Case 3:21-cv-01136-HZ Document 1 Filed 08/03/21 Page 1 of 32
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`JAMES N. SAUL, OSB No. 152809
`Earthrise Law Center
`at Lewis & Clark Law School
`10015 SW Terwilliger Blvd.
`Portland, OR 97219-7799
`Telephone: (503) 768-6929
`Fax: (503) 768-6642
`E-mail: jsaul@lclark.edu
`
`Attorney for Plaintiff
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`
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF OREGON
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`PORTLAND DIVISION
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`Case No: 3:21-cv-01136
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`COMPLAINT
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`(Pursuant to the Clean Water Act, 33 U.S.C. §
`1365(a)(2), and the Administrative Procedure
`Act, 5 U.S.C. §§ 702–706)
`
`NORTHWEST ENVIRONMENTAL
`ADVOCATES, a non-profit organization,
`
` Plaintiff,
`
` v.
`
`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY; MICHAEL
`REGAN, in his official capacity as
`Administrator of the Environmental
`Protection Agency; and MICHELLE
`PIRZADEH, in her official capacity as Acting
`Regional Administrator Environmental
`Protection Agency Region 10,
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` Defendants.
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`COMPLAINT
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`INTRODUCTION
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`1.
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`Through this action, plaintiff Northwest Environmental Advocates (“NWEA”)
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`challenges the failure of the defendants United States Environmental Protection Agency
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`(“EPA”), EPA Administrator Michael Regan, and Acting EPA Regional Administrator Michelle
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`Pirzadeh, to ensure the protection and restoration of fresh and marine waters of the State of
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`Oregon in violation of the mandates of the Clean Water Act (“CWA” or “Act”), 33 U.S.C. §§
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`1251 et seq., and EPA’s implementing regulations.
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`2.
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`In this action, NWEA seeks review of various actions and inactions taken by
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`Defendants pursuant to Section 303(d) of the Act, 33 U.S.C. § 1313(d). That section, along with
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`its federal implementing regulations, imposes upon EPA a series of mandatory duties that, as
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`further described below, fall into two distinct but related regulatory programs: the “impaired
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`waters” program that requires states—or, if they fail, EPA—to identify surface waters that do not
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`meet applicable water quality standards; and the total maximum daily load or “TMDL” program
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`that requires states—or again, if they fail, EPA—to develop science-based clean-up plans for
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`those waters in a timely fashion.
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`3.
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`The CWA and federal regulations require each state to review the status of all its
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`waters every two years to determine which waterbodies, if any, are falling short of established
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`goals that ensure those waterbodies are clean enough to support human and ecological uses, such
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`as drinking, swimming, fishing, and wildlife habitat. The state must identify all such “impaired”
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`waters or “water quality limited segments” (“WQLS”) and submit that list, along with a priority
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`ranking for developing pollution clean-up plans called “Total Maximum Daily Loads”
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`(“TMDLs”) that the state is required to develop for each impaired waterbody, to EPA for
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`COMPLAINT
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`approval. Additionally, this priority ranking must include a schedule for the impaired waters
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`targeted for TMDLs in the coming two-year period.
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`4.
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`EPA, in turn, must review the state’s submission of its list of impaired waters and
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`the state’s priorities and determine whether the state has complied with the law. Where the state
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`has fallen short, the CWA requires EPA to step in and establish a proper, timely, lawful list of
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`impaired waters, and if necessary, develop the TMDL clean-up plans for those waterbodies.
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`Here, EPA neglected its duties and failed to develop TMDL clean-up plans for a large number of
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`Oregon waters that are impaired but remain in need of TMDLs—some dating since 1998.
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`5.
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`On December 31, 2017, Oregon submitted its most recently prepared impaired
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`waters list or “303(d) list” to EPA for approval. This list included data beginning from 1998 but
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`did not include any data from 2014 & 2016, because Oregon failed to submit lists those years.
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`On November 12, 2020, EPA approved this list, terming it a “2014-2020” list, effectively
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`merging the four instances that Oregon should have submitted data into one large submission.
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`Moreover, within this approved list includes over a thousand WQLS identified between the years
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`1998 and 2012 that still require the development of TMDLs and are the subject of this action.
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`6.
