Michael R. Lozeau (142893)

Deborah A. Sivas (135446)

Earthlaw Environmental Clinic

553 Salvatierra Walk

Stanford, California 94305-8620

Telephone: (650) 725-4217

Facsimile: (650) 725-8509

Thomas N. Lippe (104640)

Law Offices of Thomas N. Lippe

One Market Plaza

Steuart Tower, 16^th Floor

San Francisco, CA 94105

Tel: (415) 777-5600

Fax: (415) 777-9809

Nora J. Chorover (151953)

Law Offices of Nora J. Chorover

515 Jackson Street

Albany, CA 94706

Tel: (510) 525-2223

Fax: (510) 525-6223

Leo O’Brien (171388)

San Francisco BayKeeper

Presidio Building 1004

P.O. Box 29921

San Francisco, CA 94129-0921

Tel: (415) 561-2299

Fax: (415) 561-2290

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO BAYKEEPER, et al., )

)

Plaintiffs, )

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v. )

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CAROL BROWNER, et al. )

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Defendants. )

/

No. C-00-0132 CAL

CALIFORNIA ASSOCIATION OF )

SANITATION AGENCIES, et al., )

)

Plaintiffs, )

)

v. )

)

CAROL BROWNER, et al. )

)

Defendants. )

/

No. C-00-0424 CAL

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

This brief is filed in support of plaintiffs’ Motion for Partial Summary Judgment on Claims 1, 2, 3 and 5 of their Proposed Second Amended Complaint. Plaintiffs seek a ruling that defendant Environmental Protection Agency ("EPA" or the "Agency") has violated its nondiscretionary duty under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (the "Clean Water Act" or the "Act") to establish Total Maximum Daily Loads ("TMDLs") for polluted waterbodies in California as required by section 303(d) of the Act, 33 U.S.C. § 1313(d). In addition, plaintiffs seek a ruling from the Court that EPA has violated its duty to establish those TMDL’s waste load allocations ("WLAs") as enforceable, water quality-based effluent limitations in the National Pollutant Discharge Elimination System ("NPDES") permits governing relevant "point sources." Lastly, plaintiffs seek an order finding that EPA violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, in approving several State submissions as TMDLs. Plaintiffs intend to request an appropriate remedy from the Court at a future date.

The State of California and defendant EPA have determined that more than 500 waterbodies throughout the state are unacceptably impaired by pollution. From dioxin contamination throughout San Francisco Bay to pesticide toxicity throughout the Sacramento-San Joaquin River Delta and pervasive fecal coliform contamination throughout the San Diego Bay region, the state’s waters are afflicted by over one hundred different pollutants. These polluted waters include thousands of miles of rivers, streams and coastline, and thousands of acres of lakes, reservoirs, ponds, bays, estuaries and wetlands.

Defendant EPA has failed to carry out its mandatory duties under Section 303(d)(2) of the Clean Water Act to implement a critical tool for reducing substantial water pollution in California. The Clean Water Act sets up a comprehensive regulatory program to ensure the expeditious cleanup of polluted waters. Section 303(d) of the Act sets forth a critical component of this regulatory scheme. At its core, the scheme requires a determination of how much a particular pollutant a waterbody can endure before its quality is impaired. This determination is known as a Total Maximum Daily Load calculation. The TMDL includes the establishment of "Waste Load Allocations" ("WLAs") and "Load Allocations" ("LAs") for sources of the pollutant to ensure that the sum of all sources to the waterbody not exceed the TMDL. EPA was to have established TMDLs, including WLAs and LAs, for affected waterbodies in California more than 20 years ago.

While the statute gives states the first opportunity to develop TMDLs, EPA is the agency with ultimate responsibility for ensuring implementation of the statutory scheme. For more than 20 years, EPA has been chronically in default of this duty. This default has resulted in a regulatory climate in which pollution has been allowed to spread and increase throughout California waters. As of the date this lawsuit, EPA was responsible for establishing, at a minimum, 1472 TMDLs for the hundreds of impaired waterbodies throughout California. Absent a ruling by this Court, Congress’ mandate will continue to languish, leaving many watersheds in California in a continued state of decline.

The objective of the Federal Water Pollution Control Act of 1972 ("Clean Water Act," "CWA" or "the Act") is to "restore and maintain the chemical, physical and biological integrity of the Nation's waters." CWA § 101(a), 33 U.S.C. § 1251(a). In order to achieve that objective, Congress established "the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985." 33 U.S.C. § 1251(a)(1); Alaska Center for the Environment v. Browner, 20 F.3d 981, 983 (9th Cir. 1994) ("ACE III"). Congress also established an "interim goal" that "wherever attainable, . . . water quality which provides for protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1, 1983." 33 U.S.C. § 1251(a)(2).

In order to achieve those important goals, Congress mandated, along with carefully coordinated deadlines, a two-pronged approach to prevent and clean up water pollution. Pronsolino v. Marcus, No. C 99-01828 WHA, slip op. at 6-7 (N.D.Cal. March 30, 2000) (Plaintiffs’ First Request for Judicial Notice ("Pl. 1^st RJN", Ex. A). First, the Act requires the Environmental Protection Agency ("EPA") and its state counterparts to adopt, apply and enforce technology-based limits on "point source" dischargers. See e.g., 33 U.S.C. §§ 1311(b)(1)(A)-(B), (b)(2)(A)-(F) and 1342(a). Second, in parallel with the minimum technology-based controls, the Act mandates the use of water quality-based discharge limitations known as total maximum daily loads ("TMDLs") to ensure that both point sources and nonpoint sources are being sufficiently controlled to achieve the water quality standards assigned to all waters. CWA § 303, 33 U.S.C. § 1313(d). The achievement of water quality standards is "one of the Act's central objectives." Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 1056 (1992).

Section 303(d) of the Act is the core program establishing the mandatory framework for cleaning up polluted waterbodies where technology-based pollution controls "are not stringent enough to implement" applicable water quality standards. 33 U.S.C. § 1313(d). See ACE III, 20 F.3d at 983.

A state's Section 303(d) submission must include a list of waters identified as impaired, referred to as "water quality limited segments" ("WQLSs"). 33 U.S.C. § 1313(d)(1)(A); 40 C.F.R. § 130.2(j) (Pl. 1^st RJN, Ex. B). WQLSs are any segment of a river, lake, estuary or other waterbody "where it is known that water quality does not meet applicable water quality standards, and/or is not expected to meet applicable water quality standards, even after the application of technology-based effluent limitations required by sections 301(b) and 306 of the Act." 40 C.F.R. § 130.2(j). The state must establish a priority ranking of the WQLSs. 33 U.S.C. § 1313(d)(1)(A).

A state's Section 303(d) submission also must include a total maximum daily load for each pollutant impairing the WQLSs. 33 U.S.C. § 1313(d)(1)(C). TMDLs must be established at levels stringent enough to assure the attainment of water quality standards for each of the state’s WQLS: "[TMDLs] shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality." 33 U.S.C. § 1313(d)(1)(C). See also 40 C.F.R. § 130.7(c). Pl. 1^st RJN, Ex. C. TMDLs also must be established in accordance with the priority ranking of WQLSs. 33 U.S.C. § 1313(d)(1)(C).

A TMDL is defined as "the sum of the individual waste load allocations ("WLAs") for point sources and load allocations for nonpoint sources and natural background." 40 C.F.R. § 130.2(i). A WLA is "the portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources of pollution. WLAs constitute a type of water quality-based effluent limitation." 40 C.F.R. § 130.2(h). A load allocation is "the portion of a receiving water's loading capacity that is attributed either to one of its existing or future nonpoint sources of pollution or to natural background sources." 40 C.F.R. § 130.2(g).

Because Congress intended for the TMDL program to work hand-in-hand with the Act’s technological controls to achieve standards by July 1, 1983 and eliminate pollutant discharges by 1985, Congress established expedited deadlines for the TMDL program. See, generally Houck, O., "TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean Water Act," 27 Envt’l L. Rptr. 10329 (July 1997) (Pl. 1^st RJN, Ex. D).

