Summary of a Recent
Judicial Development in
Environmental Law

No Statutory Duty to Consider Pace and Priority Prior to Approving
TMDLs for Impaired Waters

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Potomac Riverkeeper, Inc. v. U.S. EPA, No. RDB 04-38845, 2006 WL 890755 (D. Md. Mar. 31, 2006), the United States District Court for the District of Maryland granted the United States Environmental Protection Agency's (EPA) motion to dismiss the plaintiffs' claim that the agency had failed to oversee the timely development of Total Maximum Daily Loads (TMDLs) by the State of Maryland.

Background

The plaintiffs, non-profit environmental membership organizations, argued that the state was not fulfilling its responsibility to establish TMDLs for impaired state waterways. Id. at *2. Because the state was allegedly shirking its responsibilities pursuant to the Clean Water Act (CWA), the plaintiffs asserted that the EPA should have stepped in and set TMDLs for the state. Id. The CWA requires each state to make a list of impaired state waterways that fail to meet water quality standards "even after the imposition of various enumerated controls and treatments." Id. (citing 33 U.S.C. § 1313(d)(1)). Each listed waterway is individually assigned a TMDL, "which indicate[s] the maximum amount of a pollutant or thermal energy that [an impaired waterway] can assimilate daily without exceeding water quality standards." Id. On November 1, 2004, the EPA reviewed Maryland's TMDL program and made two important determinations: (1) the state had made significant progress in developing its TMDL program; and (2) the agency did not need to take over the state's TMDL program. Id. at *3. The plaintiffs filed the instant action one month later. Id.

Arguments

The plaintiffs sought a declaration that the EPA had not adhered to the Administrative Procedure Act (APA) when it "approv[ed] certain Maryland Department of the Environment (MDE) actions that violate[d] the Clean Water Act." Id. (citing 5 U.S.C. § 706).

Analysis and Holdings

The plaintiffs sought review of the EPA's actions pursuant to APA § 706(2)(A), which sets forth a standard of review that is "highly deferential and the agency's action enjoys a presumption of validity." Id. at *4. To succeed, a plaintiff must show that the agency's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. Additionally, the agency action at issue must be final for a court to have jurisdiction. Id.

The court first addressed the plaintiffs' contention that the EPA's approval of Maryland's TMDL program was "'arbitrary, capricious, an abuse of discretion, and not in accordance with the law under section 706(2)(A) of the APA . . . because the MDE's actual pace of addressing and resolving' impairments [was] too slow." Id. at *7. The EPA argued that the plaintiffs' contention should be dismissed because its approval of Maryland's TMDL program did not constitute final agency action. Id. Because the Memorandum of Understanding between the state and EPA, encompassing the so-called final agency action, stated that it "create[d] no cause of action against EPA or the State of Maryland beyond those, if any, that may already exists under State or federal law" and did not "create any right to judicial review," the court disagreed with the plaintiffs' contention that the EPA's approval constituted final agency action subject to review. Id. at *7-8.

Next, the EPA conceded that the following decisions constituted final agency action: (1) approving the MDE's 2002 Integrated List; (2) approving the MDE's Individual TMDLs, Water Quality Analyses, and De-Listings; and (3) approving the MDE's 2004 Integrated List. Id. at *8. However, in contrast to the plaintiffs' arguments, the agency asserted that it was not required to consider matters of timing and priority when approving § 303(d) lists, specific TMDLs, water quality analyses, and de-listings. Id. at *9. After reviewing appropriate statutes and regulations, the court determined that the timetables associated with implementation of TMDLs were "form[s] of goal setting," rather than rigid time constraints. Id. at *10. Therefore, the plaintiffs "fail[ed] to state a claim because EPA was under no statutory duty to consider pace and priority prior to approving the § 303(d) lists." Id. at *11.

Finally, the court addressed the EPA's decision to continue to approve Maryland's 2001 Continuing Planning Process document (2001 CPP). Id. The plaintiffs contended that the decision was arbitrary, capricious, an abuse of discretion, and not in accordance with the law. Id. at *12. However, the court held that it lacked subject matter jurisdiction because the EPA's decision to approve the 2001 CPP was not a final agency action. Id. The agency only obligated itself to review Maryland's CPP from "time to time." Id. The court stated that by "not exercising its discretion to review Maryland's 2001 CPP, EPA neither marked the consummation of a decisionmaking process nor engaged in conduct that gave rise to legal rights or consequences." Id.

For these reasons, the court granted the EPA's motion to dismiss and denied the plaintiffs' motion for summary judgment. Id.

The case was decided on March 31, 2006.