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`Neither the Oregon Department of Environmental Quality (“DEQ”) nor EPA has
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`developed TMDLs in a timely fashion—indeed, since 2010, no new TMDLs have been
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`established by Oregon or EPA that had not been originally completed by Oregon and submitted
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`to EPA and/or approved by EPA prior to December 31, 2010, with the sole exception of EPA’s
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`2020 draft TMDL for temperature in the Columbia River. This combination of a list of impaired
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`waters needing TMDLs that is both inadequate and growing rapidly, and the corresponding lack
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`of TMDLs, has resulted in a near collapse of the water pollution regulatory scheme in Oregon.
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`Without the preparation of TMDLs and the resulting assignment of pollutant load reductions to
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`COMPLAINT
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`be achieved by various contributing sources, DEQ and EPA are unable to properly limit the
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`discharge of pollutants to ensure the eventual attainment of Oregon water quality standards in
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`waters with levels of pollutants unsafe for humans and ecological uses.
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`7.
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`This serious deficiency in the State’s water pollution regulatory scheme fails to
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`protect the large number of endangered and threatened aquatic species that depend upon the
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`quality of Oregon waters. In addition, this longstanding pollution threatens to sully the reputation
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`of a state known nationwide for its clean water and its freshwater and marine recreational
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`activities.
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`8.
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`The Ninth Circuit has recognized the “constructive submission” theory, holding
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`that “where a state has ‘clearly and unambiguously’ decided that it will not submit TMDLs for
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`the entire state, that decision will be ‘construed as a constructive submission of no TMDLs,
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`which in turn triggers the EPA’s nondiscretionary duty to act’” under the Clean Water Act.
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`Columbia Riverkeeper v. Wheeler, 944 F.3d 1204, 1208 (9th Cir. 2019) (quoting San Francisco
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`BayKeeper v. Whitman, 297 F.3d 877, 880, 883 (9th Cir. 2002)).
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`9.
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`As detailed below, NWEA alleges that Oregon has effectively abandoned its
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`TMDL program, thereby “constructively submitting” to EPA a host of TMDLs for waters that
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`have been impaired for many years or even decades. NWEA further alleges that EPA violated
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`the Clean Water Act by failing to disapprove of Oregon’s constructively submitted TMDLs and
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`failing to establish its own TMDLs for these waters. Additionally, or in the alternative, NWEA
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`alleges that EPA’s failure to review and disapprove Oregon’s constructively submitted TMDLs,
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`its failure to prepare TMDLs itself for Oregon’s impaired waters, and its approval of Oregon’s
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`unlawful TMDL prioritization schedule violated the Administrative Procedure Act (“APA”) and
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`was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
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`COMPLAINT
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`JURISDICTION AND VENUE
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`10.
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`This action arises under the citizen suit provision of the Clean Water Act, 33
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`U.S.C. § 1365(a)(2), and the judicial review provisions of the Administrative Procedure Act, 5
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`U.S.C. §§ 702–706.
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`11.
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`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal
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`question jurisdiction) and 33 U.S.C. § 1365(a) (CWA citizen suit jurisdiction). The requested
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`relief is proper under 28 U.S.C. § 2201(a), 28 U.S.C. § 2202, 33 U.S.C. § 1365(a), and 5 U.S.C.
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`§§ 705, 706 (APA relief pending review and scope of review).
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`12.
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`As required by 33 U.S.C. § 1365(b)(1)(A), by letter dated April 3, 2021, NWEA
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`provided EPA with written notice of NWEA’s intent to file suit regarding EPA’s Clean Water
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`Act violations alleged below. A copy of that notice letter is attached here as Exhibit A, and is
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`incorporated herein by reference.
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`13.
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`Venue is properly vested in this Court pursuant to 28 U.S.C. § 1391(e) because a
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`substantial part of the events or omissions giving rise to the claims occurred in Oregon.
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`14.
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`Pursuant to Local Rule 3-2(b), Divisional Venue is proper in this Court because a
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`substantial part of the events and omissions giving rise to NWEA’s claims occurred in
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`Multnomah County, and because NWEA resides in Multnomah County.
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`PARTIES
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`15.