The Act requires states to submit its initial WQLSs and TMDLs to EPA "not later than 180 days after the date of publication of the first identification of pollutants" suitable for TMDLs and "from time to time" thereafter. 33 U.S.C. § 1313(d)(2). Congress intended for EPA to identify the pollutants suitable for TMDLs no later than October 18, 1973, one year after the passage of the Act. 33 U.S.C. § 1314(a)(2)(D). Congress therefore expected states to swiftly put TMDLs in place by April 1974. Id.

Section 303(d) requires states to make a submission to EPA, initially on a date certain and from time to time thereafter, that (1) identifies and lists waterbodies that do not meet water quality standards, 33 U.S.C. § 1313(d)(1)(A), and (2) establishes TMDLs for all listed waterbodies addressing each of their impairing pollutants. 33 U.S.C. § 1313(d)(1)(C). States were required to make the first submission to EPA of both their impaired waters list and the accompanying TMDLs by June 26, 1979. 33 U.S.C. § 1313(d)(2); ACE III, 20 F.3d at 983 ("the first such submission was due no later than June 26, 1979"). In addition to that initial deadline, states are required to make updated submissions "from time to time." Id. Upon receipt of a state’s submission, the Act requires EPA to review the submission within 30 days and either approve or disapprove it. Id. "If the EPA disapproves of the state’s identification of water quality limited segments or its listing of TMDLs, the agency must establish its own list of water quality limited segments and TMDLs within 30 days." ACE III, 20 F.3d at 983. See 33 U.S.C. § 1313(d)(2). When a state fails to submit the requisite TMDLs, that omission also triggers EPA’s duty to establish TMDLs. ACE III, 20 F.3d at 983-84. In sum, where a state has failed to comply with the Act, EPA has a duty to list WQLSs and establish TMDLs within 60 days of the state's submission deadline.

The administrative record in this case reveals a pattern of neglect by EPA of its duty to implement the Act’s core mechanism for protecting water quality in California. Despite numerous indications by the State, beginning in 1979, that no TMDLs were forthcoming, EPA’s oversight was limited for an entire decade to sitting idly by as the deadlines and mandates of Section 303(d) slid past. Likewise, throughout the 1990s, EPA was content to let the State continue to document the growing water pollution problems in California without taking the necessary actions to solve the problems through the establishment of TMDLs.

The State of California made its initial Section 303(d) submission to EPA on July 9, 1980. Letter from Clint Whitney, Executive Director, SWRCB, to Paul De Falco, Jr., Regional Administrator, EPA Region 9 (July 9, 1980) (Pl. 1st RJN, Ex. 1). The State made its initial submittal over one year after the Section 303(d) deadline. Id. See ACE III, 20 F.3d at 983 ("the first [303(d)] submission was due no later than June 26, 1979"). The 1980 submission identified 18 WQLSs. SWRCB, Water Quality Inventory for Water Years 1978 & 1980 at A-4 (April 1980) (Pl. 1st RJN, Ex. 2). California did not include any TMDLs in that submission for any of the identified WQLSs. Id. The State failed to include any schedule for the State to complete establishing TMDLs with the submission. Id. The State did not submit any TMDLs which it had established with its July 1980 submission. Id. Instead of approving or disapproving the State’s submission by August 8, 1980, as required by Section 303(d), EPA did nothing. (Declaration of Michael R. Lozeau in Support of Plaintiffs’ Motion for Partial Summary Judgment ("Lozeau Dec.") ¶ 5.) The Agency neither approved nor disapproved the State’s initial submission. Id. Nor did the EPA establish by September 7, 1980, any TMDLs for the WQLSs identified by the State, as required by Section 303(d)(2). Id.

This pattern of California making submissions without any TMDLs and EPA passively filing them away without approving or disapproving was replayed for the next 12 years. On September 16, 1982, California made a second 303(d) submission to EPA. Letter from Clint Whitney, Executive Director, SWRCB, to Sonia Crow, Administrator, EPA Region 9 (Sept. 16, 1982) (Pl. 1st RJN, Ex. 3). That submittal identified 19 WQLSs. SWRCB, Water Quality Inventory for Water Years 1980 & 1981 at A-4 (July 1982) (Pl. 1st RJN, Ex. 4). California did not include any TMDLs or any schedule for TMDL establishment by the State in that submission. Id. EPA never approved or disapproved the 1982 state submission, either by October 16, 1982, as required by the statute, or at any other time. (Lozeau Dec. ¶ 6.) EPA also did not establish by November 15, 1982, any TMDLs for the WQLSs submitted in 1982, as required by Section 303(d)(2). Id.

On May 31, 1984, California made its third 303(d) submission to EPA. Letter from Michael A. Campos, Executive Director, SWRCB, to Judith E. Ayres, Administrator, EPA Region 9 (May 31, 1984) (Pl. 1st RJN, Ex. 5). The State’s submission proposed to remove 5 WQLSs from the impaired waters list, identifying 14 WQLSs. SWRCB, Water Quality Inventory for Water Years 1982 & 1983 at 49 (June 1984) (Pl. 1st RJN, Ex. 6). California did not include any TMDLs or any schedule for TMDL establishment in that submission. Id. EPA never approved or disapproved the 1982 state submission, either by June 30, 1984, as required by the statute, or at any other time. (Lozeau Dec. ¶ 7.) EPA did not establish by July 30, 1984, any TMDLs for the WQLSs submitted in 1984, as required by Section 303(d)(2). Id.

On September 26, 1986, California made its fourth 303(d) submission to EPA. Letter from James L. Easton, Executive Director, SWRCB, to Judith E. Ayres, Administrator, EPA Region 9 (September 26, 1986) (Pl. 1st RJN, Ex. 7). The State’s submission proposed 28 WQLSs. SWRCB, Water Quality Assessment for Water Years 1984 & 1985 at 30-31 (June 1986) (Pl. 1st RJN, Ex. 8). The submission relisted three of the five WQLSs removed from the 1984 submission. Id. The submission identified 11 new WQLSs. Id. California did not include any TMDLs or any schedule for TMDL establishment in that submission. Id. EPA never approved or disapproved the 1982 state submission, either by October 26, 1986, as required by the statute, or at any other time. (Lozeau Dec. ¶ 8.) EPA did not establish by November 25, 1986, as required by Section 303(d)(2), any TMDLs for the WQLSs submitted in 1986.

The State’s lack of progress on establishing TMDLs really began to show beginning in 1988, when the State’s list of impaired waters increased dramatically in length. On July 29, 1988, California made its fifth 303(d) submission to EPA. Letter from James W. Baetge, Executive Director, SWRCB, to Daniel W. McGovern, Administrator, EPA Region 9 (July 29, 1988) (Pl. 1st RJN, Ex. 9). The State’s submission proposed 77 WQLSs. SWRCB, Water Quality Assessment for Water Years 1986 & 1987 at 14-29 (Sept. 1988) (Pl. 1st RJN, Ex. 10). Id. California did not include any TMDLs or any schedule for TMDL establishment in that submission. Id. EPA never approved or disapproved the 1982 state submission, either by August 28, 1988, as required by the statute or at any other time. (Lozeau Dec. ¶ 9.) EPA did not establish by September 27, 1988, any TMDLs for the WQLSs submitted in 1988, as required by Section 303(d)(2).

The impact to California’s waters resulting from the State’s and EPA’s failure to implement Section 303(d) became ever more painfully obvious with the State’s 1991 submission. On November 14, 1991, the State made its sixth submission to EPA. Letter from Jesse Diaz, Executive Director, SWRCB, to Harry Seraydarian, Administrator, EPA Region 9 (Nov. 14, 1991) (Pl. 1st RJN, Ex. 11). The State’s submission identified 245 WQLSs, three times as many WQLSs as were identified in the 1988 submission. SWRCB, 305(b) Water Quality Report for Water Years 1988 & 1989, App. B (SWRCB Resolution No. 90-6WQ, no date) (Pl. 1st RJN, Ex. 12). The two WQLSs that had been removed from the impaired waters list in 1984 were relisted along with 166 additional WQLSs. Id. California did not include any TMDLs or any schedule for TMDL establishment in that submission. Id. EPA never approved or disapproved the 1982 state submission, either by December 14, 1991, as required by the statute, or at any other time. (Lozeau Dec. ¶ 10.) EPA did not establish by January 13, 1992, any TMDLs for WQLSs identified in the 1991 submission, as required by Section 303(d)(2). Id.

