Earlier this week, the 4th Circuit Court of Appeals reversed a District Court opinion and held that West Virginia had not “constructively submitted” no TMDLs for waters affected by ionic toxicity. (And, yes, that sentence is difficult to parse.)
The basic issue is pretty simple. The responsibility for promulgating TMDLs in the first place belongs to the states. Once a state submits TMDLs to EPA, EPA must approve – or disapprove – a state’s list within 30 days. The constructive submission doctrine was developed to prevent states from avoiding EPA’s displeasure by simply never submitting a list of TMDLs.
Thus, under the doctrine, a court may interpret a lengthy failure of a state to submit TMDLs as in fact being a “constructive submission” of a list of no TMDLs. If the failure to act is treated as an affirmative act, then EPA’s review clock is triggered and its failure to make a decision on the “no” list is subject to judicial review.
The problem with the doctrine, as with most judge-made law, is that it leaves some gaps that aren’t answered by the statute, precisely because the doctrine doesn’t exist in the statute. The root of the crux of the nub of the issue is that no one really knows how little must the state in question do before a court will find that it has made an decision not to submit TMDLs.
The Court’s answer was that the state’s inaction must be pretty much total. The Court adopted the holdings of other circuits and stated that “the doctrine applies only where a state ‘clearly and unambiguously’ expresses a decision not to submit TMDLs.” Constructive submission does not apply so long as the state has adopted some TMDLs and has a plan to develop others. Here, West Virginia agreed that it must develop TMDLs, including for ionic toxicity.
The Court left open the possibility that “continued intransigence” could change its conclusion. Nonetheless, for now, the bar to winning a “constructive submission” case remains substantial.