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`The plaintiff in this action is NORTHWEST ENVIRONMENTAL
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`ADVOCATES. Established in 1969, NWEA is a regional non-profit environmental organization
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`incorporated under the laws of Oregon in 1981 and organized under section 501(c)(3) of the
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`Internal Revenue Code. NWEA’s principal place of business is in Portland, Oregon. NWEA’s
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`mission is to work through advocacy and education to protect and restore water and air quality,
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`COMPLAINT
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`wetlands, and wildlife habitat in the Northwest and the nation, including Oregon. NWEA
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`employs advocacy with administrative agencies, community organizing, strategic partnerships,
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`public record requests, information sharing, expert analysis, lobbying, education, and litigation to
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`ensure better implementation of the laws that protect and restore the natural environment.
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`16.
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`NWEA’s members regularly use and enjoy the waters of the State of Oregon,
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`including waters that are currently impaired by pollution. NWEA’s members regularly use and
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`enjoy these waters and adjacent lands and have definite future plans to continue using them for
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`recreational, subsistence, scientific, aesthetic, spiritual, commercial, conservation, educational,
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`employment, and other purposes. Many of these interests revolve around viewing sensitive
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`salmonid species and other aquatic species that are under threat by pollution in the covered
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`waters.
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`17.
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`Various NWEA members regularly engage in recreational or aesthetic activities
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`on, in, or near one or more of the hundreds of waters in Oregon that are presently impaired and
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`therefore in need of a TMDL. Such activities include fishing, boating, swimming, hiking,
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`wildlife observation, and photography. The recreational and aesthetic experiences of these
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`NWEA members are diminished because of the waters’ impaired status and the lack of a TMDL
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`which would appropriately limit the pollution discharged into those waters.
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`18.
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`The recreational, aesthetic, conservation, scientific, and other interests of NWEA
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`and its members have been, are being, and unless relief is granted, will continue to be adversely
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`affected and irreparably injured by EPA’s failure to comply with the CWA.
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`19.
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`Defendant U.S. ENVIRONMENTAL PROTECTION AGENCY is the federal
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`agency charged with the administration of the CWA, and specifically with approving or
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`COMPLAINT
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`disapproving state identification of impaired waters and state TMDL submissions under section
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`303(d)(2) of the CWA, 33 U.S.C. § 1313(d)(2).
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`20.
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`Defendant MICHAEL REGAN is sued in his official capacity as the
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`Administrator of the EPA. In that role, he is charged with the duty to uphold the CWA and its
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`implementing regulations and to take required regulatory actions according to the schedules
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`established therein.
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`21.
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`Defendant MICHELLE PIRZADEH is sued in her official capacity as the Acting
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`Regional Administrator of Region 10 of the EPA. In that role, she is charged with the duty to
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`uphold the CWA and its implementing regulations and to take required regulatory actions
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`according to the schedules established therein.
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`LEGAL BACKGROUND
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`A. The Clean Water Act and Water Quality Standards that Establish the Need and Basis
`for Water Quality-Based Pollution Controls
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`
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`22.
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`Congress adopted amendments to the CWA in 1972 in an effort “to restore and
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`maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. §
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`1251(a). While the primary goal of the CWA is to eliminate the discharge of pollutants into
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`navigable waters entirely, Congress established “an interim goal of water quality which provides
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`for the protection and propagation of fish, shellfish, and wildlife.” Id. § 1251(a)(1)–(2).
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`23.
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`To meet these statutory goals, the CWA requires states to develop water quality
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`standards that establish, and then protect, the desired conditions of each waterway within the
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`state’s regulatory jurisdiction. 33 U.S.C. § 1313(a). These water quality standards must be
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`sufficient to “protect the public health or welfare, enhance the quality of water and serve the
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`purposes of [the CWA].” Id. § 1313(c)(2)(a).
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`COMPLAINT
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`24.
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`Water quality standards must include three elements: (1) one or more designated
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`beneficial uses of a waterway; (2) numeric and narrative criteria specifying the water quality
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`conditions, such as maximum amounts of toxic pollutants, maximum temperature levels, and the
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`like, that are necessary to protect the designated uses; and (3) an antidegradation policy that
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`ensures that beneficial uses dating to 1975 are protected and high quality waters will be
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`maintained and protected. 33 U.S.C. §§ 1313(c)(2), (d)(4)(B); 40 C.F.R. Part 131, Subpart B.
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`Overall, water quality standards establish the water quality goals for a waterbody. 40 C.F.R. §§
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`131.2, 131.10(d).
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`25.