On August 24, 1992, the State made its seventh 303(d) submission. Letter from Walt Pettit, Executive Director, SWRCB, to Harry Seraydarian, Administrator, EPA Region 9 (Aug. 24, 1992) (Pl. 1st RJN, Ex. 13). The State’s submission identified 259 impaired waterbodies in the State. Id. See also SWRCB, Water Quality Assessment (May 18, 1992) (Pl. 1^st RJN, Ex. 14). As had been the case for the previous 13 years since the State’s and EPA’s duties were originally triggered by the Act, California did not include any TMDLs in the 1992 submission. Id. The State’s submission did identify 28 WQLSs targeted for TMDL in the immediate future, i.e. two years. Staff Report Supporting Final Action California 303(d) List (Sept. 10, 1993) (AR at 002419) (Pl. 1st RJN, Ex. 15). The State did not complete any TMDLs for any of the 28 WQLSs within two years of the State’s submittal. (Lozeau Dec. ¶ 11.)

EPA, for the first time in "overseeing" the 303(d) program in California, bothered to review the State’s submission. On September 24, 1992, EPA concluded that the State’s submission "partially satisfies the listing and submittal requirements. . . ." Letter from Laura Tom, EPA Region 9, to Walt Pettit, Executive Director, SWRCB (Sept. 24, 1992) (AR at 030211) (Pl. 1st RJN, Ex. 16). On May 14, 1993, EPA published in the Federal Register a proposed decision to "partially approve and partially disapprove" California’s 303(d) submission. 58 Fed. Reg. 28569-570 (May 14, 1993) (Pl. 1^st RJN, Ex. 17). On or about October 19, 1993, over one year after the State’s 1992 303(d) submission, EPA issued a final decision disapproving the State’s submission. See Letter from David Smith, EPA Region 9, to Commenter (Oct. 19, 1993) (AR at 002426) (Pl. 1^st RJN, Ex. 18). Although EPA then included 17 additional WQLSs on the State’s impaired waters list, it did not establish within 30 days of its disapproval, as required by Section 303(d)(2), any TMDLs for any of the 276 WQLSs included on the State’s 303(d) list.

As of 1994, State 303(d) submissions were due on April 1. 40 C.F.R. § 130.7. On June 8, 1994, California made its eighth 303(d) submission to EPA. Letter from Jesse M. Diaz, SWRCB, to Harry Seraydarian, Administrator, EPA Region 9 ("1994 Submittal Letter") (June 8, 1994) (AR at 001542) (Pl. 1st RJN, Ex. 19). The State’s submittal identified 285 WQLSs. California Report on Impaired Surface Waters at 1 (May 1994) (AR at 001544) (Pl. 1^st RJN, Ex. 20). The State’s submittal identified 27 WQLSs already identified in 1992, for which the development of "action plans" were still a high priority. Id. California did not include any TMDLs in that submission. Id. As of its 1994 submission, the State had submitted no TMDLs for 15 years from their original due date. See Letter from Alexis Strauss, EPA Region 9, to Walt Pettit, SWRCB (Jan. 29, 1998) (AR at 800555 (Pl. 1^st RJN, Ex. 21); Discussion infra at 34-39.

EPA’s initial response to the State’s submission noted the absence of any TMDLs:

TMDL Worksheets do not constitute TMDLs adopted by the State and submitted to EPA for approval, as required by the Clean Water Act. While the TMDL worksheets provide a useful framework for discussing water quality problems and beginning TMDLs, they do not meet the minimum submittal requirements as described in EPA regulations and Guidance.

Letter from Steve Pardieck, EPA Region 9, to Jesse M. Diaz, SWRCB (July 13, 1994) (AR at 001687) (Pl. 1st RJN, Ex. 53). Nevertheless, EPA did not approve or disapprove of the state’s submittal by July 8, 1994. EPA did not establish by August 7, 1994, any TMDLs for the WQLSs submitted in 1994, as required by Section 303(d)(2).

On December 22, 1994, the State provided EPA with "target completion dates" for 43 WQLSs and specific impairing pollutants. Letter from David B. Cohen, SWRCB, to Alisa Greene, EPA Region 9 (Dec. 22, 1994) (Pl. 1st RJN, Ex. 22). The target completion dates extended the previous schedule for TMDLs for all 27 WQLSs identified in the 1992 submission. The State has never submitted any TMDLs to EPA consistent with the timelines put forth in the 1994 submission. (Lozeau Dec. ¶ 14.) On October 11, 1995, one and a half years after California’s 1994 submission, despite noting that "California’s 1994 listing submittals were incomplete," EPA approved the state’s submission. Letter from Alexis Strauss, EPA Region 9, to Walt Pettit, SWRCB (Oct. 11, 1995) (AR at 002015) (Pl. 1st RJN, Ex. 23).

On May 16, 1996, six weeks after the April 1 deadline, the State provided its ninth 303(d) submission to EPA. Letter from Jesse M. Diaz, SWRCB, to Alexis Strauss, EPA Region 9 (May 16, 1996) (AR at 10064) (Pl. 1st RJN, Ex. 24). The 1996 submission identified 386 WQLSs, one hundred more than the previous submission. SWRCB, 1996 California Report on Impaired Surface Waters (AR at 10069) (Pl. 1^st RJN, Ex. 25). See also Smith, D., EPA, Staff Report Explaining Recommended Actions 1996 California § 303(d) List, at 3 (June 14, 1996) (AR at 10105) (Pl. 1^st RJN, Ex. 26). The State identified 52 WQLSs as targeted for TMDL development. Id. California did not include any TMDLs in that submission. Id.

On June 14, 1996, EPA "partially approve[d] and partially disapprove[d] the submittal. . . ." Letter from Alexis Strauss, EPA Region 9, to Walt Pettit, SWRCB (June 14, 1996) (AR at 10101) (Pl. 1st RJN, Ex. 27). On August 26, 1996, EPA approved a portion of the State’s submission and added two WQLSs to the State impaired waters list. Letter from Alexis Strauss, EPA Region 9, to Walt Pettit, SWRCB (Aug. 26, 1996) (AR at 10121) (Pl. 1st RJN, Ex. 28). EPA did not establish any TMDLs by July 14, 1996, for the WQLSs identified in the state’s submission as required by Section 303(d)(2). See Letter from Michael Perrone, SWRCB, to David Smith, EPA Region 9 (Dec. 13, 1996) ("Final 1996 California 303(d) and TMDL Priority List) (AR at 10135b-10135d) (Pl. 1st RJN, Ex. 29).

On June 25, 1998, California provided its tenth 303(d) submission to EPA. Letter from Stan Martinson, SWRCB, to Alexis Strauss, EPA Region 9 (June 25, 1998) (Pl. 1^st RJN, Ex. 30). The State’s submission identified 472 WQLSs throughout the State -- another increase of almost one hundred impaired waters from the previous submission. 1998 California 303(d) List and TMDL Priority Schedule (May 12, 1999) (Pl. 1^st RJN, Ex. 31); Letter from Alexis Strauss, EPA Region 9, to Walt Pettit, SWRCB (Nov. 3, 1998) (Pl. 1st RJN, Ex. 32). California did not include any TMDLs with the State’s submission. Id. However, a tentative schedule for completing TMDLs for all the WQLSs was included with the submission. Id. The schedule for TMDLs provided in previous submissions were once again, in most cases, pushed off by up to a decade. (Lozeau Dec. ¶ 17.) For example, the San Joaquin River was originally identified in 1980 as impaired by selenium (i.e., salinity). Pl. 1st RJN, Ex. 2 at A-4. Fourteen years later, in its 1994 submission, the State told EPA that a TMDL for that WQLS would be completed by March, 1995. Pl. 1st RJN, Ex. 22. In its 1996 submission, the State told EPA the San Joaquin River selenium TMDL would be submitted by March, 1996. Pl. 1st RJN, Ex. 25 at 15. The 1998 submission set an end date of December 2000 for establishing that TMDL -- 21 years after the San Joaquin River’s selenium problem was formally identified. Pl. 1st RJN, Ex. 31 at 28.

