Earlier this month, the 9th Circuit Court of Appeals held that a long-term failure by a state to submit to EPA a TMDL for an impaired water can constitute a “constructive submission” of no TMDL, triggering an obligation on EPA’s part to reject the constructive submission and, in turn, to issue the requisite TMDL itself.
The logic of the decision is straightforward. The Clean Water Act unambiguously imposes a non-discretionary duty on states to submit TMDLs for waters on the so-called “303(d) list.” In turn, EPA then has a non-discretionary duty to review and approve – or not – the TMDL within 30 days. If it does not approve the state’s TMDL, EPA must issue its own TMDL within 30 days. In this case, Washington and Oregon had failed for more than 20 years to submit temperature TMDLs intended to protect salmon and steelhead trout.
Logically, it doesn’t make a lot of sense to require submittal of a TMDL, and require EPA to promulgate its own TMDL if the state’s TMDL is inadequate, while at the same time allowing states to perform an end-run around the entire process by deliberately refusing to submit any TMDL.
That’s what, in the legal biz, we call a “loophole.”
Although the opinion is not momentous on its own, it does highlight an ongoing issue – the meaning of cooperative federalism in the age of Trump. A lot of attention has been paid to problems that arise when states and EPA cannot agree, but what happens when states and EPA do agree – but their agreement is to jointly avoid statutory obligations?
As I noted in cases involving Lake Erie algae blooms and regional haze plans in Texas, it takes two to do the federalism tango. And I, for one, was not previously aware that the two greatest singers in rock and roll history had combined to sing a song titled It Takes Two To Tango!