Fourth Circuit Echoes NACWA Arguments in Total Maximum Daily Load Litigation

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(June 26, 2018) - The US Court of Appeals for the Fourth Circuit issued a unanimous decision in Ohio Valley Environmental Coalition (OVEC) v. Pruitt on June 20, reversing the trial court’s application of the constructive submission doctrine to West Virginia’s development of total maximum daily loads (TMDLs).  The court’s reasoning embraces NACWA’s position in the case that application of the constructive submission theory to the TMDLs in question was not appropriate.

The appeal arose from a district court decision finding that West Virginia Department of Environmental Protection’s (WVDEP) delay in submitting TMDLs for ionic toxicity – which is measured in terms of conductivity – amounted to constructive submission of no TMDLs.  The district court held that this constructive submittal required EPA to either approve the submission of “no TMDLs,” or reject the submittal and create the TMDL itself.  Following the district court’s decision, EPA approved the constructive submission and entered into a Memorandum of Agreement setting a schedule by which WVDEP must complete the remaining TMDLs.

In its opinion, the Fourth Circuit explicitly withheld judgment on the validity of the constructive submission doctrine — a judicial doctrine that has no basis in the text of the Clean Water Act (CWA) — but instead focused on decisions by other courts and found that WVDEP’s delay in submitting the TMDLs did not meet the strict standards of the “constructive submission” doctrine.  As the court noted, constructive submission occurs only where the state has “clearly and unambiguously” refused to develop any TMDLs and has no credible plan to do so. 

As the Fourth Circuit noted, only one court has ever found that constructive submission occurred. In that case, the state of Alaska failed to develop any TMDLs over a decade after listing water bodies as impaired, or to even complete the first steps to do so.  By contrast, the court explained, WVDEP had developed thousands of TMDLs over the years, and had a plan in place to complete the missing TMDLs.  As a result, the court found that the constructive submission doctrine did not apply to WVDEP’s actions and reversed the district court’s decision.

The decision represents an important victory in maintaining the balance of cooperative federalism and allowing states the necessary time to develop TMDLs to address complex issues.  A decision upholding the district court would have broadly expanded the constructive submission doctrine and threatened to rush states to TMDL development on a variety of complex issues impacting NACWA members. 

In July 2017, NACWA filed an amicus curiae brief in the case in cooperation with the National Mining Association and the National Cattlemen’s Beef Association. NACWA’s brief lent support to EPA’s position that the district court erred in applying the constructive submission doctrine, arguing that the CWA does not provide for the constructive submission doctrine at all, and supporting states’ discretion to address TMDLs based on science. NACWA’s participation also provided a national perspective on the broader implications of the district court’s holding.

Please contact Erica Spitzig, NACWA’s Deputy General Counsel, with any questions.