The quotations do not mention TMDLs at all. Instead they generally reference section 303(d). Some make passing reference to undisclosed "waste load allocations." Id. The quoted language does not state or imply that EPA’s findings with respect to waste load allocations are intended to be surrogates for EPA approvals of TMDLs. EPA does not point to a single TMDL capable of EPA review.

For example, one of the letters referenced in Table A-2 of the Review shows that EPA’s approval had nothing to do with any TMDL. Table A-2 lists an "EPA Approval" dated June 22, 1984, for a basin plan amendment in the San Diego Region. The actual letter is attached as Exhibit S to plaintiff’s SRJN. Letter from Judith E. Ayres, EPA Region 9, to Carole A. Onarato, SWRCB (June 22, 1984) ("Ayres Letter"). That letter reviews basin plan amendments described in SWRCB Resolution No. 84-15 and RWQCB, San Diego Region, Resolution No. 83-04. SRJN, Exhibits T & U. Not only did that basin plan amendment have nothing to do with the state submitting a TMDL to EPA for review, it is instead a resolution to allow for exceptions to the San Diego Region’s water quality standards for nutrients. Id.

In sum EPA relies on hearsay and vague, post hoc rationalizations because the actual record supports Plaintiffs' position. The EPA lack of specific factual evidence supporting EPA's assertion that it approved TMDLs in connection with the 1975-76 Basin Plan reviews and through 1986 is stunning. EPA’s strained reading of its own record provides no material guidance to the Court and, at best, may raise only "metaphysical doubt" as to the material facts presented by BayKeeper. See Matsushita v. Zenith, 475 U.S. 574, 585 (1986).

(2) 1987 through 1994

EPA admits that "[n]o TMDLs were submitted between 1987 and 1993. . . ." EPA Brief at 7, line 19. Actually, as EPA acknowledges, California's first submission for review as a TMDL in the 1990's occurred on November 9, 1994. See Pls. Br. at 14 (describing the State’s "Final Report in Support of Development of a TMDL for Inorganic Nitrogen for the Santa Ana River"); EPA Brief at 7, lines 23-24. See Part II.B.2, infra. Accordingly, EPA’s contention that it reviewed and approved TMDLs prior to 1994 is entirely unsupported.

2. California’s Failure to Include Any TMDLs in Any § 303(d) Submission Through 1994 Triggered EPA’s Duty to Establish TMDLs for All Impaired Waters in California.

 

EPA does not dispute that it has a nondiscretionary duty under section 303(d) when a state constructively submits no TMDLs. EPA Br. at 10-11. There is no genuine factual dispute that California submitted no TMDLs to the EPA from the inception of the CWA (October 18, 1972) through November 9, 1994. (As explained in Plaintiffs’ opening brief, California made eight § 303(d) submissions in this period: 1980, 1982, 1984, 1986, 1988, 1991, 1992, and June, 1994. (Pls. Brief at 6-10.)) The Ninth Circuit held that "the established wrong is the failure of EPA to take any steps to establish the TMDLs mandated by Congress for more than a decade." 20 F.3d at 986. In the ACE cases, that duty was triggered by Alaska’s constructive submission of no TMDLs for 11 years. Here, the same inaction by California through 1994 triggered the EPA’s nondiscretionary duty to establish TMDLs for California’s WQLSs.

EPA's contention that EPA’s and the State’s past noncompliance with section 303(d) is irrelevant to the question of when EPA’s section 303(d) duties were triggered is inconsistent with the ACE decisions. Those cases make clear that the state’s failure to submit any TMDLs by the statuory deadline triggers the EPA's duty to establish TMDLs. "Under § 303(d), states are required to submit lists of water quality limited segments and TMDLs to the EPA at certain times; the first such submission was due by June 26, 1979. Once such a submission is made, certain mandatory duties by EPA are triggered. ACE I, supra, 762 F.Supp. at 1424 (emphasis added). See id. at 1429 ("Section 303(d) expressly requires EPA to step into the states’ shoes if their TMDL submissions or lists of [WQLSs] are inadequate. It is consistent to conclude that the ‘inadequacy’ of a submission includes deliberate, silent inaction."). In ACE I, an 11 year delay by the State of Alaska to submit any TMDLs to EPA triggered EPA’s mandatory duty to establish Alaska’s TMDLs. California’s eight submissions from 1980 through 1994 included "deliberate, silent inaction" as regards the establishment of TMDLs.

In ACE III, the Ninth Circuit confirmed the obvious, that nondiscretionary duties, in order to be ripe for enforcement, by definition, must already have been triggered by specific past triggering events or the passage of deadlines. "Read in light of common sense and the fact that Congress set out such short time lines in this section, . . . Congress intended that EPA's affirmative duties be triggered upon a state's failure to submit a list or any TMDL at all. 20 F.3d at 983 (quoting with approval ACE I, 762 F.Supp. at 1427) (emphasis added).