The State’s 1998 submission makes clear that the State and Regional Boards do not view the state’s recently proffered TMDL schedules as binding on them. All nine regional boards emphasized the "tentative" nature of the schedules they developed for establishing TMDLs. Los Angeles Regional Board, Staff Report at 3 (March 23, 1998) ("the 303(d) designation mandates development and implementation of a TMDL at some point in the future (conditioned upon the availability of adequate staffing to develop and/or implement the TMDL") (emphasis added) (AR at 803151) (Pl. 1^st RJN, Ex. 35); id. at 8 ("schedules should be regarded as very tentative") (emphasis supplied) (AR at 803155).

EPA did not approve or disapprove the State’s 1998 submission by July 25, 1998. On November 3, 1998, EPA partially approved and partially disapproved the California submission. Pl. 1st RJN, Ex. 32. Despite its disapproval of the State’s submission, EPA did not establish by December 2, 1998, its own list or any TMDLs for the identified WQLSs. Id. On May 12, 1999, EPA added an additional 37 WQLSs and additional pollutants for 12 WQLSs already identified. Letter from Alexis Strauss, EPA Region 9, to Walt Pettit, SWRCB (May 12, 1999) (Pl. 1st RJN, Ex. 33). Once again, EPA’s decision to add additional waters to the State’s 303(d) list did not include the establishment of any TMDLs as required by Section 303(d)(2). Id.

2. The Two State Submissions Approved by EPA as TMDLs Do Not Meet the Mandatory Minimum Criteria Established for TMDLs in Section 303(d).

As of the State’s 1998 submission on June 25, 1998, and EPA’s final decision regarding that submission on May 12, 1999, the State submitted for EPA approval only two reports that it purported to be TMDLs, one addressing inorganic nitrogen in a stretch of the Santa Ana River and the other addressing nitrogen, ammonia, and low dissolved oxygen in the Laguna de Santa Rosa. Letter from Alexis Strauss, EPA Region 9, to Walt Pettit, SWRCB and Dennis Dickerson, LA RWQCB (Jan. 29, 1998) ("you are probably aware that only 2 TMDLs have been submitted and approved by EPA for the entire State") (Pl. 1st RJN, Ex. 21); Letter from Jesse M. Diaz, SWRCB, to Steve Pardieck, EPA Region 9 (Nov. 9, 1994 (Pl. 1st RJN, Ex. 41). Although EPA went on to approve both of those submittals, neither action includes all of the elements required in a TMDL under Section 303(d) and its implementing regulations. See Section IV.E infra.

On November 9, 1994, the Regional Water Quality Control Board for the Santa Ana Region submitted to EPA a "Final Report in Support of Development of a Total Maximum Daily Load for Inorganic Nitrogen for the Santa Ana River," addressing nitrogen impairment of "Reach 3" of the river. Pl. 1^st RJN, Ex. 41. See also Letter from David B. Cohen, SWRCB, to Alisa Greene, EPA Region 9 (Dec. 20, 1994), attaching Memorandum from Gerard J. Thibeault, Santa Ana Region RWQCB, to Jesse Diaz, SWRCB (Sept. 14, 1994) (including "Santa Ana River -- Nitrogen Total Maximum Daily Load") (AR at 001797-001804) (Pl. 1st RJN, Ex. 42). The Regional Board staff who prepared that so-called "TMDL" emphatically explained that the proposed action was not designed to meet the nitrogen water quality standard. Santa Ana Regional Board, Staff Report at 2 ("it appears impossible to adopt a plan which meets the legal requirement to fully achieve water quality objectives"), 9-10 (the proposed alternative will not achieve the nitrogen objective in Reach 3 of Santa Ana River). See also id. at 2 ("the Board’s apparent recourse is to select a plan which is the ‘least illegal’"). The Santa Ana River "TMDL" does not establish any maximum daily load of nitrogen for Reach 3 of the Santa Ana River. SWRCB, Workshop Session Memorandum (February 5-6, 1992) (Pl. 1^st RJN, Ex. 49). With no overall daily load to allocate, the Santa Ana River TMDL does not contain any waste load allocations. Id. No discussion of a margin of safety or seasonal variations is included in the "TMDL." Pl. 1^st RJN, Ex. 42 ("Thibault Memo"). The "TMDL" also does not address sources of nitrogen other than the wastewater treatment facilities discharging to the river. Id. at 5 (AR at 001802). Hence, no loads are discussed or allocated to dairies and municipal and industrial storm water discharges. Id.

In its 1996 Submission, the State still identified a TMDL for Reach 3 of the Santa Ana River as targeted with no start or end date. 1996 303(d) List at 24 (Pl. 1^st RJN, Ex. 31). AR at 11602 (indicating no change from 1994 submission). Likewise, the 1998 submission also retained Santa Ana River, Reach 3 as a WQLSs based in part on nutrients, including nitrogen. Santa Ana RWQCB 303(d) Submittal, Attachment 6.3 at 8-15 (March 16, 1998) (AR at 803693) (Pl. 1^st RJN, Ex. 55). The 1998 submission sets a "tentative" date for completing a TMDL for nutrients (including nitrogen) in that WQLSs of January, 2011. 1998 303(d) List at 122.

On March 21, 1995, the Regional Water Quality Control Board for the North Coast Region submitted to EPA a "Waste Reduction Strategy for the Laguna de Santa Rosa," which purported to address that waterbody’s impairment by nitrogen, ammonia, and low dissolved oxygen. Morris, C., "Waste Reduction Strategy for the Laguna de Santa Rosa ("Strategy") (March 1, 1995) ("Pl. 1st RJN, Ex. 44). The Strategy did not propose a TMDL to EPA; rather, it proposed a "Total Maximum Seasonal Load" or as the Strategy shortens it, a "TMSL." See Strategy at 19. Because the Strategy only focuses on seasonal loads, the Strategy does not establish any daily loads. Id, The Strategy acknowledges that it is not designed to meet water quality standards during the summer. Id. at 5 ("[d]uring the summer season, each attainment point falls short of the strategy goals"), 30. See also Letter from Cecile N. Morris, RWQCB North Coast Region, to Rosalind Daniels, City of Santa Rosa (Feb. 2, 1995) (Pl. 1^st RJN, Ex. 45). Correspondingly, the Strategy does not include a margin of safety for the summer, nor does it adequately address seasonal variations as required by section 303(d). Strategy at 5, 30. The Strategy also does not contain "a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality," but rather arbitrarily picks a "margin of safety" equal to "10% of the estimated maximum load." Id. at 19. No load or waste load allocations were identified and established by the Strategy. Id. Only "interim reduction targets" were identified. Id. Lastly, the seasonal allocation for the one identified point source also was never established in an NPDES permit. Id.

EPA approved the Strategy as a "phased approach . . . TMDL." See Letter from Alexis Strauss, EPA Region 9, to Benjamin D. Kor, North Coast RWQCB (May 4, 1995) (AR at 800000) ("approves the ‘Waste Reduction Strategy for the Laguna de Santa Rosa’ submitted March 21, 1995 as a phased approach . . . TMDL") (Pl. 1st RJN, Ex. 46). As of August 27, 1997, the Strategy had not attained either its internal "interim goals" or water quality standards applicable to the Laguna de Santa Rosa. RWQCB Memorandum, Update on the Waste Reduction Strategy for the Laguna de Santa Rosa (Aug. 14, 1997) (Pl. 1^st RJN, Ex. 47).

Thus, the State of California has made Section 303(d) submissions to EPA every two years starting in 1980, on ten specific dates. EPA never approved or disapproved the first 303(d) submissions made by California, prior to EPA’s 1992 TMDL regulations. EPA issued disapprovals in response to three of the State’s 303(d) submissions in 1992, 1996, and 1998. Between 1979 and 1998, only two actions purporting to be TMDLs were submitted by the State to EPA and approved as TMDLs by EPA. Both submissions were made after the State’s 1994 303(d) submission. Neither of those actions, in fact, constitute legally defensible TMDLs. As of the State’s 1998 303(d) submission, 1472 TMDLs are mandated to be established.

