Tag Archives: “constructive submission”

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,… More

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,… More

Acting in response to state legislation, the West Virginia Department of Environmental Protection ceased work on promulgation of total maximum daily loads related to ionic toxicity.  Ionic toxicity is a consequence of mountaintop removal coal mining.  In case you weren’t aware, the coal industry has a certain amount of political clout in the Mountain State (and can they keep the nickname if they chop the tops off of all of their mountains?).… More