Several municipalities near Los Angeles (collectively "Cities") challenged the decision of the Environmental Protection Agency (EPA) to approve the State of California's established total maximum daily load (TMDL) of trash that can be discharged into the Los Angeles River because the approval superseded the TMDL that EPA had already established. The Ninth Circuit held that EPA had authority pursuant to section 303(d) of the Clean Water Act[1] to approve a subsequent state established TMDL. The court affirmed the district court's dismissal of the claim for failure to state a claim upon which relief can be granted.[2]

The National Pollutant Discharge Elimination System (NPDES) permit program sets specific limits on the amount of pollutants that may be discharged from any "point source" into United States water.[3] States must identify waters, known as the state's "303(d) list,"[4] with substandard water quality.[5] States are required to develop a TMDL for each pollutant of concern for identified waters, which is used as an informational guide for the establishment of further pollution controls.[6] EPA must approve or disapprove the state's TMDL within thirty days and if EPA disapproves it must issue its own TMDL within thirty days of the disapproval.[7] A prolonged failure of the state to submit a TMDL amounts to the "constructive submission" of an inadequate TMDL and triggers the state's mandatory duty to establish a TMDL.[8]

In 1997, EPA was sued by several environmental groups for failure to establish a TMDL for the Los Angeles area when California failed to do so. A consent decree was issued which required EPA to approve a California established TMDL for trash in the Los Angeles River by March 2001 and if a timely submission was not made EPA was required to establish its own TMDL by March 2002. California did not submit a TMDL by March 2001 and EPA established one in March 2002. However, five months later California submitted a TMDL which EPA approved, causing it to supersede EPA's previous TMDL.

The Ninth Circuit determined that EPA acted within the scope of its authority in approving the subsequent TMDL because neither the Clean Water Act nor its implementing regulations indicate or imply that EPA is barred from approving California's TMDL.[9] States are able to submit TMDLs "from time to time" and the EPA must either approve or disapprove a state submitted TMDL.[10] The court indicated that this plain reading was consistent with the goal and policy of the Clean Water Act that states lead the way in reducing pollution.[11] Furthermore, it stressed that even if the language of the statute was not clear, the court would have upheld EPA's interpretation of the Clean Water Act as reasonable.[12] The court explained that the Cities' reliance on the constructive submission doctrine was incorrect because relevant cases do not suggest that EPA establishing a TMDL prevents a state from submitting a subsequent TMDL on the same subject. The Cities' argument that duplicative TMDLs violate public policy was also dismissed because of lack of legal support as long as the State does not attempt to establish more lenient pollution control measures than those already established.[13]

In conclusion, the Ninth Circuit held that EPA acted within its authority in approving California's TMDL despite EPA establishing its own TMDL when California initially failed to make a timely submission. EPA affirmed the district court's dismissal of the Cities' claim against the EPA. The Cities' other claims against the EPA were also rejected in a separate, unpublished disposition.