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August 1st, 2018
environmental
FOURTH CIRCUIT WEIGHS IN ON CLEAN WATER ACT’S CONSTRUCTIVE SUBMISSION DOCTRINE

In Ohio Valley Environmental Coalition (OVEC) v. Pruitt, 893 F.3d 225 (4th Cir. 2018), the Fourth Circuit Court of Civil Appeals rejected the District Court’s application of the “constructive submission” doctrine, which applies when a state disregards its obligations to submit Total Maximum Daily Loads (TMDLs) required by federal law.   Under this doctrine, a Court may interpret the failure of a state to timely submit TMDLs as a “constructive submission” of a list of no TMDLs.

OVEC sued EPA for failing to take action requiring West Virginia’s Department of Environmental Protection to develop TMDLs for waters deemed “impaired,” or not suitable for their designated uses.  In 2012, the West Virginia legislature enacted a bill requiring state regulators to create a new methodology for developing certain TMDLs.  By the time OVEC filed suit in 2015, West Virginia had not yet adopted a new methodology.

The District Court entered summary judgment in favor of OVEC, finding “[West Virginia] has constructively submitted no TMDLs for biologic impairment to EPA, triggering EPA’s duty to approve or disapprove of the submission.”  The Fourth Circuit reversed, finding the constructive submission doctrine did not apply because West Virginia had submitted some TMDLs for approval by EPA and had a Memorandum of Agreement with EPA requiring it to complete all TMDLs by June 2026.

In reaching its decision, the Court adopted holdings of the Second, Ninth and Tenth Circuits and stated “the doctrine applies only where a state ‘clearly and unambiguously expresses a decision not to submit the TMDLs.”  As long as the state has submitted some TMDLs and has a plan to develop others, constructive submission does not apply.

The Court left open the possibility that “continued intransigence” could change its conclusion.  Even so, the decision is a blow for environmental organizations since it demonstrates delay alone may not be enough to require the EPA to act.

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