Pursuant to Federal Rule of Civil Procedure 56(c), the Court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Entry of summary judgment in favor of the moving party is appropriate when the non-moving party has failed to produce evidence "sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The moving party bears the initial burden of demonstrating that no genuine issue of material fact remains to be decided at trial. Celotex 477 U.S. at 323. Once this burden has been met, the burden shifts to the non-moving party to demonstrate that, in fact, a genuine issue of material fact does exist. Id. at 324. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 323-24. A fact is not material unless it is identified by the controlling substantive law as an essential element that will affect the outcome of the suit. Id. See also Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1305-06 (9th Cir. 1982). An issue of material fact is not genuine if the issue is unsupported by the evidence, or if the issue is created by evidence that is "merely colorable" or "not significantly probative." Anderson 477 U.S. at 250.

It is well established that chronic state noncompliance with section 303(d) triggers an EPA duty to step in and establish TMDLs. ACE III, 20 F.3d at 983; Scott v. City of Hammond, 741 F.2d 992, 995 (7th Cir. 1984) (cited with approval in City of Las Vegas v. Clark County Nevada, 755 F.2d 697, 703-04 (9th Cir. 1985).) When EPA disapproves a state’s TMDL submission, or when a state fails to submit TMDLs, thereby "contructively submitting" no TMDLs, EPA’s duty to step in and establish TMDLs is triggered. See id.

The administrative record in this case demonstrates that the State of California has failed to include TMDLs in its section 303(d) submissions to EPA since the deadline of June 26, 1979, opting instead merely to list impaired waterbodies and, most recently, to set forth a non-binding schedule for when TMDLs may be developed in the future. The state has repeatedly missed even these modest timelines. The statute requires that EPA take action to establish TMDLs in the face of the state’s recalcitrance.

EPA’s duty to establish TMDLs was triggered some time ago and has not been extinguished. Courts generally have not made a "broad, generic determination of the point in time at which a state’s inaction may be deemed a ‘constructive submission" of no TMDLs. Alaska Center for the Environment v. Reilly, 762 F.Supp. 1422, 1429 (W.D. Wash. 1991) ("ACE I"). However, under any scenario, EPA action is long overdue. Plaintiffs acknowledge that EPA has purportedly approved or established a few scattered TMDLs since 1998. However, even if the approved actions by the State constituted valid TMDL promulgations under Section 303(d), and even if the EPA-established TMDLs were material to plaintiff’s claims, these approvals are ex post facto, token and incomplete efforts. Thus, any such actions cannot extinguish EPA’s previously-triggered duty to establish TMDLs for the remaining impaired waterbodies throughout the State.

Arguably, EPA’s duty to establish TMDLs was triggered as early as August 25, 1979, 60 days from the date of the State’s first default on TMDL and WLA submissions. See Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 333 (D.C. Cir. 1981) ("we admonish EPA to approve or disapprove [Section 303(d)’s] identification, prioritization, and load limits within the requisite statutory framework and time limits"); American Canoe Ass’n v. EPA, 30 F. Supp. 2d 908, 921 (E.D. Va. 1998) ("American Canoe I") (prima facie claim for constructive submission of inadequate TMDLs as of late 1979). Even if the Court disagrees that the duty arose at that early date, any one of the following subsequent developments constitutes a triggering event:

· The repeated failure of the State to submit to EPA TMDLs for all impaired waterbodies between 1980 and 1994.

· The State’s failure to submit TMDLs for all listed waterbodies in California.

· EPA’s failure to review and disapprove California’s biennial section 303(d) submissions between 1980 and 1991.

· EPA’s disapprovals of California’s biennial section 303(d) submissions since 1992.

Each of these alternative categories of triggering events will be addressed in turn.

The Ninth Circuit and numerous other courts have held that, where a State fails to submit TMDLs to EPA, that failure triggers EPA’s duty to establish TMDLs for the recalcitrant state’s impaired waters. ACE III, 20 F.3d at 983; Scott v. City of Hammond , 741 F.2d at 996-98 (cited with approval in City of Las Vegas, 755 F.2d at 703-04). The repeated failure of the State to submit to EPA any TMDLs with each of its biannual 303(d) submissions beginning in 1980 each constituted a constructive submission of no TMDLs by the State to EPA, triggering the federal agency’s 303(d) duties.

From June 26, 1979 through June 8, 1994, the State of California made seven submissions to EPA for review pursuant to Section 303(d) that did not include any TMDLs. Those submissions were made on July 9, 1980; September 16, 1982; May 31, 1984; September 26, 1986; July 29, 1988; November 14, 1991; August 24, 1992, and; June 8, 1994. California constructively submitted no TMDLs on each of those dates. Idaho Sportsmen’s Coalition v. Browner, 951 F. Supp. 962, 967 (W.D. Wash. 1996); Natural Resources Defense Council, Inc. v. Fox, 30 F. Supp.2d 369, 378-79 (S.D.N.Y. 1998); Sierra Club v. Hankinson, 939 F. Supp.865, 871 (N.D. Ga. 1996). As the State’s submissions continued to omit any TMDLs even as Congress’ original deadline continued to recede into the past, the State’s constructive submissions become ever more apparent. American Canoe I, 30 F. Supp. 2d at 921. Thus, the omission of any TMDLs in 1980, ‘82, ‘84, ‘86, ‘88, ‘91, ‘92 and ‘94 amount to constructive submissions given that those timelines greatly exceeded the timelines provided by Congress. Id.

The courts have found that Congress intended TMDLs for listed waters to be established "within months or, perhaps, within a very few years" of Congress’ June 1979 deadline. Therefore, it is evident that a state’s failure to act within one to three years from that deadline must trigger EPA’s duty. See EDF v. Costle, 657 F.2d at 333 ("we admonish EPA to approve or disapprove [Section 303(d)’s] identification, prioritization, and load limits within the requisite statutory framework and time limits"); Idaho Sportsmen’s Coalition, 951 F. Supp. at 967 ("Congress prescribed early deadlines for the TMDL process. ‘Short-term’ and ‘long-term’ at most can mean months and a few years, not decades"); NRDC v. Fox, 30 F. Supp. 2d at 378-79 ("it is clear that TMDLs are to be established promptly by the states or, if they are dilatory, by EPA. Promptly, in this context, means within months or, perhaps, within a very few years. Promptly does not mean over the span of decades."). See also Hankinson, 939 F. Supp. at 871. When California failed to submit any TMDLs with its 1980 and 1982 submissions, EPA’s duty to establish TMDLs was triggered.

The District Court in American Canoe I addressed that very scenario. In rejecting EPA’s argument that a constructive submission of no TMDLs could not trigger the agency’s duties under Section 303(d), the Court observed that "it seems plaintiffs would have had a prima facie claim against the EPA [for failing to establish TMDLs] sufficient to survive a motion to dismiss by late 1979, although at that point EPA may have persuaded a court, on the merits, to allow more time." 30 F. Supp. at 921. The Court recognized that a delay of several months by EPA from the original June 26, 1979, deadline was illegal.

In Scott v. City of Hammond, the Seventh Circuit held that, as of August, 1984, five years after Congress’ June, 1979 deadline, states had constructively submitted no TMDLs. The Court found that "if the states [Illinois and Indiana] had submitted proposals of no TMDLs," then the district court could, based on review of the record, find that "EPA has failed to perform the nondiscretionary act of approving or disapproving state submissions." 741 F.2d at 997. The Court noted that Section 303(d) established "short time limits both on a state’s action, and on the EPA’s required reaction to the state submissions, with respect to promulgation of TMDL’s." Id. Shortly thereafter, in March, 1985, the Ninth Circuit cited with approval the reasoning in Scott: "The Scott court interpreted the state’s refusal to submit TMDL’s as a ‘constructive submission’ that no TMDL is necessary, which created a non-discretionary duty on the part of the EPA to ‘establish TMDL’s when the states have defaulted by refusal to act over a long period.’" City of Las Vegas, 755 F.2d at 703. The State’s refusal described in City of Las Vegas occurred not later than August, 1984. Hence, both the Seventh and Ninth Circuits have reasoned that where a state submitted no TMDLs for five years from the June 1979 deadline, EPA’s duty was triggered.

