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.