3. EPA Is Violating a Current Ongoing Nondiscretionary Duty.

 

The EPA argues that its mandatory duty to establish TMDLs under § 303(d) "no longer exists." (EPA Brief, 3, 10.) This "duty-evaporation" theory defies logic and is inconsistent with the Ninth Circuit’s ruling in ACE III. Id. at 10-11. EPA’s argument ignores the fact that once California’s inadequate or nonexistent TMDL submissions triggered its nondiscretionary duty to establish TMDLs, the Agency was no longer free to resume its discretionary monitoring role in California’s TMDL program. Instead, EPA became the primary player, responsible for establishing TMDLs for all WQLSs listed by the state. EPA cannot rely on the mere passage of time or token state compliance efforts as justification to resume its pre-trigger role of sitting on the side lines.

EPA’s argues that the Court should look only at what the state and EPA are doing now, citing the recent District Court decision in NRDC v. Fox, 93 F.Supp.2d 531, 696. EPA’s argument is misplaced. The decision in NRDC v. Fox merely points out that just because EPA violated the CWA in the past does not mean that its current conduct is in violation. However, the EPA takes this language out of context. In NRDC v. Fox the Court had already dismissed the plaintiffs’ CWA claim based on a "constructive submission of no TMDLs" theory because the Court held that the EPA had discretion to decide at what point a state’s "intransigence" amounts to a constructive submission of no TMDLs. This result is inconsistent with the Ninth Circuit’s view of "constructive submission" in ACE III, which is that it triggers a nondiscretionary duty to establish TMDLs.

More important, NRDC v. Fox no longer involved any issue relating to an outstanding, nondiscretionary § 303(d) EPA duty triggered by the state missing past deadlines. Under ACE III, that issue is alive and well in this case. Indeed, neither EPA nor the decision in NRDC v. Fox cite any authority for the proposition that a nondiscretionary duty, once triggered, can be extinguished by later actions that fail to discharge that duty. As the Court in NRDC v. Fox observed, "the remedy is implicit in the breach: the Court must compel EPA’s compliance with its statutory mandate." Id. at 536.

It is well established in this Circuit that duties triggered by events in the past are enforceable under applicable citizen suit provisions where the violations are continuing. In Coalition for Clean Air v. EPA, 971 F.2d 219 (9th Cir. 1992) the Ninth Circuit held that a mandatory EPA duty, once triggered, is not extinguished by intervening amendments to the statute bearing on the Agency’s implementation of its duty. Id. at 225. The Court recognized that events related to "what happens after EPA’s duty [to act] has been triggered" do not bear on the issue of "when EPA’s duty is triggered." Id. Likewise, EPA’s reliance on 17 purported TMDLs that have been submitted by California since 1994 (only leaving about 1470 TMDLs to go) is misplaced. EPA Br. at 13, ln. 3. Whatever the merits of those "TMDL" submissions, they all occurred subsequent to EPA’s duty being triggered. Hence, although they may very well "affect what happens after EPA’s duty . . . has been triggered" by reducing by a very small amount the number of TMDLs required to be established, those later submissions do not bear on when EPA’s duty was triggered.

4. To Date, Neither EPA Nor the State Has Complied with Section 303(d)’s Mandate to Establish TMDLs for All Impaired Waters.

 

It is undisputed that neither California nor the EPA have established TMDLs for all WQLSs in the state. EPA admits that the duty to establish TMDLs extends to all WQLSs. EPA Brief at 3, ln. 22-23. Even if we assume, arguendo, that EPA is correct that California has about 20 out of 1471 TMDLs (Prog. Rev. at 10 & 14, Tables 2 & 4), this represents a mere 1.4% of the TMDLs included in the 1998 schedule. (Pl. Opening Br. at 12.) Congress called for any more stringent water quality-based effluent limitations to be achieved by July 1, 1977, the achievement of fishable and swimmable waters by July 1, 1983, the elimination of pollutant discharges to the navigable waters by 1985, and the establishment of TMDLs for all WQLSs beginning in June, 1979 and from time to time thereafter whenever the state updated its impaired waters list. 33 U.S.C. §§ 1311(b)(1)(C); 1251(a)(2); 1251(a)(1); 1313(d). With only 1.4% of the mandated TMDLs arguably completed; a "tentative" schedule extending out for at least another 11 years or longer and evidence that the state is already slipping from its tentative schedule, "compliance" is not an accurate description of the state of TMDL affairs in California. As the Court in ACE I recognized, EPA’s nondiscretionary duty to establish TMDLs is triggered by "inadequate" state § 303(d) submissions as well as nonexistent submissions. ACE I, supra, 762 F.Supp. at 1429.