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`After designating water quality standards, the state is required to submit standards
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`to EPA for approval or disapproval. 33 U.S.C. § 1313 (a)(3)(A). Upon receipt of the state’s
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`submission, EPA is charged with approving or disapproving a state’s water quality standards
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`and, in some instances, establishing standards for a state. See 33 U.S.C. § 1313 (c)(2)(A), (3).
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`26.
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`Once approved by EPA, water quality standards serve, among other things, as the
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`regulatory basis for establishing water quality-based pollution controls for so-called point
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`sources of pollution, as required by sections 301 and 306 of the CWA, 33 U.S.C. §§ 1311, 1316.
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`Point source discharges are regulated under National Pollutant Discharge Elimination System
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`(“NPDES”) permits, which must contain limitations “necessary to meet water quality standards.”
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`33 U.S.C. §§ 1311(b)(1)(C), 1342(a). Water quality standards serve as the basis for section 401
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`certifications by state authorities for any federal action, such as the construction or operation of a
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`hydroelectric dam, that may result in any discharge. 33 U.S.C. § 1341(a)(1).
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`27.
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`Water quality standards also are used to establish water quality-based pollution
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`controls for nonpoint source pollution. Unlike point source pollution, nonpoint source pollution
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`is generally considered to be any pollution that cannot be traced to a single discrete conveyance.
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`Examples include pesticide and sediment runoff from agricultural or forestry lands, nutrient and
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`human pathogen releases from on-site septic systems, and increased stream temperatures caused
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`by solar radiation as the result of removed riparian vegetation.1
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`28.
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`Unlike the NPDES program for point source discharge regulation, Congress did
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`not establish a federal permitting scheme for nonpoint sources of pollution, such as pollution
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`from timber harvesting and agricultural activities. Instead, Congress assigned states the task of
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`implementing water quality standards for nonpoint sources, with oversight, guidance, assistance,
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`and funding from EPA.2 See, e.g., 33 U.S.C. §§ 1288, 1313, 1329. Even so, water quality
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`standards apply to all pollution sources, point and nonpoint alike. “[S]tates are required to set
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`water quality standards for all waters within their boundaries regardless of the sources of the
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`pollution entering the waters.” Pronsolino v. Nastri, 291 F.3d 1123, 1127 (9th Cir. 2002)
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`(emphasis in original).
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`B. Listing of Impaired Waters: Every Two Years the State Must Identify Waters that are
`Not Meeting the Water Quality Standards
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`29.
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`The CWA requires states to identify waters that fail to meet water quality
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`standards and to create a priority ranking of those waters factoring the “severity of the pollution”
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`and the waters’ designated uses. 33 U.S.C. § 1313(d)(1)(a).
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`30.
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`Section 303(d)(2) of the CWA requires states to submit to EPA “from time to
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`time” a list of “waters identified and the loads established under” subsections 303(d)(1)(A)–(D),
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`1 See Basic Information about Nonpoint Source (NPS) Pollution, U. S. ENVTL. PROTECTION
`AGENCY, https://www.epa.gov/nps/basic-information-about-nonpoint-source-nps-pollution (last
`visited June 14, 2021).
`2 In addition, Congress passed the Coastal Zone Act Reauthorization Amendments (“CZARA”)
`that calls for states to use section 319 of the CWA to carry out approved coastal nonpoint source
`pollution control programs to meet water quality standards in coastal watersheds. See 16 U.S.C.
`§ 1455b(a)(2). CZARA calls for the use of section 303(d) programs to carry out coastal water
`quality protection. Id.
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`COMPLAINT
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`including, among other components, a list of waters for which technology-based effluent
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`limitations “are not stringent enough to implement any water quality standard applicable to such
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`waters.” 33 U.S.C. § 1313(d)(1)(A); (2). See also 40 C.F.R. §§ 130.7(b); 130.10(b), (d).
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`31.
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`Such waters are called “water quality limited segments” (WQLS) or “impaired”
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`waters. 40 C.F.R. § 131.3(h) (“Water quality limited segment means any segment where it is
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`known that water quality does not meet applicable water quality standards, and/or is not expected
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`to meet applicable water quality standards[.]).”
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`32.
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`EPA has promulgated rules that establish the frequency of such submissions,
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`consistent with the statute. Every two years states shall compile a list of impaired waters and
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`submit them to EPA for approval. 33 U.S.C. § 1313(d)(1)(A), (d)(2). These lists are commonly
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`called “303(d) lists” in reference to section 303(d) of the CWA or “impaired waters list.”
