Appealing the district court's dismissal of its claim, San Francisco BayKeeper (BayKeeper), an environmental group, argued to the Ninth Circuit that the State of California had failed both to determine total maximum daily loads (TMDLs), and to implement a TMDL program in a timely manner, as required by the Clean Water Act (CWA).[1] BayKeeper also argued that because of the State's failures concerning the establishment of TMDLs, the Environmental Protection Agency (EPA) had a "non-discretionary duty to establish water pollution standards for California."[2] Further, BayKeeper argued that the district court improperly consulted a document submitted by EPA, EPA's Program Review document, in its review of the record. In rejecting all of BayKeeper's arguments and affirming the district court's grant of summary judgment in favor of EPA, the Ninth Circuit found that EPA did not have a nondiscretionary duty to act and the district court's reliance on EPA's Program Review document was proper.

Initially, the court addressed California's submissions to EPA as required by section 303(d) of the CWA.[3] BayKeeper contended that California had neglected the 1979 deadline in the CWA[4] for TMDL submission because California "did not submit any TMDLs until 1994 . . . 15 years after the initial deadline for making a submission pursuant to section 303(d) of the Act."[5] The Ninth Circuit pointed out, however, that California had a TMDL program in place with an annual budget of $7 million. In addition, the court indicated that California had "completed more than 46 TMDLs for waters on California's lists . . . [and] established a schedule for completing all TMDLs for waters on its 1998 section 303(d) lists within the next 12 years."[6]

BayKeeper first argued that EPA had a duty to establish TMDLs for California because California had failed to establish the required TMDLs. Section 303(d) of the CWA requires the EPA Administrator to approve or disapprove of a state's TMDL proposal within thirty days of submission.[7] The Act also requires the Administrator to establish TMDLs for the state if the Administrator disapproves of a state's TMDL proposal.[8] BayKeeper relied on the constructive submission doctrine as support for their contention that EPA had a duty to act. Under the constructive submission doctrine, if a state fails to submit TMDLs, EPA will construe such a failure as intent to submit no TMDLs.[9] Thus, EPA's duty under section 303(d) will be triggered, and EPA will have to either approve or disapprove of the state's submission of no TMDLs. If EPA disapproves the submission, it must establish TMDLs. BayKeeper contended that because California's 303(d) submissions between 1980 and 1994 contained only a listing of water quality limited segments (WQLSs) and did not contain TMDLs, California intended not to submit TMDLs. Therefore, according to BayKeeper, the court should have applied the doctrine of constructive submission, and required EPA to establish the state's TMDLs.

The Ninth Circuit affirmed the district court's refusal to apply the doctrine of constructive submission. The district court did not apply the doctrine because California had submitted TMDLs. Although the Ninth Circuit recognized the constructive submission doctrine, the court agreed with the district court and found that the theory did not apply in this case. The Ninth Circuit agreed with the Tenth Circuit's decision in Hayes v. Whitman,[10] in which that court stated that the constructive submission theory "applies only when the state's actions clearly and unambiguously express a decision" not to submit TMDLs.[11] Thus, because California's actions included development of TMDLs and maintenance of a schedule for TMDL compliance its actions "preclude[d] any finding that the state ha[d] 'clearly and unambiguously' decided not to submit any TMDLs." [12]

BayKeeper also contended that California's 303(d) submissions that listed WQLSs but not TMDLs "were incomplete and should have been disapproved by EPA."[13] The court explained that the CWA does not require a state to make submissions of WQLSs and TMDLs at the same time. The court referred to the EPA regulations, [14] which require a state to submit WQLSs every two years, and noted that EPA had not defined a schedule for TMDL submissions. The court followed the framework developed in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.[15] in deferring to EPA's interpretation that the CWA does not require simultaneous TMDL and WQLS submissions. The court found EPA's interpretation reasonable because to require "simultaneous submission of the list of polluted waters with the TMDL to correct each polluted water would render meaningless the provision that the TMDLs are to be established 'in accordance with priority ranking' of the listed polluted waters."[16] Therefore, neither the constructive submission doctrine nor the absence of TMDLs in California's 303(d) submissions triggered EPA's duty under the CWA to establish California's TMDLs.

BayKeeper also argued under the Administrative Procedure Act (APA),[17] EPA could not "unreasonably delay[]" action.[18] BayKeeper argued that EPA was unreasonably late in establishing TMDLs. The Ninth Circuit held that because EPA did not have a statutory duty to act there was no unreasonable delay.

Finally, the Ninth Circuit held that when a court considers a claim that an agency failed to act there is "no final agency action that closes the administrative record."[19] Therefore, it was not an abuse of discretion for the district court to consider the EPA Program Review document, described by BayKeeper as a "'post-hoc staff memorandum' that attempt[ed] to 'inflate the scope of the State's past and ongoing TMDL efforts.'"[20] Thus, the court concluded that the district court's review of the EPA Program Review document was proper.