5. EPA’s Violation of § 303(d) is Likely to Continue Absent Judicial Intervention.

EPA relies inappropriately on state plans for future TMDL development as grounds for denying plaintiffs’ motion. Where, as here, EPA’s 303(d) duties have already been triggered, State promises of future compliance do not alter EPA’s role as the Agency responsible for establishing TMDLs. This is especially true where, as here, the state’s schedule is tentative and has already been repeatedly violated.

a. California’s schedules are "tentative."

In ACE III, the Ninth Circuit, affirming the district court’s injunctive relief order despite the presence of a Memorandum of Understanding between EPA and the State of Alaska setting forth a TMDL scheduling agreement, held that "standing alone[,] the MOU will not secure faithful compliance with the CWA." ACE III, 20 F.3d at 987. Even that deficient level of assurance is not present in California, as no such MOU has ever been signed between California and EPA. EPA acknowledges that the state submitted a schedule, albeit one replete with caveats. Prog. Rev. at 10 ("[t]he schedules in the 303(d) list and WMI chapters generally include caveats which indicate the schedule is conditioned on provision of sufficient or additional resources"). Indeed, every regional water quality control board in California included strong language attesting to the tentative nature of their identified schedules. Pl. Br. at 12-13, n. 8 and accompanying text. In addition, there are no schedules of any kind for the 37 WQLSs added by the EPA to the state’s 1998 list of WQLSs.

b. EPA admits that California has failed to meet its prior TMDL schedules submitted in 1992, 1994 and 1996.

EPA fails to dispute the material facts cited in plaintiffs’ opening brief that the state did not meet the schedules for priority TMDLs it supposedly established for itself in 1992, 1994 and 1996. Pl. Br. at 9 ("The State’s [1992] submission did identify 28 WQLSs targeted for TMDLs in the 1992 submission.[and] [t]he State did not complete any TMDLs for any of the 28 WQLSs within two years of the State’s [1992] submittal") (citations omitted); Pl. Br. at 11 ("The State has never submitted any TMDLs to EPA consistent with the timelines put forth in the 1994 submission") (citation omitted); Pl. Br. at 11-12 (In May, 1996, "the State identified 52WQLSs as targeted for TMDL development" within two years, but submitted no TMDLs as of its June 25, 1998 section 303(d) submission). See also Prog. Rev. at 13 ("Prior to 1998, . . . EPA was less successful in working with the State to bring TMDLs to timely completion and adoption by the State").

Similarly, a comparison of the state’s 1998 TMDL schedule with prior timelines established in 1996 and 1994 demonstrates a continuing pattern by the state of continually extending many dates by which it claims TMDLs will be completed. Based on EPA’s own analysis, the State’s 1998 schedule should have resulted in 70 completed TMDLs by the end of 1999. Prog. Rev. at 14, Table 4. However, as of June 2000, the most TMDLs EPA’s Review can discern since 1993, even assuming the most generous count in favor of EPA, is no more than 21 TMDLs submitted by the State, 18 of which address three pollutants in a single watershed, Upper Newport Bay, Lower Newport Bay and its tributary San Diego Creek. Prog. Rev. at 4, Table 1; Id. at 21 ("[s]ince 1993, 20 TMDLs have been submitted for EPA approval"). The state should have submitted 86 TMDLs by now in order to stay close to its timelines. See id., Tables 1 and 4: Supp. Lozeau Decl. ¶ 4. By comparing the 1998 TMDL schedule with the progress reported by EPA, plaintiffs count 97 TMDLs that were not completed the California by its own deadlines in the 1998 impaired waters list. (Lozeau Supp. Dec’l, ¶ 4-5.) Of those 97 overdue TMDLs, only one has been submitted to EPA - a selenium "TMDL" for Salt Slough. Pl. Br. at 16 n. 11; Prog. Rev. at 4, Table 1.

The only portions of the schedules that EPA has complied with are those established in court-signed consent decrees. All 15 of the WQLSs identified by EPA as having had TMDLs established by the state since 1997 are included in one of two of the three consent decrees entered into by EPA. (Lozeau Supp. Dec’l, ¶ 7.) Of the 28 TMDLs which EPA claims in Table 1 of the Review to have established since 1997, 27 were pursuant to two of the three consent decrees. (Lozeau Supp. Dec’l, ¶ 8.)

The state’s failure to complete TMDLs on schedule is certain to get worse, given EPA’s observation that the initially scheduled TMDLs were "conservative" (Prog. Rev. at 16) and the pace for TMDL completion accelerates over time (Id. at 14). Without a statewide scheduling order, it is virtually guaranteed that the state and EPA will continue to fail to keep pace with their own self-imposed timelines.

6. EPA’s Defense That § 303(d) Allows California to Submit Separate Lists of WQLSs and TMDLs Is Incorrect and Irrelevant.