In ACE I, the District Court for the Western District of Washington considered the failure by the State of Alaska to have submitted any TMDLs as of 1990, 11 years after Congress’ initial deadline. "[T]here could hardly be a more compelling case for finding a ‘constructive submission’ than under the facts of this specific case. The court therefore finds that the State of Alaska has effectively created a ‘constructive submission’ of no TMDLs over the past eleven years." 762 F. Supp. at 1429. The Ninth Circuit echoed the district court’s finding, stating that "[i]n this case the established wrong is the failure of the EPA to take any steps to establish TMDLs mandated by Congress for more than a decade." ACE III, 20 F.3d at 986. See also Defenders of Wildlife v. Browner, 888 F. Supp. 1005, 1008 (D. Ariz. 1995). Hence, it is very clear that in the Ninth Circuit, a delay by the State of a decade amounts to a constructive submission of no TMDLs and that substantially shorter delays should lead to the same conclusion. See also Hankinson, 939 F. Supp. at 869, 871 (15 year delay)

Where, as is the case in California, a state regularly submitted the lists of impaired waterbodies to EPA, but failed to submit any TMDLs addressing the identified water quality problems, its constructive submission of no TMDLs is even more apparent than was the case in Alaska.

Congress intended that TMDLs be established for all waterbodies designated as water quality limited segments. Alaska Center for the Environment v. Reilly, 796 F. Supp. 1374, 1378 (W.D. Wash. 1992) ("ACE II"). (See also discussion at p. 25). It cannot be disputed that the State has failed to develop and submit TMDLs for the vast majority of listed California waters. As of today, California has submitted, and EPA has approved, at most, 5 purported TMDLs. Plaintiffs do not agree that those submittals are valid TMDLs. See supra. Section D. Assuming, arguendo, that they are valid TMDLs, California has constructively submitted "no TMDLs" for 99.7% of its impaired waters. (See discussion, pgs. 26-28). This serious default on the part of the State requires EPA to step in. As discussed in greater detail below at pgs. 26-28, without EPA’s intervention, the State’s token gestures towards compliance, "as decade after decade and deadline after deadline slip[] away," render the CWA nothing more than a "dead letter" and lead to "absurd result[s]." American Canoe, 54 F.Supp. at 628.

That history is California’s TMDL history -- at best, minimal TMDL efforts have been made over decades as numerous deadlines and triggering events came and went. The Seventh Circuit’s reasoning, adopted by the Ninth Circuit, for finding a constructive submission when confronted with such a factual record compels a finding that EPA’s duty is triggered:

We cannot allow the states’ refusal to act to defeat the intent of Congress that TMDLs be established promptly -- in accordance with the timetable provided in the statute. . . . [T]o construe the relevant statute (any other way) would render it wholly ineffective. There is, of course, a strong presumption against such a construction.

ACE III, 20 F.3d at 983-84 (citing ACE II, 762 F.Supp. at 1427, quoting Scott, 741 F.2d at 998).

Even if the court were to disagree that EPA’s duty was triggered by the State’s failure to submit any TMDLs between 1980 and 1994, it should rule that the duty was triggered by EPA’s failure to take any action when the State submitted to the Agency its lists of impaired waterbodies under section 303(d) in 1980, 1982, 1984, 1986, 1988 and 1991. Notwithstanding these six California 303(d) submissions, EPA never complied with its statutory duty to disapprove them within 30 days. (Supra at 6-9.) None of the submissions included any TMDLs. Hence, EPA has a continuing non-discretionary duty to disapprove those submissions for their failure to include the requisite TMDLs. That unavoidable disapproval, in turn, triggers EPA’s duty to establish its own WQLSs list and TMDLs for all WQLS in California. That duty remains unfulfilled to this day and warrants that summary judgment be granted for Claim One..

c. Further in the alternative, EPA’s duty was triggered by its disapprovals of the State’s 303(d) submissions of impaired waterbodies in 1992, 1996 and 1998.

The Ninth Circuit has stated that, "[i]f the EPA disapproves of the state’s identification of water quality limited segments or its listing of TMDLs, the agency must establish its own list of water quality limited segments and TMDLs within 30 days." ACE III, 20 F.3d at 983 (emphasis added). Hence, EPA’s disapproval of California’s identification of WQLSs provides a third alternative trigger of EPA’s duty to establish TMDLs for impaired waterbodies.

On three previous occasions, EPA formally disapproved "the state’s identification of WQLSs." Supra at 10-13. As a result, EPA was required to establish not only adequate WQLS lists, but also TMDLs within 30 days. ACE III, 20 F.3d at 983. But see Kingman Park Civic Ass’n, 1999 WL 1482028 (D.D.C. Aug. 31, 1999) at 7-8. It has not done so.

To date EPA has not fulfilled its duty to establish TMDLs for impaired waterbodies in California, despite the many events triggering this duty.

The Ninth Circuit articulated EPA’s duty with respect to TMDLs in ACE III as follows:

the remedial scheme of the CWA not only requires the EPA to establish TMDLs but to do so on a prioritized basis throughout the state, "taking into account the severity of the pollution and the uses to be made of such waters." Hence, for CWA regulatory purposes, all waters within a state are interrelated.

ACE III, 20 F.3d at 985 (emphasis added). "The CWA requires that the full WQLS list, even though it may be amended later, be the basis for TMDL development." Idaho Sportsmen’s Coalition, 951 F.Supp. at 967 (noting also that "[t]he CWA requires that a TMDL be proposed for every WQLS"); ACE II, 796 F.Supp. At 1378 ("Congress intended that TMDLs be established for all waterbodies designated as [WQLSs]"); Hankinson, 939 F.Supp. at 873 ("EPA shall establish TMDLs for all [WQLSs] identified in Georgia’s existing and future lists submitted under § 303(d) . . . For all pollutants of concern in each WQLS"); Pronsolino, slip op. at 10 ("TMDLs were thus required for all listed rivers and waters") (Pl. 1st RJN, Ex. A); American Canoe I, 30 F.Supp. at 908; Sierra Club v. Clifford, 1998 U.S. Dist. LEXIS 16031 at 44 (June 16, 1998) (Pl. 1st RJN, Ex. K). Hence, once triggered, EPA's duty includes the establishment of TMDLs for all WQLSs in the State.

EPA readily admits that the few site specific TMDLs it has adopted in California resulted from Consent Decrees involving "only a fraction" of the State’s waters. Answer, ¶ 64. See Amended Complaint, ¶¶ 62-64. The TMDL actions required by those Consent Decrees addressed only those waters that were of paramount concern to the plaintiffs in those cases. EPA has never established TMDLs on a prioritized basis throughout the state and, therefore, has not fulfilled its mandatory duty. See 33 U.S.C. § 1313(d(1)(C); 40 C.F.R. § 130.7(c)(1); Sierra Club v. Browner, Civ. No. 4-92- 970, slip op. at 19 (Dec. 13, 1993) (Pl. 1^st RJN, Ex. M) ("The Act requires that each state establish TMDLs for its identified WQLSs in accordance with its priority ranking"). In any event, by dealing with only a "fraction of the waters of paramount concern to the parties before the court," EPA has ignored the following Ninth Circuit admonition in ACE III:

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, 20 F.2d at 985 (emphasis added).

Even if the State were to have submitted a few TMDLs at some point during its long period of recalcitrance, EPA cannot use these token and incomplete State compliance gestures as a shield from its own mandatory duty. Nor can the Agency hide behind non-binding State promises to adopt TMDLs in the future.

First, there is simply no statutory authority that would allow EPA to rely on state actions in lieu of its own to satisfy the Agency’s duty. See 33 U.S.C. § 303(d)(2). The wording of the statute is clear: once the Administrator’s duty is triggered, then "[s]he shall . . . identify such waters . . . and establish such loads for such waters as [s]he determines necessary to implement the water quality standards applicable to such waters . . . ." Id. (emphasis added).