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`33.
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`The 303(d) lists serve several important functions, in addition to identifying
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`which waterbodies must receive the required TMDL clean-up plans. The list provides the public
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`and local governments with specific information about the health of the waterbodies throughout
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`the state and identifies waterbodies that may not be safe to use. It identifies where improved
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`nonpoint source controls of polluted runoff from land activities, such as farming and logging, are
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`needed, as well as priorities for habitat restoration. Most importantly, a waterbody’s inclusion on
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`the 303(d) list triggers additional protections under the CWA’s NPDES permitting requirements
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`to ensure impaired waters are not further degraded and are cleaned up, consistent with the
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`CWA’s prohibition on point sources’ causing or contributing to violations of water quality
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`standards. See 40 C.F.R. §§ 122.4, 122.44.
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`34.
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`For purposes of listing impaired waters, the applicable water quality standards are
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`the same as those established pursuant to section 303(c) of the CWA, which include waters’
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`COMPLAINT
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`designated uses, numeric criteria, narrative criteria, and antidegradation requirements. 40 C.F.R.
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`§ 130.7(b)(3).
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`35.
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`In order to identify and rank WQLS for TMDL development, each state, at a
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`minimum, “shall assemble and evaluate all existing and readily available water quality-related
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`data and information” for specific categories of waters that include, but are not limited to, those
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`for which “water quality problems have been reported by local, state, or federal agencies;
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`members of the public; or academic institutions.” 40 C.F.R. § 130.7(b)(5), (b)(5)(iii).
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`36.
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`EPA recommends that states place their surface waters into five unique
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`assessment categories. These categories are:
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`(1) Attaining the water quality standard and no use is threatened;
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`(2) Attaining some of the designated uses; no use is threatened; and insufficient or no
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`data and information is available to determine if the remaining uses are attained or
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`threatened;
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`(3)
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`Insufficient or no data and information to determine if any designated use is
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`attained;
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`(4)
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`Impaired or threatened for one or more designated uses but does not require the
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`development of a TMDL because: (A) a TMDL has already been completed; (B)
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`other pollution controls are expected to result in the clean-up of the impairment;
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`or (C) the impairment is not caused by a pollutant; and
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`(5) The water quality standard is not attained because the segment is impaired or
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`threatened for one or more designated uses by a pollutant(s), and requires a
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`TMDL.
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`COMPLAINT
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`Waters placed in category 5 comprise the state’s 303(d) list of impaired waters for which
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`TMDLs are required.
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`37.
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`States must submit an updated impaired waters list to EPA on April 1 of every
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`other year for EPA’s review and approval. 33 U.S.C. § 1313(d)(2); 40 C.F.R. § 130.7(d)(1). EPA
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`must act on the state-submitted list within 30 days and, if it disapproves the list, EPA must
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`establish a replacement list within 30 days of the disapproval. 33 U.S.C. § 1313(d)(2).
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`C. Total Maximum Daily Loads: The States Must Develop Clean-Up Plans to Ensure
`Pollutant Levels in Impaired Waters are Reduced to Meet Water Quality Standards
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`38.
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`Along with each new 303(d) list, a state must establish and submit to EPA a
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`“priority ranking” of its impaired waters, “taking into account the severity of the pollution and
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`the uses to be made of such waters.” 33 U.S.C. § 1313(d)(1)(A). This priority ranking must also
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`“specifically include the identification of waters targeted for TMDL development in the next two
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`years.” 40 C.F.R. § 130.7(b)(4).
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`39.
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`For each of its 303(d)-listed impaired waters, a state must establish a “total
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`maximum daily load” of pollutants “established at a level necessary to implement the applicable
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`water quality standards[.]” 33 U.S.C. § 1313(d)(1)(C). To encourage prompt state action even
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`where water quality data are imperfect, the Act requires that TMDLs include a “margin of safety
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`which takes into account any lack of knowledge concerning the relationship between effluent
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`limitations and water quality.” Id.
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`40.
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`States must prepare TMDLs “in accordance with the priority ranking.” 40 C.F.R.
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`§ 130.7(c)(1). Federal regulations provide that “[s]chedules for submissions of TMDLs shall be
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`determined by the [EPA] Regional Administrator and the State.” 40 C.F.R. § 130.7(d)(1).
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`41.