 

The EPA argues that § 303(d) allows California to Submit Separate Lists of WQLSs and TMDLs. For the most part this argument is irrelevant, because regardless of whether a state’s identification of WQLSs may be set forth in a separate document and at an earlier time than the state’s establishment of TMDLs, § 303(d) still requires the TMDLs by a date certain. According to EPA’s argument, the "priority ranking" language of § 303(d)(1)(C) trumps the language requiring a "margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality" and the specific deadlines in § 303(d)(2). EPA cites no authority for this proposition, and in fact it is contrary to the plain language of the statute. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984).

Section 303(d)(2) provides:

[e]ach State shall submit to the Administrator from time to time, with the first such submission not later than [180] days after [December 28, 1978], for his approval the waters identified and the loads established under [Sections 303(d)(1)(A)-(D)]. The Administrator shall either approve or disapprove such identification and load not later than thirty days after the date of submission.

 

33 U.S.C. § 1313(d)(2) (emphasis added). This language makes plain that the states are to submit a single submission, beginning on June 26, 1979 and "from time to time" thereafter, which submission includes two components - the state’s identification of WQLSs and the TMDLs "established for the waters identified." Id.; 33 U.S.C. § 1313(d)(1)(A)-(D). Contrary to EPA’s blind assertion that "[n]othing in section 303(d) requires states to submit TMDLs to EPA at the same time that they submit their lists of WQLS[s]," Section 303(d)(2) cannot be read to require anything but their concurrent submittal.

This intent is consistently expressed in § 303(d)(2):

If the Administrator approves such identification and load, such State shall incorporate them into its current plan under subsection (e) of this section. If the Administrator disapproves such identification and load, he shall not later than thirty days after the date of such disapproval identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters and upon such identification and establishment the State shall incorporate them into its current plan under subsection (e) of this section.

 

33 U.S.C. § 1313(d)(2) (emphasis added). The link between lists of WQLSs and TMDLs is conjunctive, not disjunctive; thus, both are required by the deadline.

EPA’s assertion that the Ninth Circuit’s "paraphrase of the statutory requirements" is nonetheless "inapposite" fails to pay proper deference to that controlling court’s opinion. Indeed, the Court of Appeals "paraphrase" of the section 303(d)’s submission requirement only underscores the plain meaning of the Act:

The Act requires the states to develop these lists of [WQLSs] and TMDLs and submit them to the EPA periodically; however, the first such submission was due no later than June 26, 1979. [footnote omitted]. Upon receipt of the state’s listings, the CWA requires the EPA to review the state’s submissions within 30 days and either approve or disapprove them. If the EPA disapproves of the state’s identification of [WQLSs] or its listing of TMDLs, the agency must establish its own list of [WQLSs] and TMDLs within 30 days.

 

ACE III, 20 F.3d at 983 (emphasis added). Rather than cast doubt on Congress’ words, their meaning is obvious to the Ninth Circuit – a submission to EPA must include both a state’s WQLSs and the requisite TMDLs. Id. See also id. at 982 (approving the analysis in ACE I, supra, holding that the states omission of either component is grounds for disapproval, triggering EPA’s mandatory duty to establish its own WQLSs and TMDLs within 30 days.)

The EPA attempts to avoid § 303(d)’s plain language by arguing that § 303(d)(1)(C)’s requirement that the states establish a TMDL for each WQLS "in accordance with the priority ranking" renders it impossible for the state to submit the resulting "waters identified and the loads established" in the submission called for by § 303(d)(2). EPA Br. at 17. EPA misconstrues Plaintiffs’ argument and the plain language of § 303(d), claiming that "[i]f TMDLs for all waters had to be established immediately upon listing, the statutory provision requiring priority rankings would be meaningless." Id. BayKeeper is not arguing, nor does the statute require, that a state establish its WQLS list and the accompanying TMDLs at the same time. The statute clearly expects a state to first establish its list and then establish its TMDLs for each of the identified WQLSs. 33 U.S.C. § 1313(d)(1)(A)-(D). However, the statute clearly mandates that the state then submit those two components to EPA as a single submission for approval or disapproval. 33 U.S.C. § 1313(d)(2).

Any "priority ranking" established for a list of WQLS must be consistent with Congress’ deadlines. Any definition of the term priority ranking cannot rewrite those deadlines or otherwise provide excuses for a state or EPA to avoid the establishment of the required TMDLs. From the initial passage of the Act on October 18, 1972 until the initial deadline of June 26, 1979, for submitting WQLSs and their accompanying TMDLs to EPA, the states had a total of almost seven years to both identify their list of waters and then establish TMDLs for those waters, consistent with whatever priority ranking the state identified. The states had to complete the two components and submit them together to EPA by June 26, 1979. See ACE III, 20 F.3d at 983. Once the states complied with that initial deadline, they were then free to update both their list and the accompanying TMDLs, again according to their priority ranking, and submit both of those mandated components to EPA from time to time. After the 1992 EPA regulations were enacted, the states still had a two year period during which to identify waters and prepare TMDLs for those WQLSs consistent with their priority ranking, before submitting those components together to EPA.