Second, it would defeat the purpose of the statute and defy logic to allow EPA to hide behind de minimus state efforts to evade its own responsibilities under the Act. As one court explained:

Were [it] correct that [a state] could prevent EPA intervention merely by demonstrating that it was undertaking some minimal efforts toward TMDL establishment as decade after decade and deadline after deadline slipped away, the requirements of the CWA could easily be rendered a dead letter by state subterfuge and recalcitrance. The law neither requires nor permits this absurd result.

American Canoe Ass’n v. EPA, 54 F. Supp. 2d 621, 628 (E.D. Va. 1999) ("American Canoe II"). See Idaho Sportsmen’s Coalition, 951 F.Supp. At 967 (EPA is not entitled to "treat the hoped-for results of state programs as a substitute for CWA compliance. The CWA requires that the full WQLS list, even though it may be amended later, be the basis for TMDL development").

Having found EPA liable for failing to carry out its TMDL duties, the District Court of Georgia in Hankinson expressly addressed the effect of a state’s establishment of TMDLs after EPA’s duty is triggered. In its remedial order, the Court held:

This Order contemplates that EPA will ensure that the State properly establishes TMDLs for all waters specified in the time specified, or EPA will itself establish the TMDLs.

939 F.Supp. at 873. Even though the Court noted that the State would establish approvable TMDLs at some point subsequent to the triggering of EPA’s duty, the Court expressly found that the State’s TMDLs would have no effect on EPA’s obligation to establish the remaining TMDLs.

In California, the number of TMDLs that could conceivably be alleged by EPA to have been submitted by the State is a minute fraction of the 1,472 TMDLs estimated by the Agency to be required state-wide. As of the date of California’s1998 Section 303(d) submission, only two submittals by the State purporting to be TMDLs had been submitted to and approved by EPA. Pls. 1st RJN, Ex. 21. Hence, as of that date, the State had arguably established 0.14% of the requisite TMDLs. The remaining TMDLs (other than those established by EPA pursuant to Consent Decrees as discussed above) have been long overdue -- many for more than 10 years, some for as long as 21 years. California’s token submittal of a few TMDLs represents an abysmally "minimal effort." It cannot be seriously argued that, where the statute requires TMDLs for all WQLSs, such a de minimis effort satisfies an EPA duty that was triggered as early as 1979 or 1980.

Moreover, the Agency cannot avoid responsibility by relying on non-binding State target dates for future adoption of TMDLs. See supra at n. 8 and text (Pls. 1st RJN, Ex. 35-40) (schedules "very tentative"). Idaho Sportsmen’s Coalition, 951 F. Supp. at 967.

Should the Court determine that EPA's duty to establish TMDLs for California's impaired waters is not triggered under the Clean Water Act, EPA's failure to assure the establishment of TMDLs on a timely basis still violates the APA.

When reviewing agency action under the APA, "[t]he reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. . . ." 5 U.S.C. § 706(2)(A). The APA also authorizes courts to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1).

In the case at hand, summary judgment in favor of plaintiffs is appropriate because EPA has unlawfully withheld or unreasonably delayed its intervention in California to establish TMDLs. See, e.g. Idaho Sportsmen's Coalition v. Browner, No. C93-943 WD, slip op. at 14 (W.D. Wash. May 19, 1995) (Pls. 1st RJN, Ex. M) (finding that EPA's failure to intervene to ensure that TMDLs are created for Idaho in a reasonable time period constituted an unlawfully withheld agency action under section 706(1)); Clifford, 1998 U.S.Dist. LEXIS 16031 at 50-51 (Pls. 1st RJN, Ex. L) (EPA inaction amounts to unreasonable delay where state did not submit any TMDLs for 17 years and despite TMDL scheduling agreement between EPA and state); American Littoral Society v. EPA, Region 2, Civ. No. 96-339, slip op. at 12 (June 29, 1999) (Pls. 1st RJN, Ex. N) (claim for unreasonable delay in establishing TMDLs by EPA triggered by a state's inaction in carrying out its obligations). In addition, EPA's failure to disapprove of California's inadequate TMDL submissions is arbitrary and capricious. Hankinson, 939 F. Supp. at 872; Idaho Sportsmen's Coalition, slip op. at 14 (Pls. 1st RJN, Ex. N) (finding that EPA's conduct in failing to ensure that TMDLs are created for Idaho in a reasonable time period was arbitrary and capricious in violation of APA section 706(2)). Lastly, EPA's failure to intervene also amounts to an abuse of discretion and agency action not in accordance with the Clean Water Act. See, e.g. NRDC v. Fox, 30 F.Supp. at 379-80.

Even in the best case scenario, as of the filing of plaintiffs’ complaint, EPA can only point to five submissions of "TMDLs" made by the State that EPA has approved: 1) the reduction strategy for nutrients for the Laguna de Santa Rosa submitted in 1995; 2) the effluent limitations submitted as a "TMSL" in 1994 for Reach 3 of the Santa Ana River; 3) & 4) two submissions addressing impairments in Newport Bay and its tributary, San Diego Creek, and 5) a Basin Plan amendment for Salt Slough redirecting its selenium problem. Even assuming that the five actions approved by EPA as TMDLs are valid, the remaining 1472 TMDLs required by 303(d) nevertheless trigger EPA’s duty to act under the Clean Water Act or the APA.

The schedule submitted by the State in 1998 does not cure EPA’s APA and CWA violations. Every Regional Board and the State Board made it quite clear that the identified end dates for TMDLs were "very tentative." See supra. at n. 8 (Pl. 1st RJN, Ex. 35-40). Relying on numerous possible contingencies, California has disavowed the enforceability of its stated schedule. Id. The schedule on its face is inconsistent with Section 303(d)’s timelines, even at this late date. ACE III, 20 F.3d at 986 (district court’s deadline for TMDLs was "far more lenient than those contained within the CWA itself"). See Idaho Sportsmen’s Coalition, 951 F. Supp. at 969 (schedule of five years would be reasonable); Hankinson, 939 F. Supp. at 873 (ordering EPA to establish TMDLs for all WQLSs within 5 years). Moreover, the schedule also does not address all of the WQLSs identified in California. See Idaho Sportsmen’s Coalition, 951 F. Supp. at 967.

Based on the actual lack of effort by the State over the last twenty years to establish a meaningful number of TMDLs, let alone "TMDLs . . . established for all WQLSs" (ACE II, 796 F.Supp. at 1378, affirmed, ACE III, 20 F.3d 981), it is beyond any reasonable dispute that the EPA has violated the APA by ignoring the clear requirements of Section 303(d) and sitting idly by while the statute was rendered a "dead letter." See American Canoe II, 54 F. Supp. at 628.

Plaintiffs incorporate by reference their argument set forth in their Opposition to Motion to Dismiss filed contemporaneously with this brief. In short, Congress’ mandate to establish TMDLs is a mandate to establish the portion of the TMDLs applicable to point sources as enforceable water quality-based effluent limitations in their NPDES permits. Plaintiffs seek an order from the Court granting summary judgment for Claim Three of their amended complaint.

As discussed above, EPA’s duty to establish TMDLs is not extinguished by the State’s few gestures towards compliance with section 303(d). One of the State’s few gestures was the 1994 submittal, by the Santa Ana Regional Water Quality Control Board, of a purported "TMDL" for inorganic nitrogen in the Santa Ana River, Reach 3. Another was a submission of "interim seasonal loads" by the North Coast Region Regional Water Quality Board in 1995 for nitrogen and ammonia in the Laguna de Santa Rosa, a tributary of the Russian River.

Even assuming, arguendo, that these submissions consisted of valid TMDLs (which they do not), EPA would still have an obligation to establish TMDLs for the other impaired waterbodies throughout the State. However, each of these submissions falls far short of the minimum standards for a TMDL. For this reason plaintiffs are seeking a ruling by this Court that EPA’s approval of these submissions as TMDLs was arbitrary, capricious and an abuse of discretion and therefore violated the Administrative Procedures Act. Proposed Second Amended Complaint, ¶¶ 87-89 (Claim 5).