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`A TMDL is the total daily loading of a pollutant for a particular waterbody or
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`waterbody segment. See 40 C.F.R. §130.2(i). The total amount of a pollutant that may enter a
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`COMPLAINT
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`waterbody while still meeting water quality standards is called its “loading capacity.” 40 C.F.R.
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`§ 130.2(f). TMDLs for individual waterbodies or segments are typically bundled together by
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`watershed or subbasin in the same analytical document that is submitted to EPA for approval.
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`42.
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`After calculating a waterbody’s loading capacity, a TMDL then distributes
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`portions of the total loading capacity to individual sources or categories of pollution sources.
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`These allocations include both “load allocations” and “waste load allocations,” for nonpoint and
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`point sources of pollution respectively. 40 C.F.R. § 130.2(g), (h), (i). The purpose of load and
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`waste load allocations is to allocate the total amount of pollution that may enter a waterbody
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`between all the sources of pollution, including both point and nonpoint sources, thereby
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`restricting pollution inputs sufficiently to attain and maintain water quality standards. Only if
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`nonpoint source controls provide the basis for more stringent load allocations can waste load
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`allocations for point sources be made less stringent. Id at § 130.2(i).
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`43.
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`As with water quality standards, a state must submit TMDLs to EPA for approval
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`or disapproval. 33 U.S.C. § 1313(d)(2); 40 C.F.R. § 130.2(d). EPA must act on a TMDL
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`submission within 30 days and, if it disapproves the TMDL, EPA must establish a replacement
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`TMDL within 30 days of the disapproval. 33 U.S.C. § 1313(d)(2).
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`44.
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`Upon EPA approval or promulgation of a TMDL, all future NPDES permits must
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`be consistent with the TMDL’s assumptions and requirements of waste load allocations for point
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`sources. 40 C.F.R. § 122.44(d)(1)(vii)(B). The approved load allocations serve as the basis for
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`state and local programs for controlling nonpoint source pollution, including state programs that
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`receive federal funds under section 319 of the CWA, 33 U.S.C. § 1329. Once EPA approves a
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`TMDL, the state must also incorporate the TMDL into its “continuing planning process” under
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`section 303(e) of the CWA. 33 U.S.C. § 1313(e)(3)(C).
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`COMPLAINT
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`45.
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`In guidance published more than 20 years ago, EPA recognized that it “needs an
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`overall plan for completing and approving TMDLs for all listed waters” and that each EPA
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`Region should “secure a specific written agreement with each State in the Region establishing an
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`appropriate schedule for the establishment of TMDLs for all waters on the most recent section
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`303(d) list,” with those schedules being “expeditious” and extending “from eight to thirteen
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`years in length.” Memorandum from Robert Perciasepe, Assistant Administrator, EPA Office of
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`Water, to Regional Administrators and Regional Water Division Directors: New Policies for
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`Establishing and Implementing Total Maximum Daily Loads (TMDLs) (1997) at 3. Subsequent
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`EPA guidance has clarified that this time frame is “8 to 13 years from the date of the original
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`water/pollutant combination listing.” EPA, Guidance for 2004 Assessment, Listing and
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`Reporting Requirements Pursuant to Sections 303(d) and 305(b) of the Clean Water Act (July
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`21, 2003) (emphasis added).
`
`46.
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`Thus, as other courts within the Ninth Circuit have noted, section 303(d) of the
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`CWA “expressly requires the EPA to step into the states’ shoes if their TMDL submissions . . .
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`are inadequate.” Alaska Ctr. for the Env't v. Reilly, 762 F. Supp. 1422, 1429 (W.D. Wash. 1991).
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`Further, because “Congress prescribed early deadlines for the TMDL process,” appropriate
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`TMDL schedules must be counted in “months and a few years, not decades.” Idaho Sportsmen’s
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`Coal. v. Browner, 951 F. Supp. 962, 967 (W.D. Wash. 1996).
`
`47.
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`Congress intended for TMDLs to be developed promptly, without undue delay.