Those time periods are consistent with Congress’ deadlines and timeframes established for preparing the WQLS lists and TMDLs. Far from rendering any portion of Section 303(d) "meaningless," adherence to Congress’ mandate that WQLSs and TMDLs be submitted to EPA concurrently better assures that the states and EPA comply with Congress’s deadlines and quickly achieve the water quality improvements that Congress intended to achieve by July 1, 1983 and 1985. 33 U.S.C. §§ 1251(a)(2), (1).

In ACE I, EPA conceded that where a state submitted a TMDL based on a complete lack of credible data, or affirmatively refused to establish any TMDL at all, EPA would clearly have a mandatory duty to establish a TMDL within the 60 days prescribed by Section 303(d) (30 days to disapprove and 30 days to establish). See ACE I, 762 F.Supp. at 1428. Although plaintiffs would concur that such a fast establishment of a TMDL may not result in the best TMDL ever produced, that scenario clearly evidences Congress’ intent that TMDLs need not be multi-year efforts and could be done by a state promptly upon its identification of WQLSs and prior to submitting the WQLSs and accompanying TMDLs to EPA consistent with the timelines of Section 303(d). For this reason, Congress’ included a provision for a "margin of safety" to allow states and the EPA the means to establish valid TMDLs in the face of incomplete information and inadequate funding. See ACE I, 762 F.Supp. at 1429, n. 8; Idaho Sportsmen’s Coalition v. Browner, 951 F.Supp. 962, 966 (W.D.Wash. 1996); Sierra Club v. Hankinson, 939 F.Supp. 865, 871 (N.D.Ga. 1996).

Because Section 303(d)’s language is unambiguous, EPA’s interpretation allowing late TMDL submissions is not entitled to any deference. Chevron U.S.A., Inc. v. NRDC, supra, 467 U.S. at 842-43. Also, because EPA’s interpretation (at 43 Fed,. Reg. 60,662, 60,664) (EPA Brief 18) is not the result of a formal rulemaking it would not "warrant Chevron-style deference" even if the statute were ambiguous. Christensen v. Harris County, 120 S. Ct. 1655, 1662, 146 L. Ed. 2d 621 (May 1, 2000.). Moreover, since the statute is unambiguous, resort to the legislative history is unnecessary. Darby v. Cisnerus, 509 U.S. 137, 147 (1993).

Nevertheless, the legislative history of the CWA says nothing that would change the result. However, EPA ignores the pertinent legislative history describing Section 303(d), instead attempting to make the floor statements of an individual legislature appear to be statements found in the Conference Report for the bill. EPA Br. at 5, n. 1 ("Conference Report . . . articulated. . ."); 17 ("The Conference Report discussion. . ."). In fact, the statement of individual Senators are not persuasive, as "It is the official committee reports that provide the authoritative expression of legislative intent. . . ." In re Kelly, 841 F.2d 908, 912 n. 3 (9th Cir. 1988). The actual Conference Report prepared for the Act states: "The State is to submit to the Administrator from time to time the waters so identified and loads so established. The Administrator is to approve or disapprove the identification and load within 30 days after submission." Senate-House Conference Committee Report on S. 2770, House Report 92-1465, Senate Report 92-1236 ("Conf. Rep."), at 122 (Sept. 28, 1972). Hence, the Conference Report is consistent with the plain language of the Act. For a more complete discussion of the legislative history of Section 303(d), see Houck at 10-14 (Pl. Ex. B).

Although "[s]tray comments by individual legislators, not otherwise supported by statutory language or committee reports, cannot be attributed to the full body that voted on the bill," (In re Kelly, 841 F.2d at 912 n. 3), even Mr. Muskie’s statement cited by EPA is not inconsistent with the plan language of section 303(d). EPA ignores the introduction to Mr. Muskie’s comments, which states that "In agreeing to continue a water quality standards program, we do not intend to duplicate or delay the new regulatory provisions of the legislation." One such new regulatory provision was section 303(d). See Conf. Rep. at 123 (discussing the conference substitute for section 303, "This is the same as the provision [Section 303] in the House amendment, with the following exceptions," then describing the requirements of section 303(d)). Moreover, as explained in plaintiff’s Opposition to EPA’s Motion to Dismiss, Section 303(d) mandates the establishment of water quality-based effluent limitations - a critical part of the "effluent limitation-permit program" which Mr. Muskie emphasizes that the Senate seeks to prioritize.