The Clean Water Act and its implementing regulations set forth the elements that must exist to establish a legally sufficient TMDL. First, the TMDL must target a WQLS. 33 U.S.C. § 1313(d)(1). Second, the TMDL must address a pollutant that has been identified by the EPA as suitable for TMDL calculation, and which has caused the WQLS to appear on California’s section 303(d) list of impaired waters. 33 U.S.C. § 1313(d(1)(A), (C). Third, the TMDL must be created in accordance with California’s 303(d) list prioritization. 33 U.S.C. § 1313(d)(1)(C); 40 C.F.R. § 130.7(c)(1). Fourth, the TMDL must contain a "total maximum daily load." 33 U.S.C. § 1313(d)(1)(A) (emphasis added). Fifth, the TMDL must contain a specific allocation of the WQLS’s loading capacity to each point source, non-point source, and background sources of the targeted pollutant which discharge into the segment. 40 C.F.R. §§ 130.2(g)-(i). Sixth, the TMDL must contain a "margin of safety" to account for "any lack of knowledge concerning the relationship between effluent limitations and water quality." 33 U.S.C. § 1313(d(1)(C). Seventh, the TMDL must account for seasonal variation. 33 U.S.C. § 1313(d(1)(C); 40 C.F.R. § 130.7(c)(1).

Since the 1994 and 1995 submissions from the Santa Ana and North Coast Regional Boards fail to satisfy most of these requirements, they cannot be considered to be submissions of TMDLs under section 303(d).

a. The Santa Ana Regional Water Quality Board’s 1994 submission does not constitute legally sufficient TMDLs.

The Santa Ana Regional Water Quality Board’s ("Santa Ana Board") 1994 final report in support of developing a TMDL for inorganic nitrogen ("Report") falls far short of an actual TMDL for several reasons. First, the Santa Ana Board’s 1994 submission cannot be considered a TMDL since it fails to implement a central purpose of Section 303(d), to establish TMDLs at a "level necessary to implement the applicable water quality standard." 33 U.S.C. § 1313(d(1)(C). This fact is confirmed by a 1991 Santa Ana Board staff report, which noted that the alternative ultimately selected by the Board would not meet applicable water quality standards through Reach 3. See Santa Ana Regional Water Quality Control Board Workshop II - Nitrogen and TDS Studies, Upper Santa Ana River, dated July 19, 1991, at pp. 2, 10 (Pl. 1^st RJN, Ex. 48).

Second, the Report sets effluent discharge levels for nitrogen, measured in milligrams per liter, for various point source dischargers, but never assesses the maximum daily load of nitrogen that the impaired water segment can accommodate while still meeting the stated objective. Report at pp. 1-2; SWRCB Workshop Memo at 2 (Pl. 1^st RJN, Ex. 49). By definition, a concentration-based limit allows more total load as the volume of effluent increases. Concentration-based limits, thus, do not establish a "maximum daily load." It also is impossible to allocate a load articulated as open-ended concentrations. This failure to establish maximum daily loads of nitrogen precludes any possibility that the Report could constitute a submission of a TMDL. 33 U.S.C. § 1313(d)(1)(C); Idaho Sportsmen’s Coalition v. Browner, 951 F. Supp. at, 965 ("TMDLs are the greatest amount of a pollutant the water body can receive daily without violating a state’s water quality standard") (emphasis added).

Third, the Report contains no discussion regarding the appropriate margin of safety or seasonal variations that would affect the appropriate daily load of nitrogen. 33 U.S.C. § 1313(d(1)(C). See e.g., Hankinson, 939 F.Supp. at 871 ("Georgia's WLAs are not TMDLs because . . . they do not account for seasonal variations as required by CWA"); NRDC v. Fox, 30 F. Supp.2d at 382-383 (TMDLs lacking a scientifically based safety margin or seasonal variation component not "in accordance with law.")

Fourth, the Report does not address sources of nitrogen other than the wastewater treatment facilities discharging to the river. Report at 5; EPA Admin. Rec. at 001802. Thus, no loads are allocated to dairies, municipal and industrial storm water discharges, or any other non- point source discharges, even though discharge from such non-point sources was the reason that this segment of the Santa Ana River was listed under section 303(d). Report at 1. The Report’s failure to establish loads for non-point sources known to discharge into the polluted water segment undermines a central purpose of the TMDL program, and thus fails to satisfy the section 303(d) requirement. 40 C.F.R. §§ 130.2(g)-(i); Pronsolino, slip op. at 13-28. See also ACE I, 762 F. Supp. at 1424 ("TMDL calculations help ensure that the cumulative impacts of multiple point source discharges are accounted for, and are evaluated in conjunction with pollution from other nonpoint sources").

Fifth, the Santa Ana Board’s submission for Reach 3 is inconsistent with the priorities established in California’s 1994 submittal because numerous other state waters with higher priorities are without TMDLs. See 33 U.S.C. § 1313(d(1)(C); 40 C.F.R. § 130.7(c)(1); Sierra Club v. Browner, Civ. No. 4-92-970, slip op. at 19 (Pls. 1st RJN, Ex. M) ("The Act requires that each state establish TMDLs for its identified WQLSs in accordance with its priority ranking").

The North Coast Regional Water Quality Control Board’s Waste Reduction Strategy for the Laguna de Santa Rosa ("Strategy"), submitted to EPA on March 21, 1995, likewise fails to meet the minimum elements required to establish TMDLs under section 303(d) and its accompanying regulations. Pl. 1^st RJN, Ex. 44. The Strategy addresses the Laguna de Santa Rosa’s impairment by nitrogen, ammonia, and low dissolved oxygen. Id. However, the Strategy does not propose a TMDL, but instead is a "Total Maximum Seasonal Load." See Strategy at 19. Because the Strategy only focuses on seasonal loads, the Strategy does not calculate the daily loads required to establish a TMDL under section 303(d) and applicable case law. 33 U.S.C. § 1313(d(1)(C); Idaho Sportsmen’s Coalition v. Browner, 951 F. Supp. at 965; Hankinson, 939 F. Supp. at 871.

The Strategy also does not establish TMDLs since it admittedly does not assure that it will result in achievement of the relevant water quality standards. See Strategy at 5 ("[d]uring the summer season, each attainment point falls short of the strategy goals"). Accordingly, the Strategy does not include a margin of safety for the summer, nor does it adequately address seasonal variations as required by section 303(d). Morevover, instead of establishing load or waste load allocations, the Strategy identifies only "interim reduction targets," which, as of August 27, 1997, had still not been attained. RWQCB Memorandum, Update on the Waste Reduction Strategy for the Laguna de Santa Rosa (Aug. 14, 1997) (Pls. 1st RJN, Ex. 47).

EPA’s approval of the Strategy’s incremental approach as a "TMDL" is arbitrary and capricious and contrary to law. The Clean Water Act requires that TMDLs be set "at a level necessary to implement the applicable water quality standards." 33 U.S.C. § 1313(d(1)(C); NRDC v. Fox, 30 F. Supp. 2d at 381 ("language of the Act does not allow for incremental achievement of water quality standards through successive approval of TMDLs that fall short of the required standard"). See Letter from Alexis Strauss (May 4, 1995) (AR at 800000) ("approves the ‘Waste Reduction Strategy for the Laguna de Santa Rosa’ submitted March 21, 1995 as a phased approach . . . TMDL") (Pls. 1st RJN, Ex. 46).

For the foregoing reasons, plaintiffs respectfully request that the Court grant summary judgment on Claims One, Two, and Three of Plaintiffs First Amended Complaint, holding EPA liable for failing to establish the TMDLs required by Section 303(d), including their implementation, where appropriate, through the Act’s NPDES permit program. In addition, plaintiffs also seek summary judgment on Claim Four of Plaintiffs’ Proposed Second Amended Complaint, vacating EPA’s decisions to approve two TMDLs because those decisions are in violation of the APA.

DATE: May 9, 2000

C:\Program Files\Qualcomm\Eudora Mail\Imap\Dominant\INBOX\Attach\P011MSJ.WPD

TABLE OF CONTENTS Page

I. INTRODUCTION 1

II. LEGAL BACKGROUND 2

A. THE CLEAN WATER ACT 2

B. SECTION 303(d): A CORE PROGRAM OF THE ACT 3

1. Required Content of Section 303(d) Submissions: Lists and TMDLs. 3

2. Firm Congressional Deadlines for EPA Action Under Section 303(d). 4

III. FACTUAL BACKGROUND 6