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`To that end, the Ninth Circuit has adopted—and recently reaffirmed—the “constructive
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`submission” doctrine, pursuant to which a clear and unambiguous decision by a state not to
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`submit a TMDL to EPA will be construed as the constructive submission of no TMDLs, “which
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`in turn triggers the EPA’s nondiscretionary duty to act” under CWA Section 303(d)(2) by
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`COMPLAINT
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`preparing its own TMDLs instead. Columbia Riverkeeper v. Wheeler, 944 F.3d 1204, 1208 (9th
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`Cir. 2019) (citing San Francisco Baykeeper v. Whitman, 297 F.3d 877, 881 (9th Cir. 2002)). In
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`so holding, the Ninth Circuit explained that
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`Where a state has failed to develop and issue a particular TMDL for a prolonged
`period of time, and has failed to develop a schedule and credible plan for producing
`that TMDL, it has no longer simply failed to prioritize this obligation. Instead, there
`has been a constructive submission of no TMDL, which triggers the EPA’s
`mandatory duty to act.
`
`
`Id. at 1211.
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`D. Judicial Review under the Clean Water Act’s Citizen Suit Provision
`
`
`48.
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`The Clean Water Act authorizes citizen suits against the EPA Administrator
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`“where there is alleged a failure of the Administrator to perform any act or duty under this
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`chapter which is not discretionary with the Administrator.” 33 U.S.C. § 1365(a)(2).
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`49.
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`The district courts have jurisdiction over suits against the Administrator arising
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`under the citizen suit provision, and may “order the Administrator to perform such act or duty”
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`the non-performance of which is the basis for the claim. 33 U.S.C. § 1365(a).
`
`50.
`
`Regulations promulgated by EPA to implement the Clean Water Act may
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`establish for the agency a non-discretionary duty the failure to undertake of which is subject to
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`review under the citizen suit provision of the Clean Water Act where the duty is clear-cut and
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`readily ascertainable from the regulatory language.
`
`E. Judicial Review under the Administrative Procedure Act
`
`
`51.
`
`Section 702 of the Administrative Procedure Act (“APA”) provides a private
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`cause of action to any person “suffering legal wrong because of agency action, or adversely
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`affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702.
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`COMPLAINT
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`52.
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`Only final agency actions are reviewable under the APA. 5 U.S.C. § 704. Agency
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`action includes a “failure to act.” Id. § 551(13). Under the APA, a court must “hold unlawful and
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`set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse
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`of discretion, or otherwise not in accordance with law;” “in excess of statutory jurisdiction,
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`authority, or limitations, or short of statutory right;” or “without observance of procedure
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`required by law.” 5 U.S.C. § 706(2)(A), (C), (D).
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`FACTUAL BACKGROUND
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`A. Oregon’s Water Quality Standards
`
`
`53.
`
`The Oregon Department of Environmental Quality (DEQ), with oversight from
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`the Oregon Environmental Quality Commission (EQC), promulgates and implements water
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`quality standards, develops TMDLs, and issues NPDES permits for waters located within the
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`State of Oregon.
`
`54.
`
` DEQ designates the beneficial uses for Oregon fresh and marine waters. Oregon
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`beneficial uses include (1) fish and aquatic life; (2) water contact recreation; (3) fishing; (4)
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`domestic and industrial water supply; (5) boating; (6) irrigation; (7) livestock watering; (8)
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`aesthetic quality; (9) wildlife and hunting; (10) hydropower; and (11) commercial navigation and
`
`transportation.3 DEQ designates beneficial uses by hydrological basin—there are 21 in Oregon—
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`and DEQ has assigned narrative and/or numeric criteria to protect each of these designated
`
`beneficial uses.4
`
`
`3 Department of Environmental Quality, Beneficial Uses of Oregon’s Waters, OREGON.GOV.
`https://www.oregon.gov/deq/wq/Pages/WQ-Standards-Uses.aspx (Last visited July 14, 2021).
`4 Id.
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`COMPLAINT
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`55.
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`DEQ has established both numeric and narrative water quality criteria for many
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`parameters and pollutants, applicable to surface waters in Oregon. These criteria are codified at
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`OAR Chapter 340, Division 041.
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`56.
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`Oregon also has an antidegradation policy that seeks “to guide decisions that
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`affect water quality to prevent unnecessary further degradation from new or increased point and
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`nonpoint sources of pollution, and to protect, maintain, and enhance existing surface water
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`quality to ensure the full protection of all existing beneficial uses.” ORS 340-014-0004. Existing
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`uses are defined as “those uses actually attained in the water body on or after November 28,
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`1975, whether or not they are included in the water quality standards.” 40 C.F.R. § 131.3(e).
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`B. Oregon’s TMDL Pro