7. Judicial Intervention Will Not Disrupt the Federal/state Partnership Established by the Act

 

By agreeing to three consent decrees for discreet portions of the state’s waters, EPA already has made a de facto determination that its efforts are necessary if any timely TMDLs are to be established in those areas. See EPA Br. at 8-9. Moreover, EPA’s agreements to carry out its nondiscretionary duties for those discreet areas has not in any way disturbed the state/federal partnership created by Congress to implement the mandates of the CWA. See Coalition for Clean Air, 971 F.2d at 226-227 ("The [CAA] creates ‘a federal-state partnership for the control of air pollution,’ which continues after EPA’s obligation to promulgate a FIP [Federal Implementation Plan] has been triggered."). Indeed, those are the only areas of the state where progress on TMDLs has arguably been made, albeit only in the last few years. As the Ninth Circuit held:

. . . for CWA regulatory purposes, all waters within a state are interrelated. It would be contrary to congressional directive to permit individual plaintiffs or a federal court to deal with only a fraction of the waters and, in effect, impose their own prioritization upon the EPA by limiting the scope of an ordered remedy to specific streams of paramount concern to the parties before the court.

 

ACE III, supra, 20 F.3d at 985. Here, there is no rational basis for EPA to establish TMDLs on a specific, enforceable schedule only in the three regions affected by the previous consent decrees.

8. EPA Does Not Dispute That the Agency Has Never Approved or Disapproved the State’s Six TMDL Submissions Made from 1980 Through 1991.

 

Plaintiffs ask the Court, in the alternative, to enforce EPA’s duty to approve or disapprove the six submissions made by the state from 1980 through 1991. EPA’s response does not dispute the fact that EPA has never approved or disapproved those section 303(d) submissions, despite the Act’s 30 day deadline to do so. EPA had no alternative but to disapprove those inadequate submissions because they failed to include TMDLs or any plan to establish TMDLs for the identified WQLSs. EPA’s failure to carry out its review duties has left California’s waters more seriously impaired than ever and decades behind the cleanup schedule established by Congress. Plaintiffs request the Court to find that EPA failed to approve or disapprove those state submissions, order EPA to disapprove those six submissions and proceed to establish, on a Court-approved schedule, TMDLs for all WQLSs in California.

9. EPA Does Not Dispute That the Agency Disapproved the State’s 303(d) Submissions in 1992, 1994 and 1998.

 

The EPA has introduced no evidence disputing the facts that the Agency disapproved the state’s § 303(d) submissions in 1992, 1994 and 1998 yet failed to establish TMDLs within 30 days. C. EPA HAS NOT RAISED ANY ISSUE OF LAW OR MATERIAL FACT TO DEFEAT PLAINTIFFS ALTERNATIVE REQUEST FOR SUMMARY JUDGMENT UNDER THE APA.

 

1. EPA’s Prior Failure to Find That the State Had Constructively Submitted No TMDLs by 1994 Violates the APA. Consequently, EPA’s Continuing Failure to Establish TMDLs for Listed Waterbodies Violates Section 303(d) and the APA.

 

EPA’s defense to Plaintiffs’ APA claims suffers from the same flaw as its efforts to avoid its mandatory duties under section 303(d). Defendant focuses on present conditions only, ignoring past events that fundamentally changed the Agency’s present and continuing duty. For reasons described in detail in plaintiffs’ opening brief and above, the record shows that no TMDLs were ever submitted by the state or approved by EPA prior to 1994. As discussed above, this period of chronic default triggers EPA’s mandatory duty to establish TMDLs for listed waters.

Alternatively, EPA’s failure at that time to find that the state had constructively submitted no TMDLs or that its submissions were inadequate is arbitrary and capricious and/or agency action unlawfully withheld or unreasonably delayed. Consequently, EPA’s continuing failure to establish TMDLs for listed waterbodies violates section 303(d) and is also arbitrary and capricious and/or agency action unlawfully withheld or unreasonably delayed. See Plaintiffs’ Opening Brief at 28-29. Moreover, the state’s historic pattern of recalcitrance has continued and is likely to continue in the future. In light of the state’s ongoing default EPA’s refusal to intervene is unreasonable and violates the APA. See Plaintiff’s Opening Brief at 28-29.

2. EPA’s Failure to Disapprove the State’s 303(d) Submissions Between 1980 and 1998 Violates the APA.

 

As discussed above, the absence of TMDLs in the state’s biennial section 303(d) submissions since 1980 triggered EPA’s statutory duty to disapprove the submissions and establish TMDLs. Alternatively, failure to disapprove these submissions violates the APA because it is arbitrary, capricious and/or agency action delayed or unreasonably withheld.

