Las Virgenes Mun. Water District-Triunfo Sanitation Dist. V. McCarthy: Court Affirms the EPA’s Regulatory Authority under the “Constructive Submission” Doctrine of the Clean Water Act..

By Posted in - Environmental Law on November 1st, 2017

Under the Clean Water Act, states are required to submit proposed Total Maximum Daily Loads (“TMDL”) of particular pollutants to the U.S. Environmental Protection Agency (EPA) for impaired waterbodies, according to a priority ranking established by each state agency. Once a state submits a TMDL to the EPA, the agency has 30 days to approve or disapprove of it. If the EPA disapproves a proposed state TMDL, then the EPA must develop its own TMDL for that water body within 30 days.

The Las Virgenes Municipal Water District (“LVMWD”) owns and operates the Tapia Waste Reclamation Facility (“Facility”). The Facility discharges highly treated effluent into Malibu Creek under a permit issued by the Los Angeles Regional Water Quality Control Board (“Regional Board”). In 2013, pursuant to a court ordered Consent Decree that was the product of prior litigation, the EPA sought to promulgate new TMDLs for phosphorous and nitrogen (“2013 TMDL”) that Malibu Creek could receive and sought to modify the LVMWD’s Regional Board permit. The 2013 TMDL could cause the LVMWD to incur up to $180 million in compliance costs. The Consent Decree ended by its own terms in July 2013.

In September 2013 the LVMWD filed suit against the EPA requesting the court to withdraw and cancel the 2013 TMDL primarily alleging, among other things, the EPA lacked the authority to promulgate the 2003 and 2013 TMDLs because the EPA is only capable of promulgating TMDL’s when either it first disapproves of state established TMDLs or a state unambiguously fails to adopt any TMDLs. The latter is known as the constructive submission doctrine.

The LVMWD argued that California had already adopted TMDLs for several regions in the state and had a schedule for adopting further TMDLs, thus the EPAs regulatory authority had not been triggered. The court disagreed, holding that the state had failed to adopt TMDLs for specific water bodies within the Los Angeles region. The constructive submission doctrine is specific to individual water bodies and the EPA has the authority to promulgate TMDLs when the action alleges only a partial failure to adopt TMDLs.

SCOTT McANINCH
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SCOTT McANINCH

Scott McAninch is a Central Coast native and holds a B.S. in Forestry and Natural Resource Management from Cal Poly, San Luis Obispo and his law degree from Golden Gate University School of Law.
SCOTT McANINCH
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