D. EPA’S APPROVALS OF SUBMITTALS AS TMDLS FOR THE SANTA ANA RIVER, REACH 3, AND THE LAGUNA DE SANTA ROSA WERE ARBITRARY AND CAPRICIOUS AND INCONSISTENT WITH LAW

 

1. Plaintiffs Have Standing to Challenge the Two TMDL Approvals.

Defendants incorrectly argue that plaintiffs do not have standing to challenge EPA’s approval of the Santa Ana and Laguna de Santa Rosa TMDLs. Defendant’s standing argument ignores the Ninth Circuit’s ruling in ACE III. There the Court addressed the standing issue head on and held that, for purposes of 303(d) enforcement "all waters within a state are related." 20 F.3d at 985. Hence, a showing by plaintiffs that they have been "adversely affected by the inadequate water quality of a representative number of waters throughout the state" is sufficient to establish standing in a suit involving section 303(d). Id. Here plaintiffs have submitted 10 declarations of members establishing "injury in fact" with respect to numerous representative waterbodies throughout the state. Defendant does not contest the veracity of these declarations. Nor does EPA argue that these declarations are insufficient to establish standing on plaintiffs’ other claims.

Plaintiffs’ lawsuit challenges EPA’s failure to fulfill its duties to establish TMDLs throughout California. EPA invokes its approval of the Santa Ana and Laguna de Santa Rosa TMDLs as a shield to enforcement of these duties. Plaintiffs primary response to this argument is that EPA’s duty to establish TMDLs for the remaining listed waters is not eradicated by the Agency’s post-trigger approval of a few TMDLs, regardless of the legality of those approval decisions. In the alternative, plaintiffs seek a ruling that EPA’s approvals of the Santa Ana and Laguna de Santa Rosa were illegal and therefore do not in any way affect the Agency’s duties to establish TMDLs for the remainder of the state. Plaintiffs’ challenge to these particular TMDLs is inextricably linked to its overall challenge to EPA’s implementation of section 303(d) in California. Therefore, having shown that they have been "adversely affected by the inadequate water quality of a representative number of waters in the state" plaintiffs have standing to challenge the Santa Ana and Laguna de Santa Rosa TMDLs. ACE III, 20 F.3d at 985.

Notwithstanding the above, plaintiffs are submitting three additional standing declarations of persons who have "injury in fact" that is directly related to these particular waterbodies. See Declarations of Peter Molnar, Brenda Adelman and Brett Updyke filed herewith.

2. EPA Fails to Dispute That, on Their Face, the Two Actions Approved by EPA as TMDLs Do Not Meet the Criteria Established by Congress.

 

a. EPA fails to dispute the material facts demonstrating that EPA’s approval of a "TMDL" for the Santa Ana River, reach 3, was reasonable and consistent with Section 303(d).

 

EPA argues that plaintiffs relied on the wrong report in demonstrating that Santa Ana’s 1994 "tmdl"submission for nitrogen did not meet its own water quality objectives in reach 3 of the Santa Ana River. That is not true. Plaintiff’s opening brief relies on and cites to the 1994 Report, exactly the same report that is attached as Def.’s Exhibit 6 . Pl. Br. at 14, ln. 13; Pl. RJN, Vol. IV, Ex. 42. The 1994 Report states that the submitted wasteload allocation is based on "Alternative 5C-10," which was adopted by the Regional Board through a public hearing process on November 15, 1991. Report at 5 (AR 001800) (Ex. 42). Alternative 5C-10 was one of two alternatives recommended to the Board by the July 1991 Staff Report. ("1991 Staff Report") (Pl. 1st RJN, Ex. 48, p. 11.) As noted in Plaintiffs’ opening Motion, however, the 1991 Staff Report states clearly that neither of the recommended alternatives (one of which is Alternative 5C-10) will meet the water quality objective for nitrogen in reach 3 of the Santa Ana River.

To avoid this problem, EPA argues that the 1994 Report relied on "further analysis" and thus "superseded" the conclusions of the 1991 Staff Report that the WLAs set forth in Alternative 5C-10 would not meet the Basin’s water quality objectives. Def. Opp. Br., p. 22, l:20-22. The EPA, however, offers no support for this position. Instead, EPA cites to Table 5-5 of the 1994 Report, which simply repeats the staff’s computer modeling run for Alternative 5C-10 (reported in the 1991 Staff Report) that was part of the 1991 Board approval. Def. Opp. Br., p. 23, l:20-22. Pl. SRJN, Ex. V, p. 4, (Table 4-1); Report p. 8 (Table 5-5) (AR 001805) (Ex. 42). As discussed, however, the staff conclusion based on this modeling was that water quality objectives would not be met.

In sum, the EPA’s argument that the 1994 Report somehow represents a new "superseding" analysis is simply false. In submitting WLAs, the 1994 Report clearly relies on the Board’s 1991 adoption of the July 1991 Staff Report. The 1994 Report adopts the WLA alternative specifically recommended by the 1991 Staff Report.. Moreover, the 1994 Report explicitly incorporates by reference and relies on the 1991 Staff Report to support its compliance with the public participation requirements, Report at pp. 5-6 (AR 001804) (Ex. 42). Since the proposed WLAs thus do not meet water quality objectives, the EPA abused its discretion in approving them.

The remainder of EPA’s arguments are unavailing. Because the Regional Board adopted a "TMDL" that would not meet the nitrogen standards, it follows that the plan also did not include an adequate margin of safety. Moreover, EPA’s contention that the "TMDL" also includes limits on the total mass of inorganic nitrogen discharged to the river based on "design discharge values (i.e., the discharge volumes)" is refuted by the record. EPA Br. at 23. The Report itself states that "[t]he years 1995 and 2000 flow values are not intended as limits on POTW flows." Report at 4 (AR at 001801). See also State Board Agenda item (Feb. 5-6, 1992) (Pl. RJN 49, p. 2 ) ("This revised WLA is concentration-based and does not impose a cap on mass loads of TIN [total inorganic nitrogen]") (emphasis added).

Lastly, EPA does not reasonably refute the fact that the Report does not allocate any portion of the TMDL to nonpoint sources of nitrogen to the Santa Ana River. EPA cites to page 5 of the Report in support of its contention that "nonpoint sources were considered in developing the TMDL." EPA Br. at 23. Although the referenced page makes clear that nonpoint sources are contributing substantial quantities of nitrogen to the river, that fails to refute the fact that no allocations are attributed to them or even considered. Report at Table 5-5 (AR 001805). Since the 1994 Santa Ana WLA submissions were thus not TMDLs, EPA abused its discretion in approving them.

b. EPA fails to dispute the material facts demonstrating that EPA’s approval of a "TMDL" for the Laguna de Santa Rosa was not reasonable and consistent with Section 303(d).

 

EPA fails to refute the material fact that the "Waste Reduction Strategy for the Laguna de Santa Rosa" ("Strategy"), submitted as a proposed TMDL on May 4, 1995, states on its face that its implementation will not meet the ammonia and dissolve oxygen water quality standards during the summer. PL. Br. at 35; Strategy, p. 5 (Pl. RJN, Ex. 44). To deflect this glaring omission, EPA’s Brief raises post-hoc assertions that EPA’s approval of the Strategy as a TMDL was based on the belief that the. "Strategy would, in fact, achieve the standards because EPA believed that the Strategy overestimated the extent to which the ammonia and dissolved oxygen standards would be exceeded...." EPA Br. at 28, l:1-4. This assertion is, once again, unsupported by the record. Instead, EPA’s approval memo states:

Despite the fact that the Strategy does not establish an implementation plan which will meet the load reduction goals in the near term, the Strategy is consistent with TMDL requirements EPA Br., Ex. 11 at 5 (AR 000180) (emphasis added).

 

The EPA approval attempts to qualify the Strategy’s failure to meet its water quality goals in the summer by arguing for a "phased approach" to TMDL setting. Under the phased approach, "the expected exceedence of TMSL targets is unlikely to prevent significant improvements in summer water quality and cause significant impairment of beneficial uses." Id. at 4 (AR 000179). Despite the EPA’s arguments, however, the Clean Water Act does not support a "phase in" process for setting TMDLs. Thus, even if the standards adopted by the Strategy might not "prevent significant improvements" in summer water quality -- a highly debatable assertion in its own right -- such "improvements" would still not be equivalent to attaining water quality standards as required by section 303(d) and 40 C.F.R. § 130.7(c)(1).

Because the Strategy does not meet standards in the summer months, it obviously does not provide for seasonal variation. Likewise, if standards are expected to be violated throughout the summer, whatever margin of safety the regional Board claimed to include obviously is deficient at that time. Section 303(d)’s margin of safety calls for smaller TMDLs and more stringent load reductions in the absence of scientific certainty. EPA’s entire "phased" approach turns that statutory embodiment of the "precautionary principle" on its hand by instead allowing the lack of data to form a basis for projected violations of water quality standards in the Laguna for the whole summer. The court should reject such an approach.

E. EPA’S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE PLAINTIFFS HAVE NOT HAD TIME TO CONDUCT DISCOVERY WITH RESPECT TO EPA’S PROGRAM REVIEW

 

EPA cross motion for summary judgment should be denied because EPA’S program review was completed only days before plaintiffs’ opening brief was due. Plaintiffs have not yet had an opportunity to review new documents recently added to the administrative record or to conduct discovery relating to those documents.

Date: June 16, 2000 LAW OFFICES OF THOMAS N. LIPPE

 

By: ______________________________

Thomas N. Lippe

Attorneys for Plaintiffs